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Barops08 Rem Civpro

Barops08 Rem Civpro

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CIVIL PROCEDURE PART 1: JURISDICTION

DEFINITION
• Power of the court to hear an action or proceedings, and to render a judgment thereon which will bind the parties to such action/ proceeding. [Regalado] Judicial power includes the duty of the courts of justice: [Art 8, Sec. 1, Consti] 1) To settle actual controversies involving rights which are legally demandable and enforceable; 2) To determine WON there has been a GADALEJ on the part of any government branch/instrumentality.

REMEDIAL LAW II. SPECIFIC JURISDICTION
SUPREME COURT
• The judicial power shall be vested in one SC and in such lower courts as may be established by law. [Art. 8, Sec. 1, Consti]

I. PRESCRIBED JURISDICTION
• • • • Jurisdiction over a particular subject matter. Conferred only by the Constitution or by law. Determined by the allegations in the complaint. An error in jurisdiction can be raised at any time and even for the first time on appeal. [David v. Cordova (2005)] Cannot be waived; Judgment without jurisdiction is void. • Exception: Jurisdiction by estoppel. [Soliven v. Fastforms (2004)] • Rationale: To prohibit parties from accepting judgments of court only if favorable to them. Cannot be the subject of compromise [Art. 2035, CC] Once attached to a court, cannot be ousted by subsequent statute. • Exception: The statute itself conferring new jurisdiction expressly provides for retroactive effect. [Southern Food v. Salas (1992)] The filing of the complaint or appropriate initiatory pleading and the payment of the prescribed docket fee vest a trial court with jurisdiction over the subject matter or the nature of the action. • Exception: The court may allow payment of the fee within a reasonable time, but in no case beyond the applicable prescriptive period. [IBP v. Legasto (2006)]

• •

SC’S POWERS [Art. 8, Sec. 5, Consti] 1) Have original jurisdiction over: a) Cases affecting ambassadors and other public ministers and consuls; b) Petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. 2) Review/revise/reverse/modify/affirm on appeal or certiorari, final judgments/orders of lower courts on: a) Constitutionality/validity of any treaty, international or executive agreement, law, presidential decree/proclamation/order/ instruction, ordinance or regulation; b) Legality of any tax/impost/assessment/toll, or any penalty imposed in relation thereto; c) Any lower court’s jurisdiction; d) Criminal cases where the penalty imposed is reclusion perpetua or higher; e) Only errors/questions of law are involved. • Exception: [Josefa v. Zhandong (2003)] (1) The conclusion is grounded on speculations/surmises/conjectures; (2) The inference is manifestly mistaken/absurd/impossible; (3) There is GAD; (4) The judgment is based on a misapprehension of facts; (5) The findings of fact are conflicting; (6) There is no citation of specific evidence on which the factual findings are based; (7) The finding of absence of facts is contradicted by the presence of evidence on record; (8) The CA’s findings are contrary to those of the trial court; (9) The CA manifestly overlooked certain relevant and undisputed facts that, if properly considered, would justify a different conclusion; (10) The CA’s findings are beyond the issues of the case; (11) The CA’s findings are contrary to the admissions of both parties. 3) Temporarily assign judges of lower courts to other stations as public interest may require, which shall not 6 six months without the consent of the judge concerned. 4) Order a change of venue or place of trial to avoid a miscarriage of justice. 5) Promulgate rules on: a) Protection and enforcement of constitutional rights; b) Pleading/practice/procedure in all courts; c) Admission to the practice of law; d) The integrated bar; e) Legal assistance to the under-privileged. • Guidelines on the rules: (1) Simplified and inexpensive procedure for the speedy disposition of cases; (2) Uniform for all courts of the same grade;

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CIVIL PROCEDURE
(3) Not diminish/increase/modify substantive rights. 6) Appoint all Judiciary officials/EEs in accordance with the Civil Service Law. CONSTITUTIONAL COMMISSSIONS • General rule: Decisions/orders/rulings of constitutional commissions (CSC, COMELEC and COA) may be brought to the SC on certiorari by the aggrieved party, within 30 days from receipt of copy. [Art. 9-A, Sec. 7, Consti] • Exception: If otherwise provided by the Constitution or by law. • CSC judgments/decisions/orders are within the exclusive appellate jurisdiction of the CA through Rule 43. [RA 7902] • CTA judgments/decisions are now appealable by petition for review on certiorari to the SC. [RA 9282]

REMEDIAL LAW
EXCLUSIVE ORIGINAL JURISDICTION IN CIVIL CASES [Sec. 19, BP 129] 1) Incapable of pecuniary estimation; • If the action is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and jurisdiction over the action will depend on the amount of the claim. [RCPI v. CA (2002)] • If the basic issue is something other than the right to recover a sum of money, if the money claim is purely incidental to, or a consequence of, the principal relief sought, the action is one where the subject of the litigation may not be estimated in terms of money. [Soliven v. Fastforms (1992)] • If the thing sought to be deposited or consigned is a sum of money, the amount of the debt due is determinable and capable of pecuniary estimation. [Ascue v. CA (1991)] • Action for support is incapable of pecuniary estimation because the court is asked to determine first WON the plaintiff is indeed entitled to support. [Baito v. Sarmiento (1960)] • Action for specific performance is incapable of pecuniary estimation. [Manufacturer’s Distributor’s v. Yu Siu Liong (1966)] • The jurisdiction of the respective courts is determined by the value of the demand and not the value of the transaction out of which the demand arose. The alternative prayer for specific performance is also of the same value, for the alternative prayers would not have been made in the complaint if one was more valuable than the other. [Cruz v. Tan (1950)] • Rescission is a counterpart of specific performance therefore also incapable of pecuniary estimation. [Lapitan v. Scandia (1968)] • Action for declaration of nullity of a deed of partition is incapable of pecuniary estimation. [Russel v. Vestil (1999)] • An action for expropriation is incapable of pecuniary estimation. [Bardillon v. Masili (2003)] 2) Title to, or possession of, real property (or any interest therein) where the property’s assessed value exceeds P20K or P50K (for civil actions in Metro Manila); • Exception: Forcible entry into and unlawful detainer of lands/buildings. 3) Admiralty and maritime jurisdiction where the demand/claim exceeds P300K or P400K (in Metro Manila); • Maritime and admiralty cases involve trade and transactions in the sea. Maritime jurisdiction includes maritime tort. [Negre v. Cabahug (1966)] 4) Probate (testate and intestate) where the gross value of the estate exceeds P300K or P400K (in Metro Manila); 5) Marriage contract and marital relations; 6) GENERAL ORIGINAL JURISDICTION - All cases not within the exclusive jurisdiction of any court/tribunal/person/body exercising judicial or quasi-judicial functions; 7) Within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations; 8) All other cases where the demand (exclusive of interest, damages of whatever kind, attorney's

COURT OF APPEALS [Sec. 9, BP 129]
ORIGINAL JURISDICTION • Mandamus, prohibition, certiorari, habeas corpus and quo warranto, and auxiliary writs/processes, WON in aid of its appellate jurisdiction. EXCLUSIVE ORIGINAL JURISDICTION • Annulment of RTC judgments. EXCLUSIVE APPELLATE JURISDICTION • Final judgments/decisions/resolutions/orders/ awards of: 1) RTC; 2) Quasi-judicial agencies/instrumentalities/ boards/commissions including: a) SEC; b) Social Security Commission; c) ECC; d) CSC. • Exception: Those falling within the SC’s appellate jurisdiction of the Supreme Court in accordance with: (1) The Constitution; (2) Labor Code; (3) BP 129; (4) Sec. 17, Par. 3(1) and Par. 4(4) of the Judiciary Act of 1948. • Supposed appeals from the NLRC to the SC are interpreted and hereby declared to mean and refer to petitions for certiorari under Rule 65. All such petitions should henceforth be initially filed in the CA in strict observance of the doctrine on the hierarchy of courts as the appropriate forum for the relief desired. [St. Martin’s Funeral Home v. NLRC (1998)] POWERS 1) Try cases; 2) Conduct hearings; • Trials/hearings must be continuous and must be completed within 3 months, unless extended by the Chief Justice. 3) Receive evidence; 4) Any and all acts necessary to resolve factual issues raised, including the power to grant and conduct new trials or further proceedings.

REGIONAL TRIAL COURTS

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CIVIL PROCEDURE
fees, litigation expenses and costs) or the value of the property in controversy exceeds P300K or P400K in Metro Manila. • The exclusion of the term “damages of whatever kind” in determining the jurisdictional amount under Sec. 19(8) and Sec. 33 (1) of BP 129, as amended by RA 7691, applies to cases where the damages are merely incidental to or a consequence of the main cause of action. However, if the claim for damages is the main cause of action, or one of the causes of action, the amount of such claim shall be considered in determining the jurisdiction of the court. [Admin Circ. 09-94] • Actions for damages based on quasidelicts are primarily and effectively actions for the recovery of a sum of money for the damages suffered because of the defendant’s alleged tortious acts. This money claim is the principal relief sought, and is not merely incidental thereto or a consequence thereof. [Iniego v. Purganan (2006)] ORIGINAL JURISDICTION [Sec. 21, BP 129] 1) Certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any part of their respective regions; 2) Actions affecting ambassadors and other public ministers and consuls. APPELLATE JURISDICTION [Sec. 22, BP 129] • All cases decided by MeTCs/MTCs/MCTCs in their respective territorial jurisdictions.

REMEDIAL LAW
therein) where the assessed value of the property (or interest therein) does not exceed P20K or P50K (in civil actions in Metro Manila). DELEGATED JURISDICTION IN CADASTRAL AND LAND REGISTRATION CASES [Sec. 34, BP 129] 1) Lots where there is no controversy/opposition; 2) Contested lots the value of which does not exceed P100K. • The value is to be ascertained: a) By the claimant’s affidavit; b) By agreement of the respective claimants, if there are more than one; c) From the corresponding tax declaration of the real property. • MTC decisions in cadastral and land registration cases are appealable in the same manner as RTC decisions.

KATARUNGANG PAMBARANGAY
• Purpose: To reduce the number of court litigations and prevent the deterioration of the quality of justice which has been brought about by the indiscriminate filing of cases in the courts. [Lumbuan v. Republic (2006)] General rule: Authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all disputes. [Sec. 480, RA 7160] • Exception: 1) If one party is the government; 2) If one party is a public officer/EE and the dispute relates to the performance of his official functions; 3) Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5K; 4) Offenses with no private offended party; 5) Real properties located in different cities/municipalities; • Exception to exception: Parties agree to submit their differences to amicable settlement by an appropriate lupon. 6) Parties who actually reside in barangays of different cities/municipalities; • Exception to exception: If such barangay units adjoin each other and the parties agree to submit their differences to amicable settlement by an appropriate lupon. 7) Such disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice.

METROPOLITAN, MUNICIPAL AND MUNICIPAL CIRCUIT TRIAL COURTS
EXCLUSIVE ORIGINAL JURISDICTION [Sec. 33, BP 129] 1) Civil actions and probate proceedings (testate and intestate), including the grant of provisional remedies, where the value of the personal property, estate or amount of the demand does not exceed P300K or P400K (in Metro Manila); • Interest, damages of whatever kind, attorney's fees, litigation expenses and costs shall be included in the determination of the filing fees. • If there are several claims or causes of actions between the same/different parties in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, WON the causes of action arose out of the same/different transactions. 2) Forcible entry and unlawful detainer; • If the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. • That the MeTC has jurisdiction even in cases where the issue of possession is closely intertwined with the issue of ownership is now a settled doctrine in ejectment proceedings. [Heirs of B. Hernandez v. Vergara (2006)] 3) All civil actions that involve title to, or possession of, real property (or any interest

VENUE [Sec. 409, RA 7160]
Disputes between persons actually residing in the same barangay Disputes between actual residents of different barangays within the same city/municipality Disputes on real property (or any interest therein) Their barangay

Barangay where the respondent (or any of the respondents) actually resides, at the complainant's election Barangay where the real property (or the larger portion thereof) is situated

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CIVIL PROCEDURE
Disputes arising at the Barangay where the workplace or at the workplace or institution is institution where the parties located are enrolled

REMEDIAL LAW PART 2: ORDINARY CIVIL ACTIONS I. PRELIMINARIES

PROCEDURE FOR AMICABLE SETTLEMENT [Sec. 410, RA 7160] • Any individual who has a cause of action against another individual may complain (orally or in writing) to the barangay’s lupon chairperson. • Within the next working day, the lupon chairperson shall summon the respondents, with notice to the complainants, for them and their witnesses to appear before him for mediation. If the mediation effort fails within 15 days from the 1st meeting, he shall set a date for the constitution of the pangkat. • While the dispute is under mediation, the prescriptive periods for offenses and causes of action shall be interrupted upon filing the complaint with the punong barangay. Such interruption shall not exceed 60 days from the filing of the complaint with the punong barangay. • The prescriptive periods shall resume upon receipt by the complainant of the complaint or the certificate of repudiation or of the certification to file action issued by the lupon or pangkat secretary. • The pangkat shall arrive at a settlement/resolution of the dispute within 15 days from the day it convenes, extendible for another period which shall not exceed 15 days, except in clearly meritorious cases. EFFECT [Sec. 416, RA 7160] • General rule: Same as a court’s final judgment, upon the expiration of 10 days from the date thereof. • Exception: 1) If the settlement was repudiated: • By any party, within 10 days from the date of the settlement; • By filing with the lupon chairperson a statement to that effect, sworn to before him; • Where the consent is vitiated by fraud/violence/intimidation; • Where there is sufficient basis for the issuance of the certification for filing a complaint. 2) If a petition to nullify the award was filed before the proper city/municipal court. EXECUTION [Sec. 417, RA 7160] • By the lupon, within 6 months from the date of the settlement. • After the lapse of the 6 months, by action in the appropriate city/municipal court.

A. ACTIONS, IN GENERAL
DEFINITION
• ACTION – An ordinary suit in a court of justice by which one party prosecutes another for the enforcement/protection of a right or the prevention/redress of a wrong.

KINDS OF ACTIONS 1) CRIMINAL ACTION – One by which the State prosecutes a person for an act/omission punishable by law. [Rule 1, Sec. 3(b)] 2) CIVIL ACTION – One by which a party prosecutes another for the enforcement/protection of a right or the prevention/redress of a wrong. [Rule 1, Sec. 3(a)] a) Ordinary; b) Special.
Action As to parties Involves 2 or more parties Special Proceeding Involves at least 1 party or 2 or more parties in proper cases May involve a right, but there need not be a violation of this right

As to cause of action

As to formalities

As to governing rules As to appeal from an interlocutory order

Involves a right and a violation of such right by the defendant which causes some damage/prejudice upon the plaintiff Requires the application of legal remedies in accordance with the prescribed rules Ordinary rules of procedure Cannot be directly and immediately appealed to the appellate court until after final judgment on the merits

Requires no such formalities, as it may be granted upon application

Special rules of procedure Can be immediately and directly appealed to the appellate court

CLASSIFICATION OF ACTIONS • As to nature:
Special civil action Also governed by ordinary rules but subject to specifically prescribed rules (Rules 62 to 71)

Ordinary civil action Governed by ordinary rules

As to object:

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As to cause:
Real action Ownership or possession of real property is involved Personal action Personal property is sought to be recovered or damages for breach of contract are sought Founded on privity of contract Filed in the court where the plaintiff or any of the defendants resides, at the plaintiff’s option Ex: Action for a sum of money Mixed action Both real and personal properties are involved Action in rem Directed against the thing itself Jurisdiction over the person of the defendant is not required

REMEDIAL LAW
Action in personam Directed against particular persons Jurisdiction over the person of the defendant is required Action quasi in rem Directed against particular persons Jurisdiction over the person of the defendant is not required as long as jurisdiction over the res is acquired A proceeding to subject the interest of a named defendant over a particular property to an obligation/lien burdening it Judgment is binding upon particular persons

Founded on privity of real estate Filed in the court where the property (or any portion thereof) is situated Ex: Accion reivindicatoria

Founded on both The rules on venue of real actions govern

A proceeding to determine the state/ condition of a thing

An action to impose responsibility/ liability upon a person directly

Ex: Accion publiciana with a claim for damages

Judgment is binding on the whole world

As to place of filing:
Local action One that could be instituted in one specific place Transitory action One that could be prosecuted in any one of several places

Ex: Accion reivindicatoria; annulment of marriage; naturalization proceedings

Judgment is binding only upon parties impleaded or their successors in interest Ex: Action for specific performance; action to recover money or property (real or personal)

Ex: Action for partition; action to foreclose real estate mortgage

B. CAUSE OF ACTION
DEFINITION
• CAUSE OF ACTION – The act/omission by which a party violates a right of another. [Rule 2, Sec. 2]

man shall be twice vexed for one and the same cause); 3) To avoid the costs and expenses incident to numerous suits. EFFECTS OF SPLITTING A CAUSE OF ACTION [Rule 2, Sec. 4] 1) Filing of the 1st complaint may be pleaded in abatement of the 2nd complaint, on the ground of litis pendentia; or 2) A judgment upon the merits in any of the complaints is available as a bar in the others, on ground of bar by former judgment or res judicata. 3) A MTD under Rule 16 Sec. 1(e) or (f) may be filed in order that the complaint may be dismissed. • A single act/omission can be violative of various rights at the same time, as when the act constitutes juridically a violation of several separate and distinct legal obligations. However, where there is only one delict/wrong, there is but a single cause of action regardless of the number of rights that may have been violated belonging to one person. The singleness of a cause of action lies in the singleness of the delict/wrong violating the rights of a person. If only 1 injury resulted from several wrongful acts, only 1 cause of action arises. [Joseph v. Bautista (1989)] For a single cause of action or violation of a right, the plaintiff may be entitled to several reliefs. It is the filing of separate complaints for these several reliefs that constitutes splitting up of the cause of action which is proscribed by Rule 2, Sec. 3 and 4. [City of Bacolod v. SM Brewery (1969)]

ELEMENTS OF A CAUSE OF ACTION 1) Plaintiff’s legal right; 2) Defendant’s correlative obligation to respect plaintiff’s right; 3) Defendant’s act/omission in violation of plaintiff’s right. • • Every ordinary civil action must be based on a cause of action [Rule 2, Sec. 1] A cause of action stems from the sources of obligations under Art. 1156, CC (law, contract, quasi-contract, acts and omissions punishable by law and quasi-delict).

SPLITTING OF CAUSE OF ACTION
• Definition: The act of dividing a single or indivisible cause of action into several parts or claims and bringing several actions thereon. It is not allowed. A party may not institute more than one suit for a single cause of action. [Rule 2, Sec. 3] • Purpose: [City of Bacolod v. SM Brewery] 1) To prevent repeated litigation between the same parties in regard to the same subject or controversy; 2) To protect the defendant from unnecessary vexation. Nemo debet vexare pro una et eadem causa (No

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CIVIL PROCEDURE
JOINDER OF CAUSES OF ACTION
• If the plaintiff has several causes of action against the same defendant, he may join them all in a single complaint, although he is not obligated to do so. The joinder of causes of action is not compulsory but purely permissive as the plaintiff can always file separate actions for each cause of action.

REMEDIAL LAW
(2) A political party incorporated under Act 1459 [now BP 68 (Corporation Code)]; (3) A registered labor union [Sec. 243, PD 442 (Labor Code)], with respect to its property. 2) He must have the legal capacity to sue; 3) He must be the real party in interest.

REQUISITES FOR JOINDER OF CAUSES OF ACTION [Rule 2, Sec. 5] 1) The party joining the causes of action must comply with the rules on joinder of parties; 2) The joinder shall not include special civil actions or actions governed by special rules; 3) Where causes of action are between the same parties but pertain to different venues/jurisdictions, the joinder may be allowed in the RTC provided one of the causes of action are within the RTC’s jurisdiction and the venue lies therein; 4) TOTALITY RULE - 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. • Note: The Totality Rule under Rule 2, Sec. 5 seems to be inconsistent with the Totality Rule under BP 129. Under the latter, where there are several claims or causes of actions between the same/different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all causes of actions, irrespective of whether the causes of action arose out of the same/different transactions. Remember that in statutory construction, in case of conflict, substantive law prevails over procedural laws.
Splitting of cause of action There is a single cause of action Prohibited It causes multiplicity of suits and double vexation on the part of the defendant Joinder of causes of action Contemplates several causes of action Encouraged It minimizes multiplicity of suits and inconvenience to the parties

The rule is that only natural or juridical persons or entities authorized by law may be parties in a civil case. A sole proprietorship is not vested with juridical personality and cannot sue or file or defend an action. There is no law authorizing sole proprietorship to file a suit. A sole proprietorship does not possess a judicial personality separate and distinct from the personality of the owner of the enterprise. [Berman v. Cheng (2005)] An unlicensed foreign corporation is nonetheless permitted to bring suit in the Philippines if it is suing on an isolated transaction. Thus, the ascertainment of whether a foreign corporation is merely suing on an isolated transaction or is actually doing business in the Philippines requires the elicitation of at least a preponderant set of facts. [Rimbunan v. Oriental (2005)] • Note: A foreign corporation may be party to an action in Philippine courts: 1) If licensed to engage in business in the Philippines, it may sue or be sued in our courts; 2) If not licensed, it cannot sue, but it may be sued in our courts; 3) If not engaged in business in the Philippines, it may sue in courts on a single isolated transaction, but it cannot be sued in our courts on such a transaction. The Roman Catholic Church has legal capacity to sue. [Barlin v. Ramirez]
Lack of legal capacity to sue The plaintiff’s general disability to sue, such as on account of minority, insanity, incompetence, lack of juridical personality or any other general disqualifications It can be a ground for a MTD Lack of legal personality to sue The plaintiff is not the real party in interest

MISJOINDER OF CAUSES OF ACTIONS [Rule 2, Sec. 6] • Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined cause of action may, on motion or motu propio, be severed and proceeded with separately. • There is no sanction against non-joinder of separate causes of action since a plaintiff needs only a single cause of action to maintain an action.

It can be used a ground for a MTD based on the fact that the complaint’s face states no cause of action.

PARTIES TO A CIVIL ACTION

C. PARTIES
REQUIREMENTS FOR A PERSON TO BE A PARTY TO A CIVIL ACTION 1) He a) b) c) must be either: A natural person; A juridical person; or An entity authorized by law. (1) The estate of a deceased person;

1) PLAINTIFF – One having interest in the matter of the action or in obtaining the relief demanded. 2) DEFENDANT – One claiming an interest in the controversy or the subject thereof adverse to the plaintiff. The term may also include: a) UNWILING CO-PLAINTIFF – A party who should be joined as plaintiff but whose consent cannot be obtained. He may be made a defendant and the reason therefore shall be stated in the complaint. [Rule 3, Sec. 10]

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b) The original plaintiff becoming a defendant to the original defendant’s counterclaim; c) One necessary to a complete determination or settlement of the questions involved. •

REMEDIAL LAW
Objections to defects in parties should be made at the earliest opportunity. The moment such defect becomes apparent, a motion to strike the names of the parties must be made. Objections to misjoinder cannot be raised for the first time on appeal. If a necessary party is not joined, the pleading shall set forth his name (if known) and shall state reason why he is omitted. If court finds the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. Failure to comply with the order for inclusion, without justifiable cause, is deemed a waiver of the claim against such party. [Rule 3, Sec. 9] Note: In Oposa v. Factoran, the minors (represented by their parents) were held as real parties in interest under the principle of intergenerational responsibility. This doctrine is inconsistent with Rule 3, Sec. 1 which provides that only natural or juridical persons may be parties in a civil action.

CLASSIFICATION OF PARTIES
• 1) REAL PARTY IN INTEREST - [Rule 3, Sec. 2] a) The party who stands to be benefited/injured by the judgment in the suit; b) The party entitled to the avails of the suit. • The party’s interest must be direct, substantial and material. • Husband and wife shall sue and be sued jointly, except as provided by law [Rule 3, Sec. 4] • 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. [Rule 3, Sec. 5] 2) REPRESENTATIVE PARTY – [Rule 3, Sec. 3] • Those acting in fiduciary capacity, such as a trustee/guardian/executor/administrator or a party authorized by law or ROC. • The beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. • An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal. • Exception: If the contract involves things belonging to the principal. [Art. 1883, CC] KINDS OF PARTIES IN INTEREST
Indispensable parties [Rule 3, Sec. 7] Must be joined under any and all conditions, his presence being a sine qua non for the exercise of judicial power No valid judgment if indispensable party is not joined. Necessary parties [Rule 3, Sec. 8] Should be joined whenever possible; the action can proceed even in their absence

KINDS OF JOINDERS OF PARTIES
1) Compulsory joinder of indispensable parties; [Rule 3, Sec. 7] 2) Permissive joinder of necessary parties; [Rule 3, Sec. 8] 3) Permissive joinder of parties simple (on a common question of law or fact); [Rule 3, Sec. 6] 4) Class suit. [Rule 3, Sec. 12] 5) Alternative defendants; [Rule 3, Sec. 13] PERMISSIVE JOINDER [Rule 3, Sec. 6] • Parties can be joined, as plaintiffs or defendants, in one single complaint or may themselves maintain or be sued in separate suits. • Requisites: 1) Right to relief arises out of the same transaction or series of transactions; • SERIES OF TRANSACTIONS – Transactions connected with the same subject matter of the suit. 2) There is a question of law or fact common to all the plaintiffs or defendants; 3) Such joinder is not otherwise proscribed by the rules on jurisdiction and venue. CLASS SUIT [Rule 3, Sec. 12] • Requisites: 1) Subject matter of the controversy is one of common/general interest to many persons; 2) The persons are so numerous that it is impracticable to join them all as parties (i.e. impracticable to bring them all before the court); 3) Parties brinqinq the class suit are sufficiently numerous and representative of the class and can fully protect the interests of all concerned; 4) The representative sues/defends for the benefit of all. • Rule 12, Sec. 3 contemplates an exceptional situation where there are numerous persons all in the same plight and all together instituting a constituency whose presence in the litigation is absolutely indispensable to the administration of justice. The strict application of the rule as to indispensable parties would require that each

They are those with such an interest in the controversy that a final decree would necessarily affect their rights so that the court cannot proceed without their presence.

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 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.

Rule 3, Sec. 2 requires that an action must be brought in the name of, but not necessarily by, the real party in interest. In fact, the practice is for an attorney-in-fact to bring an action. [Tuason v. Bolanos] Neither misjoinder nor non-joinder of parties is ground for dismissal of the action. [Rule 3, Sec. 11] Non-joinder of an indispensable party is not a ground for outright dismissal. Reasonable opportunity must be given for his inclusion by amendment of the complaint.

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CIVIL PROCEDURE
one in the class be present. In the class suit, representation of class interest which will be affected by the judgment is indispensable, but it is not indispensable to make each member of the class an actual party. If a class suit is improperly brought, the action is subject to dismissal regardless of the cause of action. 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] In a class suit, any party in interest shall have the right to intervene to protect his individual interest.
Class suit There is a single cause of action pertaining to numerous persons. Permissive joinder of parties There are multiple causes of action separately belonging to several persons.

REMEDIAL LAW
business maintained under such name. [Rule 14, Sec. 8]

SUBSTITUTION OF PARTIES
1) Death of a party, where the claim is not extinguished by the death of the party (e.g. cases involving property and property rights); [Rule 3, Sec. 16] • In this case, the heirs will be substituted for the deceased or if no legal representative is named, the court will order the opposing party to procure the appointment of an executor or administrator for the estate. • 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. • When a party to a pending action dies and the claim is not extinguished, it is the counsel’s duty to: a) Inform court within 30 days after such death of the fact thereof; b) Give the name and address of the legal representatives. • Failure to comply with this duty is a ground for disciplinary action. 2) Death or separation of a party who is a public officer; [Rule 3, Sec. 17] • Requisites: a) Public officer is a party to an action in his official capacity; b) During the pendency of the action, he either dies/resigns or otherwise ceases to hold office; c) It is satisfactorily shown to the court by any party, within 30 days after the successor takes office, that there is a substantial need to continue/maintain the action; d) The successor adopts/continues (or threatens to do so) his predecessor’s action; e) The party or officer affected was given reasonable notice of the application therefore and accorded an opportunity to be heard. 3) Incompetency/incapacity; [Rule 3, Sec. 18] • If a party becomes incompetent/ incapacitated during the pendency of the action, the action survives and may be continued by/against the incompetent/ incapacitated assisted by his legal guardian or guardian ad litem. 4) Transfer of interest during the pendency of the action. [Rule 3, Sec. 18] • General rule: The rule does not consider the transferee an indispensable party. Hence, the action may proceed without the need to implead him. • Exception: When the substitution by or joinder of the transferee is ordered by court. • The case will be dismissed if the plaintiff’s interest is transferred to defendant unless there are several plaintiffs, in which case the remaining plaintiffs can proceed with their own cause of action.

ALTERNATIVE DEFENDANTS [Rule 3, Sec. 13] • Where the plaintiff is uncertain against whom of several persons he is entitled to relief, he may join any or all of them in the alternative, although a right to relief against one may be inconsistent with a right to relief against the other.

UNKNOWN IDENTITY OR NAME OF DEFENDANT [Rule 3, Sec. 13]
• Rules and requisites: 1) There is a defendant; 2) His identity or name is unknown; 3) A fictitious name may be used because of ignorance of defendant's true name and said ignorance is alleged in the complaint; 4) An identifying description may be used (e.g. as unknown owner/heir/devisee); 5) Pleading is amended when the identity or true name is discovered; 6) The unknown defendant is the defendant being sued, not a mere additional defendant. Service of summons upon a defendant whose identity is unknown may be made by publication in a newspaper of general circulation in accordance with Rule 14, Sec. 14. However, the action must be converted into an action in rem or quasi in rem by attaching the defendant's property in the Philippines.

ENTITY WITHOUT JURIDICAL PERSONALITY AS DEFENDANT [Rule 3, Sec.
15] • Requisites: 1) There are 2 or more persons not organized as a juridical entity; 2) They enter into a transaction; 3) A wrong is committed against a 3rd person in the course of such transaction. • Persons associated in an entity without juridical personality may be sued under the name by which they are generally/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

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REMEDIAL LAW

ACTION ON CONTRACTUAL MONEY CLAIMS [Rule 3, Sec. 20]
• Requisites: 1) The action must primarily be for recovery of money/debt or interest thereon; 2) The claim arose from express/implied contract; 3) Defendant dies before the entry of final judgment in the court in which the action was pending. The defendant’s death will not result in the dismissal of the action. The deceased shall be substituted by his legal representatives in the manner provided for in Rule 3, Sec. 16, and the action will continue until the entry of final judgment. However, execution shall not issue in favor of the winning plaintiff. It should be filed as a claim against the decedent’s estate without need of proving the claim.

PROPER VENUES
1) Real actions – Where the real property (or any portion thereof) is located. [Rule 4, Sec. 1] • If the property is located at the boundaries of 2 places, file the case in either place (at the plaintiff’s option). • If the case involves 2 properties located in 2 different places: • If the properties are the object of the same transaction, file it in any of the 2 places; • If they are the objects of 2 distinct transactions, separate actions should be filed in each place unless properly joined. 2) Personal actions – At the plaintiff’s election: [Rule 4, Sec. 2] a) Where the plaintiff or any of the principal plaintiffs resides; b) Where the defendant or any of the principal defendants resides; c) In case of a non-resident-defendant, where he may be found. 3) Actions against non-residents – a) Non-resident found in the Philippines – (1) For personal actions – Where the plaintiff resides; (2) For real actions – Where the property is located. b) Non-resident not found in the Philippines – An action may be filed only when the case involves: (1) Personal status of plaintiff - Where plaintiff resides; (2) Any property of said defendant located in the Phil. - Where the property (or any portion thereof) is situated/found. • Actions in personam/in rem refers to the binding effect of the judgment. Real/personal action, on the other hand refers to venue. Where several/alternative reliefs are prayed for in the complaint, the nature of the action as real or personal is determined by the primary object of the suit or by the nature of the principal claim. Thus, where the purpose is to nullify the title to real property, the venue of the action is in the province where the property lies, notwithstanding the alternative relief sought, recovery of damages, which is predicated upon a declaration of nullity of the title. The venue of an action for review of an administrative decision regarding real property is the court of the province where the officer who rendered the decision holds office, and not the province where his real property is situated. The Court may not motu propio dismiss an action on the ground of improper venue. [Dacoycoy v. IAC] • Exception: In summary procedures. The SC has the power to change the venue to prevent a miscarriage of justice. [Art. 8, Sec. 5, Consti]

INDIGENT PARTY [Rule 3, Sec. 21]
• INDIGENT – One who has no money or property sufficient and available for food, shelter and basic necessities. He need not be a pauper to entitle him to litigate in forma pauperis. 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. If one is authorized to litigate as an indigent, the authority shall include an exemption from: 1) Payment of docket fees; 2) Payment of TSN. The amount of docket and other lawful fees is a lien on any judgment rendered in favor of indigent party, unless court otherwise provides.

NOTICE TO THE SOLICITOR GENERAL [Rule
3, Sec. 21] • The court may require appearance of the OSG in actions involving validity of any treaty, law, ordinance, EO, PD, rules or regulations.

D. VENUE OF ACTIONS
DEFINITION
• VENUE – Place of trial or geographical location in which an action/proceeding should be brought.
Jurisdiction Power of the court to hear and decide a case Jurisdiction over the subject matter and over the nature of the action is conferred by law and cannot-be waived Substantive Cannot be the subject of the agreement of the parties

Venue Place where the action is instituted May be waived

WAIVER OF VENUE
• Until and unless the defendant objects to the venue in a motion to dismiss prior to a responsive pleading, the venue cannot truly be

Procedural May be changed by the written agreement of the parties

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said to have been improperly laid since for all intents and purposes, the venue though technically wrong may yet be considered acceptable to the parties for whose convenience the rules on venue had been devised. Although venue is mandatory, it is waivable. [Diaz v. Adiong] MEANS OF WAIVING VENUE 1) Affirmative relief sought in the court where the case is filed; 2) Voluntary submission to the court where the case is filed; 3) Failure to object via MTD; 4) Laches.

REMEDIAL LAW II. PLEADINGS
DEFINITION
• They are the written statements of the respective claims and defenses of the parties, submitted to the court for appropriate judgment [Rule 6, Sec. 1] A MTD 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 Purpose: To submit a claim/defense for appropriate judgment May be initiatory Motion Purpose: To apply for an order not included in the judgment Cannot be initiatory as they are always made in a case already filed in court. May be filed even after judgment Many kinds of motion are allowed

INAPPLICABILITY OF THE RULE ON VENUE [Rule 4, Sec. 4]
1) If a specific rule/law provides otherwise (e.g. action for damages arising from libel); 2) If the parties have validly agreed in writing, before the filing of the action, on the exclusive venue thereof. • In the absence of qualifying restrictive words (e.g. “only/solely/exclusively in such court”), venue stipulation is merely permissive; that is, the stipulated venue is in addition to the venue provided for in the rules. [Polytrade Corp. v. Blanco]

Always filed before judgment Only 9 kinds of pleading are allowed by the ROC

PLEADINGS ALLOWED [Rule 6, Sec. 2] 1) Complaint; 2) Counterclaim; 3) Cross-claim; 4) 3rd-party Complaint, 5) Complaint-in-intervention; 6) Answer; 7) Reply; 8) Counter-counterclaim; 9) Counter-crossclaim.

PARTS OF A PLEADING [Rule 7]
1) CAPTION – Court’s name, action’s title (i.e. parties’ names) and docket number. 2) BODY – Pleading’s designation, allegations of party's claims/defenses, relief prayed for and pleading’s date. • Paragraphs must be numbered, and each paragraph number must contain a single set of circumstances • Headings: if more than one cause of action, use "1st cause of action," 2nd cause of action," etc. • Specify relief sought, but it may add a general prayer for such further/other relief as may be deemed just/equitable. • Every pleading shall be dated. 3) Pleading must be signed by the party/counsel. State address (not PO box) in either case. • Counsel’s signature is a certification that: a) He has read the pleading; b) To the best of his knowledge, information and belief there is good ground to support it; c) It is not interposed for delay. • An unsigned pleading produces no legal effect. However, the court may allow such deficiency to be remedied if it shall appear that the same was due to inadvertence and not intended for delay. DISCIPLINARY ACTION ON COUNSEL REGARDING PLEADINGS 1) Deliberately filing an unsigned pleading; 2) Deliberately signing a pleading in violation of the Rules;

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3) Alleging scandalous/Indecent matter in the pleading; 4) Failing to promptly report a change of his address. •

REMEDIAL LAW
Definition: The pleading alleging the plaintiff’s cause/s of action. It should contain a concise statement of the ultimate facts constituting the plaintiff’s cause/s of action, not evidentiary facts or legal conclusions. It shall contain in a methodical and logical form a plain, concise and direct statement of ultimate facts on which the plaintiff relies for his claim, omitting statement of mere evidentiary facts. Its function is to inform the defendant clearly and definitely of claims made against him so that he may be prepared to meet the issues at trial. It should inform the defendant of all material facts on which the plaintiff relies to support his demand. It should state the theory of a cause of action which forms the bases of plaintiff’s claim of liability. [Tantuico v. Republic (1991)] 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. • Not ultimate facts: 1) Evidentiary or immaterial facts; 2) Legal conclusions, conclusions or inferences of facts from facts not stated, or incorrect inferences or conclusions from facts stated; • Conclusions of law alleged in the complaint are not binding on the court. 3) The details of probative matter or particulars of evidence, statements of law, inferences and arguments.

VERIFICATION [Rule 7, Sec. 4]
• Pleadings need not be verified, unless otherwise provided by the law/rules.

HOW A PLEADING IS VERIFIED • By an affidavit that: 1) That the affiant read the pleading; 2) That the allegations therein are true and correct of his personal knowledge or based on authentic documents.

CERTIFICATION OF NON-FORUM SHOPPING (CNFS) [Rule 7, Sec. 5]
• Definition: The filing of multiple suits in different courts, simultaneously or successively, involving the same parties, to ask the courts to rule on the same/related causes and/or to grant the same or substantially the same relief.

TEST TO DETERMINE WON THERE IS FORUM SHOPPING • WON in the 2 or more cases pending, there is identity of: 1) Parties; 2) Rights or causes of action; 3) Relief sought. • • CNFS is to be executed by the petitioner, not by the counsel. CNFS is required only for complaints or initiatory pleadings (e.g. permissive counterclaim, cross-claim etc.). • CNFS is not required in a compulsory counterclaim. A counterclaim is not an initiatory pleading. [UST Hospital v. Surla] Failure to comply is not curable by mere amendment of the pleading but shall be cause for the dismissal of the case, without prejudice and upon motion and after hearing, unless otherwise provided. 4)

TEST OF SUFFICIENCY OF THE FACTS ALLEGED IN THE COMPLAINT • WON upon the averment of facts, a valid judgment may be properly rendered.

2. ANSWER [Rule 6, Sec. 4]
• Definition: The pleading where the defendant sets forth his affirmative/negative defenses. It may also be the response to a counterclaim or a cross-claim.

EFFECT OF SUBMISSION OF FALSE CNFS OR NONSUBMISSION OF CNFS 1) Indirect contempt; 2) Administrative and criminal actions. EFFECT OF WILFUL AND DELIBERATE FORUM SHOPPING 1) Ground for summary dismissal of the case with prejudice; 2) Direct contempt and administrative sanctions. • Pleadings as well as remedial laws should be liberally construed in order that the litigant may have ample opportunity to prove their respective claims, and possible denial of substantial justice, due to technicalities, may be avoided. [Gerales v. CA (1993)]

DIFFERENT PLEADINGS 1. COMPLAINT [Rule 6, Sec. 3]

TWO KINDS OF DEFENSES THAT MAY BE SET FORTH IN THE ANSWER: 1) AFFIRMATIVE DEFENSES – Allegations of new matters which, while hypothetically admitting the material allegations in the claimant’s pleading, would nevertheless prevent/bar recovery by him. It includes fraud, prescription, release, payment and any other matter by way of confession and avoidance. 2) NEGATIVE DEFENSES – Specific denials of the material facts alleged in the pleading of the claimant essential to his cause of action. • Kinds of denial: a) SPECIFIC DENIAL – Specifies each material allegation of fact the truth of which he does not admit, and sets forth the substance of the matters upon which he relies to support his denial. b) DENIAL WITH QUALIFICATION Specifes so much of it as is true and material, and deny the remainder. c) Specific denial for lack of knowledge/information sufficient to form as belief as to the truth of a

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material averment made in the complaint. d) SPECIFIC DENIAL UNDER OATH Contests the authenticity or due execution of an actionable document. • ACTIONABLE DOCUMENT - A document which is really the basis of the cause of action (or defense), and not merely evidentiary thereof. • Genuineness and due execution of an actionable instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts. [Rule 8, Sec. 8] • Exception: the adverse party does not appear to be a party to the instrument. [Donato v. CA (1993)] • Genuineness is alleged by: (1) copying a substantial portion of the document into the pleading; (2) annexing/incorporating the document into the pleading; (3) both copying and annexing document into the pleading. e) NEGATIVE PREGNANT – Denial pregnant with an admission • It is a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It is in effect an admission of the averment it is directed to. [Philamgen v. Sweet Lines (1993)] INSUFFICIENT DENIALS OR DENIALS AMOUNTING TO ADMISSIONS 1) General denial; 2) Negative pregnant. WAIVER OF DEFENSES • Defenses and objections not pleaded either in a MTD or in the answer, are deemed waived. [Rule 9, Sec. 1] • Exception: 1) LOJ over the subject matter; 2) Litis pendentia; 3) Res judicata; 4) Prescription

REMEDIAL LAW
(1) Oversight; (2) Inadvertence; (3) Excusable neglect; (4) When justice requires. 2) After the answer: [Rule 11, Sec. 9] • Counterclaims/cross-claims arising after the answer, with the court’s permission, may be presented as a counterclaim/cross-claim by supplemental pleading before judgment. RULES ON COUNTERCLAIMS • A counterclaim before the MTC must be within the jurisdiction of said court both as to the amount and nature. • In an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount. [Rule 6, Sec. 7] • If a counterclaim is filed in the MTC in excess of its jurisdictional amount, the excess is considered waived. [Agustin v. Bacalan] • In Calo v. Ajax, 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. KINDS OF COUNTERCLAIMS
Compulsory 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. Does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Barred if not set up in the action. Need not be answered; no default. Permissive counterclaim It does not arise out of nor is it necessarily connected with the subject matter of the opposing party's claim. May require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. Not barred even if not set up in the action. Must be answered, otherwise, the defendant can be declared in default.

3. COUNTERCLAIM [Rule 6, Sec. 6]
• • Definition: Any claim which a defending party may have against an opposing party. A counterclaim is in the nature of a crosscomplaint. Although it may be alleged in the answer, it is not part of the answer. Upon its filing, the same proceedings are had as in the original complaint. For this reason, it must be answered 10 days from service.

A permissive counterclaim requires the payment of docket fees. [Sun Insurance v. Asuncion] A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default, principally because the issues raised in the counterclaim are deemed automatically joined by the allegations in the complaint. [Gojo v. Goyala]

HOW TO RAISE COUNTERCLAIMS 1) Included in the answer: [Rule 11, Sec. 8] • A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein. • Exception: Pleadings may be amended under Rule 11, Sec. 10: a) By leave of court; b) Before judgment; c) On the grounds of:

REQUISITES OF A COMPULSORY COUNTERCLAIM 1) It must arise out of, or be necessarily connected with, the transaction/occurrence that is the subject matter of the opposing party's claim; 2) It does not require for its adjudication the presence of 3rd parties of whom the court cannot acquire jurisdiction; 3) It must be within the court’s jurisdiction. • General rule: A compulsory counterclaim not set up in the answer is deemed barred. • Exception: If it is a counterclaim which either matured or was acquired by a party after serving his answer. In this case, it may be pleaded by filing a supplemental answer or pleading before judgment. [Rule 11, Sec. 9]

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• The filing of a MTD and the setting up of a compulsory counterclaim are incompatible remedies. In the event that a defending party has a ground for dismissal and a compulsory counterclaim at the same time, he must choose only one remedy. If he decides to file a MTD, he will lose his counterclaim. But if he opts to set up his counterclaim, he may still plead his ground for dismissal as an affirmative defense in his answer. If any of the grounds to dismiss under Rule 17, Sec. 3 arises, the proper recourse for a defendant who desires to pursue his compulsory counterclaim in the same proceeding is not a MTD. Instead, he should only move to have the plaintiff declared nonsuited on the complaint so that the latter can no longer present his evidence thereon, and simultaneously move that he be declared as in default on the compulsory counterclaim, and reserve the right to present evidence ex parte on his compulsory counterclaim. [BA Finance v. Co (1993)] • Under Section 3, Rule 17, dismissal of action due to plaintiff’s fault shall be without prejudice to the defendant’s right to prosecute his counterclaim in the same/separate action.

REMEDIAL LAW
necessary for the adjudication of said cross-claim. In this case, the crossclaim is considered permissive. 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 Against a coparty Must arise out of the transaction that is the subject matter of the original action or of a counterclaim therein Counterclaim Against an opposing party May arise out of or be necessarily connected with the transaction or the subject matter of the opposing party’s claim (compulsory counterclaim), or it may not (permissive counterclaim) 3rd Party complaint Against a person not a party to the action Must be in respect of the opponent’s (plaintiff’s) claim

5. COUNTER-COUNTERCLAIMS AND COUNTER-CROSS-CLAIMS
[Rule 6, Sec. 9] • • COUNTER-COUNTERCLAIM – A claim asserted against an original counterclaimant. COUNTER-CROSS-CLAIM – A claim filed against an original cross-claimant.

TEST TO DETERMINE WHETHER A COUNTERCLAIM IS COMPULSORY OR PERMISSIVE • LOGICAL RELATIONSHIP TEST – Where conducting separate trials of the respective claims would entail substantial duplication of effort and time and involves many of the same factual and legal issues. [Meliton v. CA] • WON substantially the same evidence to sustain the counterclaim will refute the cause of action alleged in the plaintiff's complaint. The cause of action and relief prayed for in the complaint and in the counterclaim must necessarily be different, but both arise out of the same legal relationship. [Leonen] REMEDIES 1) For failure to raise a compulsory counterclaim – None. A compulsory counterclaim not set up is considered barred. [Rule 9, Sec. 2] 2) Oversight, inadvertence, excusable neglect, etc. - With leave of court, counterclaim may be set up by amendment before judgment. [Rule 11, Sec. 10] 3) If the main action fails – Motion to declare plaintiff non-suited in the main action and as in default in the counterclaim. [BA Finance v. Co]

6. REPLY [Rule 6, Sec. 10]
• Definition: The plaintiff’s response to the defendant's answer, the function of which is to deny or allege facts in denial or in avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters.

EFFECT OF FAILURE TO REPLY • General rule: Filing a reply is merely optional. New facts that were alleged in the answer are deemed controverted should a party fail to reply thereto. • Exception: Reply is required: 1) Where the answer is based on an actionable document. [Rule 8, Sec. 8] 2) Where the answer alleges the defense of usury. [Rule 8, Sec. 11]

4. CROSS-CLAIM [Rule 6, Sec. 8]
REQUISITES FOR A 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; 3) The cross-claimant is prejudiced by the claim against him by the opposing party. • A cross-claim is always compulsory. A crossclaim not set up shall be barred. [Rule 9, Sec. 2] • Exception: 1) When it is outside the court’s jurisdiction; 2) If the court cannot acquire jurisdiction over 3rd parties whose presence is

7. 3RD – PARTY COMPLAINT [Rule 6,
Sec. 11] • Definition: It is a claim that a defending party may, with leave of court, file against a person not a party to the action for contribution, indemnity, subroqation or any other relief, in respect of his opponent's claim. There could also be a 4th/etc.-party complaint with the same purpose and function.
3rd-party complaint Brings into the action a 3rd person who was not originally a party Initiative is with the person already a party to Same Complaint in intervention

Initiative is with a nonparty who seeks to join the

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the action 3rd-party complaint Need not be within the jurisdiction of the court trying the main case Diminishes/defeats the recovery sought by the opposing party Cannot exceed the amount stated in the original complaint action Counterclaim Must be within the jurisdiction of the court trying the main case Need not diminish/defeat the recovery sought by the opposing party May exceed in amount or be different in kind from that sought in the original complaint

REMEDIAL LAW
7) Official documents/acts. FACTS THAT MUST BE AVERRED PARTICULARLY • Circumstances showing fraud/mistake in all averments of fraud/mistake. THREE WAYS OF MAKING A SPECIFIC DENIAL 1) SPECIFIC ABSOLUTE DENIAL – By specifically denying the averment and, whenever practicable, setting forth the substance of the matters relied upon for such denial. 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 does not apply where the fact as to which want of knowledge is asserted is, to the knowledge of the court, so plain and necessarily within the defendant's knowledge that his averment of ignorance must be palpably untrue. • General rule: Allegations not specifically denied are deemed admitted [Rule 8, Sec. 11] • Exceptions: 1) Allegations as to the amount of unliquidated damages; 2) Allegations immaterial to the cause of action; • Allegations of merely evidentiary or immaterial facts may be expunged from the pleading or may be stricken out on motion. [Rule 8, Sec. 12] 3) Conclusion of law.

TESTS TO DETERMINE WHETHER THE 3RD-PARTY COMPLAINT IS IN RESPECT OF PLAINTIFF'S CLAIM 1) WON it arises out of the same transaction on which the plaintiff's claim is based, or although arising out of another/different transaction, is connected with the plaintiff’s claim; 2) WON the 3rd-party defendant would be liable to the plaintiff or to the defendant for all/part of the plaintiff’s claim against the original defendant; 3) WON the 3rd-party defendant may assert any defenses which the 3rd-party plaintiff has or may have to the plaintiff’s claim. • • Leave of court to file a 3rd-party complaint may be obtained by motion under Rule 15. Summons on 3rd (4th/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 3rdparty complaint, regardless of the amount involved as a 3rd-party complaint is merely auxiliary to and is a continuation of the main action. [Republic v. Central Surety] A 3rd-party complaint is not proper in an action for declaratory relief.

PERIODS TO PLEAD
Responsive pleading Answer to complaint When to file 15 days from service, unless otherwise provided by the court 30 days from service, if defendant is a private juridical entity and summons was served on the government official designated by law to receive it 10 days from service same as that of answer to complaint 15 days from service, if amendment is a matter of right 10 days from service, if amendment is not a matter of right 10 days from service of the order admitting the supplement, unless otherwise provided by the court 10 days from service

MANNER OF MAKING ALLEGATIONS
IN GENERAL [Rule 8, Sec. 1] • In a methodical and logical form. • Plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim/defense. • Omit evidentiary facts. • If defense relied on based on law, cite the provisions and their applicability. 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; 2) Capacity to sue or be sued; 3) Capacity to sue or be sued in a representative capacity; 4) Legal existence of an organization ; • 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. 5) Malice/intent/knowledge or other condition of the mind; 6) Judgments of domestic/foreign courts, tribunals, boards or officers (without need to show jurisdiction);

xxx

Answer to counterclaim/cross-claim Answer to 3rd-party complaint Answer to amended complaint/ counterclaim/ cross-claim/ complaintin-intervention xxx

Answer to supplemental complaint

Reply

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CIVIL PROCEDURE III. ACQUISITION OF JURISDICTION A. FILING AND SERVICE
DEFINITION
• FILING – The act of presenting the pleading or other paper to the clerk of court. [Rule 13, Sec. 2] SERVICE – The act of providing a party or his counsel with a copy of the pleading or paper concerned. [Rule 13, Sec. 2]
xxx xxx Xxx Xxx xxx Xxx

REMEDIAL LAW
1) Full statement of the date/place of depositing the mail in the post office in a sealed envelope addressed to the court 2) Postage fully paid 3) Instructions to the postmaster to return the mail to the sender after 10 days if undelivered

2. SERVICE PAPERS REQUIRED TO BE FILED AND SERVED [Rule 13, Sec. 4]
1) Pleading subsequent to the complaint; 2) Appearance; 3) Written Motion; 4) Notice; 5) Order; 6) Judgment; 7) Demand; 8) Offer of Judgment; 9) Resolution; 10) Similar papers.

MODES OF SERVICE [Rule 13, Sec. 5]
1) Personal service. [Rule 13, Sec. 6] a) Delivering personally a copy to the party or his counsel. b) Leaving a copy in counsel's office with his clerk or with a person having charge thereof. c) If no person is found in his office, or if his office is unknown, or if he has no office – Leaving the copy between 8am and 6 pm at the party's or counsel's residence (if known) with a person of sufficient age and discretion then residing therein. 2) Service by (registered) mail. [Rule 13, Sec. 7] • By depositing the copy in the office, in a sealed envelope, plainly addressed to the party or his counsel at his office or at his residence (if known), with postage fully pre-paid, and with instructions to the postmaster to return the mail to the sender after l0 days if undelivered. • If no registry service is available in the locality of either sender or addressee, service may be done by ordinary mail. 3) Substituted service. [Rule 13, Sec. 8] • By delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail.
completeness of service Upon actual delivery xxx proof of service Written admission of the party served Official return of the server; or affidavit of the party serving, with a full statement of the date/place/manner of service Affidavit of the person mailing, showing facts that comply with Rule 13, Sec. 7 Affidavit of the person mailing, showing facts that comply with Rule 13, Sec. 7 Registry receipt issued by the post office

1. FILING MANNER OF FILING [Rule 13, Sec. 3]
1) Personally. • By personally presenting the original to the clerk of court. • The pleading is deemed filed upon the receipt of the same by the clerk of court who shall endorse on it the date and hour of filing. • If a party avails of a private carrier, the date of the court’s actual receipt of the pleading (not the date of delivery to the private carrier) is deemed to be the date of the filing of that pleading. [Benguet Electric Cooperative v. NLRC] 2) By registered mail. • Filing by mail should be through the registry service (i.e. by depositing the pleading in the post office). • The pleading is deemed filed on the date it was deposited with the post office. • If registry service is not available in the locality of either sender or addressee, service may be done by ordinary mail.

Personal service xxx

PROOF OF FILING [Rule 13, Sec. 12]
• • Filing is proved by its existence in the record of the case. If it is not in the record:
Xxx Personally when pleading is deemed filed Upon receipt of the pleading by the clerk of court On the date the pleading was deposited with the post office proof of filing Written/stamped acknowledgment by the clerk of court Registry receipt, and affidavit of the person who did the mailing with: Service by ordinary mail 10 days after mailing, unless otherwise provided by the court Whichever is earlier:

Service by registered mail

Xxx

By registered mail

1) Actual receipt by the addressee

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Xxx 2) 5 days after addressee received 1st postmaster's notice xxx

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1. AMENDMENT HOW TO AMEND PLEADINGS [Rule 10, Sec.
1] 1) 2) 3) 4) 5) Adding an allegation of a party; Adding the name of a party; Striking out an allegation of a party; Striking out the name of a party; Correcting a mistake in the name of a party; and 6) Correcting a mistake or inadequate allegation or description in any other respect. • Purpose: That the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. As a general policy, liberality in allowing amendments is greatest in the early stages of a law suit, decreases as it progresses and changes at times to a strictness amounting to a prohibition. This is further restricted by the condition that the amendment should not prejudice the adverse party or place him at a disadvantage. [Barfel Development v. CA (1993)]

SERVICE OF JUDGMENT, FINAL ORDERS OR RESOLUTIONS [Rule 13, Sec. 9]
1) By personal service; 2) By registered mail; 3) By publication if party is summoned by publication and has failed to appear in the action.

PRIORITY IN MODES OF FILING AND SERVICE [Rule 13, Sec. 11]
• • General rule: Personal filing and service. Resort to other modes of filing and service must be accompanied by an explanation why the service/filing was not done personally. • If there is no written explanation, the paper considered not filed. • Exception: Papers emanating from the court

NOTICE OF LIS PENDENS [Rule 13, Sec. 14]
• LIS PENDENS - Notice of a pendency of the action between the parties involving title to or right of possession over real property. Requisites: [AFP Mutual Benefit Association v. CA] 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/defense and a description of the property affected thereby; 4) Action in rem. The notice serves as a warning to all persons, prospective purchasers or encumbrancers of the property in litigation to keep their hands off the property in litigation unless they are prepared to gamble on the result of the proceedings. The defendant may also record a notice of lis pendens when he claims an affirmative relief in his answer. The notice of 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, as Sec. 14 provides that such cancellation may be authorized only upon order of court, after proper showing that: [Roxas v. CA (1993)] 1) The notice is for the purpose of molesting the adverse party; or 2) It is not necessary to protect the rights of the party who caused it to be recorded.

FORM [Rule 10, Sec. 7] • A new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. EFFECT [Rule 10, Sec. 8] • The amendment supersedes the amended pleading. • Claims and defenses in superseded pleading which are not incorporated in the amended pleading are deemed waived. • Admissions made in the superseded pleading may still be received in evidence against the pleader.

KINDS OF AMENDMENTS
1) FORMAL AMENDMENTS – A defect in the designation of the parties and other clearly clerical errors may be summarily corrected by the court or by motion: • At any stage of the action. • Provided that no prejudice is caused to the adverse party. 2) SUBSTANTIAL AMENDMENTS a) If as a matter of right – Made at any time before a responsive pleading is served. If it is a reply, at any time within l0 days after it is served. [Rule 10, Sec. 2] b) If as a matter of discretion – Amendment requires leave of court if: (1) It is substantial; and (2) A responsive pleading has already been served. [Rule 10, Sec. 3] REQUISITES FOR AMENDMENTS BY LEAVE OF COURT 1) Motion filed in court; 2) Notice to the adverse party; 3) Opportunity to be heard afforded to adverse party.

B. AMENDMENT AND SUPPLEMENTAL PLEADINGS

the

WHEN AMENDMENT BY LEAVE OF COURT MAY NOT BE ALLOWED

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1) If the cause of action, defense or theory of the case is changed. 2) If amendment is intended to confer jurisdiction to the court. • If the court has no jurisdiction in the subject matter of the case, the amendment of the complaint cannot be allowed so as to confer jurisdiction on the court over the property. [PNB v. Florendo (1992)] 3) If amendment is for curing a premature or nonexisting cause of action. 4) If amendment is for purposes of delay. • Admitting an amended complaint in intervention is a matter addressed to the court’s discretion, subject only to the limitations that amendments should not substantially change the cause of action or alter the theory of the case or made to delay the action. Once exercised, it cannot be disturbed on appeal, except in case of abuse thereof. [Metropolitan Bank v. Presiding Judge (1990)]
Either as a matter of right or a matter of discretion Supersedes the pleading

REMEDIAL LAW
Always a matter of discretion Supplements the pleading (i.e. Exists side by side with the original pleading) A supplemental pleading does not require the filing of a new copy of the entire pleading

When an amended pleading is filed, a new copy of the entire pleading must be filed

C. BILL OF PARTICULARS
• Definition: It is a detailed explanation respecting any matter which is not averred with sufficient definiteness/particularity in the complaint as to enable a party to properly prepare his responsive pleading or to prepare for trial. [Rule 12, Sec. 1] It is filed by the plaintiff pursuant to a court order issued upon granting a motion for BOP filed by the defendant before the latter files an answer. In said motion, the defendant prays for a more definite statement of matters which are not averred with sufficient definiteness in the complaint. An action cannot be dismissed on the ground that the complaint is vague/indefinite. The remedy of the defendant is to move for a BOP or avail of the proper mode of discovery. [Galeon v. Galeon] Purpose: To inform the adverse party more specifically of the precise nature and character of the cause of action or defense alleged in the pleading, with the view of enabling him to prepare properly his responsive pleading or to prepare for trial. • The purpose of a BOP is to define/ clarify/particularize/limit/circumscribe the issues in the case to expedite the trial and assist the court. The only question to be resolved in a motion for a BOP is WON the allegations in the complaint averred with sufficient definiteness/particularity to enable the movant to properly prepare his responsive pleading and to prepare for trial. [Tantuico, Jr. v. Republic (1991)] A BOP becomes part of the pleading for which it was intended. [Rule 12, Sec. 6]

AMENDMENT TO CONFORM TO EVIDENCE
[Rule 10, Sec. 5] • If issues not raised by the pleadings are tried with the express/implied consent of the parties, they shall be treated as if they had been raised in the pleadings. Amendment of pleadings as may be necessary to cause them to conform to the evidence and to raise these issues, may be made upon motion of any party, any time (even after judgment). • But failure to amend does not affect the result of the trial on 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. •

2. SUPPLEMENTAL PLEADINGS
• Definition: One which sets forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. [Rule 10, Sec. 6] It is made upon motion of a party with reasonable notice and upon terms as are just. 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] •

• •

WHEN APPLIED FOR [Rule 12, Sec. 1] • Before responding to a pleading • If the pleading is a reply, within 10 days from service thereof WHAT A MOTION FOR BOP SHOULD POINT OUT [Rule 12, Sec. 1] 1) The defects complained of; 2) The paragraph wherein they are contained; 3) The details desired. COURT ACTION [Rule 12, Sec. 2] 1) Deny; 2) Grant the motion outright; 3) Allow the parties the opportunity to be heard. COMPLIANCE WITH ORDER [Rule 12, Sec. 3] • If motion for BOP is granted wholly/partially: • Within 10 days from notice of order, BOP or a more definite statement should be submitted (unless court fixes a different period).

AMENDMENTS VIS-À-VIS SUPPLEMENTAL PLEADINGS • A supplemental complaint/pleading supplies deficiencies in aid of an original pleading, not to entirely substitute the latter. Unlike in an amended complaint, the original complaint exists side by side with the supplemental complaint. [Shoemart v. CA (1990)]
Amendments Reason for the amendment is available at time of the 1st pleading Supplemental pleadings Grounds for the supplemental pleading arose after the 1st pleading was filed

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• BP or definite statement filed either as a separate pleading or as an amended pleading, a copy of which must be served on the adverse party. • EFFECT OF NON-COMPLIANCE [Rule 12, Sec. 4] 1) In case of non-compliance or insufficient with the order for BOP, the court: a) May order the striking out of the pleading (or portion thereof) to which the order is directed; b) Make such order as it may deem just. 2) If the plaintiff fails to obey, his complaint may be dismissed with prejudice unless otherwise ordered by the court. [Rule 12, Sec. 4; Rule 17, Sec. 3] 3) 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. [Rule 9, Sec. 3; Rule 12, Sec. 4; Rule 17, Sec. 4] STAY OF PERIOD TO FILE RESPONSIVE PLEADING [Rule 12, Sec. 5] • A Motion for BOP interrupts the period to file an answer. 1) If the motion is granted: 15 days to file answer. 2) If the motion is denied: File answer within the period the movant is entitled to, which should not be less than 5 days.
Bill of Particulars (BOP) Purpose is to enable a party bound to respond to a pleading to get more details about matters which are alleged generally or which are indefinite and vague, so as to properly guide such party in answering the pleading and to avoid surprise in the trial of the case Available to the defendant before he files his responsive pleading Intervention Purpose is to enable a person not yet a party to an action, yet having a certain right or interest in such action, the opportunity to appear and be joined so he could assert or protect such right or interest

REMEDIAL LAW
uniting with defendant in resisting the claims of plaintiff, or demanding something adversely to both of them. [Metropolitan Bank v. Presiding Judge (1990)] It is the act/proceeding by which a 3rd person becomes a party in a suit pending between others. It is the admission, by leave of court, of a person not an original party to pending legal proceedings, by which such person becomes a party thereto for the protection of some right of interest alleged by him to be affected by such proceedings. An intervenor is a party to the action as the original parties are, and to make his right effectual he must necessarily have the same powers as the original parties. He is entitled to have the issues raised between him and the original parties tried and determined. • Intervention is never an independent action, but is ancillary and supplemental to the existing litigation. Its purpose is to afford one not an original party, yet having a certain right/interest in the pending case, the opportunity to appear and be joined so he could assert or protect such right/interest. [Cariño vs. Ofilada (1993)] Intervention is never an independent action, but is ancillary and supplemental to the existing litigation. Its purpose is to afford one not an original party, yet having a certain right/interest in the pending case, the opportunity to appear and be joined so he could assert or protect such right/interest. [Cariño vs. Ofilada (1993)] • Hence, the final dismissal of the principal action results into the dismissal of said ancillary action.

Available to any person not yet a party to the action at any time after the commencement of an action, even during the proceeding, but not after the trial has been concluded

WHO MAY INTERVENE [Rule 19, Sec. 1] 1) One who has a legal interest in the matter in litigation; 2) One who has a legal interest in the success of either of the parties; 3) One who has an interest against both parties; 4) One who is so situated as to be adversely affected by a distribution/disposition of property in the court’s custody. HOW INTERVENTION IS DONE • By a motion to intervene, with the pleading-inintervention attached. Must also serve copy of the pleading-in-intervention on the original parties. [Rule 19, Sec. 2] • General rule: Allowance of intervention is discretionary with the court. • Exception: When the intervenor is an indispensable party. • Factors considered in allowing intervention: 1) WON intervention will unduly delay or prejudice the adjudication of the rights of the original parties. 2) WON the intervenor's rights may be fully protected in a separate proceeding. • The interest must be actual and material, direct and immediate; not simply contingent or expectant. It must be in 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. [Cariño vs. Ofilada (1993)]

D. INTERVENTION
• Definition: A legal remedy whereby a person is permitted to become a party in a case, by either: 1) Joining the plaintiff; 2) Joining the defendant; 3) Asserting his right against both plaintiff and defendant, considering that either: a) He has a legal interest in the subject matter of the action; b) He is going to be adversely affected by the disposition of the property in the custody of the court Intervention is a proceeding in a suit/action by which a 3rd person is permitted by the court to make himself a party, either joining plaintiff in claiming what is sought by the complaint, or

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Interest in the subject means a direct interest in the cause of action as pleaded and which would put the intervenor in a legal position to litigate a fact alleged in the complaint, without the establishment of which plaintiff could not recover. [MagsaysayLabrador v. CA] Intervention is allowed any time before TC renders judgment. [Rule 19, Sec. 2] After rendition of judgment, a motion to intervene is barred, even if the judgment itself recognizes the movant’s right. The movant’s remedy is to file a separate action. • •

REMEDIAL LAW
Summons must be directed to the defendant, signed by the clerk of the court under seal, and contain: 1) Name of the court and names of the parties; 2) Direction that the defendant answer within the time fixed; 3) 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.

• •

PLEADINGS IN INTERVENTION [Rule 19, Sec. 3] 1) COMPLAINT-IN-INTERVENTION – If intervenor asserts a claim against either or all of the original parties. 2) ANSWER-IN-INTERVENTION – If intervenor unites with the defending party in resisting a claim against the latter. ANSWER TO COMPLAINT-IN-INTERVENTION [Rule 19, Sec. 4] • It must be filed within 15 days from notice of the order admitting the complaint-inintervention, unless a different period is fixed by the court. REMEDIES 1) For denial of intervention: a) Appeal. b) Mandamus, if there is GAD. 2) For improper granting of intervention: Certiorari.

SERVICE OF SUMMONS
WHO SERVES THE SUMMONS [Rule 14, Sec. 3] 1) The sheriff or his deputy; 2) Other proper court officers; 3) For justifiable reasons, any suitable person authorized by the court issuing the summons. RETURN OF SUMMONS [Rule 14, Sec. 4] • 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. ALIAS SUMMONS [Rule 14, Sec. 5] • Upon plaintiff’s demand, the clerk may issue an alias summons if either: 1) If summons is returned without being served on any/all of the defendants. • The server shall also serve a copy of the return on the plaintiff's counsel within 5 days therefrom, stating the reasons for the failure of service. 2) If summons was lost. MODES OF SERVICE OF SUMMONS • Any application to the court under Rule 14 for leave to effect service in any manner for which leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application. [Rule 14, Sec. 17] 1. SERVICE IN PERSON ON

Intervention An ancillary action Proper in any of the four situations mentioned in Rule 19

There is already a defendant among the original parties to the pending suit

Interpleader An original action 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 being sued precisely to implead them

E. SUMMONS
• Definition: A coercive force issued by the court to acquire jurisdiction over the person of the defendant. Purpose: 1) To acquire jurisdiction over the person of the defendant in a civil case; 2) To give notice to the defendant that an action has been commenced against him.

DEFENDANT [Rule 14, Sec. 6]
1) By handing a copy of summons to him; 2) By tendering it to him, if he refuses to receive it. 2. SUBSTITUTED SERVICE [Rule 14, Sec. 7] • Rationale: Enjoyment of the privileges of residence within the state, and the attendant right to invoke the protection of its laws, are inseparable from the various incidences of state citizenship. One such incident of domicile is amenability to suit within the state even during sojourns without the state, where the state has provided and employed a reasonable method for apprising such an absent party of the

ISSUANCE OF SUMMONS
• Upon the filing of the complaint and the payment of legal fees, the clerk of court shall issue the corresponding summons to the defendants. [Rule 14, Sec. 1]

SUMMON’S CONTENTS [Rule 14, Sec. 2]

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proceedings against him. [Northwest v. CA (1995)] For a valid substituted service of summons, the following must be established in the proof of service: [Sps. Ventura v. CA (1987)] 1) Impossibility of the personal service of summons within a reasonable time; 2) Efforts made to find the defendant personally and the fact that such efforts failed; [Laus v. CA (1993)] 3) Service by leaving copy of summons either: a) With some person of suitable age and discretion then residing in the defendant’s residence; b) With some competent person in charge of the defendant’s office or regular place of business. For a substituted service to be valid, summons served at the defendant's residence must be served at his residence at the time of such service and not at his former place of residence. "Dwelling house" or "residence" refer to the place where the person named in the summons is living at the time when the service is made, even though he may be temporarily out of the country at the time. [Sps. Ventura v. CA (1987)] Substituted service must be used only as prescribed and in the circumstances authorized by statute. Statutes prescribing modes other than personal service of summons must be strictly complied with to give the court jurisdiction, and such compliance must appear affirmatively in the return. [Laus v. CA (1993)] Absence in the sheriff's return of a statement about the impossibility of personal service does not conclusively prove 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. While the sheriff's return carries with it the disputable presumption of regularity in the sense that the entries therein are deemed correct, it does not necessarily follow that an act done in relation to the official duty for which the return is made was not done simply because it is not disclosed therein. [Mapa v. CA (1992)] 3. PUBLICATION [Rule 14, Sec. 14] • Requisites: 1) The action is in rem or quasi in rem; 2) Defendant's identity or whereabouts are unknown and cannot be ascertained by diligent inquiry; 3) There must be leave of court. Summons by publication in a personal action cannot confer upon the court jurisdiction over the person of the defendant, who does not voluntarily submit himself to the authority of the court. The proper recourse for the plaintiff is to locate properties of the defendant whose address is unknown and cause them to be attached. [Consolidated Plywood vs. Breve (1988)]
personality [Rule 14, Sec. 8]

REMEDIAL LAW
either: 1) Any/all the defendants; 2) Person in charge of the office • The service does not bind individually any person whose connection with the entity was already severed before the service Serve upon the minor/incompetent and on his legal guardian. • If there is no guardian, plaintiff may apply for the appointment of a guardian ad litem. • If minor, may serve on his parents. Serve upon the officer having management of the jail/prison Serve upon either the: 1) President 2) Managing partner 3) General manager 4) Corporate secretary 5) Treasurer 6) In-house counsel Serve upon the resident agent; Otherwise, upon either: • Government official designated by law; • Any officer or agent of the corporation within the Philippines If the defendant is the Republic of the Philippines – Serve upon the OSG If the defendant is a province/city/municipality or like public corporations – Serve upon the executive head or other officers as the law/court may direct • Requisites: 1) Defendant does not reside or is not found in the Philippines; 2) Action either: a) Affects the plaintiff’s personal status; b) Relates to or the subject matter of which is property within the Philippines in which defendant has a lien/interest; c) Demands a relief which consists wholly/partially in excluding the defendant from any interest in any property within the Philippines; d) Has defendant’s property in the Philippines, attached. • Modes of service: a) With leave of court, serve outside the Philippines by personal service; or

Service upon minors and incompetents [Rule 14, Sec. 10]

Service upon prisoner [Rule 14, Sec. 9] Service upon domestic private juridical entity [Rule 14, Sec. 11]

Service upon foreign private juridical entity [Rule 14, Sec. 12]

Service upon public corporations [Rule 14, Sec. 13]

Extraterritorial service [Rule 14, Sec. 15]

SERVICE OF SUMMONS UPON DIFFERENT ENTITIES
Service on person associated in an entity without juridical If sued under the name by which they are commonly known – Serve upon

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b) With leave of court, serve by publication in a newspaper of general circulation, in which case copy of the summons and order of the court must also be sent by registered mail to the defendant’s last known address; c) Any other manner the court deems sufficient • The court order granting extraterritorial service shall specify a period of at least 60 days within which the defendant must answer. With leave of court, may serve extraterritorially

REMEDIAL LAW
summons and complaint despite all these technicalities.

PROOF OF SERVICE
1) If personal or substituted service: In writing by the server and shall: [Rule 14, Sec. 18] • Set forth the manner/place/date of service; • Specify any papers which have been served with the process and the name of the person who received the same; • Be sworn to when made by a person other than a sheriff or his deputy. 2) If by publication: [Rule 14, Sec. 19] a) Affidavit of the printer, foreman, principal clerk, editor, business/advertising manager, with a copy of the publication attached. b) 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.

Service upon a resident temporarily out of the Philippines [Rule 14, Sec. 16] Service upon a defendant whose identity or whereabouts are unknown [Rule 14, Sec. 14]

With leave of court, by publication in a newspaper of general circulation

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. If the defendant has already been served with summons on the original complaint, no further summons is required on the amended complaint if it does not introduce new causes of action. [Ong Peng v. Custodio] But if 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. [Atkins v. Domingo]

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 of such summons. [Montalban v. Maximo]

WAIVER OF SERVICE OF SUMMONS [Rule
14, Sec. 20] • Defendant's voluntary appearance in the action shall be equivalent to service of summons; • Exception: Special appearance to file a MTD. • Inclusion in the MTD of grounds other than LOJ over the defendant’s person, is not deemed a voluntary appearance. • Any mode of appearance in court by a defendant or his lawyer is equivalent to service of summons, absent any indication that the appearance of counsel for petitioner is precisely to protest the jurisdiction of the court over the person of the defendant. [Delos Santos v. Montesa (1993)]

F. MOTIONS
• Definition: An application for relief other than by a pleading. [Rule 15, Sec. 1]
Motion Contains allegations of facts Prays for a relief Grant of the relief does not extinguish the action (interlocutory relief) Generally in writing (with some exceptions) Pleading Contains allegations of the ultimate facts Prays for a relief Grant of relief extinguishes the action (final relief) Always in writing

RETURN OF SERVICE [Rule 14, Sec. 4]
• When service has been completed, the server shall serve a copy of the return within 5 days (personally or by registered mail) to the plaintiff's counsel, and shall return the summons to the clerk who issued it, accompanied with the proof of service. General rule: Return of service of summons immediately shifts burden of evidence from plaintiff to defendant since there is a presumption of regularity. • Without return of service: Burden is on plaintiff. • In the Mapa case, though, while there was a return, return was patently irregular, thus no presumption of regularity could be had. • Exception: Doctrine of substantial compliance – If defendant actually received

General rule: A motion cannot pray for judgment. • Exception: 1) Motion for judgment on the pleadings. 2) Motion for summary judgment. 3) Motion for judgment on demurrer to evidence.

KINDS OF MOTION

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1) MOTION EX PARTE - Made without notification to the other party because the question generally presented is not debatable. 2) LITIGATED MOTION - Made with notice to the adverse party so that an opposition thereto may be made. 3) MOTION OF COURSE - Motion for a kind of relief/remedy to which the movant is entitled to as a matter of right, Allegations contained in such motion do not have to be investigated/verified. 4) SPECIAL MOTION - Discretion of the court is involved. An investigation of the facts alleged is required. MOTION’S FORM [Rule 15, Sec. 2] • General rule: In writing. • Exception: Oral motions: 1) Made in open court; 2) In the course of a hearing/trial. CONTENTS [Rule 15, Sec. 3] 1) Relief sought to be obtained 2) Grounds upon which it is based 3) If it is required/necessary to prove facts alleged in a motion, it shall be accompanied by supporting affidavits and other papers. • Motions raising factual issues must be supported by affidavits. REQUISITES OF MOTIONS (NOT MADE IN OPEN COURT OR IN THE COURSE OF HEARING/TRIAL): 1) In writing; [Rule 15, Sec. 2] 2) Hearing on the motion set by the applicant; • PRO FORMA MOTION – A motion failing to indicate time and date of the hearing. 3) Notice of hearing shall addressed to all parties not later than 10 days from the filing of the motion. [Rule 15, Sec. 5] • Notice must be addressed to the counsels. A notice of hearing addressed to the clerk of court, and not to the parties, is no notice at all. Accordingly, a motion that does not contain a notice of hearing to the adverse party is nothing but a mere scrap of paper, as if it were not filed; hence, it did not suspend the running of the period to appeal. [Provident International Resources v. CA (1996)] 4) Motion and notice of hearing must be served at least 3 days before the date of hearing; [Rule 15, Sec. 4] • Purpose: To prevent surprise upon the adverse party and to enable the latter to study and meet the arguments of the motion. • Exception: a) Ex parte motions; b) Urgent motions; c) Motions agreed upon by the parties to be heard on shorter notice, or jointly submitted by the parties; d) Motions for summary judgment which must be served at least 10 days before its hearing. 5) Proof of service. [Rule 15, Sec. 6] • A written motion set for hearing will not be acted upon by the court if there is no proof of service thereof. • What may be proof: a) If by registered mail: Affidavit or registry receipt or postmark on envelope or return card, with an explanation.

REMEDIAL LAW
b) If by personal service: Affidavit or acknowledgment of receipt by the other party. Exception: a) If the motion is one which the court can hear ex parte. b) If the court is satisfied that the rights of the adverse parties are not affected by the motion. c) If the party is in default because such a party is not entitled to notice.

MOTION DAY [Rule 15, Sec. 7] • Except for urgent motions, motions are scheduled for hearing: 1) On Friday afternoons; 2) Afternoon of the next working day, if Friday is a non-working day. OMNIBUS MOTION RULE [Rule 15, Sec. 8] • Definition: A motion attacking a pleading/order/judgment/proceeding must include all objections then available. All objections not included in the motion are deemed waived. • Exception: When the court’s jurisdiction is in issue: 1) LOJ over subject-matter; 2) Litis pendentia; 3) Res judicata; 4) Prescription. MOTION FOR LEAVE TO FILE A PLEADING/MOTION [Rule 15, Sec. 9] • Must be accompanied by the pleading/motion sought to be admitted. MOTIONS NOT ACTED UPON • Parties and counsel should not assume that courts are bound to grant the time they pray for. After all, a motion that is not acted upon in due time is deemed denied. [Orosa v. CA (1996)]

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CIVIL PROCEDURE IV. TERMINATING THE ACTION BEFORE TRIAL A. MOTION TO DISMISS (MTD)
DEFINITION
• MOTION TO DISMISS – A remedy of the defendant, or the responding party in general, which attacks the entire pleading and seeks its dismissal based on: 1) Grounds which are patent on the face of the complaint; 2) Defenses available to the defendant at the time of the filing of the complaint. It hypothetically admits the facts stated in the complaint. It is not a responsive pleading. It is not a pleading at all. It is subject to the omnibus motion rule since it is a motion that attacks a pleading. Hence, it must raise all objections available at the time of the filing thereof. General rule: A court may not motu propio dismiss a case, unless a motion to that effect is filed by a party. • Exception: 1) Cases where the court may dismiss a case motu propio; [Rule 9, Sec. 1] 2) Failure to prosecute; [Rule 17, Sec. 3] 3) Sec. 4, Revised Rule on Summary Procedure.

REMEDIAL LAW
of the complaint to state a cause of action. When the MTD is based on facts not appearing of record, the court may hear the matter on affidavits/depositions.

GROUNDS [Rule 16, Sec. 1]
1) LOJ over the defendant’s person; 2) LOJ over the subject matter of the claim; 3) Improper venue; 4) Plaintiff’s lack of legal capacity to sue; 5) Litis pendentia; 6) Res judicata; 7) Prescription; 8) Failure to state a cause of action; 9) Extinguished claim; 10) Unenforceable claim under the Statute of Frauds; 11) Non-compliance with a condition precedent for filing claim.

• •

1. LOJ OVER THE DEFENDANT’S PERSON
• The objection of LOJ over the person on account of lack of service or defective service of summons, must be raised: • At the very first opportunity; • Before any voluntary appearance is made. • If a defendant had not been properly summoned, the period to file a MTD for LOJ over his person does not commence to run until he voluntarily submits to the jurisdiction of the court. [Laus v. CA (1993)] • Appearance of counsel is equivalent to summons, unless such is made to protest the jurisdiction of the court over the person of the defendant. If grounds other than invalid service of summons are raised, it cannot be considered as a special appearance. [De los Santos v. Montesa (1993)]

TYPES OF DISMISSAL OF ACTION:
1) MTD before answer under Rule 16; 2) MTD under Rule 17: a) Upon notice by plaintiff; b) Upon motion by plaintiff; c) Due to fault of plaintiff. 3) Demurrer to evidence after plaintiff has completed the presentation of his evidence under Rule 33; 4) Dismissal of an appeal.
MTD under Rule 16 MTD under Rule 33 (Demurrer to evidence) Based on insufficiency of evidence May be filed only by the defendant against the complaint of the plaintiff May be filed only after the plaintiff has completed the presentation of his evidence If denied, defendant may present evidence. If granted, plaintiff appeals and the order of the dismissal is reversed; the defendant loses his right to present evidence.

2. LOJ OVER THE SUBJECT MATTER OF THE CLAIM
• If the complaint shows on its face LOJ, the court may dismiss the case outright instead of hearing the motion. A MTD on the ground of LOJover the subject matter may be raised either: 1) Before answer; 2) After answer is filed; 3) After hearing had commenced; 4) At any stage of the proceeding, even for the first time on appeal and even if no such defense is raised in the answer.

Based on preliminary objections May be filed by any defending party against whom a claim is asserted in the action Should be filed within the time for, but prior to, the filing of the defending party’s answer to the pleading asserting the claim against him If denied, defendant answers; else, he may be declared in default. If granted, plaintiff may appeal or if a subsequent case is not barred, he may re-file the case

3. IMPROPER VENUE
• Unless and until the defendant objects to the venue in a MTD prior to a responsive pleading, the venue cannot truly be said to have been improperly laid since, for all practical intents and purposes, the venue though technically wrong may yet be considered acceptable to the parties for whose convenience the rules on venue had been devised. Improper venue may be waived and such waiver may occur by laches. [Diaz v. Adiong (1993)]

A MTD shall be proved/disproved according to the rules of evidence. The hearing shall be conducted as an ordinary hearing and the parties shall be allowed to present evidence, except when the motion is based upon failure

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• A stipulation between the parties as to venue does not preclude the filing of suits in the residence of plaintiff/defendant under Rule 4, Sec. 2(b). In the absence of qualifying/restrictive words which would indicate that a specific place alone is the venue, an agreement as to venue is merely permissive and there is no waiver of right to pursue remedy in other courts. [HSBC v. Sherman (1989)] If the court erroneously denies the MTD, the remedy is prohibition.

REMEDIAL LAW
2) Judgment must be a final judgment; 3) Judgment must be on the merits; • There can 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 Rule 17, Sec. 3. 4) There must be identity of parties, of subject matter and of the causes of action. • For res judicata to apply, absolute identity of parties is not required because substantial identity is sufficient. Inclusion of additional parties will not affect the application of the principle of res judicata. The test of identity of cause of action lies not in the form of the action but on WON the same evidence would support and establish the former and the present causes of action. [DBP v. Pundogar (1993)] Rationale: The sum and substance of the whole doctrine is that a matter once judicially decided is finally decided because of: [Nabus v. CA (1991)] 1) Public policy and necessity makes it the interest of the State that there should be an end to litigation; 2) The hardship on the individual that he should be vexed twice for the same cause.

4. PLAINTIFF’S LACK OF LEGAL CAPACITY TO SUE
• The plaintiff lacks legal capacity to sue: 1) When he does not possess the necessary qualification to appear at the trial (e.g. when he plaintiff is not in the full exercise of his civil rights); 2) When he does not have the character which he claims, which is a matter of evidence (e.g. when he is not really a duly appointed administrator of an estate). Lack of legal capacity to sue refers to plaintiff’s disability; while lack of legal personality to sue refers to the fact that the plaintiff is not a real party in interest, in which case the ground for dismissal would be that the complaint states no cause of action.

5. LITIS PENDENTIA
• Requisites: [Anderson Group v. CA (1997)] 1) Identity of parties; 2) identity of rights asserted and relief prayed for; 3) Relief founded on the same facts and the same basis; 4) Identity in the 2 proceedings should be such that any judgment which may be rendered in the other action will amount to res judicata on the action under consideration. It is not required to allege that there be a prior pending case. It is sufficient to allege and prove the pendency of another case, even if same had been brought later. It does not require that the later case be dismissed in favor of the earlier case. To determine which case should be abated, apply: 1) The More Appropriate Action Test; 2) The Interest of Justice Test, taking into account: a) Nature of the controversy; b) Comparative accessibility of the court to the parties; c) Other similar factors. In both tests, the parties’ good faith shall be taken into consideration. The 1st case shall be abated if it is merely an anticipatory action or defense against an expected suit. The 2nd case will not be abated if it is not brought to harass. [Vitrionics Computers v. RTC (1993)]

TWO CONCEPTS OF RES JUDICATA [Abalos v. CA (1993)] 1) BAR BY PRIOR JUDGMENT – Judgment on the merits in the 1st case constitutes an absolute bar to the subsequent action not only as to every matter which was offered and received to sustain or defeat the claim/demand, but also to any other admissible matter which might have been offered for that purpose and to all matters that could have been adjudged in that case. 2) CONCLUSIVENESS OF JUDGMENT – Where the 2nd action between the parties is upon a different claim/demand, the judgment in the 1st case operates as an estoppel only with regard to those issues directly controverted, upon the determination of which the judgment was rendered.

7. STATUTE OF LIMITATIONS
• Prescription applies only when the complaint on its face shows that indeed the action has already prescribed. If the fact of prescription is not indicated on the face of the complaint and the same may be brought out later, the court must defer decision on the motion until such time as proof may be presented on such fact of prescription.
Prescription Concerned with the fact of delay A matter of time Statutory Applies in law Based on fixed time Laches Concerned with the effect of delay A matter of equity Not statutory Applies in equity Not based on fixed time

6. RES JUDICATA
• Requisites: 1) Former judgment rendered by a court having jurisdiction over the subject matter and over the parties;

8. COMPLAINT STATES NO CAUSE OF ACTION

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• Failure to state a cause of action (not lack of cause of action) is the ground for a MTD. 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. The failure to state a cause of action must be evident on the face of the complaint itself. Test: Assuming the allegations and statements to be true, does the plaintiff have a valid cause of action? A MTD based upon the ground of failure to state a cause of action imports a hypothetical admission by the defendant of the facts alleged in the complaint. If the court finds the allegations of the complaint to be sufficient but doubts their veracity, it must deny the MTD and require the defendant to answer and then proceed to try the case on its merits. A complaint containing a premature cause of action may be dismissed for failure to state a cause of action. If the suit is not brought against the real partyin-interest, a motion to dismiss may be filed on the ground that the complaint states no cause of action. [Tanpinco v. IAC (1992)] •

REMEDIAL LAW
The court cannot defer the resolution of the MTD for the reason that the ground relied upon is not indubitable.

EFFECTS
1) Of dismissal: [Rule 16, Sec.5] • General rule: The action/claim may be refiled. • Exception: The action cannot be refiled (although subject to appeal) if it was dismissed on any of the following grounds: a) Res judicata; b) Prescription; c) Extinguishment of the claim/demand; d) Unenforceability under the Statute of Frauds. 2) On periods for pleading: [Rule 16, Sec.4] a) If MTD is denied – Movant must file his answer within the balance of the period under Rule 11 to which he was entitled at the time of serving his MTD (but not less than 5 days). b) If pleading is ordered to be amended – Movant must file his answer within the period under Rule 11, counted from service of the amended pleading (unless the court gives a longer period). 3) On other grounds and omnibus motion rule: • MTD based on the following grounds may be filed even after filing an answer: [Rule 9, Sec. 1] 1) LOJ over subject-matter; 2) Litis pendentia; 3) Res judicata; 4) Prescription. • Dismissal of the complaint under Rule 16, Sec. 6 is without prejudice to the prosecution (in the same or in a separate action) of a counterclaim pleaded in the answer.

• •

9. EXTINGUISHED CLAIM
• That the claim/demand set forth in the plaintiff's pleading has been paid, waived, abandoned or otherwise extinguished.

10. UNENFORCEABLE CLAIM UNDER THE STATUTE OF FRAUDS 11. NON-COMPLIANCE WITH A CONDITION PRECEDENT
• Non-compliance with PD 1508 (Katarungang Pambarangay Law) may result in dismissal of the case on the ground of non-compliance with a condition precedent.

PLEADING THE GROUNDS AS AFFIRMATIVE DEFENSES [Rule 16, Sec. 6] • If no MTD was filed, the grounds in Rule 16, Sec. 1 may be pleaded as an affirmative defense and the court may conduct a preliminary hearing thereon as if a MTD was filed. •

B. DISMISSAL OF ACTIONS
1. DISMISSAL UPON PLAINTIFF’S NOTICE [Rule 17, Sec. 1]
Dismissal here is effected not by motion but by mere notice before the service of either: 1) The answer; 2) A motion for summary judgment. Upon plaintiff’s filing of notice, the court shall issue an order dismissing the case. (i.e. the court has no discretion on WON to dismiss the case). The dismissal is without prejudice. • Exception: 1) If the notice of dismissal provides that it is with prejudice. • The dismissal is still with prejudice even it the notice of dismissal does not so provide, where such notice is premised on the fact of payment by the defendant of the claim involved. [Serrano v. Cabrera] 2) TWO-DISMISSAL RULE – If the plaintiff has previously dismissed an action based on or including the same

HEARING AND ORDER
• During the hearing of the motion, parties shall submit: [Rule 16, Sec. 2] 1) Their arguments on questions of law; 2) Their evidence on questions of fact. • Exception: Those not available at that time. • If the case goes to trial, such evidence presented shall automatically be part of the evidence of the party who presented them. After the hearing, the court may either: [Rule 16, Sec. 3] 1) Dismiss the action/claim; 2) Deny the MTD; 3) Order the amendment of pleadings. The court’s resolution on the MTD must clearly and distinctly state the reasons therefor. •

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claim, the notice operates adjudication on the merits. as an
Dismissal is without prejudice to the defendant’s right to prosecute his counterclaim in a separate action (unless within 15 days from notice of the motion he manifests his intention to have his counterclaim resolved in the same action)

REMEDIAL LAW
Dismissal is without prejudice to the defendant’s right to prosecute his counterclaim in the same or in a separate action

2. DISMISSAL UPON PLAINTIFF’S MOTION [Rule 17,
Sec. 2] • Here, dismissal of the complaint is subject to the court’s discretion and upon such terms and conditions as may be just. Leave of court for the dismissal is necessary because the motion is made after a responsive pleading or a motion for summary judgment has been served. If defendant pleaded a counterclaim prior to the service upon him of the plaintiff’s motion for dismissal, the dismissal shall be without prejudice to the defendant’s right to either: 1) Prosecute his counterclaim in a separate action; 2) Have the counterclaim resolved in the same action, by manifesting such preference within 15 days from being notified of plaintiff’s motion for dismissal. Dismissal here is without prejudice, unless otherwise provided in the order. Court approval of the court is necessary in the dismissal/compromise of a class suit. 3. DISMISSAL DUE TO

DISMISSAL OF COUNTERCLAIMS/CROSSCLAIMS/3RD-PARTY COMPLAINTS [Rule 17, Sec. 4] • Rule 17 applies to the dismissal of counterclaims, cross-claims or 3rd-party complaints. Where a counterclaim is made the subject of a separate suit, it may be abated upon a plea of auter action pendentia and/or dismissal on the ground of res judicata. Res judicata, however, is not applicable since the court held that it did not acquire jurisdiction due to non-payment of docket fees. Dismissal on the ground of LOJ does not constitute res judicata, there being no consideration and adjudication of the case on the merits. Neither is there litis pendentia. [Meliton v. CA (1992)]

• •

PLAINTIFF’S FAULT [Rule 17,
Sec. 3]

C. DEFAULTS [Rule 9, Sec. 3]
• If, without justifiable cause, plaintiff fails either: 1) To appear on the date of the presentation of his evidence-in-chief on the complaint; • 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 crossexamine and to object to the admissibility of evidence. [Jalover v. Ytoriaga] 2) To prosecute his action for an unreasonable length of time (nolle prosequi); • The test for dismissal of a case due to failure to prosecute is WON, under the circumstances, the plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude. [Calalang v. CA (1993)] 3) To comply with the ROC or any court order. Here, the case may be dismissed motu propio or upon the defendant’s motion. The dismissal has the effect of an adjudication on the merits, unless the court declares otherwise.
Rule 17, Sec. 2 Dismissal is at the plaintiff’s instance Rule 17, Sec. 3 Dismissal is not procured by plaintiff, although justified by causes imputable to him Dismissal is a matter of evidence, an adjudication on the merits

Definition: Failure of the defendant to answer within the proper period. It is not his failure to appear nor his failure to present evidence.
Order of default Issued by the court on plaintiff’s motion, for failure of the defendant to file his responsive pleading seasonably Interlocutory – Not appealable Judgment by default Rendered by the court following a default order or after it received ex parte plaintiff’s evidence Final – Appealable

• •

ELEMENTS OF A VALID DECLARATION OF DEFAULT 1) Court validly acquired jurisdiction over the defendant’s person, either by service of summons or voluntary appearance; 2) Defendant fails to answer within the time allowed therefor; 3) Motion to declare the defendant in default; 4) Notice to the defendant by serving upon him a copy of such motion; 5) Proof of such failure to answer. CASES WHERE NO DEFAULTS ARE ALLOWED 1) Annulment of marriage; Declaration of nullity of marriage; Legal Separation; • Here, the court shall order the prosecuting attorney to investigate WON parties are colluding and, if there is no collusion, to intervene from the State to ensure that evidence is not fabricated. 2) Special civil actions of certiorari, prohibition and mandamus, where comment (instead of an answer) is required to be filed. EFFECT OF ORDER OF DEFAULT

Dismissal is a matter of procedure, without prejudice unless otherwise stated in the court order or on plaintiff’s motion for dismissal of his own complaint.

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1) Party in default loses standing in court as a party litigant. His failure to answer operates as a waiver of right to take part in the trial, of being heard, and of presenting evidence in his favor. • 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 answer to the amended complaint as to which he was not in default. 2) The court shall proceed to render judgment granting the claimant relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. 3) The party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. • A defendant declared in default cannot take part in the trial, but he cannot be disqualified from testifying as a witness in favor of non-defaulting defendants. [Cavili v. Florendo] • A party in default is entitled to notice of: a) Motion to declare him in default; b) Order declaring him in default; c) Subsequent proceedings; d) Service of final orders and judgments.

REMEDIAL LAW

who fails to appear Plaintiff

effect Cause for dismissal of the action which will be with prejudice, unless otherwise ordered by the court Cause to allow plaintiff to present evidence ex parte, and court to render judgment on the basis thereof

Defendant

Default (Rule 9, Sec. 3) Upon motion and notice to defendant. Requires proof of failure to answer Court to render judgment, unless it requires submission of evidence Relief awarded must be the same in nature and amount as prayed for in the complaint

As in default (Rule 18, Sec. 5) Not required Not required Court to allow plaintiff to present evidence ex parte, then the court shall render judgment Relief awarded may be of different nature and amount from the relief prayed for

RELIEF FROM ORDER OF DEFAULT • Before judgment, a party declared in default may file a motion under oath to set aside the order of default upon proper showing that: 1) His failure to answer was due to fraud, accident, mistake or excusable negligence; 2) He has a meritorious defense. • In such case, the order of default may be set aside on terms and conditions as justice requires. EFFECT OF PARTIAL DEFAULT • If the pleading asserting a claim states a common cause of action against several defending parties, and some of the defending parties answer while the others fail, the court shall try the case against all defendants upon the answers filed and render judgment upon the evidence presented. • Exception: If the defense is personal to the one who answered; in which case, it will not benefit those who did not answer. EXTENT OF RELIEF TO BE AWARDED • The award shall not exceed the amount or be different in kind from that prayed for; nor award unliquidated damages. • Rationale: It is presumed that where the relief demanded is greater or different in kind, defendant would not have allowed himself to be declared in default. • In a judgment based on evidence presented ex parte, judgment should not exceed the amount or be different in kind from that prayed for. On the other hand, in a judgment where an answer was filed but defendant did not appear at the hearing, the award may exceed the amount or be different in kind from that prayed for. [Datu Samad Mangelen v. CA (1992)]

A defendant who already filed an answer cannot be declared in default. Only when the defendant fails to file an answer to the complaint may the court proceed to render judgment. [Lesaca v. CA (1992)] The Revised Rules on Summary Procedure does not provide that an answer filed after the reglamentary period should be expunged from the records. As a matter of fact, there is no provision for an entry of default if a defendant fails to file his answer. The defense of LOJ may have even been raised by the defendant in a MTD as an exception to the rule on prohibited pleadings in the Revised Rule on Summary Procedure. Such a motion is allowed under Sec. 19(a) thereof. [Bayog v. Natino (1996)] Where the failure to appear at the pre-trial hearing was uncontrovertedly due to illness, the default order may be set aside on the ground of accident over which petitioner had no control. Also, the order of arrest was illegal as there is nothing in the ROC which authorizes such a consequence of a default order. [Malanyaon v. Sunga (1992)]

REMEDIES • Pleadings, as well as remedial laws, should be liberally construed in order that litigants may have ample opportunity to prove their respective claims, and possible denial of substantial justice. [Gerales v. CA]

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Motion to set aside order of default [Rule 9, Sec. 3(b)] At any time after the discovery of default and before judgment, defendant may file a motion under oath to set aside order of default on the ground that his failure to file an answer or appear on the date set for the pre-trial was due to fraud, accident mistake of law, and excusable negligence and that he has a meritorious defense If the judgment has already been rendered when the defendant discovered the default, but before the same became final and executor. It should be filed within the period for perfecting an appeal. Timely filing thereof interrupts the 15day reglementary period for an appeal. It is required that defendant file first a motion to lift order of default to regain his standing. [Tan v. CA (1997)] If the defendant discovered the default after the judgment has become final and executory The defendant may also appeal from the judgment rendered against him as contrary to the evidence or the law, even if he did not present a petition to set aside the order of default

REMEDIAL LAW
file a motion to set aside the declaration of default, he has the right to appeal the default judgment. But in the appeal, only the evidence of the petitioner may be considered, respondent not having adduced any defense evidence. [Boticano v. Chu (1987)]

D. JUDGMENT ON THE PLEADINGS [Rule 34]
• Grounds: If the answer either: 1) Fails to tender an issue; 2) Admits the material allegations of the adverse party’s pleading. An answer fails to tender an issue due to either: 1. General denial of the material allegations of the complaint; 2. Insufficient denial of the material allegations of the compliant. A judgment on the pleadings can be done only upon motion to the effect filed by the appropriate party. It cannot be rendered by the court motu propio. • Exception: If at pre-trial the court finds that a judgment on the pleadings is proper, it may render such judgment motu propio. [Rule 18, Sec. 2(g)] In the following cases, judgment on the pleadings will not lie and material facts alleged in the complaint must always be proved: 1) Declaration of nullity of marriage; 2) Annulment of marriage; 3) Legal separation. By moving for judgment on the pleadings, the plaintiff waives his claim for unliquidated damages (because claims for such damages must be alleged and proved). One who prays for the 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 upon those allegations taken together with such of his own as are admitted in the pleadings. [Falcasantos v. How Suy Ching]

MNT [Rule 37, Sec. 1(a)]

Petition for relief from order [Rule 38, Sec. 1 and 2]

Appeal from the RTC [Rule 41, Sec. 1]

[Dulos v. CA (1990)] • An order of default is an interlocutory order which is not appealable. A judgment by default is a final disposition of the case and is appealable. [MERALCO v. La Campana Food Products (1995)] A petition for certiorari under Rule 65, although not a substitute for an available or lost appeal, may be invoked while the orders of the lower court are issued without or in excess of jurisdiction. Judgment by default being appealable, appeal should be perfected within 15 days from receipt of copy of order denying MFR of default judgment. [Oriental Media v. CA (1995)] A satisfactory showing by the movant of the existence of fraud, accident, mistake or excusable neglect is an indispensable requirement for the setting aside of a judgment of default or the order of default. A meritorious defense is only one of the two conditions. The meritorious defense must concur with the satisfactory reason for the non-appearance of the defaulted party. If there is no such reason, the appropriate remedy is an ordinary appeal under Rule 41, Sec. 2. [Ramnani v. CA (1993)] The jurisdiction was properly acquired by the TC over the defendant’s person; he was therefore properly declared in default for not having filed any answer. Despite his failure to

E. SUMMARY JUDGMENTS
• Definition: A judgment granted by the court for the prompt disposition of civil actions, if it clearly appears that there exists no genuine issue/controversy as to any material fact, except as to the amount of damages. Also called accelerated judgment. GENUINE ISSUE – An issue of fact which calls for the presentation of evidence; as distinguished from an issue which is sham, fictitious, contrived and patently insubstantial so as not to constitute a genuine issue for trial. When the facts as pleaded appear uncontested or undisputed, then there is no real/genuine issue as to the facts.

• •

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• The TC cannot motu propio issue a summary judgment. A party must move for summary judgment.
who may file motion for summary judgment Plaintiff when

REMEDIAL LAW V. MODES OF DISCOVERY A. DEPOSITIONS UNDER RULE 23
1. GENERAL RULES
• PRIMARY FUNCTION OF A DEPOSITION Deposition is chiefly a mode of discovery, the primary function of which is to supplement the pleadings for the purpose of disclosing the real points of dispute between the parties and affording an adequate factual basis during the preparation for trial. The liberty of a party to avail of such modes of discovery is unrestricted if the matters inquired into are relevant and not privileged, and the inquiry is made in good faith and within the bounds of the law. Limitations would arise if the examination is conducted in bad faith; or in such a manner as to annoy, embarrass or oppress the person under examination; or when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege. Under certain conditions and for certain limited purposes, it may be taken even after trial has commenced and may be used without the deponent being actually called to the witness stand. [Jonathan Landoil v Mangudadatu (2006)] General Rule: A deposition is not generally supposed to be a substitute for the actual testimony in open court of a party or witness. If the witness is available to testify, he should be presented in court to testify. If available to testify, a party’s or witness’ deposition is inadmissible in evidence for being hearsay. [Dasmariñas Garments,Inc. v. Reyes (1993)] • Exception: The exceptions however to the inadmissibility of such deposition are provided for in Rule 23, Section 4, as follows: 1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness; 2) 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; 3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: a) that the witness is dead; or b) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or

May file the motion only after the answer has been served May file the motion any time

Defendant

Filing of a motion for summary judgment does not interrupt the running of the period for filing an answer. Hence, the movant must also file a Motion for Extension of Time to File Answer. Bases of summary judgment: When, upon the following, no genuine issue as to any material fact exists: 1) Affidavits made on personal knowledge; 2) Depositions of the adverse or a 3rd party; (Rule 23) 3) Admissions of the adverse party; (Rule 26) 4) Answers to interrogatories. (Rule 25)

PARTIAL SUMMARY JUDGMENT • Applies when for some reason there can be no full summary judgment. Trial should deal only with the facts not yet specified or established. The court shall direct further proceedings in the action as are just. • Effect of partial summary judgment: A partial summary judgment is not a final judgment, but merely a pre-trial adjudication that said issues in the case shall be deemed established for the trial of the case. [Guevarra v. CA (1983)]

Summary judgment Based on the pleadings, depositions, admissions and affidavits There is no genuine issue between the parties

Judgment on the pleadings Based solely upon the pleadings

Available to both plaintiff and defendant

The answer fails to tender an issue or there is an admission of the material allegations Generally available only to the plaintiff, unless the defendant presents a counterclaim 3-day notice required On the merits

Judgment by default Based on the complaint and evidence, if court requires its presentation No issues as no answer is filed by the defending party

Available to the plaintiff alone

10-day notice required May be interlocutory or on the merits Usually available in actions to recover a debt, or for a liquidated sum of money, or for declaratory relief

3-day notice rule applies On the merits

Available in any action, except annulment of marriage or legal separation cases

Available in any action, except annulment of marriage or legal separation cases

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c) that the witness is unable to attend to testify because of age, sickness, infirmity, or imprisonment; or d) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or e) 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 4) 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.

REMEDIAL LAW
3) before any person authorized to administer oaths as stipulated in writing by the parties. COMMISSION ADDRESSED TO WHOM
Any authority in a foreign country authorized therein to take down depositions Rules laid down by the court issuing the commission Preferred over letters rogatory since the process is simpler (generally, no need to resort to diplomatic channels unlike in letters rogatory) Usually authoritative in the sense that it orders the commissioned officer to take the deposition in accordance with the rules laid down by the issuing court

LETTERS ROGATORY
A judicial authority in the foreign country

RULES THAT GOVERN THE DEPOSITION WHEN ISSUED

Rules laid down by such foreign judicial authority Generally resorted to when there is difficulty or impossibility of obtaining the deposition by commission (J. Regalado)

TONE OF COMMUNICA TION

2. BEFORE WHOM TAKEN
• General Rule: Depositions may be taken before any judge, notary public, or the person referred to in section 14 (which refers to any person authorized to administer oaths designated by the parties by stipulation). • Exceptions: In our jurisdiction, depositions in foreign countries 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

In the form of a request, it being issued to a representative of another sovereign state.

No deposition shall be taken before a person who is: 1) a relative within the sixth degree of consanguinity or affinity, or 2) employee or counsel of any of the parties, or who is a relative within the same degree, or employee of such counsel; or 3) who is financially interested in the action.

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REMEDIAL LAW

3. PROCEDURE FOR TAKING DEPOSITIONS DE BENE ESSE UNDER RULE 23

Af ter jurisdiction has been obtained over any defendant or over the property subject of the action, but bef ore the answ er is f iled, FILE A MOTION TO TAKE DEPOSITION AND SERVE REASONABLE NOTICE IN WRITING TO EV ERY OTHER PARTY IN THE ACTION

Af ter an answ er has been f iled, no leave of court is required thus, the party seeking to take deposition may FILE A NOTICE TO TAKE DEPOSITION AND SERVE REASONABLE NOTICE IN WRITING TO EV ERY OTHER PARTY IN THE ACTION

PROOF OF SERVICE OF A NOTICE TO TAKE A DEPOSITION, AS PROVIDED I N SECTIONS 15 AND 25 OF RUL E 23, shall constitute suff icient authorization for the issuance of subpoenas f or the persons named in said notice by the clerk of the court of the place in w hich the deposition is to be taken. The clerk shall not, however, issue a subpoena duces tecum to any such person w ithout an order of the court . (RUL E 21, SECTION 5)

Upon court approval f or the taking of deposition, the court upon motion seasonally made by any party or the by the person to be examined f or good cause sho w n (under Section 16), may issue orders f or the protection of parties and deponents f rom annoyance, embarrassment or oppression.

The court upon motion seasonally made by any party or the by the person to be examined f or good cause show n (under Section 16), may issue orders f or the protection of parties and deponents f rom annoyance, embarrassment or oppression.

SCOPE OF EXAMINATION. Unless otherw ise ordered by the court as provided by se ction 16 or 18 of this Rule , the deponent may be examined regarding any m atter, not privilege d, w hic h is relevant to the subject of the pending action.

DEPOSITION BY ORAL EXAMINATION: The of f ic er bef ore w hom the deposition is to be taken shall put the w itness on oath and shall personally, or by some one acting under his direction and in his presence, record the testimony of the w itness. The testimony shall be taken stenographically unless the parties agree otherw ise. All objections made at the time of the examination to the qualif ications of the off icer taking the deposition, or to the manner of talking it, or to the evidence presented, or to the conduct of any party, and 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 L IEU OF PARTICIPATING IN THE ORAL EXAMINATION, PARTIES SERV ED 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. (Section 17)

DEPOSITION BY WRITTEN INTERROGATORIES: A party desiring to take the deposition of any person upon w ritten interrogatories shall serve them upon every other party w ith a notice stating the name and address of the person w ho is to answ er them and the name or descriptive title and address of the off ic er bef ore w hom the deposition is to be taken. Within ten (10) days thereafter, a party so served may serve cross-interrogatories upon the party proposing to take the deposition. Within f ive (5) days thereaf ter, the latter may serve re-direct interrogatories upon a party w ho has served cross-interrogatories. Within three (3) days af ter being served w ith re-direct interrogatories, a party may serve re cross-interrogatories upon the party proposing to take the deposition.

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Examination and cross-examination of deponents may proceed as permitted at the trial under sections 3 to 18 of Rule 132.

REMEDIAL LAW
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 sections 17 (i.e., questions are read to deponent subject to objections), 19 and 20 of Rule 23.

MOTION TO LIMIT OR TERMINATE 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 conducted IN BAD FAITH OR IN SUCH MANNER AS UNREASONABLY TO ANNOY, EMBARRASS, OR OPPRESS THE DEPONENT OR PARTY, the court in w hich the action is pending or the Regional Trial Court of the place where the deposition is being taken may order the officer conducting the examination to cease forth w ith from taking the deposition, or may limit the scope and manner of the taking of the deposition, as provided in section 16 of this Rule.

SUBMISSION TO WITNESS, CHANGES, SIGNING: When the testimony is fully transcribed, the deposition shall be submitted to the w itness for examination and shall be read to or by him, unless such examination and reading are waiv ed by the witness and by the parties. Any changes in form or substance which the w itness desires to make shall be entered upon the deposition by the officer with a statement of the reasons giv en by the w itness for making them. The deposition shall then be signed by the w itness, unless the parties by stipulation w aiv e the signing or the w itness is ill or cannot be found or refuses to sign. If the deposition is not signed by the w itness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together w ith the reason be given therefor, if any, and the deposition may then be used as fully as though signed, UNLESS ON A MOTION TO SUPPRESS UNDER SECTION 29 (F) OF THIS RUL E, THE COURT HOLDS THAT THE REASONS GIV EN FOR THE REFUSAL TO SIGN REQUIRE REJECTION OF T HE DEPOSITION IN WHOLE OR IN PART.

CERTIFICATION, AND FILING BY OFFICER. The deposition offic er shall certify on the deposition that the witness was duly sworn to by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope indorsed with the title of the action and marked "Deposition of (here insert the name of witness)" and shall promptly file it w ith the court in w hich the action is pending or send it by regis tered mail to the clerk thereof for filing

NOTICE OF FILING. The officer taking the deposition shall give prompt notice of its filing to all the parties

FURNISHING COPIES. Upon payment of reasonable charges therefor, the officer shall furnis h a copy of the deposition to any party or to the deponent.

4. OTHER RULES
• RULE 23 Section 5. Effect of substitution of parties. Substitution of parties does not affect the right to use depositions previously taken; and, when an action has been dismissed and 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 THEREFOR. According to Professor Avena, the title of this section notwithstanding, this SECTION ACTUALLY ENUNCIATES THE EFFECT OF •

TAKING A DEPOSITION. It in effect preserves testimony of a person subject to the limitations of its use under Section 4 of the rule. A party shall not be deemed to make a person his own witness for any purpose by taking his deposition (Section 7). General Rule: Introduction in evidence of deposition or any part thereof for any purpose makes the deponent the witness of the party introducing the deposition. • Exception: if the purpose if to contradict or impeach the deponent. ONLY INSTANCE WHEN ONE ALWAYS NEEDS LEAVE OF COURT BEFORE TAKING DEPOSITIONS: Where the deponent is in jail. DEPOSITION, WHEN AVAILABLE IN CRIMINAL CASES: A deposition, in keeping with its nature

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as a mode of discovery, should be taken BEFORE AND NOT DURING TRIAL. In fact, rules on criminal practice - particularly on the defense of alibi, which is respondent’s main defense in the criminal proceedings against him in the court below - states that when a person intends to rely on such a defense, that person must move for the taking of the deposition of his witnesses within the time provided for filing a pre-trial motion. The use of discovery procedure in criminal cases is directed to the sound discretion of the trial judge. The deposition taking can not be based nor can it be denied on flimsy reasons. Discretion has to be exercised in a reasonable manner and in consonance with the spirit of the law. [People v. Hubert Webb (1999)]
GROUNDS FOR QUESTIONING THE DEPOSITION BEFORE DURING AFTER DEPOSITION DEPOSITION DEPOSITION -Lack of notice to parties -Deposition officer is disqualified -Lack of relevance, materiality and competence of the deposition to the action -Deposition officer is disqualified -Error in the manner of taking the deposition -Error in the form of the deposition -Manner preparing deposition of the

REMEDIAL LAW
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 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. 2) NOTICE AND SERVICE to 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 twenty (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. 3) 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 specifying the subject matter of the examination and 2) whether the depositions shall be taken upon oral examination or written interrogatories 4) Procedure for taking deposition by oral examination or written interrogatories will be governed by Rule 23 on depositions de bene esse.

DASMARINAS GARMENTS VS. REYES (1993): Any deposition offered to prove the facts therein at the trial of the case, in lieu of actual testimony of the deponent in court, may be opposed and excluded for being hearsay save in specific instances under the Rules. [Dasmariñas Garments v. Reyes (1993)]

B. DEPOSITIONS BEFORE ACTION UNDER RULE 24
• Purpose: To perpetuate the testimony of witnesses for probable use in the event of further proceedings in said court. Procedure: •

C. DEPOSITIONS PENDING APPEAL UNDER RULE 24
J. Regalado and Prof. Avena both believe that the following procedure is applicable to civil and criminal cases. Procedure:

1) FILE A VERIFIED PETITION IN THE COURT OF THE PLACE OF THE RESIDENCE OF ANY EXPECTED ADVERSE PARTY. The petition shall be entitled in the name of the petitioner and shall show: a) that the petitioner expects to be a party to an action in a court of the Philippines 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

1) DURING THE PENDENCY OF AN APPEAL, THE COURT IN WHICH THE JUDGMENT was rendered may allow the taking of depositions of witnesses to perpetuate their testimony 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 2) ORDER ALLOWING THE DEPOSITION: If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the deposition to be taken.

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3) RULE 23 APPLIES ON THE MANNER CONDUCT OF THE DEPOSITION. OR

REMEDIAL LAW
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 REASONABLE EXPENSES INCURRED IN OBTAINING THE ORDER, INCLUDING ATTORNEY'S FEES (Rule 29, section 1). CONTEMPT for refusal to comply with an order of the court to compel an answer (According to Prof. Avena, the basis is Rule 71, Section 3b, not Rule 29.2 which refers only to depositions) Subject of discovery DEEMED ADMITTED OR ESTABLISHED (RULE 29 SECTION 3a). Party prohibited from introducing CONTRADICTORY EVIDENCE (RULE 29, SECTION 3b) STRIKING OUT PLEADINGS OR PARTS THEREOF (RULE 29, SECTION 3c) STAYING FURTHER PROCEEDINGS UNTIL THE ORDER IS OBEYED, or DISMISSING THE ACTION OR PROCEEDING OR ANY PART THEREOF(RULE 29, SECTION 3c), or RENDERING A JUDGMENT BY DEFAULT AGAINST THE DISOBEDIENT PARTY; AND (RULE 29, SECTION 3c) 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 (RULE 29, SECTION 3c)

D. INTERROGATORIES TO PARTIES UNDER RULE 25
2) • Procedure:

1) Either: 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, any party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served or, 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. 2) ANSWER. The interrogatories shall be ANSWERED FULLY IN WRITING and 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 fifteen (15) days after service thereof unless the court on motion and for good cause shown, extends or shortens the time. 3) ANSWER DEFERRED when objections to any interrogatories is presented to the court within ten (10) days after service thereof, with notice as in case of a motion. • NUMBER OF INTERROGATORIES. No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party (Section 4, Rule 23). SCOPE OF INTERROGATORIES: any matter, (1) not privileged and which is (2) relevant to the subject of the pending action, whether relating to the claim or defense of any other party, 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 USE OF INTERROGATORIES: Same as Rule 23 Section 4 mutatis mutandis. CONSEQUENCE OF FAILURE TO SERVE WRITTEN INTERROGATORIES. 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 unless thereafter allowed by the court for good cause shown and to prevent a failure of justice. (RULE 25, section 6) CONSEQUENCES OF REFUSAL TO ANSWER THE SET OF INTERROGATORIES: 1) The party serving the interrogatories may apply to the court for an order to compel an answer. If it also finds that the refusal

3) 4)

5) 6)

7)

8)

E. REQUEST FOR ADMISSION UNDER RULE 26
1) AT ANY TIME AFTER ISSUES HAVE BEEN JOINED, a party may file and serve upon any other party may file and serve upon any other party a written request for the admission by the latter of a) the GENUINENESS OF ANY MATERIAL AND RELEVANT DOCUMENT DESCRIBED IN AND EXHIBITED WITH THE REQUEST or b) of the TRUTH OF ANY MATERIAL AND RELEVANT MATTER OF FACT SET FORTH IN THE REQUEST. 2) 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 fifteen (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 a) denying specifically the matters of which an admission is requested or b) setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.

• •

3) 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

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objections are resolved, which resolution shall be made as early as practicable. • 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. WITHDRAWAL. The court may allow the party making an admission under the Rule, whether express or implied, to withdraw or amend it upon such terms as may be just. EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR ADMISSION. Unless otherwise allowed by the court for (1) good cause shown and (2) to prevent a failure of justice, a party who fails to file 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. The request for admission MUST BE SERVED ON THE PARTY and NOT ON THE COUNSEL. This is an exception to the general rule that notices shall be served upon counsel and not upon the party. [Duque v. CA (2002)] SUBPOENA DUCES TECUM

REMEDIAL LAW
ORDER FOR THE PRODUCTION OR INSPECTION evidence material to any matter involved in the action and 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.

Note the term ALSO in Rule 21, section1. This for her is an inherent limitation of subpoena. This she believes is the reason why Rule 27 becomes relevant.

F. PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
• This mode of discovery does not mean that the person who is required to produce the document or the thing will be deprived of its possession even temporarily. It is enough that the requesting party be given the opportunity to inspect or copy or photograph the document or take a look at the thing. TO WHOM DIRECTED WHEN MAY ASKED IT BE To any person

Only to a party

Only during trial

Before and/or during trial

ISSUED BY WHOM

SUBPOENA DUCES TECUM

NATURE

Process requiring a person to bring with him any books, documents, documents, or other things under his control or possession.

AVENA NOTES: Subpoena duces tecum CANNOT BE ISSUED without a prior subpoena ad testificandum

ORDER FOR THE PRODUCTION OR INSPECTION (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, not privileged, which constitute or contain

WHEN ISSUED

Issued by a court before whom the witness is required to attend, or court where the deposition is to be taken or clerk or body authorized by law or any justice of the Supreme Court or CA in any case or investigation pending within the Philippines Issued upon request (Request to the clerk, no notice) NO

Issued by the court where the action is pending

WHETHER IT IS NECESSARY TO SHOW GOOD

Issued upon motion (application with notice to the other party) YES

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SUBPOENA DUCES TECUM ORDER FOR THE PRODUCTION OR INSPECTION No good cause shown •

REMEDIAL LAW
WAIVER OF PRIVILEGE. By requesting and obtaining a report of the examination so ordered or 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. PHYSICIAN-PATIENT PRIVILEGE, INAPPLICABLE because the results of the examination are intended to be made public. Such examination is not necessary to treat or cure the patient but to assess the extent of injury or to evaluate his physic al or mental condition.

CAUSE GROUNDS FOR QUASHAL

Unreasonable, oppressive, irrelevant, or The person in whose behalf the subpoena is issued fails to advance the reasonable costs of the production thereof Constitutes contempt of the court from which the subpoena is issued.

CONSEQUENCE OF DISOBEDIENCE

See Section 3, Rule 29

H. CONSEQUENCES OF REFUSAL UNDER RULE 29

PROVISION HIGHLIGHTS

APPLICABILITY

G. PHYSICAL AND MENTAL EXAMINATION OF A PARTY UNDER RULE 28
• Procedure:

Section 1. REFUSAL TO ANSWER. If a party or other deponent refuses to answer any question upon oral examination, (1) the examination may be completed on other matters or (2) adjourned as the proponent of the question may prefer. (3) The proponent may thereafter apply (i.e., by MOTION FOR THE ISSUANCE OF AN ORDER TO COMPEL AN ANSWER- Prof. Avena) to the proper court of the place where the deposition is being taken, for an order to compel an answer. • IF THE APPLICATION IS GRANTED, the court shall require the refusing party or deponent to answer the question or interrogatory and 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 reasonable expenses incurred in obtaining the order, including attorney's fees. • IF THE APPLICATION IS DENIED and the court finds

PARTY OR DEPONENT /WITNESS IN RULE (depositions bene esse), RULE (depositions perpetuam memoriam) 23 de

1) MOTION FOR THE ISSUANCE OF AN ORDER FOR EXAMINATION, requisites a) the lis mota of the case is the physical or mental condition of a party (NOT A WITNESS!!!) b) good cause c) notice to the party to be examined d) must specify physician e) scope of examination 2) COURT IN WHICH THE ACTION IS PENDING MAY IN ITS DISCRETION issue the order for examination. 3) REPORT OF FINDINGS. 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 like 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.

24 in rei

RULE 25. INTERROGATORIES TO PARTIES

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REMEDIAL LAW

PROVISION HIGHLIGHTS 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 reasonable expenses incurred in opposing the application, including attorney's fees.

APPLICABILITY

PROVISION HIGHLIGHTS taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (b) An order (1) refusing to allow the disobedient party to support or oppose designated claims or defenses or (2) prohibiting him from introducing in evidence designated documents or things or items of testimony, or (3)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, (4) or 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. Section 4. Expenses on refusal to admit.

APPLICABILITY (depositions bene esse), RULE (depositions perpetuam memoriam) de

24 in rei

RULE 25 (Interrogatories to parties) RULE 27 (Motion production inspection documents things) for or of or

Section 2. Contempt of court. If a party or other witness (1) refuses to BE SWORN OR (2) 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.

PARTY OR WITNESS IN RULE (depositions bene esse), RULE (depositions perpetuam memoriam) 23 de

RULE 28 (Physical and mental examination of persons) (APPLIES TO all modes of discovery except RULE 26 ON REQUEST FOR ADMISSION BY AN ADVERSE PARTY)

24 in rei

Prof. Avena believes that Section 2 DOES NOT CONTEMPLATE Rule 25 on interrogatories because of the phrase “by the court of the place in which the deposition is being taken.” How then will you cite a party or witness for contempt? The answer is to apply for an order to compel an answer and once an order is issued, you can use Rule 71.3b as basis for holding a party or other witness for contempt.

Section 3. Other consequences AGGRIEVED PARTY MAY APPLY FOR: (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 PARTY OR AN OFFICER OR MANAGING AGENT OF A PARTY IN 23, 24, 25 IN RELATION TO RULE 29.1 ON ORDER TO COMPEL AN ANSWER PARTY IN 27, 28 RULE 23

PARTY SERVED WITH A REQUEST RULE 26 ADMISSION BY AN ADVERSE PARTY Prof. Avena: Pay attention to the distinction between Rule 26.5 and this Section. Rule 26.5 applies to party who fails to file and serve request for

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 (1) SERVES A SWORN DENIAL THEREOF and (2) IF THE PARTY REQUESTING THE ADMISSIONS

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REMEDIAL LAW

PROVISION HIGHLIGHTS 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 reasonable expenses incurred in making such proof, including attorney's fees. Unless the court finds THAT THERE WERE GOOD REASONS FOR THE DENIAL OR THAT ADMISSIONS SOUGHT WERE OF NO SUBSTANTIAL IMPORTANCE, SUCH ORDER SHALL BE ISSUED. SECTION 5. FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS. If a party or an officer or managing agent of a party (1) wilfully 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, (4) and in its discretion, order him to pay reasonable expenses incurred by the other, including attorney's fees SECTION 6. EXPENSES AGAINST THE REPUBLIC OF THE PHILIPPINES. Expenses and attorney's fees are not to be imposed upon the

APPLICABILITY admission while this section applies to the party being served with a request. Both provisions have a common objective, that is, to help expedite court proceedings.

PROVISION HIGHLIGHTS Republic of the Philippines under this Rule

APPLICABILITY represents the Republic in an official capacity) to pay.

PARTY OR AN OFFICER OR MANAGING AGENT OF A PARTY RULE 23 (depositions de bene esse), RULE 24 (depositions in perpetuam rei memoriam) RULE 25. INTERROGATORIES TO PARTIES

Applies to all provisions in Rule 29 requiring a noncompliant party or witness (who

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CIVIL PROCEDURE VI. PRE-TRIAL
• Definition: A mandatory conference and personal confrontation before the judge between the parties litigant and their representative counsels, called by the court after the joinder of issues in a case or after the last pleading has been filed and before trial, for the purpose of settling the litigation expeditiously or simplifying the issues without sacrificing the necessary demands of justice. Purpose: To consider: [Rule 18, Sec. 2] 1) Possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; 2) Simplification of the issues; 3) Necessity/desirability of amendments to the pleadings; 4) Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; 5) Limitation of the number of witnesses; 6) Advisability of a preliminary reference of issues to a commissioner; 7) Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist; 8) Advisability/ecessity of suspending the proceedings; and 9) Other matters that may aid in the prompt disposition of the action. Pre-trial is primarily intended to make certain that all issues necessary to the disposition of a case are properly raised. Thus, to obviate the element of surprise, parties are expected to disclose at a pre-trial conference (PTC) all issues of law and fact which they intend to raise at the trial, except such as may involve privileged or impeaching matters. The determination of issues at a pre-trial conference bars the consideration of other questions on appeal. [Caltex v. CA (1992)] When conducted: After the last pleading has been served and filed, it shall be the plaintiff’s duty to move ex parte that the case be set for pre-trial. [Rule 18, Sec. 1] • A pre-trial cannot validly be held until the last pleading has been filed, which last pleading may be the plaintiff's reply, except where the period to file the last pleading has lapsed. Discretion to declare a party non-suited in PTC must not be abused. Unless a party is so negligent, irresponsible, contumacious, or dilatory as to provide substantial grounds for dismissal for non-appearance, the court should consider lesser sanctions which would still amount to achieving the end desired. [Calalang v. CA (1993)] • •

REMEDIAL LAW
It is the duty of the parties and their counsel to appear at the pre-trial. A party’s non-appearance may be excused only if either: 1) Valid cause is shown for it; 2) A representative appears in his behalf, fully authorized in writing: a) To enter into an amicable settlement; b) To submit to alternative modes of dispute resolution; c) To enter into stipulations/admissions of facts and of documents. Note: See the section on default for the effects of failure to appear in the pre-trial. SC admonishes the courts against precipitate orders of default as they have the effect of denying the party the chance to be heard. There are instances when parties may properly be defaulted, but such is the exception rather than the rule and should be used only in clear cases of obstinate refusal or inordinate neglect to comply with court orders. [Citibank v. Chua (1993)]

• •

PRE-TRIAL BRIEF [Rule 18, Sec. 6]
• Parties shall file and serve their respective pretrial briefs, ensuring receipt by adverse party at least 3 days before the date of the pre-trial. Pre-trial brief’s contents: 1) Statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; 2) Summary of admitted facts and proposed stipulation of facts; 3) Issues to be tried/resolved; 4) Documents/exhibits to be presented, stating the purpose thereof; 5) Manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; 6) Number and names of the witnesses, and the substance of their respective testimonies. Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial.

RECORD OF PRE-TRIAL [Rule 18, Sec. 7]
• The pre-trial proceedings shall be recorded. Upon termination of such proceedings, the court shall issue the pre-trial order. Pre-trial order’s contents: 1) Matters taken up in the conference; 2) Action taken thereon; 3) Amendments allowed on the pleadings; 4) Agreements/admissions made by the parties as to any matters considered; 5) Should the action proceed to trial, the explicit definition and limit of the issues to be tried. Consequence: The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice. Upon manifestation of the parties of their willingness to discuss a compromise, the TC should order the suspension of the proceedings to allow them reasonable time to discuss and conclude an amicable settlement. If despite all efforts exerted by the TC and the parties the

NOTICE OF PRE-TRIAL [Rule 18, Sec. 3]
• • • Notice of pre-trial shall be served on counsel, or on the party who has no counsel. Counsel served with such notice has a duty to notify the party he represents.

APPEARANCE OF PARTIES [Rule 18, Sec. 4]

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settlement conference still fails, then the action should have continued as if no suspension had taken place. [Goldloop Properties v. CA (1992)] • Note: AM 03-1-09-SC

REMEDIAL LAW VII. TRIAL
NOTICE OF TRIAL [Rule 30, Sec. 1] • Upon entry of a case in the trial calendar, the clerk shall notify parties the date of its trial, ensuring receipt of the notice at least 5 days before the trial date.

CALENDAR OF CASES
• Under the direct supervision of the judge, the clerk of court shall keep a calendar of cases for pre-trial, for trial, those whose trials were adjourned/postponed, and those with motions to set for hearing. [Rule 20, Sec. 1] Preference shall be given to habeas corpus cases, election cases, special civil actions, and those so required by law. [Rule 20, Sec. 1] 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 20, Sec. 2]

A. ADJOURNMENTS AND POSTPONEMENTS [Rule 30,
Sec. 2] • General rule: The court may adjourn a trial from day to day to any stated time, as the expeditious and convenient transaction of business may require. • Exception: Court may not adjourn for longer than 1 month for each adjournment, nor more than 3 months in all. • Exception to exception: When authorized in writing by the SC Court Administrator.
Ground for postponement of trial For absence of evidence [Rule 30, Sec. 3] Requisite for motion to postpone Affidavit showing: 1) The materiality/relevancy of such evidence; 2) That due diligence has been used to procure the evidence But if the adverse party admits the facts to be given in evidence, trial shall not be postponed even if he objects or reserves the right to object to their admissibility. For illness of party/counsel [Rule 30, Sec. 4] Affidavit or sworn certification: 1) That the presence of such party/counsel at the trial is indispensable; 2) That the character of his illness is such as to render his nonattendance excusable.

B. SUBPOENA
TYPES OF SUBPOENA [Rule 21, Sec. 1] 1) SUBPOENA AD TESTIFICANDUM - Process directed to a person, requiring him to attend and to testify at the hearing/trial of an action or at any investigation conducted by competent authority, or for the taking of his deposition. 2) SUBPOENA DUCES TECUM – Process directed to a person, requiring him to bring with him any books/documents/things under his control. BY WHOM ISSUED [Rule 21, Sec. 2] 1) The court before whom the witness is required to attend; 2) The court of the place where the deposition is to be taken;

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3) The officer/body authorized by law to do so in connection with investigations conducted by said officer/body; 4) Any SC/CA Justice in any case or investigation pending within the Philippines. APPLICATION FOR SUBPOENA TO PRISONER [Rule 21, Sec. 2] • The judge/officer shall examine and study the application carefully to determine WON it is made for a valid purpose. • However, no prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in a penal institution shall be brought outside for appearance/attendance in any court unless authorized by the SC. SUBPOENA’S FORM AND CONTENTS [Rule 21, Sec. 3] 1. Name of court; 2. Title of action/investigation; 3. Directed to a person whose attendance is required 4. If subpoena duces tecum, a reasonable description of the books/documents/things demanded which must appear to the court prima facie relevant. QUASHING A SUBPOENA [Rule 21, Sec. 4] • Upon motion promptly made, at/before the time specified in the subpoena. • Grounds for quashing: 1) Subpoena duces tecum: a) It is unreasonable and oppressive; b) The relevancy of the books/documents/things does not appear; c) The person in whose behalf the subpoena is issued fails to advance the reasonable cost of production; d) Witness fees and kilometrage were not tendered when subpoena was served. 2) Subpoena ad testificandum: a) That the witness is not bound thereby; b) That witness fees and kilometrage were not tendered when the subpoena was served. SUBPOENA FOR DEPOSITIONS [Rule 21, Sec. 5] • Proof of service of a notice to take a deposition is sufficient authorization for the issuance of subpoena ad testificandum for the persons named in the notice. • Issued by the clerk of court of the place in which the deposition is to be taken. • However, subpoena duces tecum for depositions cannot be issued without court order. SERVICE OF SUBPOENA [Rule 21, Sec. 6] • Same manner as personal or substituted service of summons. • The original shall be exhibited and a copy delivered to person on whom it is served, with tender of fees for one day’s attendance and kilometrage. • Exception: Tender not required if subpoena is issued by or on behalf of the Republic or an officer/agency thereof. • For subpoena duces tecum, also tender the reasonable cost of producing the books/documents/things demanded. •

REMEDIAL LAW
Service must be made so as to allow the witness reasonable time for preparation and travel to the place of attendance

PERSONAL APPEARANCE IN COURT [Rule 21, Sec. 7] • 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/officer. REMEDY IN CASE OF WITNESS’ FAILURE TO ATTEND • Upon proof of service of subpoena and of witness’ failure to attend, the court/judge issuing the subpoena may issue a warrant to the sheriff to arrest the witness and bring him before the court/officer where his attendance is required. [Rule 21, Sec. 8] • The cost of warrant and seizure shall be paid by the witness if the court determines that the failure to attend was willful and without just excuse. • Such failure shall be deemed a contempt of the court which issued the subpoena. [Rule 21, Sec. 9] • If subpoena was not issued by a court, the disobedience shall be punished by applicable law or ROC. • Exception: Arrest warrant and contempt not applicable to: [Rule 21, Sec. 10] 1) A witness who resides more than 100km from his residence to the place where he is to testify. 2) A detention prisoner, if there is no permission from the court in which his case is pending.

C. CONDUCT OF TRIAL
Sec. 5]

[Rule 30,

General rule: Trial shall be limited to the issues stated in the pre-trial order. • Exception: 1) Provisions on separate trials. 2) When for special reasons the court directs otherwise.

GENERAL ORDER OF TRIAL 1) Plaintiff shall adduce evidence in support of his claim; 2) Defendant shall adduce evidence in support of his defense, counterclaim, cross-claim and 3rdparty complaint; 3) 3rd-party defendant (if any) shall adduce evidence of his defense, counterclaim, crossclaim and 4th-party complaint; 4) 4th-party (and so forth) shall adduce evidence of the material facts pleaded by them; 5) Parties whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order prescribed by the court. 6) Parties may then respectively adduce rebutting evidence only. • Exception: When the court permits them to adduce evidence upon their original case, for good reasons and in furtherance of justice. 7) Upon admission of evidence, the case shall be deemed submitted for decision, unless the

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court directs the parties to argue or to submit their respective memoranda or any further pleadings. • If several defendants or 3rd-party defendants having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence. • •

REMEDIAL LAW
The commissioner shall set a time/place for the first meeting and shall notify parties/counsels. Upon completion of the trial/hearing, the commissioner shall file a written report with the court. The clerk shall notify parties of the filing of the report. The parties 10 days to object to the report’s findings. After the 10 days, the report shall be set for hearing. The court may issue an order adopting/modifying/rejecting the report or part of it. When parties stipulate that the Commissioner's findings of fact are final, only questions of law shall thereafter be considered.

• AGREED STATEMENT OF FACTS [Rule 30, Sec. 6] • Parties may agree in writing upon the facts involved in the litigation, and submit the case for judgment without introduction of evidence. • If the parties agree to only some of the facts in issue, trial shall be held as to the disputed facts in such order as the court shall prescribe. STATEMENT OF THE JUDGE [Rule 30, Sec. 7] • During the hearing/trial of the case, any statement made by the judge shall be made of record in the STN if made with reference to the case/parties/witnesses/counsels. SUSPENSION OF ACTIONS [Rule 30, Sec. 8] • Governed by the CC provisions. RECEPTION OF EVIDENCE [Rule 30, Sec. 9] • General rule: The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. • Exception: The court may delegate the reception of evidence to its clerk of court who is a member of the bar in: a) Default hearings; b) Ex parte hearings; c) Cases where parties agree in writing. • However, the clerk of court has no power to rule on objections to any question/admission of exhibits. • Objections shall be resolved by the court upon submission of the clerk’s report and TSN within 10 days from termination of the hearing.

E. CONSOLIDATION AND SEVERANCE
CONSOLIDATION OF TRIAL [Rule 31, Sec. 1] • When actions involving common question of law/fact are pending before the court, it may: 1) Order a joint hearing/trial of any/all the matters in issue in the actions; 2) Order all the actions consolidated; 3) Make such orders concerning the proceedings as to avoid unnecessary costs or delay. • Where a case has been partially tried before one judge, the consolidation of the same with another related case pending before another judge who had no opportunity to observe the demeanor of the witness during trial makes the consolidation not mandatory. [PCGG v. Sandiganbayan (1992)] SEVERANCE OF TRIAL [Rule 31, Sec. 2] • The court may issue separate trials for convenience or to avoid prejudice: 1) Of any claim, cross-claim, counterclaim or 3rd-party complaint; 2) Of any separate issue; 3) Of any number of claims, cross-claims, counterclaims, 3rd-party complaints or issues.

D. TRIAL BY COMMISSIONER
• COMMISSIONER – Includes a referee, an auditor or an examiner. [Rule 32, Sec. 1]

F. DEMURRER TO EVIDENCE
• Definition: A specie of MTD that may be invoked based on insufficiency of evidence (i.e. upon the facts and the law the plaintiff has shown no right to relief). [Rule 33, Sec. 1] It is invoked after the plaintiff has presented all the evidence available to him.
Grant of demurrer The case shall be dismissed Denial of demurrer The court should set the date for the reception of the defendant’s evidencein-chief [Northwest Airlines v. CA]

KINDS OF TRIAL BY COMMISSIONER [Rule 32, Sec. 1 and 2] 1) Reference by consent of both parties. 2) Reference ordered on motion when: a) Trial of an issue of fact requires the examination of a long account on either side b) Taking of an account is necessary for the court’s information before judgment, or for carrying judgment/order into effect. c) A question of fact, other than upon the pleadings, arises in any stage of a case or for carrying a judgment/order into effect. ORDER OF REFERENCE [Rule 32, Sec. 2 to 12] • When a reference is made, the clerk shall furnish the commissioner with a copy of the order of reference. The order may specify/limit the commissioner’s power, and may direct him to report only upon particular issues, or to do/perform particular acts, or to receive and report evidence only.

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Plaintiff's remedy would be to appeal. However, if the order granting the demurrer is reversed on appeal, the defendant loses his right to present evidence. [Rule 33, Sec .1; Republic v. Tuvera] The appellate court should render judgment on the basis of the evidence submitted by the plaintiff. [Radiowealth Finance v. Del Rosario]X Equivalent to judgment (i.e. based on the merits of the evidence presented so far) An interlocutory order and not appealable. However, it may be the subject of a petition for certiorari for GAD under Rule 65 [Katigbak v. Sandiganbayan] Xxx

REMEDIAL LAW VIII. JUDGMENTS, FINAL ORDERS AND ENTRY OF JUDGMENT
• JUDGMENT - The final ruling by a court of competent jurisdiction regarding the rights and obligations of the parties or other matters submitted to it in an action/proceeding.

PARTS OF A JUDGMENT 1) OPINION OF THE COURT - It contains the findings of facts and conclusions of law; 2) DISPOSITION OF THE CASE – The final and actual disposition of the rights litigated (i.e. the dispositive part); 3) Signature of the judge. REQUISITES OF A VALID JUDGMENT [Rule 36, Sec. 1; Art. 8, Sec. 14, Consti] 1) Court/tribunal must be with authority to hear and determine the matter before it; 2) Court must have jurisdiction over the parties and the 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; [Acosta v. COMELEC] 5) Judgment must be in writing, personally and directly prepared by the judge; • A verbal judgment is, under the law, ineffective. [Corpus v. Sandiganbayan] 6) Judgment must state clearly the facts and the law upon which the decision is based, signed by the judge and filed with the clerk of court. • A decision need not be a complete recital of the evidence presented. So long as the factual and legal bases are distinctly and clearly set forth, the judgment is valid. [Chan v. CA]

When to File

MTD Before the service and filing of the answer Those enumerated in Rule 16

Demurrer After the plaintiff rests his case Only ground: The plaintiff has shown no right to relief (i.e. evidence is insufficient)

Ground

Effect

If a MTD is granted, the complaint is likewise dismissed. But, depending on the ground, the complaint may be re-filed If the MTD is denied, the defendant shall file his responsive pleading

Demurrer in civil cases Defendant need not ask for leave of court

Demurrer in criminal cases May be filed with or without leave of court. Leave of court is necessary so that the accused can present his evidence in case the demurrer is denied If the demurrer was without leave, the accused can no longer present his evidence; the case is deemed submitted for decision based on prosecution’s evidence [Rule 119, Sec.23]

INTERPRETATION OF THE JUDGMENT • Where the judgment is difficult to execute because of ambiguity in its terms, the remedy of the party is to file a motion for clarificatory judgment and not to assail the judgment as void. • Where there is a conflict between the body and the dispositive portion (fallo) of the decision, the dispositive portion controls. • Exception: Where the inevitable conclusion from the body of the decision is so clear that there was a mistake in the dispositive portion, the body of the decision will prevail. [Poland Industrial v. National Dev’t Co.] KINDS OF JUDGMENT 1) JUDGMENT UPON COMPROMISE – It is one conferred on the basis of a compromise agreement entered into between the parties. • It is immediately executory in the absence of a motion to set aside on the ground of FAME. 2) JUDGMENT UPON CONFESSION – It is one rendered by the court when a party expressly agrees to the other party’s claim or acknowledges the validity of the claim against him.
Judgment upon compromise Judgment by confession

If the demurrer is granted, the order of dismissal is appealable

The order of dismissal is not appealable because it will constitute double jeopardy

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The provisions and terms are settled by the parties to the action. The judgment is entered in the record by 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.

REMEDIAL LAW
Judgment may be given for/against one or more of several plaintiffs/defendants. The court may require the parties on each side to file adversary pleadings as between themselves. [Rule 36, Sec. 3] If judgment is rendered against 2 or more persons sued as an entity without juridical personality, the judgment shall set out their individual names (if known). [Rule 36, Sec. 6] PROMULGATION – 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. MEMORANDUM DECISION – A decision of the appellate court which adopts the findings and conclusions of the TC. A judgment is considered rendered upon the filing of the signed decision. This includes an amended decision because an amended decision is a distinct and separate judgment and must follow the established procedural rule.

• Kinds of judgment by confession: a) JUDGMENT BY COGNOVIT ACTIONEM – After service, the defendant, instead of entering a plea, acknowledged and confessed that the plaintiff’s cause of action was just and rightful. b) JUDGMENT BY CONFESSION RELICTA VERIFICATIONE – After pleading and before trial, the defendant both: (a) confessed the plaintiff’s cause of action and (b) withdrew his plea or other allegations, whereupon judgment was entered against him without proceeding to trial. • Remedy against judgment by consent, confession or compromise is to first file a motion to set it aside; if denied, file the appropriate petition under Rule 65. JUDGMENT UPON THE MERITS – It is one that is rendered after consideration of the evidence submitted by the parties during the trial of the case. CLARIFICATORY JUDGMENT – It is rendered to clarify an ambiguous judgment or one difficult to comply with. JUDGMENT NON PRO TUNC - Literally, “now for then”. It is a judgment intended to enter into the record the acts which had already been done, but which do not appear in the records. JUDGMENT SIN PERJUICIO – It may refer to a dismissal of a case without prejudice to it being re-filed. CONDITIONAL JUDGMENT – It is one the effectivity of which depends upon the occurrence or non-occurrence of an event. SEVERAL JUDGMENT – It 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. [Rule 36, Sec. 4] • It is proper when the liability of each party is clearly separate and distinct from his coparties 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. SEPARATE JUDGMENT – It is one rendered disposing of a claim among several others presented in a case, after a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence that is the subject matter of said claim. [Rule 36, Sec. 5] • It is proper when more than one claim for relief is presented in an action for the determination as to the issues material to the claim has been made. • The judgment shall terminate the action with respect to the claims disposed of, and shall proceed as to the remaining claims. • The court may stay its enforcement until rendition of subsequent judgments, and may prescribe conditions to secure the judgment’s benefits. •

3)

4)

5)

6)

AMENDMENTS TO JUDGMENTS • The power to amend judgments is inherent to the court before judgment becomes final and executory. • General rule: The court cannot amend the judgment once it has become final and executory. • Exception: 1) To make corrections of clerical errors, not substantial amendments, as by an amendment non pro tunc; 2) To clarify an ambiguity which is borne out by and justifiable in the context of the decision; 3) In judgments for support, which can always be amended from time to time.
Amended/clarified judgment An entirely new decision and supersedes 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 Supplemental decision Does not take the place of or extinguish the original judgment Serves to add to the original judgment

7)

8)

9)

ENTRY OF JUDGMENTS AND FINAL ORDERS [Rule 36, Sec. 2] • If there is no appeal/MNT/MFR filed within the prescribed periods, the clerk of court shall enter the judgment or final order in the book of entries of judgments. • Date of finality of the judgment – Date of its entry in the book. • The record shall contain the judgment’s dispositive part, shall be signed by the clerk of court, and certified that the judgment has become final and executor.

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CIVIL PROCEDURE IX. POST-JUDGMENT REMEDIES
Remedies against a judgment A. Before a judgment becomes final and executory: 1) MFR; 2) MNT; 3) Appeal. B. After the judgment becomes final and executory: 1) Petition for relief from judgment; 2) Action to annul a judgment; 3) Certiorari; 4) Collateral attack of a judgment that is void on its face.

REMEDIAL LAW
• No appeal may be taken from an order denying a MNT/MFR. [Rule 37, Sec. 9; Rule 41, Sec. 1(a)] Remedy if motion is denied: 1) To appeal from the judgment or final order itself. [Rule 37, Sec. 9]. 2) The order denying the MNT/MFR may itself be assailed by a petition for certiorari under Rule 65. A MNT or MFR is not a prerequisite to an appeal, a petition for review or a petition for review on certiorari. And since the purpose is to expedite the final disposition of cases, a strict but prospective application of said ruling is in order. [Habaluyas v. Japson (1986)]

MOTION FOR RECONSIDERATION

A. REMEDIES BEFORE A JUDGMENT HAS BECOME FINAL AND EXECUTORY
PROVISIONS COMMON TO MNT/MFR
WHEN TO FILE • Motion must be filed within the period for appeal. [Rule 37, Sec. 1] • The period for appeal is within 15 days after notice to the appellant of the judgment or final order appealed from. [Rule 40, Sec. 2; Rule 41, Sec. 3; Rule 45, Sec. 2] • The 15-day period is deemed to commence upon receipt by the counsel of record, which is considered notice to the parties. Service upon the parties themselves is prohibited and is not considered as official receipt of judgment. • No motion for extension of time shall be allowed. [Rule 37, Sec. 2; Rule 41, Sec. 3] • Where a ROA is required, the appellant shall file a (1) NOA and a (2) ROA within 30 days from notice of the judgment or final order. [Rule 41, Sec. 3] • A ROA is required only in: 1) Special proceedings; 2) Other cases of multiple or separate appeals. [Rule 40, Sec. 3] EFFECT OF FILING • The filing of a timely motion interrupts the period to appeal. [Rule 40, Sec. 2; Rule 41, Sec. 3] FRESH PERIOD RULE • If the motion is denied, the movant has a “fresh period” of 15 days from receipt or notice of the order denying the MNT/MFR within which to file an appeal. This applies to Rules 40, 41, 42, 43 and 45. [Neypes v. CA (2005)] • Note: Prior to Neypes v. CA, if a party filed a MNT/MFR, he only had the remaining time of the 15-day appeal period to file his appeal. RESOLUTION OF THE MOTION • The motion shall be resolved within 30 days from the time it is submitted for resolution. [Rule 37, Sec. 4]

MFR under Rule 37 is directed against a judgment or final order. It is not the MFR of an interlocutory order, which often precedes a petition for certiorari under Rule 65. It does not apply to cases that fall under Summary Procedure. [Sec. 19(c), Revised Rules on Summary Procedure]

GROUNDS [Rule 37, Sec. 1(2)] 1) The evidence is insufficient to justify the decision; 2) The damages awarded are excessive; 3) The decision or final order is contrary to law. FORM AND CONTENT • MFR must be in writing, a written notice of which must be served on the adverse party. • It is not sufficient to mention the ground relied upon. It is necessary for the MFR to point out specifically the findings/conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law, making express reference to the testimonial/documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. [Rule 39, Sec. 2] • Non-compliance with this requirement would reduce the motion to a mere pro forma motion, which shall not toll the period for appeal. EFFECT
Grant of MFR The court may amend the judgment or final order accordingly. [Rule 37, Sec. 3] The amended judgment is in the nature of a new judgment, which supersedes the original judgment If the court finds that a motion affects less than all of the matters in controversy or less than all of the parties to it, the order may grant a reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest [Rule 37, Sec. 7] Denial of MFR The judgment or final order shall stand as is

XXX

An order denying a MFR is not appealable. [Rule 37, Sec. 9]

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• SINGLE MOTION RULE – A party shall not be allowed to file a 2nd MFR of a judgment or final order. [Rule 37, Sec. 5] • The prohibition on a 2nd motion does not apply to a MFR of an interlocutory order. EFFECT
Grant of MNT The original judgment shall be vacated, and the action shall stand for trial de novo. The recorded evidence upon the former trial shall be used at the new trial without retaking them (if they are material and competent) [Rule 37, Sec. 6] If the court finds that a motion affects the issues of the case as to only a part or less than all of the matters in controversy, or only one or less than all of the parties to it, the order may grant a reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest [Rule 37, Sec. 7] The effect of this order is a partial new trial. When there is an order for partial new trial, the court may either enter a judgment or final order as to the rest, or stay the enforcement of such judgment or final order until after the new trial [Rule 37, Sec. 8]

REMEDIAL LAW

Denial of MNT The judgment or final order shall stand as is

MOTION FOR NEW TRIAL (MNT)
GROUNDS [Rule 37, Sec. 1] • The aggrieved party may move the TC to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of the said party: 1) FAME (Extrinsic Fraud, Accident, Mistake or Excusable Negligence) which ordinary prudence could not have guarded against and by reason of which the aggrieved party has probably been impaired in his rights. • The motion shall be supported by affidavits of merit. Non-compliance with this requirement would reduce the motion to a mere pro forma motion. [Rule 37, Sec. 2] • The affidavits of merit must show the facts (not mere conclusions or opinions) constituting the valid cause of action or defense which the movant may prove in case a new trial is granted. Otherwise, if the complaint is after all groundless or the defense is ineffective, a new trial would serve no purpose. • EXTRINSIC FRAUD – Any fraudulent scheme executed by the prevailing party outside of the trial against the losing party who, because of such fraud, was prevented from presenting his side of the case. • INTRINSIC FRAUD – Acts of a party during the trial which does not affect the presentation of the case. • ACCIDENT - An event that occurs without one’s foresight or expectation. • MISTAKE - Generally, mistakes of facts or law where, in good faith, the defendant was misled in a case. • What constitutes excusable negligence depends upon the circumstances of each case. 2) Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. • The motion shall be supported by: a) Affidavits of the witnesses by whom such evidence is expected to be given; and/or b) Duly authenticated documents which are proposed to be introduced in evidence. • Non-compliance with this requirement would reduce the motion to a mere pro forma motion. [Rule 37, Sec. 2] • Newly discovered evidence may and does commonly refer to evidence already in existence prior to or during trial but which could not have been secured and presented during the trial despite reasonable diligence on the part of the litigant. [Tumang v. CA]

XXX

WHEN A 2ND MNT IS PERMISSIBLE • A MNT shall include all grounds then available. Those not so included are deemed waived. However, when a ground for new trial was not existing/available when the 1st motion was made, a 2nd MNT may be filed. [Rule 37, Sec. 5]
MNT Legal Basis Expressly provided for in the ROC Motion for reopening of the trial Not mentioned in the ROC but is nevertheless a recognized procedural recourse deriving validity and acceptance from long established usage Note: It is referred to in the Rules of Criminal Procedure (Rule 119, Sec. 24) May be presented after either or both the parties have formally offered and closed their evidence, but before judgment

When Proper

Only after promulgation of judgment

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Grounds Civil cases: Rule 37; Criminal cases: Rule 121 Controlled by no other rule than the paramount interest of justice, relying solely upon the sound discretion of the TC. The exercise of such discretion may not be reviewed on appeal unless a clear abuse thereof is shown

REMEDIAL LAW
so long as the facts required to be set out also appear in the verified petition. When an affidavit of merit is not necessary: a) When there is LOJ over the defendant; b) When there is LOJ over the subject matter; c) When judgment was taken by default; d) When judgment was entered by mistake or was obtained by fraud; or e) Other similar cases.

B. REMEDIES AFTER A JUDGMENT HAS BECOME FINAL AND EXECUTORY
RELIEF FROM JUDGMENTS, ORDERS OR OTHER PROCEEDINGS
• Definition: It is a legal remedy whereby a party seeks to set aside a judgment rendered against him by a court whenever he is unjustly deprived of a hearing or was prevented from taking an appeal because of FAME. A party who has filed a timely MNT/MFR can no longer file a petition for relief from judgment after his motion has been denied. These remedies are mutually exclusive. It is only in appropriate cases where a party aggrieved by the judgment has not been able to file a MNT/MFR that a petition for relief can be filed. [Francisco v. Puno]

TWO HEARINGS 1) Hearing to determine WON the judgment should be set aside; 2) If #1 in the affirmative, hearing upon the merits of the case. PRELIMINARY INJUNCTION PENDING PROCEEDINGS. • The court in which the action is filed may grant such preliminary injunction as may be necessary for the preservation right of the parties, upon the filing of the petitioner of a bond in favor of the adverse party. [Rule 38, Sec. 5] • A petition for relief is a remedy available after the judgment or final order has become final and executory. Hence, the judgment is susceptible to being the subject of a writ of execution.
Rule 37 Before judgment becomes final and executory Within the time to appeal Rule 38 After judgment becomes final and executory Within 60 days from knowledge of judgment AND within 6 months from entry of judgment Judgments, final orders, and other proceedings: - Land Registration; - Special Proceedings; - Order of Execution. FAME

When available

GROUNDS [Rule 38, Sec. 1 and 2] 1) When a judgment or final order is entered into, or any other proceedings is taken against the petitioner in any court through FAME. 2) When the petitioner has been prevented from taking an appeal by FAME. • Under both grounds, the petition shall be filed in the same court which rendered the judgment and in the very same case.

Period to file petition

Scope of application

Applies to judgments and final orders only

PRAYER 1) That the judgment/order/proceeding be set aside; 2) That the appeal be given due course. WHEN TO FILE [Rule 38, Sec. 3] 1) 60 days from knowledge of judgment/order/proceedings to be set aside; 2) 6 months from the entry of such judgment/order/proceeding. • Both periods must concur. They are also nonextendible and never interrupted.
Grounds 1) FAME; 2) Newly discovered evidence Legal remedy Motion need not be verified

Nature Verification

Equitable remedy Petition must be verified

FORM AND CONTENT OF PETITION 1) Must be verified; 2) Must be accompanied by an affidavit showing the FAME relied upon; 3) The affidavit of merit accompanying the petition must also show the facts constituting the petitioner’s good and substantial cause of action or defense. • An affidavit of merit serves as the jurisdictional basis for the court to entertain a petition for relief. However, it is not a fatal defect to warrant denial of the petition

Rule 38 is of equitable character and is allowed only in exceptional cases, when there is no other available/adequate remedy. A petition for relief is not regarded with favor and judgment will not be disturbed where the party complaining has or by exercising proper diligence would have had, an adequate remedy at law. Relief will not be granted to a party when loss of remedy at law was due to his own negligence or mistaken mode of procedure; otherwise, the petition for relief will be tantamount to reviving the right of appeal which had already been lost. [Meralco v. CA (1990)]

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CIVIL PROCEDURE X. APPEAL
THREE MODES OF APPEAL [Rule 41, Sec. 2]
mode of appeal Ordinary appeal applicability Appeal to RTC of MTC judgment/final order Appeal to CA of RTC judgment/final order rendered in exercise of RTC's original jurisdiction Appeal to CA of RTC judgment/final order rendered in exercise of RTC's appellate jurisdiction Appeal to CA of QJA judgments/final orders/awards/ resolutions rendered in exercise of quasijudicial functions Appeal to SC where only questions of law are raised/involved

REMEDIAL LAW
Required only in: 1) Special proceedings; 2) Multiple or separate appeals where the law/ROC so requires.

Rule 40 Rule 41

FRESH PERIOD RULE [Neypes v. CA (2005)]
• Definition: Period of appeal is interrupted by a timely MNT/MFR. Motion for extension of time to file MNT or MFR is not allowed. [Rule 40, Sec. 2] Applicability: 1) Rule 40 on appeals from MTC to RTC. 2) Rule 42 on petitions for review from RTC to CA. 3) Rule 43 on appeals from QJA to CA. 4) Rule 45 on appeals by certiorari to SC. Rationale: To standardize the appeal periods provided in the ROC and to afford litigants fair opportunity to appeal their cases, the court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal (NOA) in the RTC, counted from receipt of the order dismissing a MNT/MFR.

Petition for review

Rule 42

Rule 43

Appeal by certiorari (petition for review on certiorari)

Rule 45

ORDINARY APPEAL FROM RTC TO CA [Rule
41] APPLICABILITY [Rule 41, Sec. 1] • Appeal of judgment or final order that completely disposes of either: 1) The case; 2) A particular matter in the case, when declared by ROC to be appealable. • Not appealable under Rule 41: 1) Order denying PFR or any similar motion seeking relief from judgment; 2) Interlocutory order; 3) Order disallowing/dismissing appeal; 4) Order denying motion to set aside judgment buy consent/confession/ compromise on ground of fraud/mistake/ duress or any other vitiation of consent; 5) Order of execution; 6) While the case is pending, judgment or final order: a) For/against one or more of several parties; b) In separate claims, counterclaims, cross-claims, 3rd-party complaints. • Exception: If court allows appeal. 7) Order dismissing an action without prejudice. • Note: AM 07-7-12-SC (December 4, 2007) amended Rule 41 by taking out, from the above list of non-appealable cases, orders denying MNT/MFR. • In the cases not appealable under Rule 41, the aggrieved party may file a special civil action under Rule 65. INTERLOCUTORY ORDER • Definition: If it does not dispose of the case but leaves something else to be done by the TC on the merits of the case. [Investments, Inc. v. CA (1987)] • For purposes of appeal, an order is final if it disposes of the entire case. • An order for partial summary judgment is an interlocutory order which cannot be appealed from. The TC had not yet rendered a complete

PERFECTION OF APPEAL • Perfection of an appeal in the manner and within the period laid down by law is mandatory and jurisdictional. [Balgami v. CA (2004)] • Rationale: Appeal is merely a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of the law. It is not a natural right nor a part of due process. • Effect of failure to perfect appeal: • Defeats a party’s right to appeal. • Precludes appellate court from acquiring jurisdiction. • Failure to pay the appellate court docket fee within the reglementary period confers only a discretionary (not mandatory) power to dismiss the proposed appeal. Such discretion should consider all attendant circumstances and must be exercised with a view to substantial justice. [Camposagrado v. Camposagrado (2005)] COGNIZABLE JUDGMENTS/ISSUES • Appellate court has no jurisdiction to review a judgment which is immediately final and executory by express provision of law. [Republic v. Bermudez-Lorino (2005)] • Rationale: Appeal is merely a privilege conferred by law upon the litigants. • A party cannot change the theory on appeal. Only issues pleaded in the lower court and properly raised may be resolved by the appellate court. [Medina v. CA (1992)] • However, issues which are inferred from or necessarily connected with the issue properly raised and pleaded may be resolved by the appellate court. [Espina v. CA (1992)]

A. ORDINARY APPEAL
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final judgment. [GSIS v. Philippine Village Hotel (2004)] MULTIPLE APPEALS • Civil cases which admit of multiple appeals: 1) Judgment in an action for recovery or for partition of property is separately appealable from the proceedings on that part of the judgment wherein accounting for receipts from the property is ordered as a primary or incidental relief. When such accounting is submitted and either approved or rejected by the TC, another appeal lies therefrom. 2) Special civil actions: a) Expropriation; (Rule 67) b) Judicial partition; (Rule 69) c) Judicial foreclosure of mortgage; (Rule 68) • Special proceedings also admit of multiple appeals. • The order of dismissal due to failure to prosecute is appealable by NOA under Rule 41. [Ko v. PNB (2006)] But an order of dismissal without prejudice is not appealable under Rule 41. [Philexport v. PI (2004)]

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12) Department of Agrarian Reform (DAR under RA 6657) 13) Government Service Insurance System (GSIS); 14) Employees Compensation Commission (ECC); 15) Agricultural Inventions Board (AIB); 16) Insurance Commission; 17) Philippine Atomic Energy Commission (PAEC); 18) Board of Investments (BOI); 19) Construction Industry Arbitration Commission; 20) voluntary arbitrators authorized by law. • Rule 43 shall not apply to judgments or final orders issued under the Labor Code. [Rule 43, Sec. 2] • NLRC judgments and final orders or resolutions are now reviewable, in the first instance, by the CA on certiorari under Rule 65, but those of the ECC should be brought to the CA through a petition for review under this Rule. Also, appeals from the Office of the Ombudsman in administrative disciplinary cases are now covered by this rule. [Fabian v. Desierto (1998)] RA 9282: Decisions of the CTA are now appealable to the SC by petition for review on certiorari under Rule 45. Resolution of DOJ Secretary is not appealable under Rule 43. Recourse should be to the President, instead of the CA, under the established principle of exhaustion of administrative remedies. [Orosa v. Roa (2006)] • EXHAUSTION OF ADMINISTRATIVE REMEDIES – If an appeal/remedy obtains or is available within the administrative machinery, this should be resorted to before resort can be made to the courts. Under Rule 43, Sec. 4 the petition should be filed within 15 days from: [Villorente v. Laiya (2005)] 1) Notice of the final order; 2) The date of its last publication, if publication is required by law for its effectivity; 3) The denial of the petitioner’s MFR duly filed according to the governing law of the court or agency a quo. Under Rule 43, there is no need to implead the lower court or agency which rendered the assailed decision. [Basmayor v. Atencio (2005)] Submission of the duplicate original or certified true copy of judgment/order/resolution/ruling subject of a petition for certiorari is essential to determine WON the court/body/tribunal which rendered the same indeed committed GAD. Either a legible duplicate original or certified true copy thereof shall be submitted. If what is submitted is a copy, then it is required that the same is certified by the proper officer of the court/tribunal/agency/office involved. This is to assure that such copy is a faithful reproduction of the judgment/order/resolution/ruling subject of the petition. [Coca-cola v. Cabalo (2006)]

B. PETITION FOR REVIEW

PETITION FOR REVIEW FROM RTC TO CA
[Rule 42] APPLICABILITY • Appeal of RTC decision rendered in exercise of appellate jurisdiction. [Rule 42, Sec. 1] CNFS • Petitioner in a petition for review in CA/SC must submit a CNFS with the petition. However, this rule is relaxed where there is need to conduct a review. In those instances, petitioner may comply with the requirement after he has filed the petitions. [Rule 42, Sec. 1]

PETITION FOR REVIEW FROM QJA TO CA
[Rule 43] • APPLICABILITY • Appeals from judgments or final orders of the CTA and from awards, judgments, final orders or resolutions of or authorized by any quasijudicial agency (QJA) in the exercise of its quasi-judicial functions: [Rule 43, Sec. 1] 1) Civil Service Commission (CSC); 2) Central Board of Assessment Appeals (CBAA); 3) Securities and Exchange Commission (SEC); 4) Office of the President (OP); 5) Land Registration Authority (LRA); 6) Social Security Commission (SSC); 7) Civil Aeronautics Board (CAB); 8) Bureau of Patents, Trademarks and Technology Transfer (BPTTT); 9) National Electrification Administration (NEA); 10) Energy Regulatory Board (ERB); 11) National Telecommunications Commission (NTC);

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CIVIL PROCEDURE C. APPEAL BY CERTIORARI TO SC
• • Where only questions of law are raised/involved. [Rule 41, Sec. 2(c)] Appeal by certiorari from a judgment or final order or resolution of CA/Sandiganbayan/RTC or other courts whenever authorized by law. [Rule 45, Sec. 1] Rule 45, Sec. 1 was amended by AM 07-7-12SC (December 4, 2007) by adding judgments, final orders or resolutions of the Court of Tax Appeals to the cases appealable under Rule 45. AM 07-7-12-SC also added that a Rule 45 petition may include an application for a writ of preliminary injunction or other provisional remedies. Further, the petitioner may seek the same provisional remedies by verified motion filed in the same action/proceeding at any time during its pendency.

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PAYMENT OF DOCKET AND OTHER LAWFUL FEES • Unless he has theretofore done so, the petitioner shall pay the docket and other lawful fees to the SC clerk of court and deposit P500 for costs at the time of the filing of the petition. [Rule 45, Sec. 3] PROOF OF SERVICE OF PETITION • Proof of service of a copy on the lower court and on the adverse party shall be submitted together with the petition. [Rule 45, Sec. 3] DISMISSAL/DENIAL OF PETITION [Rule 45, Sec. 5] • Failure of the petitioner to comply with any of the requirements regarding the payment of the docket and other lawful fees, deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition, shall be sufficient ground for the dismissal thereof. • SC may on its own initiative deny the petition on the ground that: 1) The appeal is without merit; 2) The appeal is prosecuted manifestly for delay; 3) The questions raised therein are too unsubstantial to require consideration. DISCRETIONARY REVIEW [Rule 45, Sec. 3] • A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons therefor. • The following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons which will be considered: a) When the court a quo has decided a question of substance, not theretofore determined by the SC, or has decided it in a way probably not in accord with law or with the applicable decisions of the SC; or b) When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision. MAY REQUIRE PLEADINGS AND DOCUMENTS [Rule 45, Sec. 7] • For purposes of determining WON the petition should be dismissed or denied pursuant to Rule 45, Sec. 5, or where the petition is given due course under Sec. 8 hereof, the SC may require/allow the filing of pleadings/briefs/memoranda/documents as it may deem necessary, and impose the sanctions in case of non-filing or unauthorized filing of such pleadings and documents or noncompliance with the conditions therefor. DUE COURSE AND ELEVATION OF RECORDS [Rule 45, Sec. 8] • If the petition is given due course, the SC may require the elevation of the complete record of the case or specified parts thereof within 15 days from notice. QUESTION OF LAW [Agote v. Lorenzo (2005)] • A question of law does not involve an examination of the probative value of the evidence presented by any of the litigants. • There is a question of law in a given case when the doubt or difference arises as to what the

APPLICABILITY [Rule 45, Sec. 9] • Applicable to both civil and criminal cases. • Exception: Criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. FILING OF PETITION • File with the SC a verified petition for review on certiorari. [Rule 45, Sec. 1] • In 18 copies, with the original copy intended for the court being indicated as such by the petitioner. [Rule 45, Sec. 4] • Petition shall raise only questions of law which must be distinctly set forth. [Rule 45, Sec. 1] • Contents of petition: [Rule 45, Sec. 4] 1) Full name of the appealing party (petitioner) and the adverse party (respondent). • Without impleading the lower court or judges as petitioners/respondents. 2) Material dates: a) When notice of the judgment or final order or resolution subject thereof was received; b) When a MNT/MFR (if any) was filed and when notice of the denial thereof was received. 3) Concise statement of the matters involved, and the reasons/arguments relied on for the allowance of the petition; 4) A clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified by the clerk of court of the court a quo and the requisite number of plain copies thereof, and such material portions of the record as would support the petition; 5) CNFS. • File within 15 days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner's MNT/MFR filed in due time after notice of the judgment. [Rule 45, Sec. 2] • On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the SC may for justifiable reasons grant an extension of 30 days only within which to file the petition.

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law is on a certain state of facts; there is a question of fact when the doubt or difference arises as to the truth or the falsehood of the facts alleged. General rule: CA’s findings of fact are final and conclusive and cannot be reviewed on appeal to the SC, [Amigo v. Teves] provided they are borne out by the record or are based on substantial evidence. [Alsua-Betts v. CA (1979)] • Exception: CA’s findings of fact may be reviewed by the SC on appeal by certiorari when: 1) Conclusion is a finding grounded entirely on speculations/surmises/ conjectures. [Joaquin v. Navarro] 2) Inference made is manifestly mistaken/absurd/impossible. [Luna v. Linatok] 3) There is GAD in the appreciation of facts. [Buyco v. People] 4) Judgment is based on a misapprehension of facts. [De la Cruz v. Sosing] 5) CA’s findings of fact are conflicting. [Casica v. Villaseca] 6) CA, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee. [Nakpil and Sons v. CA (1986)] 7) CA manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion. [Abellana v. Dosdos (1965)] 8) CA’s findings of fact are contrary to those of the TC, or are mere conclusions without citation of specific evidence, or where the facts set forth by the petitioner are not disputed by the respondent, or where the findings of fact of the CA are premised on absence of evidence but are contradicted by the evidence of record. [Manlapaz v. CA (1987)] Rule 65 cannot cure the failure to appeal thru Rule 45. [Perez-Rosario v. CA (2006)] •

REMEDIAL LAW
When others appear or are appointed, notice thereof shall be served immediately on the adverse party and filed with the court.

ORDER OF TRANSMITTAL OF RECORD [Rule 44, Sec. 3] • If the original record or the record on appeal is not transmitted to CA within 30 days after the perfection of the appeal, either party may file a motion with the TC, with notice to the other, for the transmittal of such record or ROA. CASE DOCKETING [Rule 44, Sec. 4] • Upon receiving the original record or ROA and the accompanying documents and exhibits transmitted by the lower court, as well as the proof of payment of the docket and other lawful fees, the clerk of the CA shall docket the case and notify the parties thereof. • Within 10 days from receipt of said notice, the appellant, in appeals by ROA, shall file with the clerk of court 7 clearly legible copies of the approved ROA, together with the proof of service of 2 copies thereof upon the appellee. • Any unauthorized alteration/omission/addition in the approved ROA shall be a ground for dismissal of the appeal. RECORD COMPLETION [Rule 44, Sec. 5] • Where the record of the docketed case is incomplete, the clerk of the CA shall so inform said court and recommend to it measures necessary to complete the record. It shall be the duty of said court to take appropriate action towards the completion of the record within the shortest possible time. • Where the completion of the record could not be accomplished within a sufficient period allotted for said purpose due to insuperable or extremely difficult causes, the court may declare that the record and its accompanying transcripts and exhibits so far available are sufficient to decide the issues raised in the appeal, and shall issue an order explaining the reasons for such declaration. [Rule 44, Sec. 6] APPELLANT’S BRIEF [Rule 44, Sec. 7] • It shall be the duty of the appellant to file with the court, within 45 days from receipt of the notice of the clerk that all the evidence are attached to the record, 7 copies of his legibly typewritten/mimeographed/printed brief, with proof of service of 2 copies thereof upon the appellee. • Contents of appellant’s brief: [Rule 44, Sec. 13] a) SUBJECT INDEX – Digest of the arguments and page references, and a tables of: (1) cases alphabetically arranged; and (2) books and statutes cited, with references to the pages where they are cited. b) ASSIGNMENT OF ERRORS – Errors urged separately, distinctly and concisely; stated without repetition and numbered consecutively. • WON appellant has filed a MNT in the court below, he may include in his assignment of errors any question of law/fact that has been raised in the court below and which is within the issues framed by the parties. [Rule 44, Sec. 15]

D. PROCEDURE IN CA
ORDINARY APPEALED CASES [Rule 44]
APPLICABILITY [Rule 44, Sec. 1] • Cases appealed under R41. CASE TITLE [Rule 44, Sec. 1] • Same as that in the court of origin; but appealing party shall be further referred to as appellant and adverse party as appellee. COUNSELS AND GUARDIANS [Rule 44, Sec. 2] • The counsel and guardians ad litem of the parties in the court of origin shall be respectively considered as their counsel and guardians ad litem in the CA.

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c) STATEMENT OF THE CASE – Clear and concise statement of the nature of the action, a summary of the proceedings, the appealed court rulings and orders, the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy, with page references to the record. d) STATEMENT OF FACTS – Clear and concise narrative statement of the facts admitted by both parties and of those in controversy, together with the substance of the related proof, in sufficient detail to make it clearly intelligible and with page references to the record. e) ISSUES – Clear and concise statement of issues of fact/law submitted to the court for its judgment. f) ARGUMENT – Appellant’s arguments on each assignment of error, with page references to the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found. g) RELIEF – Specification of the order/judgment which the appellant seeks. In cases not brought up by record on appeal, the appellant’s brief shall contain (as an appendix) a copy of the judgment or final order appealed from. h) Attachment: Certified true copy of the decision or final order appealed from. [Rule 124, Sec. 7] APPELLEE’S BRIEF [Rule 44, Sec. 8] • Within 45 days from receipt of appellant's brief, the appellee shall file with the court 7 copies of his legibly typewritten/mimeographed/printed brief, with proof of service of 2 copies thereof upon the appellant. • Contents of appellee’s brief: [Rule 44, Sec. 14] a) Subject index. b) STATEMENT OF FACTS – Statement that appellee accepts the statement of facts in the appellant’s brief; or COUNTERSTATEMENT OF FACTS – Points out the insufficiencies/inaccuracies appellee believes to exist in the appellant’s statement of facts, with references to the supporting pages of the record. Matters in the appellant’s statement of facts should not be repeated. c) ARGUMENT – Appellee’s arguments on each assignment of error, with page references to the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found. REPLY BRIEF [Rule 44, Sec. 9] • Within 20 days from receipt of appellee's brief, the appellant may file a reply brief answering points in appellee's brief not already covered in his main brief. MEMORANDA IN SPECIAL CASES [Rule 44, Sec. 10] • In certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, the parties shall be file (in lieu of briefs) their respective memoranda within a non-extendible period of 30 days from receipt of the notice issued by the

REMEDIAL LAW
clerk that all the evidence is already attached to the record. The failure of the appellant to file his memorandum within the period therefor may be a ground for dismissal of the appeal.

SEVERAL/PLURALITY OF APPELLANTS/APPELLEES/COUNSELS [Rule 44, Sec. 11] • Where there are several appellants/appellees, each counsel representing one or more but not all of them shall be served with only one copy of the briefs. • When several counsel represent one appellant or appellee, copies of the brief may be served upon any of them. EXTENSION OF TIME FOR FILING BRIEFS [Rule 44, Sec. 12] • Extension of time for the filing of briefs will not be allowed, except for good and sufficient cause, and only if the motion for extension is filed before the expiration of the time sought to be extended. BRIEF [De Liano v. CA (2001)] • Purpose: To present to the court in concise form the points and questions in controversy, and by fair argument on the facts and law of the case to assist the court in arriving at a just and proper conclusion. • The brief should be so prepared as to minimize the labor of the court in the examination of the record upon which the appeal is heard and determined. • Failure to comply with required contents of appellant’s brief is cause for dismissal of the petition.

ORIGINAL CASES [Rule 46]
APPLICABILITY [Rule 46, Sec. 2] • Original actions for certiorari, prohibition, mandamus and quo warranto. • Except as otherwise provided, the actions for annulment of judgment shall be governed by Rule 47, for certiorari, prohibition and mandamus by Rule 65, and for quo warranto by Rule 66. • Rule 46 primarily governs original actions for certiorari filed in, CA but Rule 65 generally serves to supplement the same. Rules 46 and 65 co-exist with each other and should be construed so as to give effect to every provision of both rules. Under Rule 46, mere duplicate originals of the assailed orders are allowed. [Republic v. Carmel (2002)] CASE TITLE [Rule 46, Sec. 1] • In all cases originally filed in the CA, the party instituting the action shall be called the petitioner and the opposing party the respondent. CONTENTS OF PETITION [Rule 46, Sec. 3] 1) Full names and actual addresses of all the petitioners and respondents; 2) Concise statement of the matters involved; 3) Factual background of the case; 4) Grounds relied upon for the relief prayed for. FILING OF PETITION [Rule 46, Sec. 3]

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• It shall be filed in 7 clearly legible copies together with proof of service thereof on the respondent with the original copy intended for the court indicated as such by the petitioner, and shall be accompanied by a clearly legible duplicate original or certified true copy of the judgment/order/resolution/ruling subject thereof, such material portions of the record as are referred to therein, and other documents relevant/pertinent thereto. The certification shall be accomplished by the proper clerk of court or by the proper officer of the court/tribunal/agency/office involved. The other requisite number of copies of the petition shall be accompanied by clearly legible plain copies of all documents attached to the original. The petitioner shall also submit together with the petition a sworn certification that he has not theretofore commenced any other action involving the same issues in the SC/CA or different divisions thereof or any other tribunal/agency. If there is such other action/proceeding, he must state the status of the same; and if he should thereafter learn that a similar action/proceeding has been filed or is pending before the SC/CA or different divisions thereof or any other tribunal/agency, he undertakes to promptly inform the aforesaid courts and other tribunal/agency thereof within 5 days therefrom.

REMEDIAL LAW
disciplinary action which the court may take against the disobedient party. PRELIMINARY CONFERENCE • Matters to be taken up: At any time during the pendency of a case, the court may call the parties and their counsel to a preliminary conference: [Rule 48, Sec. 1] 1) To consider the possibility of an amicable settlement, except when the case is not allowed by law to be compromised; 2) To define/simplify/clarify the issues for determination; 3) To formulate stipulations of facts and admissions of documentary exhibits, limit the number of witnesses to be presented in cases falling within the original jurisdiction of the court, or those within its appellate jurisdiction where a MNT is granted on the ground of newly discovered evidence; 4) To take up such other matters which may aid the court in the prompt disposition of the case. • The proceedings at the preliminary conference shall be recorded. Upon the conclusion thereof, a resolution shall be issued embodying all: (1) the actions taken therein, (2) the stipulations and admissions made, and (3) the issues defined. [Rule 48, Sec. 2] The resolution in the preliminary conference shall control the subsequent proceedings in the case. [Rule 48, Sec. 3] • Exception: 1) Modifications may be made to prevent manifest injustice; 2) Within 5 days from notice thereof, any party may satisfactorily show valid cause why the resolution should not be followed.

PAYMENT OF DOCKET AND LAWFUL FEES [Rule 46, Sec. 3] • The petitioner shall pay the docket and other lawful fees to the clerk of court and deposit P500 for costs at the time of the filing of the petition. • The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition. [Rule 46, Sec. 3]

JURISDICTION OVER RESPONDENT’S PERSON [Rule 46, Sec. 4] 1) By the service on him of its order/resolution indicating its initial action on the petition; 2) By his voluntary submission to such jurisdiction. COURT ACTION [Rule 46, Sec. 5] • The court may either: 1) Dismiss the petition outright with specific reasons for such dismissal; 2) Require the respondent to file a comment on the same within 10 days from notice. • Only pleadings required by the court shall be allowed. All other pleadings and papers may be filed only with leave of court. DETERMINATION OF FACTUAL ISSUES [Rule 46, Sec. 6] • Whenever necessary to resolve factual issues, the court may either: 1) Conduct hearings thereon; 2) Delegate the reception of the evidence on such issues to any of its members or to an appropriate court/agency/office. FAILURE TO COMMENT [Rule 46, Sec. 7] • When no comment is filed by any of the respondents, the case may be decided on the basis of the record, without prejudice to any

ORAL ARGUMENT • The court may hear the parties in oral argument on the merits of a case or on any material incident in connection therewith. The oral argument shall be limited to such matters as the court may specify in its order/resolution. [Rule 49, Sec. 1] • Unless authorized by the court, only one counsel may argue for a party. The duration allowed for each party, the sequence of the argumentation, and all other related matters shall be as directed by the court. [Rule 49, Sec. 2] • Motions shall not be set for hearing. Unless the court otherwise directs, no hearing or oral argument shall be allowed in support of motions. The adverse party may file objections to the motion within 5 days from service. Upon the expiration of the 5 days, the motion shall be deemed submitted for resolution. [Rule 49, Sec. 3] DISMISSAL OF APPEAL • Grounds: [Rule 50, Sec. 1] 1) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by ROC; 2) Failure to file the NOA/ROA within the period prescribed by ROC; 3) Failure of the appellant to pay the docket and other lawful fees under Rule 41, Sec. 4;

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4) Unauthorized alterations/omissions/ additions in the approved ROA under Rule 44, Sec. 4; 5) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by the ROC; 6) Absence of specific assignment of errors in the appellant's brief, or of page references to the record as required in Rule 44, Sec. 13, paragraphs (a), (c), (d) and (f); 7) Failure of the appellant to take the necessary steps for the correction/completion of the record within the time limited by the court in its order; 8) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with court orders/circulars/directives without justifiable cause; 9) The fact that the order/judgment appealed from is not appealable. CA has discretion to dismiss or not to dismiss appeal. Although said discretion must be a sound one, to be exercised in accordance with the tenets of justice and fair play, having in mind the circumstances obtaining in each case, the presumption is that it has been so exercised. [PNB v. Philippine Milling (1969)] Failure to file appellant’s brief within the reglementary period need not necessarily cause dismissal of appeal where the same was due to force majeure. [Padasas v. CA (1974)] •

REMEDIAL LAW
An appeal may be withdrawn as of right at any time before the filing of the appellee's brief. Thereafter, the withdrawal may be allowed in the discretion of the court.

DISMISSAL OF IMPROPER APPEAL [Rule 50, Sec. 2] • An appeal under Rule 41 taken from the RTC to the CA raising only questions of law shall be dismissed; issues purely of law not being reviewable by said court. Similarly, an appeal by NOA instead of by petition for review from the appellate judgment of a RTC shall be dismissed. • An appeal erroneously taken to the CA shall not be transferred to the appropriate court but shall be dismissed outright. • It is true that Circular No. 2-90 now prohibits the transfer of appeals erroneously taken to the SC/CA to whichever of these tribunals has appropriate appellate jurisdiction. But where SC believes that there are factual issues which must be resolved, it may, in the exercise of its sound discretion and considering the attendant circumstances, either itself take cognizance of and decide such issues or refer them to CA for determination. [Atlas Consolidated v. CA (1991)] • Nonpayment of the appellate court docket and other lawful fees within the reglementary period as provided under Rule 41, Sec. 4 is a ground for the dismissal of an appeal under Rule 50, Sec. 1(c). SC has invariably sustained the CA’s dismissal on technical grounds under the aforequoted provision unless considerations of equity and substantial justice present cogent reasons to hold otherwise. True, the rules may be relaxed but only for persuasive and weighty reasons, to relieve a litigant of an injustice commensurate with his failure to comply with the prescribed procedure. [Cu-unjieng v. CA (2006)] WITHDRAWAL OF APPEAL [Rule 50, Sec. 3]

STAY OF EXECUTION • General rule: In ordinary appeals, execution is stayed. • Exception: 1) Decision in forcible entry and unlawful detainer. • Exception to exception: If appellant stays immediate execution by filing a NOA, supersedeas bond and depositing in court a monthly rental or compensation for the occupation as fixed by the court which rendered the decision. [Rule 70, Sec. 19] 2) Decision of the MeTC/MTC/MCTC or the RTC where execution pending appeal has been granted by the court of origin or in a proper case by the appellate court upon good reasons to be stated in the order. [Rule 39, Sec. 2] 3) Decision of the RTC rendered in the exercise of its appellate jurisdiction on cases tried and decided by the court of origin under Summary Procedure. [Sec. 21, Revised Rules on Summary Procedure] 4) Decision of QJA under the Rule 43, Sec. 12, unless otherwise provided by the CA; 5) Decision in cases of injunction, receivership, support and accounting. [Rule 39, Sec. 4] WHEN CASE IS SUBMITTED FOR JUDGMENT [Rule 51, Sec. 1] A. In ordinary appeals. 1) Where no hearing on the merits of the main case is held, upon the filing of the last pleading/brief/memorandum required by the ROC or by the court itself, or the expiration of the period for its filing. 2) Where such a hearing is held, upon its termination or upon the filing of the last pleading/memorandum required/permitted to be filed by the court, or the expiration of the period for its filing. B. In original actions and petitions for review.— 1) Where no comment is filed, upon the expiration of the period to comment. 2) Where no hearing is held, upon the filing of the last pleading required/permitted to be filed by the court, or the expiration of the period for its filing. 3) Where a hearing on the merits of the main case is held, upon its termination or upon the filing of the last pleading/memorandum required/permitted to be filed by the court, or the expiration of the period for its filing. JUDGMENT • It is rendered by the members of the court who participated in the deliberation on the merits of the case before its assignment to a member for the writing of the decision. [Rule 51, Sec. 2] • The participation of all 3 Justices of a division shall be necessary at the deliberation. The unanimous vote of the 3 Justices shall be required for the pronouncement of a judgment or final resolution. If the 3 Justices do not

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reach a unanimous vote, the clerk shall enter the votes of the dissenting Justices in the record. Thereafter, the Chairman of the division shall refer the case (together with the minutes of the deliberation) to the Presiding Justice who shall designate 2 Justices chosen by raffle from among all the other members of the court to sit temporarily with them, forming a special division of 5 Justices. The participation of all the 5 members of the special division shall be necessary for the deliberation and the concurrence of a majority of such division shall be required for the pronouncement of a judgment or final resolution. [Rule 51, Sec. 3] The CA, in the exercise of its appellate jurisdiction, may affirm/reverse/modify the judgment or final order appealed from, and may direct a new trial or further proceedings to be had. [Rule 51, Sec. 4] Every decision or final resolution of the CA in appealed cases shall clearly and distinctly state the findings of fact and the conclusions of law on which it is based, which may be contained in the decision or final resolution itself, or adopted from those set forth in the decision/order/resolution appealed from. [Sec. 40, BP 129; Rule 51, Sec. 5] HARMLESS ERROR RULE — No error in the admission/exclusion of evidence and no error/defect in any ruling/order or in anything done/omitted by the TC or by any of the parties is ground for granting a new trial or for setting aside, modifying or otherwise disturbing a judgment/order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error/defect which does not affect the substantial rights of the parties. [Rule 51, Sec. 6] In all actions/proceedings, an appealed judgment may be affirmed as to some of the appellants and reversed as to others, and the case shall thereafter be proceeded with as if separate actions had been begun and prosecuted. Execution of the judgment of affirmance may be had accordingly, and costs may be adjudged in such cases, as the court shall deem proper. [Rule 51, Sec. 7] No error which does not affect the jurisdiction over the subject matter or the validity of the judgment appealed from or the proceedings therein will be considered unless stated in the assignment of errors, or closely related to or dependent on an assigned error and properly argued in the brief. [Rule 51, Sec. 8] • Exception: The court may pass upon plain errors and clerical errors. After the judgment or final resolution and and dissenting/separate opinions are signed by the Justices taking part, they shall be delivered for filing to the clerk. The clerk shall indicate thereon the date of promulgation and cause true copies thereof to be served upon the parties or their counsel. [Rule 51, Sec. 9] •

REMEDIAL LAW
The date when the judgment or final resolution becomes executory shall be deemed as the date of its entry. The record shall contain the dispositive part of the judgment or final resolution and shall be signed by the clerk, with a certificate that such judgment or final resolution has become final and executory.

EXECUTION OF JUDGMENT [Rule 51, Sec. 11] • Motion for execution of the judgment or final order or resolution may only be filed in the proper court after its entry. • Exception: If the judgment or final order or resolution (or a portion thereof) is ordered to be immediately executory, • In original actions in the CA, its writ of execution shall be accompanied by a certified true copy of the entry of judgment or final resolution and addressed to any appropriate officer for its enforcement. • In appealed cases, where the motion for execution pending appeal is filed in the CA at a time that it is in possession of the original record or ROA, the resolution granting such motion shall be transmitted to the lower court from which the case originated, together with a certified true copy of the judgment or final order to be executed, with a directive for such court of origin to issue the proper writ for its enforcement. MFR • A party may file a MFR of a judgment or final resolution within 15 days from notice thereof, with proof of service on the adverse party. [Rule 52, Sec. 1] • No 2nd MFR of a judgment or final resolution by the same party shall be entertained. [Rule 52, Sec. 2] • A MFR in the CA shall be resolved within 90 days from the date when the court declares it submitted for resolution. [Rule 52, Sec. 3] • Pendency of a MFR filed on time and by the proper party shall stay the execution of the judgment or final resolution sought to be reconsidered, unless the court directs otherwise for good reasons. [Rule 52, Sec. 4] NEW TRIAL • Any time after the appeal from the lower court has been perfected and before the CA loses jurisdiction over the case, a party may file a MNT on the ground of newly discovered evidence which could not have been discovered prior to the trial in the court below by the exercise of due diligence and which is of such a character as would probably change the result. The MNT shall be accompanied by affidavits showing the facts constituting the grounds therefor and the newly discovered evidence. [Rule 53, Sec. 1] • The CA shall consider the new evidence together with that adduced at the trial below, and may: [Rule 53, Sec. 2] 1) Grant/refuse a new trial; 2) Make such order as to the taking of further testimony, either orally in court or by depositions; 3) Render such other judgment as ought to be rendered upon such terms as it may deem just.

ENTRY OF JUDGMENT AND FINAL RESOLUTIONS [Rule 51, Sec. 10] • If no appeal/MNT/MFR is filed within the reglementary period, the judgment or final resolution shall be entered by the clerk in the book of entries of judgments.

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• The CA shall resolve a MNT within 90 days from the date when the court declares it submitted for resolution. [Rule 53, Sec. 3] Unless the court otherwise directs, the procedure in the new trial shall be the same as that granted by a RTC. [Rule 53, Sec. 4]

REMEDIAL LAW
GROUNDS FOR DISMISSAL OF APPEAL [Rule 56, Sec. 5] 1) Failure to take the appeal within the reglementary period; 2) Lack of merit in the petition; 3) Failure to pay the docket and other lawful fees or to make a deposit for costs; 4) Failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition; 5) Failure to comply with any SC circular/directive/order without justifiable cause; 6) Error in the choice/mode of appeal; 7) The fact that the case is not appealable to SC. IMPROPER APPEAL [Rule 56, Sec. 6] • An appeal taken to the SC by NOA shall be dismissed. • Exception: Rule 122, Sec. 3 regarding appeals in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. • An appeal by certiorari taken to the SC from the RTC submitting issues of fact may be referred to the CA for decision or appropriate action. The determination of the SC on WON issues of fact are involved shall be final. EQUALLY DIVIDED SC [Rule 56, Sec. 7] • Where the court en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall again be deliberated on. If after such deliberation no decision is reached: 1) The original action commenced in the court shall be dismissed. 2) In appealed cases, the judgment/order appealed from shall stand affirmed; 3) On all incidental matters, the petition/motion shall be denied.

PUBLICATION OF JUDGMENTS AND FINAL RESOLUTIONS • Judgments and final resolutions of the CA shall be published in the OG and in the Reports officially authorized by the court in the language in which they have been originally written, together with the syllabi therefor prepared by the reporter in consultation with the writers thereof. Memoranda of all other judgments and final resolutions not so published shall be made by the reporter and published in the OG and the authorized reports. [Rule 55, Sec. 1]

E. PROCEDURE IN SC
ORIGINAL CASES [Rule 56.A]
COGNIZABLE ORIGINAL CASES • Only petitions for: [Rule 56, Sec. 1] 1) Certiorari; 2) Prohibition; 3) Mandamus; 4) Quo warranto; 5) Habeas corpus; 6) Disciplinary proceedings against members of the judiciary and attorneys; 7) Cases affecting ambassadors, other public ministers and consuls. APPLICABLE RULES [Rule 56, Sec. 2] 1) The procedure in original cases for certiorari, prohibition, mandamus, quo warranto and habeas corpus shall be in accordance with the applicable provisions of the Constitution, laws, and Rules 46, 48, 49, 51, 52 and this Rule. • All references in said Rules to the CA shall be understood to also apply to the SC; • The portions of said Rules dealing strictly with and specifically intended for appealed cases in the CA shall not be applicable; • 18 clearly legible copies of the petition shall be filed, together with proof of service on all adverse parties. 2) The proceedings for disciplinary action against members of the judiciary shall be governed by the laws and Rules prescribed therefor, and those against attorneys by Rule 139-B, as amended.

APPEALED CASES [Rule 56.B]
MODE OF APPEAL [Rule 56, Sec. 3] • Only by a petition for review on certiorari. • Exception: Criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. PROCEDURE [Rule 56, Sec. 4] • Governed by and disposed of in accordance with the applicable provisions of the Constitution, laws, Rules 45, 48, Sec. 1, 2 and 5 to 11 of Rule 51, 52 and this Rule.

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CIVIL PROCEDURE XI. EXECUTION OF JUDGMENTS A. EXECUTION AS A MATTER OF RIGHT
JUDGMENT OR FINAL ORDER (order that disposes of the action or proceeding)

REMEDIAL LAW

If no appeal has been perfected, or the period of appeal has expired

If an appeal has been perfected and duly resolved, there are two ways by which execution can be carried out

Prevailing Party applies (by motion) for a w rit of execution, w hic h is granted by the judge since it is a matter of right

Prevailing party files a motion in the court of origin , submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party1.

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.

General rule: When the judgment or order becomes executory, the court cannot refuse to issue a writ of execution • Exceptions: The issuance of a writ of execution which issues as a matter of right can be countered in any of the following cases (R-I-N-S-E-D): 1) When a PETITION FOR RELIEF or an action to enjoin judgment is filed and a preliminary injunction is prayed for and granted (Rule 38.5); 2) When the judgment turns out to be INCOMPLETE OR IS CONDITIONAL since as a matter of law, such judgment CANNOT BE FINAL; 3) When the judgment has been NOVATED BY THE PARTIES 4) When SUBSEQUENT FACTS AND CIRCUMSTANCES transpire as to render such execution unjust or impossible 5) On EQUITABLE GROUNDS as when there has been a change in the situation of the parties which makes execution INEQUITABLE. 6) When the judgment becomes DORMANT, the 5-year period under Rule39.6 having expired without the judgment having been revived. • General rule: An ex parte motion for the issuance of the writ of execution would suffice since the trial court may take judicial notice of the record of the case to determine the propriety of the issuance thereof. • Exception: However when the losing party shows that subsequent facts had taken place which would render the execution unjust, a hearing on the motion should be held. [Luzon Surety v. Beson (1976)] General rule: An appeal seasonably perfected shall stay the execution of the judgment,

unless discretionary execution is granted by the court. • Exceptions: However, judgments in the following action, despite perfection of an appeal, shall be executed, unless the court orders otherwise: 1) 2) 3) 4) 5) injunction receivership accounting support such other judgments as shall now or may hereafter be declared to be immediately executory

Judgments in these actions shall be enforceable after their rendition and shall not, be stayed by an appeal taken therefrom, 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. • General rule: According to Rule 39, Section 6: A final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. 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 by motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations. According to Prof. Avena’s textual analysis of this provision, the maximum period within which a final and executory judgment may be executed is 20 years. • Exceptions:

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1) judgment for support WHICH DO NOT BECOME DORMANT AND WHICH CAN BE EXECUTED BY MOTION [Canonizado v. Benitez] except for support in arrears beyond 10 years from the date they become due; 2) contempt orders by reason of unauthorized reentry on the land by the ejected defendant [Azotes v. Blanco]; 3) issuance of writs of possession in FORECLOSURE CASES within the statute of limitations; 4) land registration proceedings (and other special proceedings), hence the right to ask for a WRIT OF POSSESSION THEREIN NEVER PRESCRIBES

REMEDIAL LAW

B. DISCRETIONARY EXECUTION
Situation 1: Trial Court still has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be. Situation 2: Trial court has lost jurisdiction

In Situat ion1, prevailing party f iles a MOTION WITH NOTICE TO THE ADVERSE PARTY in the Trial Court. In Situation2, prevailing party f iles the motion for execution pending appeal in the appellate court.

Discretionary execution may be granted only f or GOOD REASONS to be stated in a SPECIAL ORDER.

NOTE HOWEVER that Discretionary execution may be stayed upon approval by the proper court of a SUFFICIENT SUPERSEDEAS BOND FILED by the party against w hom it is directed, conditioned upon the performance of the judgment or order allow ed to be executed in case it shall be finally sustained in w hole or in part. The bond thus given m ay be procee ded against on motion with notice to the s urety

IN CASE the judgment w hich w as executed pending appeal is reversed totally or partially, or annulled, on appeal or otherw ise, the trial court may, on motion, issue such orders of res titution or reparation of dam ages as equity and justice m ay w arrant unde r the circumstances

General rule: Under the Rule on Discretionary Execution, the court rendering the judgment, if it still has jurisdiction, may exercise discretion and order execution pending appeal. • Exception: This rule, however, is inapplicable in the case of the Court of Appeals. The Rule on Discretionary Execution contemplates a situation where a judgment or final order rendered in the exercise of its original jurisdiction and the prevailing party in said decision seeks immediate execution during the pendency of an appeal. The CA has no authority to issue IMMEDIATE EXECUTION PENDING APPEAL OF ITS OWN DECISIONS THEREIN.

Discretionary execution is allowed pending appeal of judgment or final order of the trial court upon good reasons to be stated in a special order. A JUDGMENT OF THE CA CANNOT BE EXECUTED PENDING APPEALIt is acquired either by the arrest of the accused or by his voluntary appearance in court. [Heirs of Justice J.B.L. Reyes v. CA (2000)] • General rule: The filing of a supersedeas bond is sufficient to stay the enforcement of a discretionary execution. • Exception: However, according to J. Regalado, THE FILING OF SUPERSEDEAS

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BOND does not entitle the judgment debtor to the suspension of execution as a MATTER OF RIGHT. Where the needs of the prevailing party are URGENT, the Court can order immediate execution despite such SUPERSEDEAS BOND.

REMEDIAL LAW
Without valid levy having been made, ANY SALE OF THE PROPERTY THEREAFTER is void. Procedure: 1) 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 (1) the properties of the judgment obligor of every kind and nature whatsoever which may be disposed, of for value and (2) not otherwise exempt from execution 2) The sheriff gives the judgment obligor the option as to which of the property or part thereof may be levied upon, sufficient to satisfy the judgment 3) 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. 4) The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been levied upon. 5) 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.

C. EXECUTION OF

JUDGMENTS FOR MONEY
1. IMMEDIATE PAYMENT ON DEMAND
• Procedure: 1) The sheriff or executing officer demands from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. 2) The judgment obligor shall pay in cash, certified bank check payable to the judgment obligee, or ANY OTHER FORM OF PAYMENT ACCEPTABLE TO THE LATTER (e.g., dacion en pago), the amount of the judgment debt under proper receipt directly to the judgment obligee or 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. 3) 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 the clerk of court of the court that issued the writ, or if the same is not practicable, deposit said amounts to a fiduciary account in the nearest government depository bank of the Regional Trial Court of the locality. 4) The clerk of said 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. The excess, if any, shall be delivered to the judgment obligor 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.

3. GARNISHMENT OF DEBTS AND CREDITS
• Scope: 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. The process of levying shall be called garnishment if the property involved is money, stocks, or other incorporeal property in the HANDS OF THIRD PERSONS. Garnishment merely sets apart such funds but does not constitute the creditor as owner of the garnished property. In Chinabank v. Ortega, the Court held that garnishment is not a violation of RA 1405 on the secrecy of bank deposits. Procedure: 1) 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. 2) The garnishee shall make a WRITTEN REPORT to the court within five (5) days from service of the notice of garnishment stating whether or not the judgment obligor has sufficient funds or credits to satisfy the amount of the judgment. If not, the report shall state how much funds or credits the garnishee holds for the judgment obligor 3) 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

2. SATISFACTION BY LEVY
• Nature: LEVY MEANS THE ACT OR ACTS by which an officer sets apart or appropriates a part or the whole of the property of the judgment debtor for purposes of the prospective execution sale [Llenares v. Vandevella (1966)]. If susceptible of appropriation, the officer REMOVES AND TAKES THE PROPERTY FOR SAFEKEEPING; otherwise the same is placed under sheriff’s guards.

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within ten (10) working days from service of notice on said garnishee requiring such delivery, except the lawful fees which shall be paid directly to the court. 4) 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. 5) The executing sheriff shall observe the same procedure under IMMEDIATE PAYMENT ON DEMAND with respect to delivery of payment to the judgment obligee.

REMEDIAL LAW
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 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. According to Prof. Avena, The writ of execution directing the sheriff to cause the defendant to vacate is in the nature of HABERE FACIAS POSSESSIONEM and authorizes the sheriff WITHOUT NEED OF SECURING A BREAK OPEN ORDER to break open the premises where there is no occupant therein. When a party refuses to yield possession of a property as ordered by a writ of execution, contempt IS NOT THE REMEDY. The sheriff must oust said party from the property; but if demolition is involved, there must be a hearing on motion and due notice for the issuance of special order.

D. EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS
1. CONVEYANCE, DELIVERY OF DEEDS, OR OTHER SPECIFC ACTS
• Under this situation, there is a judgment which directs a party to execute a conveyance of land or personal property, or to deliver deeds or other documents, or to perform, any other specific act IN CONNECTION THEREWITH. If the party so ordered fails to comply within a specified period, there are two possible remedies. Either: 1) 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, or 2) if real or personal property is situated within the Philippines, 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.

4. 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, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon motion of the judgment obligee after the hearing and after the former has failed to remove the same within a reasonable time fixed by the court.

5. DELIVERY OF PERSONAL PROPERTY
• In judgment for the delivery of personal property, the officer shall take possession of the same and forthwith deliver it to the party entitled thereto and satisfy any judgment for money as therein provided.

2. SALE OF REAL OR PERSONAL PROPERTY
• If judgment is rendered ordering the sale of real or personal property, an order for execution shall be issued describing such property as may be ordered sold, selling it, and applying the proceeds in conformity with the judgment’s instructions. •

E. EXECUTION OF JUDGMENTS

SPECIAL

3. 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 persons claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession thereof to the judgment obligee, otherwise, the officer shall

When a judgment requires the performance of ANY ACT OTHER THAN THOSE MENTIONED IN THE TWO PRECEDING SECTIONS (EXECUTION OF JUDGMENT FOR MONEY AND SPECIFIC ACTS), a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered, or 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 judgments are those which can be complied with by the judgment obligor because of his personal qualifications or circumstances (e.g., a judgment ordering a partner to render an accounting, a judgment ordering a party to comply with his recording contract otherwise,

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pay damages). Note the difference with sections 9 and 10 (on execution of money judgments and specific acts) where contempt is not a remedy against disobedience by a party.

REMEDIAL LAW
from private retirement systems of companies and establishments with limitations [RA 4917]; laborer’s wages except for debts incurred for food, shelter, clothing and medical attendance [ART 1708, CIVIL CODE]; benefit payments from SSS [Section 16, RA 1161 AS AMENDED]) • Exception: However, no article or species of property mentioned in this section shall be exempt from (1) execution issued upon a judgment recovered for its price or (2) upon a judgment of foreclosure of a mortgage thereon. The exemptions MUST BE CLAIMED, otherwise they are deemed waived. It is not the duty of the sheriff to set off the exceptions on his own initiative. [Herrera v. Mcmicking]

F. GENERAL RULES GOVERNING EXECUTIONS
1. PROPERTY EXEMPT EXECUTION

FROM

General rule: Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution: (FOTNUP-LBS-GMRE)

(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) Three horses, or three cows, or three 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 one hundred thousand pesos; (f) Provisions for individual or family use sufficient for four months; (g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value; (h) One fishing boat and accessories not exceeding the total value of one hundred thousand 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 for his personal services within the four 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 exempted by law. (e.g., property mortgaged to the DBP [Section 26, CA 458]; savings of national prisoners deposited with the POSTAL SAVINGS BANK [Act 2489]; benefits • •

2. RETURN OF EXECUTION

WRIT

OF

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 thirty (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 thirty (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. [Section 12, Rule 39]

3. NOTICE REQUIREMENT
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 in three (3) public places, preferably in conspicuous areas of the (CPM) municipal or city hall, post office and public market in the municipality or city where the sale is to take place, 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 in the three (3) public places above-mentioned for not less than five (5) days; (c) In case of real property, by posting for twenty (20) days in the three (3) public places abovementioned a similar notice particularly describing the property and stating where the property is to be sold, and if the assessed value of the property exceeds fifty thousand (P50,000.00) pesos, by publishing a copy of the notice once a week for two (2) consecutive weeks in one newspaper selected by raffle, whether in English, Filipino, or any major regional language published, edited and circulated or, in the absence thereof, having general circulation in the province or city;

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(d) In all cases, written notice of the sale shall be given to the judgment obligor, at least three (3) days before the sale, except as provided in paragraph (a) hereof where notice shall be given the same manner as personal service of pleadings and other papers as provided by section 6 of Rule 13. • The notice shall specify the place, date and exact time of the sale which should not be earlier than nine o'clock in the morning and not later than two o'clock in the afternoon (9am2pm). The place of the sale MAY BE AGREED UPON BY THE PARTIES. In the absence of such agreement, the sale of the property or personal property not capable of manual delivery shall be held in the office of the clerk of court of the Regional Trial Court or the Municipal Trial Court which issued the writ of 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. [Section 15, Rule 39] PENALTIES (Selling without notice and defacing notice) An officer selling without the notice prescribed by section 15 of this Rule pay punitive damages in the amount of five thousand (P5,000.00) pesos to any person injured thereby, IN ADDITION TO HIS ACTUAL DAMAGES, BOTH TO BE RECOVERED BY MOTION IN THE SAME ACTION 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, shall be liable to pay five thousand (P5,000.00) pesos to any person injured by reason thereof, in addition to his actual damages, to be recovered by motion in the same action

REMEDIAL LAW

In case of disagreement as to such value of the bond, 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 one hundred twenty (120) days from the date of the filing of the bond. The officer shall not be liable for damages for the taking or keeping of the property, to any thirdparty claimant if such bond is filed • The proceedings set forth above SHALL NOT PREVENT SUCH CLAIMANT OR ANY THIRD PERSON FROM VINDICATING HIS CLAIM TO THE PROPERTY IN A SEPARATE ACTION, OR 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. Apart from Rule 39, the only other provisions of the Rules of Court dealing with terceria or third party claims are Rule 57.14 on preliminary attachment and Rule 60.7 on replevin. In Sierra v. Rodriguez and Northern Motors v. Coquia, the Court held that the third party claimant CANNOT APPEAL NOR AVAIL OF CERTIORARI AS A REMEDY in the event that his claim was denied since HE IS A NONPARTY to the original action.

5. PREVENTING EXECUTION SALE
• At any time before the sale of property on execution, the judgment obligor may prevent the sale by paying the amount required by the execution and the costs that have been incurred therein. [Section 18, Rule 39] This is akin to the equitable right of redemption under Rule 68, which is available to the judgment obligor in judicial foreclosure of mortgage. The difference lies in the fact that under Rule 68, a definite period is given.

4. RULES REGARDING TERCERIA (THIRD-PARTY CLAIMS)
The third person whose property was levied on must make an (1) affidavit of his title thereto or right to the possession thereof, (2) stating the grounds of such right or title, and (3) serves the same upon the officer making the levy and copy thereof, upon the judgment oblige; The officer shall not be bound to keep the property, as a general rule •

6. CONCLUDING THE EXECUTION SALE
When the purchaser is the judgment obligee, and 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. [Section 21, Rule 39] By written consent of the judgment obligor and obligee, or 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 the day fixed in the notice or the day to which it was adjourned [Section 22, Rule 39]. Written consent is essential, otherwise the adjournment will be void [Abrozar v. IAC (1988)] Upon a sale of real property , the officer must give to the purchaser a certificate of sale

Sheriff is bound to keep the property when the judgment obligee, on demand of the officer, files a bond approved by the court to indemnity the thirdparty claimant in a sum not less than the value of the property levied on.

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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 one (1) year from the date of the registration of the certificate of sale. Such certificate must be registered in the registry of deeds of the place where the property is situated. [Section 25, Rule 39] How property is sold on execution:

REMEDIAL LAW

All sales of property under execution must be made at public auction, to the highest bidder, to start at the exact time f ixed in the notice. The judgment obligor, if present at the sale, may direct the order in w hic h property, real or personal shall be sold, w hen such property consists of several know n lots or parcels w hich can be sold to advantage .separately. When the sale is of real property, consisting of several know n lots, they must be sold separately ; or, when a 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 w ithin view of those attending the same and in such parcels as are likely to bring the highest price

Af ter suff ic ient 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 authoriz ed representative, unless otherw is e directed by the judgment or order of the court.

Se ction 20. Refusal of purchaser to pay. If a purchaser ref uses to pay the amount bid by him f or property struck off to him at a sale under execution, the off icer may again sell the property to the highest bidder and shall not be responsible f or any loss occasioned thereby; but the court may (1) order the ref using purchaser to pay into the court the amount of such loss1, w ith costs, and may punish him for contempt if he disobeys the order. The amount of such payment shall be for the benef it of the person entitled to the proceeds of the execution, unless the execution has been fully satisfied, in which event such proceeds shall be f or the benef it of the judgment obligor. (2) The officer m ay

Section 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 pric e, the off icer making the sale must execute and deliver to the purchaser a certificate of sale. Such certif icate conveys to the purchaser all the rights w hich the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment

Section 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 off ic er making the sale must deliver the property to the purchaser and, if desired, execute and deliver to him a certif icate of sale. The sale conveys to the purchaser all the rights w hic h the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment.

RULES GOVERNING REDEMPTION
1) 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. [Section 27, Rule 39]

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2) Redemption can be made by either person: a) JUDGMENT OBLIGOR, Within one year from the date of REGISTRATION OF THE CERTIFICATE OF SALE b) REDEMPTIONER, Within one year FROM THE DATE OF REGISTRATION OF THE CERTIFICATE OF SALE; or within 60 days from the LAST REDEMPTION BY ANOTHER REDEMPTIONER. BUT IN ALL CASES, the judgment obligor shall have the entire period of 1 YEAR from the date of registration of the sale to redeem the property. IF THE JUDGMENT OBLIGOR REDEEMS, no further redemption is allowed and he is restored to his estate. THE PERIOD FOR REDEMPTION IS NOT SUSPENDED BY AN ACTION TO ANNUL THE FORECLOSURE SALE. 3) A right of redemption cannot be levied upon by a judgment creditor. The creditor may not deprive the debtor of any further rights to the property [Lichauco v. Olegario] 4) Redemption price varies depending on who the redemptioner is: a) If judgment obligor: i. ii. Purchase price 1 % interest thereon up to the time of redemption iii. Any amount of assessments or taxes which the purchaser may have paid thereon after purchase and interest on such last named amount at the same rate. iv. If the purchaser be also a creditor having 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. b) If redemptioner i. Amount paid on the last redemption ii. 2% interest thereon. iii. Any amount of assessments or taxes which the last redemptioner may have paid thereon after redemption by him with interest on such last named amount; iv. Amount of any liens held by said last redemptioner prior to his own with interest 5) Effects of redemption a) If the judgment obligor redeems he must make the same payments as are required to effect a redemption by a redemptioner, whereupon, no further redemption shall be allowed and he is restored to his estate. The person to whom the redemption payment is made must execute and deliver to him a certificate of redemption

REMEDIAL LAW
acknowledged before a notary public or other officer authorized to take acknowledgments of conveyances of real property. Such certificate 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 to the purchaser or redemptioner, or for him to the officer who made the sale. [Section 29, Rule 39] b) A redemptioner must produce to the officer, or person from whom he seeks to redeem, and serve with his notice to the officer i. 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, ii. if he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the registrar of deeds, OR iii. an original or certified copy of any assignment necessary to establish his claim; AND iv. an affidavit executed by him or his agent, showing the amount then actually due on the lien. [Section 30, Rule 39] c) 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, to continue to use it in the same manner in which it was previously used, or to use it in the ordinary course of husbandry; or to make the necessary repairs to buildings thereon while he occupies the property. [Section 31, Rule 39] d) The purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on execution, or 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. In all, the judgment debtor shall exercise the following rights: i. Remain in possession of the property ii. He cannot be ejected; iii. Use the property in the same manner it was previously used; iv. Make Necessary repairs to buildings thereon while he occupies the property

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v. Use it in the ordinary course of husbandry vi. Collect rents, earnings and income derived from the property until the expiration of peiord of redemption. e) If no redemption be made within one (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 sixty (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 one (1) year from the date of the registration of the sale to redeem the property. The deed shall be executed by the officer making the sale or by his successor in office, and in the latter case 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. The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party IS ACTUALLY HOLDING THE PROPERTY adversely to the judgment obligor. [Section 33, Rule 39]

REMEDIAL LAW
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. [Section 35, Rule 39].

8. REMEDIES OF JUDGMENT CREDITOR IN AID OF EXECUTION (Sections 36-43)
1. If the execution is returned unsatisfied, he may cause the EXAMINATION OF THE JUDGMENT DEBTOR AS TO HIS PROPERTY AND INCOME [Section 36] 2. He may cause examination of the DEBTOR OF THE JUDGMENT DEBTOR as to any debt owed by him or to any property of the judgment debtor in his possession [Section 37]. 3. If after examination, the court finds the property of the judgment debtor either in his own hands or that of any person, the court may order the property applied to the satisfaction of the judgment. A party or other person may be COMPELLED BY AN ORDER OR SUBPOENA TO ATTEND BEFORE THE COURT OR COMMISSIONER TO TESTIFY as provided in Sect 36-37. 4. If the court finds the earnings of the judgment debtor are more than sufficient for his family’s needs, it may ORDER PAYMENT IN INSTALLMENTS [Section 40] 5. The court may appoint a receiver for the property of the judgment debtor not exempt from execution or FORBID a transfer or disposition or interference with such property [Section 41] 6. If the COURT FINDS THE JUDGMENT DEBTOR HAD AN ASCERTAINABLE INTEREST IN REAL PROPERTY EITHER AS MORTGAGOR, MORTGAGEE OR OTHERWISE, AND HIS INTEREST CAN BE ASCERTAINED WITHOUT CONTROVERSY, THE COURT MAY ORDER A SALE OF SUCH INTEREST [Section 42]. 7. If the person alleged to have the property of the judgment debtor or be indebted to him, claims an adverse interest in the property or denies the DEBT, THE COURT MAY AUTHORIZE THE JUDGMENT CREDITOR TO INSTITUTE AN ACTION TO RECOVER THE PROPERTY, FORBID ITS TRANSFER AND MAY PUNISH DISOBEDIENCE FOR CONTEMPT [Section 43]

f) Recovery of purchase price and revival of judgment:
WHEN PURCHASER MAY RECOVER PURCHASE PRICE 1. The purchaser or his successors in interest fails to recover possession of the property, or Is evicted due to: REMEDIES IN CASE THE SALE IS NOT EFFECTIVE 1. Bring an action against the judgment creditor. File a MOTION FOR REVIVAL OF JUDGMENT in the name of judgment creditor against the judgment debtor

2.

2.

a. irregularities in the proceedings concerning the sale b. judgment has been reversed or set aside c. the property sold was exempt from execution. d. A third person has vindicated his claim to the property 3.

Bring an action to recover possession of property.

9. ENTRY OF SATISFACTION
1. Satisfaction of a judgment shall be entered by the clerk of court in the court docket, and in the execution book, upon the return of a writ of execution showing the full satisfaction of the judgment, or upon the filing of an admission to the satisfaction of the judgment executed and acknowledged in the same manner as a

g)

When property liable to an execution against several persons is sold thereon, and MORE THAN A DUE PROPORTION OF

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conveyance of real property by the judgment obligee or by his counsel unless a revocation of his authority is filed, or upon the endorsement of such admission by the judgment obligee or his counsel, on the face of the record of the judgment. [Section 44, Rule 39] 2. 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 may order either the judgment obligee or his counsel to do so, or MAY ORDER THE ENTRY OF SATISFACTION TO BE MADE WITHOUT SUCH ADMISSION. [Section 45, Rule 39]

REMEDIAL LAW

BAR BY FORMER JUDGMENT (RES JUDICATA)

CONCLUSIVENESS OF JUDGMENT

There is identity of parties, subject matter and causes of action The first judgment constitutes an absolute bar to all matters directly adjudged and those that might have been adjudged.

Identity of parties and subject matter.

The first judgment is conclusive only as to matters directly adjudged and actually litigated in the first action. Second action can be prosecuted.

G. EFFECTS OF JUDGMENTS OR FINAL ORDERS
1. RES JUDICATA IN JUDGMENTS IN REM
JUDGMENTS OR FINAL ORDER Against a specific thing Probate of a will or administration of the estate of a deceased person CONCLUSIVE AS TO

Title of the thing the will or administration. 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; condition, status or relationship of the person,

in respect to the personal, political, or legal condition or status of a particular person or his relationship to another

2. RES JUDICATA IN JUDGMENTS IN PERSONAM
• In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been missed 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.

Res Judicata vs. “law of the case”. Law of the case refers to legal conclusions announced on a first appeal, whether on the general law or the law as applied to the concrete facts, not only prescribe the duty and limit the power of the trial court to strict obedience and conformity thereto, but they become and remain the law of the case in all other steps whether in the lower court or in the appellate court on a subsequent appeal [Zarate vs. Director of Lands]. Law of the case designates the principle that if an appellate court has passed on a legal question and remanded the cause to the court below for further proceedings, the legal question thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain the same. It is a doctrine which provides that an appellate court’s determination on a legal issue is binding on both the trial court on remand and an appellate court on a subsequent appeal given the same case and substantially the same facts. The doctrine of "law of the case" is one of policy only and will be disregarded when compelling circumstances call for a redetermination of the determination of point of law on prior appeal, and this is particularly true where intervening or contemporaneous change in law has occurred by overruling former decisions or establishment of new precedent by controlling authority.

4. EFFECT OF FOREIGN JUDGMENTS
• In case of a judgment or final order upon a specific thing , the judgment or final order, is conclusive upon the title to the thing. In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. IN EITHER CASE, THE JUDGMENT OR FINAL ORDER MAY BE REPELLED BY EVIDENCE OF A WANT OF JURISDICTION, WANT OF NOTICE TO THE PARTY, COLLUSION, FRAUD, OR CLEAR MISTAKE OF LAW OR FACT. Such limitation on the review of foreign judgment is adopted in all legal systems to avoid repetitive litigation on claims and issues,

3. CONCLUSIVENESS OF JUDGMENT/ PRECLUSION OF ISSUES (AUTER ACTION PENDANT)
• 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 which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.

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prevent harassment of the parties and avoid undue imposition on the courts. This policy of preclusion rests on principles of comity, utility and convenience of nations. As a generally accepted principle of international law, it is part of the law of the Philippines by virtue of the Incorporation Clause (Section 2, Article II) of the 1987 Constitution [Regalado].

REMEDIAL LAW XII. SUMMARY PROCEDURE
1991 REVISED RULES ON SUMMARY PROCEDURE
SCOPE [Sec. 1] • This governs the summary procedure in the MeTCs/MTCs/MCTCs in the following cases falling within their jurisdiction: 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 P20K. 2) All other civil cases, except probate proceedings, where the total amount of the plaintiff's claim does not exceed P10K, exclusive of interest and costs. DETERMINATION OF APPLICABILITY [Sec. 2] • Upon the filing of a civil action, the court shall issue an order declaring WON the case shall be governed by this Rule. • A patently erroneous determination to avoid the application of the Rule is a ground for disciplinary action. THE ONLY PLEADINGS ALLOWED [Sec. 3] 1) Complaints; 2) Compulsory counterclaims and cross-claims pleaded in the answer; 3) Answers thereto. • All pleadings shall be verified.

COURT DUTY [Sec. 4] • After the court determines that the case falls under summary procedure, from an examination of the allegations therein and such evidence as may be attached thereto, it may dismiss the case outright on any of the grounds apparent therefrom for the dismissal of a civil action. • If no ground for dismissal is found it shall forthwith issue summons which shall state that the summary procedure under this Rule shall apply. ANSWER [Sec. 5] • Within 10 days from service of summons, the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff. • Affirmative and negative defenses not pleaded therein shall be deemed waived, • except for LOJ over the subject matter. • Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred. The answer to counterclaims or crossclaims shall be filed and served within ten 10 days from service of the answer in which they are pleaded. EFFECT OF FAILURE TO ANSWER [Sec. 6] • The court shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein. • However, the court may reduce the amount of damages and attorney's fees claimed for being excessive or otherwise unconscionable.

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• This is without prejudice to the applicability of Rule 15, Sec. 4, ROC if there are 2 or more defendants.

REMEDIAL LAW
REFERRAL TO LUPON [Sec. 18] • Cases requiring referral to the Lupon for conciliation under PD 1508 where there is no showing of compliance with such requirement, shall be dismissed without prejudice and may be revived only after such requirement shall have been complied with. • Exception: Criminal cases where the accused was arrested without a warrant. PROHIBITED PLEADINGS AND MOTIONS [Sec. 19] 1) MTD the complaint or to quash the complaint/information except on the ground of LOJ over the subject matter, or failure to comply with the preceding section; 2) Motion for a BOP; 3) MNT/MFR of a judgment, or motion for opening of trial; 4) Petition for relief from judgment; 5) Motion for extension of time to file pleadings/affidavits; 6) Memoranda; 7) Petition for certiorari/mandamus/prohibition against any interlocutory order; 8) Motion to declare the defendant in default; 9) Dilatory motions for postponement; 10) Reply; 11) 3rd party complaints; 12) Interventions. AFFIDAVITS [Sec. 20] • The affidavits required to be submitted under this Rule shall state only facts of direct personal knowledge of the affiants which are admissible in evidence, and shall show their competence to testify to the matters stated therein. • A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action, and shall be cause to expunge the inadmissible affidavit or portion thereof from the record. APPEAL [Sec. 21] • The judgment or final order shall be appealable to the RTC which shall decide the same in accordance with Sec. 22, BP 129. • The RTC decision in civil cases governed by this Rule, including forcible entry and unlawful detainer, shall be immediately executory, without prejudice to a further appeal that may be taken therefrom. • Rule 70, Sec. 10 shall be deemed repealed. APPLICABILITY OF THE REGULAR RULES [Sec. 22] • The regular procedure prescribed in the ROC shall apply suppletorily.

PRELIMINARY CONFERENCE [Sec. 7] • Not later than 30 days after the last answer is filed, a preliminary conference shall be held. • The rules on pre-trial in ordinary cases shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule. • The failure of the plaintiff to appear in the preliminary conference shall be a cause for the dismissal of his complaint. • The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with Sec. 6. All cross-claims shall be dismissed. • If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with Sec. 6. • Exception: This Rule shall not apply where one of 2 or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference. RECORD OF PRELIMINARY CONFERENCE [Sec. 8] • Within 5 days after the termination of the preliminary conference, the court shall issue an order stating the matters taken up therein, including but not limited to: 1) WON the parties have arrived at an amicable settlement and the terms thereof; 2) Stipulations or admissions entered into by the parties; 3) WON based on the pleadings and stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall be rendered within 30 days from issuance of the order; 4) A clear specification of material facts which remain controverted; 5) Other matters intended to expedite the disposition of the case. SUBMISSION OF AFFIDAVITS AND POSITION PAPERS [Sec. 9] • Within 10 days from receipt of the order, the parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them. RENDITION OF JUDGMENT [Sec. 10] • Within 30 days after receipt of the last affidavits and position papers, or the expiration of the period for filing the same, the court shall render judgment. • However should the court find it necessary to clarify certain material facts, during the said period it may issue an order specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the said matters within 10 days from receipt of said order. Judgment shall be rendered within 15 days after the receipt of the last clarificatory affidavits, or the expiration of the period for filing the same. • The court shall not resort to the clarificatory procedure to gain time for the rendition of the judgment.

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CIVIL PROCEDURE PART 3: PROVISIONAL REMEDIES
DEFINITION
• Writs and processes available during the pendency of the action which may be resorted to by a litigant for the preservation or protection of their rights and interests therein pending rendition, and for purposes of the ultimate effects, of a final judgment in the case; also known as ancillary or auxiliary remedies. They are applied to a pending litigation, for the purpose of securing the judgment or preserving the status quo, and in some cases after judgment, for the purpose of preserving or disposing of the subject matter. [Calo vs. Roldan, 1946] All inferior courts can grant appropriate provisional remedies provided that the main action is within their jurisdiction. [B.P. 129] Orders granting or denying provisional remedies are merely interlocutory and cannot be the subject of an appeal. They may however be challenged before a superior court through a petition for certiorari under Rule 65.

REMEDIAL LAW
converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person; 4. Action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; 5. Action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or 6. Action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication.

STAGES IN THE GRANT OF PRELIMINARY ATTACHMENT
1. The court issues the order granting the application 2. The writ of attachment issues pursuant to the order granting the writ 3. The writ is implemented • For the first two stages, jurisdiction over the person of the defendant is NOT necessary. However, once the implementation of the writ commences, the court must have acquired jurisdiction over the defendant. [Cuartero, supra]

I. PRELIMINARY ATTACHMENT
DEFINITION
• A provisional remedy issued upon order of the court where an action is pending to be levied upon the property or properties of the defendant therein, the same to be held thereafter by the sheriff as security for the satisfaction of whatever judgment might be secured in said action by the attaching creditor against the defendant. [Cuartero vs. CA, 1992]

ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT [Rule 57.2]
• may be issued ex parte upon motion with notice and hearing by the court in which the action is pending, or by the Court of Appeals or the Supreme Court. must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand o EXCEPT if such party makes deposit or gives bond in an amount equal to that fixed in the order.

PURPOSES
1. To seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying the said judgment. 2. To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected. [Quasha vs. Juan, 1982]

CONTENTS OF AFFIDAVIT OF APPLICANT
[Rule 57.3] 1. a sufficient cause of action exists 2. the case is one of those mentioned in sec. 1 (grounds) 3. there is no other sufficient security for the claim sought to be enforced by the action 4. the amount due to the applicant or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. • The affidavit and the bond must be filed with the court before the order issues.

GROUNDS [Rule 57.1]
1. Action for recovery of a specified amount of money or damages EXCEPT moral and exemplary, on a cause of action against a party who is about to depart from the Philippines with intent to defraud his creditors; 2. Action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; 3. Action to recover the possession of property unjustly or fraudulently taken, detained or

CONDITION OF APPLICANT'S BOND [Rule
57.4] • Applicant must give a bond executed to the adverse party in the amount fixed by the court in its order granting the issuance of the writ conditioned that the applicant will pay:

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1. all the costs which may be adjudged to the adverse party and 2. all damages which the adverse party may sustain by reason of the attachment if the court shall finally adjudge that the applicant was not entitled thereto.

REMEDIAL LAW
credits or other personal property, or with his agent, a copy of the writ, and notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ; 5. Interest of the party whom attachment is issued in property belonging to the estate of the decedent - by serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached. A copy of said writ of attachment and of said notice shall also be filed in the office of the clerk of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned. If the property sought to be attached is in custodia legis, a copy of the writ of attachment shall be filed with the proper court or quasijudicial agency, and notice of the attachment served upon the custodian of such property. After enforcing the writ, the sheriff must make a return thereon to the court from which the writ issued, with a full statement of his proceedings under the writ and a complete inventory of the property attached, together with any counter-bond given by the party against whom attachment is issued, and serve copies thereof on the applicant. [Rule 57.6]

MANNER OF ATTACHING PROPERTY [Rule
57.5] • The sheriff enforcing the writ shall attach only so much of the property in the Philippines of the adverse party not exempt from execution as may be sufficient to satisfy the applicant’s demand. The levy on attachment shall be preceded or contemporaneously accompanied by service on the defendant within the Philippines of: 1. summons 2. copy of complaint 3. application for attachment 4. affidavit and bond of applicant 5. order and writ of attachment. o EXCEPT if: 1. Summons could not be served personally or by substituted service despite diligent efforts, or 2. Defendant is a resident of the Philippines temporarily absent therefrom, or 3. Defendant is a non-resident, or 4. The action is in rem or quasi in rem. Manner of attachment of real and personal property [Rule 57.7]: 1. Real property, or growing crops thereon, or any interest therein - by filing with the registry of deeds a copy of the order, together with a description of the property attached, and a notice that it is attached, or that such real property and any interest therein held by or standing in the name of such other person are attached, and by leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province. Where the property has been brought under the operation of either the Land Registration Act or the Property Registration Decree, the notice shall contain a reference to the number of the certificate of title, the volume and page in the registration book where the certificate is registered, and the registered owner or owners thereof. 2. Personal property capable of manual delivery - by taking and safely keeping it in the sheriff’s custody, after issuing the corresponding receipt therefor; 3. Stocks or shares, or an interest in stocks or shares, of any corporation or company - by leaving with the president or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the party against whom the attachment is issued is attached in pursuance of such writ; 4. Debts and credits, including bank deposits, financial interest, royalties, commissions, and other personal property not capable of manual delivery - by leaving with the person owing such debts, or having in his possession or under his control, such

EFFECTS OF ATTACHMENT
1. attachment of debts, credits and all other similar personal property [Rule 57.8] - All persons having in their possession or under their control any credits or other similar personal property belonging to the adverse party, or owing any debts to him, at the time of service upon them of the copy of the writ of attachment and notice shall be liable to the applicant for the amount of such credits, debts or other similar personal property, until the attachment is discharged, or any judgment recovered by him is satisfied, unless such property is delivered or transferred, or such debts are paid, to the clerk, sheriff, or other proper officer of the court issuing the attachment. • Garnishment - a species of attachment for reaching the property or credits pertaining or payable to a judgment debtor; • Service of summons upon the garnishee is not necessary. All that is necessary is the service upon him of the writ of garnishment, as a consequence of which he becomes a virtual party or a forced intervenor in the case. [Perla Compania v. Ramolete, 1991] 2. attachment of interest in property belonging to the estate of a decedent [Rule 57.9] - The attachment of the interest of an heir, legatee, or devisee in the property belonging to the estate of a decedent shall not impair the power of the executor, administrator, or other personal representative of the decedent over such property for the purpose of administration. Such personal representative, however, shall report the attachment to the court when any petition for distribution is filed, and in the order made upon

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such petition, distribution may be awarded to such heir, legatee, or devisee, but the property attached shall be ordered delivered to the sheriff making the levy, subject to the claim of such heir, legatee, or devisee, or any person claiming under him. •

REMEDIAL LAW
If the judgment is in favor of the party against whom attachment was issued, the whole sum deposited must be refunded to him or his assignee. [Rule 57.18] If judgment be rendered against the attaching party, all the proceeds of sales and money collected or received by the sheriff, under the order of attachment, and all property attached remaining in any such officer's hands, shall be delivered to the party against whom attachment was issued, and the order of attachment discharged. [Rule 57.19]

SALE OF ATTACHED PROPERTY
• Whenever it shall be made to appear to the court in which the action is pending, upon hearing with notice to both parties, that (1) the party attached is perishable, or that (2) the interests of all the parties to the action will be will be subserved by the sale thereof, the court may order such property to be sold at public auction in such manner as it may direct, and the proceeds of such sale to be deposited in court to abide the judgment in the action. [Rule 57.11]

IMPROPER, IRREGULAR OR EXCESSIVE ATTACHMENT
• An application for damages must be filed before the trial, or before appeal is perfected, or before the judgment becomes executory. Such damages may be awarded only after hearing and shall be included in the judgment on the main case. [Rule 57.20] Procedure for claiming damages is EXCLUSIVE. Such claims for damages cannot be the subject of an independent action. o EXCEPTIONS: 1. Where the principal case was dismissed for lack of jurisdiction by the trial court without giving opportunity to the party whose property was attached to apply for and prove his claim; and 2. Where the damages by reason of the attachment was sustained by a third person who was not a party to the action wherein such writ was issued. [Santos v. CA, 95 Phil 360]

DISCHARGE OF ATTACHMENT
• • After a writ of attachment has been enforced, the party whose property has been attached, or the person appearing on his behalf, may move for the discharge of the attachment wholly or in part on the security given. Grounds for discharge: 1. Debtor has posted a counter-bond or has made the requisite cash deposit [Rule 57.12]; 2. Attachment was improperly or irregularly issued [Rule 57.13] as where there is no ground for attachment, or affidavit and/or bond filed therefore are defective or insufficient; 3. Attachment is excessive but the discharge shall be limited to the excess [Rule 57.13]; 4. Property attached is exempt from execution [Rules 57.2 and 57.5]; 5. Judgment is rendered against the attaching creditor [Rule 57.19].

PROCEEDINGS WHERE ATTACHED PROPERTY CLAIMED BY THIRD PERSON
[Rule 57.14] • The same procedure as Rule 39.16 (execution).

RECOVERY UPON THE COUNTER-BOND; DISPOSITION OF DEPOSIT/ATTACHED PROPERTY AFTER JUDGMENT
• When the judgment has become executory, the surety or sureties on any counter-bond given to secure the payment of the judgment shall become charged on such counter-bond and bound to pay the judgment obligee upon demand the amount due under the judgment, which amount may be recovered from such surety or sureties after notice and summary hearing in the same action. [Rule 57.17] Where the party against whom attachment had been issued has deposited money instead of giving counter-bond, it shall be applied under the direction of the court to the satisfaction of any judgment rendered in favor of the attaching party, and after satisfying the judgment the balance shall be refunded to the depositor or his assignee.

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CIVIL PROCEDURE II. PRELIMINARY INJUNCTION
DEFINITION
• An order granted by the court where the action/proceeding is pending at any stage of an action/proceeding prior to the judgment requiring a party or a court, agency or a person to refrain from a particular act or acts (“preliminary preventive injunction”). [Rule 58.1 and 58.2] When preventive injunction does not lie: 1. To restrain collection of taxes (Valley Trading vs CA), except where there are special circumstances that bear the existence of irreparable injury. (Churchill & Tait vs Rafferty, 1915) 2. To restrain the sale of conjugal properties where the claim can be annotated on the title as a lien, such as the husband’s obligation to give support. (Saavedra vs Estrada, 1931) 3. To restrain a mayor proclaimed as duly elected from assuming his office. (Cereno vs Dictado, 1988) 4. To restrain registered owners of the property from selling, disposing and encumbering their property just because the respondents had executed Deeds of Assignment in favor of petitioner. (Tayag vs. Lacson, 2004) 5. Against consummated acts. (PNB vs Adi; Rivera v. Florendo, 1986; Ramos, Sr. v. CA, 1989; Zabal vs CA) EXCEPTION: If the act is of continuing nature and in derogation of plaintiff’s right at the outset. 6. Against disposing of the case on the merits (Ortigas and Company Limited Partnership vs CA, 1988) 7. To stop the execution of judgment where the judgment was already executed. (Meneses vs Dinglasan) 8. But where the lower court enforced its judgment before a party against whom the execution was enforced could elevate her appeal in an injunction suit, which was instituted to prevent said execution, an independent petition for injunction in the Court of Appeals is justified. (Manila Surety and Fidelity vs Teodoro, 1967) 9. The CFI has no power to issue a writ of injunction against the Register of Deeds if its effect is to render nugatory a writ of execution issued by the National Labor Relations Commission. (Ambrosio vs Salvador, 1978) 10. Transfer of possession of property to party with disputed legal title via preliminary injunction EXCEPTIONS: a) Forcible entry and unlawful detainer cases in which the court may issue preliminary mandatory injunction [Rule 70.15] b) Property covered by Torrens Title when there is a clear finding of ownership and possession of the land. (GSIS vs Florendo) “Preliminary mandatory injunction” - requires the performance of a particular act or acts. [Rule 58.1] •

REMEDIAL LAW
Requisites of mandatory injunction: 1. Invasion of the right is material and substantial 2. Right of the complainant is clear and unmistakable 3. Urgent and paramount necessity for the writ to prevent serious damages [Bautista v. Barcelona, 100 Phil 1078] 4. The effect would not be to create a new relation between the parties [Alvaro v. Zapata, 1982] Mandatory injunction does not lie in the following instances: 1. to compel cohabitation [Arroyo v. Vasquez,1921] 2. cancellation of attachment [Levy Hermanos v. Lacson, 1940] 3. release imported goods pending hearing before the Commissioner of Customs. [Commissioner of Customs v. Cloribel, 1967] 4. to take property out of the possession or control of one party and place it into that of another whose title has not clearly been established [Pio v. Marcos, 1974]
INJUNCTION Generally directed against a party in the action Does not involve the court’s jurisdiction PROHIBITION Directed against a court/tribunal/person exercising judicial powers may be on the ground that the court against whom the writ is sought acted without/in excess of jurisdiction Always a main action

May be the main action itself, or just a provisional remedy in the main action

PURPOSE
• To prevent future injury and maintain the status quo (i.e. the last actual, peaceable, uncontested status which preceded the pending controversy.) [Kencht vs CA, 1993]

GROUNDS
1. Applicant is entitled to the relief demanded, and the relief consists in restraining the commission or continuance of the acts or acts complained of, or in requiring performance of an act or acts; 2. Commission, continuance or non-performance of the acts complained of during the litigation would probably work injustice to the applicant; or 3. A party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. [Rule 58.3]

REQUIREMENTS
1) The application for injunction must be verified, and must show facts entitling the applicant to the relief demanded; 2) Unless exempted by the court, the applicant must file with the court where the action/proceeding is pending a bond executed

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to the party or person enjoined, in an amount to be fixed by the court. [Rule 58.4] o Note: Rule 58, Sec. 4 as amended by AM 07-7-12-SC (December 4, 2007): o Petition must be filed within 60 days from notice of the judgment/order/resolution. o If MFR/MNT is timely filed (WON such MNT/MFR is required), petition shall be filed within 60 days from denial of the MFR/MNT. o If petition relates to the act of a MTC/corporation/board/officer/person, file with the RTC exercising jurisdiction over the territorial area. May also file with the CA/Sandiganbayan, WON in aid of appellate jurisdiction. o If petition involves QJA’s act/omission, file only with CA, unless otherwise provided by law/ROC. o If election cases involving act/omission of MTC/RTC, file exclusively with COMELEC in aid of its appellate jurisdiction. 3) Hearing and prior notice to the party/person sought to be enjoined. EXCEPTIONS: a) Great or irreparable injury would result to the applicant before the matter can be heard on notice. i) The court may issue a TRO effective for 20 days from service on the party sought to be enjoined. ii) Injury is “irreparable” if it is of such constant and frequent recurrence that no fair or reasonable redress can be had therefore in court of law or where there is no standard by which their amount can be measured with reasonable accuracy. b) Matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury i) Judge may issue ex parte a TRO effective for 72 hours from issuance. o However, must comply with Rule 58, Sec. 4 provisions on service of summons and documents. [as amended by AM 07-7-12-SC (December 4, 2007)] ii) Within 72 hours, judge shall conduct a summary hearing to determine whether the TRO shall be extended until the application for preliminary injunction can be heard. iii) Maximum period of effectivity of TRO=20 days. o Within the 20-day period, court must order the restrained party/person to show cause at a specified time and place, why the injunction should not be granted. Within the same period, court shall determine WON preliminary injunction shall be granted, and issue the corresponding order. [AM 07-7-12-SC (December 4, 2007)] o If the application for preliminary injunction is denied or not resolved within the said period, the TRO is deemed automatically vacated. o The effectivity of a TRO is not extendible and no court shall have authority to extend or renew the same on the same ground for which it was issued. o

REMEDIAL LAW
However, if issued by the Court of Appeals or a member thereof, the TRO shall be effective for 60 days from service on the party or person sought to be enjoined. A TRO issued by the Supreme Court or a member thereof shall be effective until further orders. [Rule 58.5]

o

TEMPORARY RESTRAINING ORDER (TRO)
• TRO vs. Injunction. A TRO is intended as a restraint upon the defendant until the propriety of granting an injunction pendente lite can be determined, and it goes no further than to preserve the status quo until such determination. [Anglo-Fil Trading v. Lazaro, 1983] Same requirements for application as preliminary injunction. An application for a TRO shall be acted upon only after all parties are heard in a summary hearing, which shall be conducted within 24 hours after the sheriff's return of service and/or the records are received by the branch selected by raffle. [Rule 58.4]

• •

OBJECTION TO/MOTION FOR DISSOLUTION OF INJUNCTION/RESTRAINING ORDER
• Grounds: 1. Insufficiency of application 2. other grounds (e.g. applicant’s bond is insufficient/defective), upon affidavits of the party or person enjoined 3. if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof would cause irreparable damage to the party/person enjoined, while the applicant can be fully compensated for such damages as he may suffer, provided the former files a bond If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified. [Rule 58.6]

EXPEDITING PROCEEDINGS [Rule 58, Sec. 7
as amended by AM 07-7-12-SC (December 4, 2007)] o Court may issue orders expediting the proceedings. May also grant TRO or writ of preliminary injunction. Petition shall not interrupt the principal case, unless TRO or writ of preliminary injunction was issued. Public respondent shall proceed with the principal case within 10 days from the filing of a certiorari petition with a higher court/tribunal, absent a TRO or preliminary injunction, or upon its expiration.

o

o

PROCEEDINGS AFTER COMMENT IS FILED
[Rule 58, Sec. 8 as amended by AM 07-7-12-SC (December 4, 2007)] o After comment/pleadings are filed, or the time for their filing has expired, court may require parties to submit memoranda. If court finds that the petition’s allegations are true, it shall

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render judgment for such reliefs to which petitioner is entitled. But court may dismiss petition (and award respondent treble costs solidarily against petitioner and counsel) if: Based on res ipsa loquitur, court may motu propio impose disciplinary measures for patently dilatory and unmeritorious petitions.

REMEDIAL LAW III. RECEIVERSHIP
NATURE
• A receiver is a person appointed by the court in behalf of all the parties to the action for the purpose of preserving and conserving the property in litigation and prevent its possible destruction or dissipation, if it were left in the possession of any of the parties. The appointment of a receiver is not a matter of absolute right. It depends upon the sound discretion of the court and is based on facts and circumstances of each particular case. The guiding principle is the prevention of imminent danger to the property. If an action by its nature, does not require such protection or preservation, said remedy cannot be applied for and granted. (Commodities Storage v. CA, 1997) Receivership is aimed at the preservation of, and at making more secure, existing rights; it cannot be used as an instrument for the destruction of those rights. (Arranza v. B.F. Homes, 2000)

o

o

APPOINTMENT OF RECEIVER
• Requirements: 1. verified application [Rule 59.1] 2. bond [Rule 59.2 and 59.5] Who appoints: 1. court where the action is pending 2. CA 3. SC 4. During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin. [Rule 59.1] When receiver can be appointed: 1. When it appears from the verified application and other proof that the applicant has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it; 2. When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage; 3. After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; 4. Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation. [Rule 59.1]

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• Specific situations when a receiver may be appointed 1. If a spouse without just cause abandons the other or fails to comply with his/her obligations to the family, the aggrieved spouse may petition the court for receivership. [Family Code, Article 101] 2. The court may appoint a receiver of the property of the judgment obligor; and it may also forbid a transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution. [Rule 39.41] 3. After the perfection of an appeal, the trial court retains jurisdiction to appoint a receiver of the property under litigation since this matter does not touch upon the subject of the appeal. [Rule 41.9; Acuña v. Caluag, 1957] 4. After final judgment, a receiver may be appointed as an aid to the execution of judgment. (Philippine Trust Company v. Santamaria, 1929) 5. Appointment of a receiver over the property in custodia legis may be allowed when it is justified by special circumstances, as when it is reasonably necessary to secure and protect the rights of the real owner. (Dolar v. Sundiam, 1971) The general rule is that neither party to the litigation should be appointed as a receiver without the consent of the other because a receiver is supposed to be an impartial and disinterested person. (Alcantara v. Abbas, 1963) A clerk of court should not be appointed as a receiver as he is already burdened with his official duties. (Abrigo v. Kayanan, 1983).

REMEDIAL LAW
LIABILITY FOR REFUSAL OR NEGLECT TO DELIVER PROPERTY TO RECEIVER
1. Contempt 2. Be liable to the receiver for the money or the value of the property and other things so refused or neglected to be surrendered together with all damages that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or neglect. [Rule 59.7]

TERMINATION OF RECEIVERSHIP
• • • motu proprio or on motion of either party when court determines that the necessity for a receiver no longer exists requires notice to all interested parties and hearing [Rule 59.8]

DENIAL OF APPLICATION OR DISCHARGE OF RECEIVER
1. If the appointment sought or granted is without sufficient cause 2. Adverse party files a sufficient bond to answer for damages [Rule 59.3] 3. Bond posted by the applicant for grant of receivership is insufficient 4. Bond of receiver is insufficient

GENERAL POWERS OF RECEIVER
1. Bring and defend in such capacity actions in his own name with leave of court 2. Take and keep possession of the property in controversy 3. Receive rents 4. Collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver 5. Compound for and compromise the same 6. Make transfers 7. Pay outstanding debts 8. Divide the money and other property that shall remain among the persons legally entitled to receive the same’ 9. Generally, to do such acts respecting the property as the court may authorize 10. Invest funds in his hands, ONLY by order of the court upon the written consent of all the parties. [Rule 59.6]

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CIVIL PROCEDURE IV. REPLEVIN
NATURE
• Available where the principal action is to recover possession of personal property.
REPLEVIN Available only where the principal relief sought in the action is recovery of personal property, the other reliefs (e.g. damages) being merely incidental thereto. Can be sought only where the defendant is in actual or constructive possession of the personalty involved. Extends only to personal property capable of manual delivery. Available to recover personal property even if the same is not concealed, removed or disposed of. PRELIMINARY ATTACHMENT Available even if the recovery of personal property is only an incidental relief sought in the action.

REMEDIAL LAW
seized, that it is exempt from such seizure or custody; and (d) The actual market value of the property. [Rule 60.2] 2. bond • The applicant must also give a bond, executed to the adverse party in double the value of the property as stated in the affidavit. [Rule 60.2]

ORDER OF REPLEVIN
• Upon the filing of affidavit and approval of the bond, the court shall issue an order and the corresponding writ of replevin describing the personal property alleged to be wrongfully detained and requiring the sheriff forthwith to take such property into his custody. [Rule 60.3] A writ of replevin may be served anywhere in the Philippines.

May be resorted to even if the personalty is in the custody of a third person.

Cannot be availed of if the property is in custodia legis (e.g. under attachment, seized under a search warrant). EXCEPT: a. when the seizure is illegal; (Bagalihog v. Fernandez, 1991) and b. where there is reason to believe that the seizure will not anymore be followed by the filing of the criminal action in court or there are conflicting claims. (Chua v. CA, 1993)

Extends to all kinds of property, whether real, personal or incorporeal. To recover the possession of personal property unjustly detained (presupposed that the same is being concealed, removed or disposed of to prevent its being found or taken by the applicant. Can still be resorted to even if the property is in custodia legis.

DISPOSITION OF PROPERTY BY SHERIFF
• The sheriff shall retain the property for 5 days. The adverse party may object to the sufficiency of the bond or surety or he may file a redelivery bond. After 5 days and the adverse party failed to object or his redelivery bond is insufficient, the sheriff shall deliver the property to the applicant. [Rule 60.6] The defendant is entitled to the return of the property under a writ of replevin if: 1. He seasonably posts a redelivery bond [Rule 60.5] 2. Plaintiff’s bond is found to be insufficient or defective and is not replaced with proper bond 3. Property is not delivered to the plaintiff for any reason [Rule 60.6]

WHERE PROPERTY CLAIMED BY THIRD PERSON
• The same procedure as Rules 39.16 (execution) and 57.14 (preliminary attachment).

REQUIREMENTS
1. application • Who may apply: party praying for the recovery of possession of personal property. [Rule 60.1] • When: (1) at the commencement of the action or (2) before the answer [unlike attachment, injunction and support pendent elite (anytime before final judgment) and receivership (anytime even after final judgment)]. • The applicant must show by his own affidavit or that of some other person who personally knows the facts: (a) That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof; (b) That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and belief; (c) That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so

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CIVIL PROCEDURE V. SUPPORT PENDENTE LITE
NATURE
• Support pendente lite can be granted by the court in two (2) instances: 1. civil action for support; and 2. criminal action where civil liability includes support for the offspring as a consequence of the crime. Where the right to support is put in issue by the pleadings or the fact from which the right to support arises is in controversy or has not been established, the court cannot grant support pendente lite (Francisco v. Zandueta, 1929) Judgment for support does not become final. The right to support is of such nature that its allowance is essentially provisional; for during the entire period that a needy party is entitled to support, his or her alimony may be modified or altered, in accordance with his increased or decreased needs, and with the means of the giver. It cannot be regarded as subject to final determination. (Lam v. Chua, 2004)

REMEDIAL LAW
the same case, obtain a writ of execution to enforce his right of reimbursement against the person ordered to provide such support. [Rule 61.5]

REMEDIES OF A PARTY WHO WAS ERRONEOUSLY COMPELLED TO GIVE SUPPORT
1. Apply for an order for such reimbursement by the recipient on motion in the trial court in the same case, unless such restitution is already included in the judgment, or 2. Failing therein, file a separate action for reimbursement against the person legally obliged to give support. [Rule 61.7]

REQUIREMENTS
1. verified application [Rule 61.1] • Who may apply: any party • When: (1) at the commencement of the proper action or proceeding, or (2) at any time prior to the judgment or final order • Contents: o Grounds for the claim o Financial conditions of both parties o Affidavits, depositions or other authentic documents in support thereof. 2. verified comment [Rule 61.2] • A copy of the application and all supporting documents shall be served upon the adverse party, who shall have 5 days to comment thereon, unless a different period is fixed by the court upon his motion. 3. hearing [Rule 61.3] • Within 3 days after the comment is filed or after the expiration of the period for its filing.

ORDER OF SUPPORT
• If the application is granted, the court shall fix the amount of money to be provisionally paid or such other forms of support as should be provided, taking into account the necessities of the applicant and the resources or means of the adverse party, and the terms of payment or mode for providing the support. If the application is denied, the principal case shall be tried and decided as early as possible. [Rule 61.4] If the adverse party fails to comply with an order granting support pendente lite, the court shall, motu proprio or upon motion, issue an order of execution against him, without prejudice to his liability for contempt. When the person ordered to give support pendente lite refuses or fails to do so, any third person who furnished that support to the applicant may, after due notice and hearing in

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CIVIL PROCEDURE PART 4: SPECIAL CIVIL ACTIONS
• Rules on ordinary civil actions shall apply to special civil actions insofar as they are not inconsistent with or may supplement the rules governing the latter. [Rule 1.3] How commenced: 1. complaint a. interpleader b. expropriation c. foreclosure of real estate mortgage d. partition e. forcible entry and unlawful detainer 2. petition a. declaratory relief b. review of adjudications of Constitutional commissions c. certiorari d. prohibition e. mandamus f. quo warranto g. contempt Venue is governed by the general rules on venue, except as otherwise indicated in the particular rules for special civil actions. Writs of injunction, mandamus, certiorari, prohibition, quo warranto and habeas corpus issued by RTCs are enforceable within their respective judicial regions. [B.P. 129] 3 special civil actions within the jurisdiction of inferior courts: 1. interpleader, provided the amount involved is within its jurisdiction [Makati Development Corp. v. Tanjuatco, 1969] 2. ejectment suits [Rule 70] 3. contempt [Rule 71]

REMEDIAL LAW
which should be resolved in an ordinary action for specific performance or other relief [Beltran, supra].

PROCEDURE
Complaint

Is it filed within a reasonable time after the dispute arose?

N

Dismissed – barred by laches (Wack Wack Golf vs. Lee Won 1976)

Y

Are the docket fees, etc. paid by complainant ?

Y Order to interplead

Service of summons Motion to Dismiss
15 days MTD granted?

Y
Dismissed

N

I. INTERPLEADER
DEFINITION
A remedy whereby a person who has property in his possession or has an obligation to render wholly or partially, without claiming any right in both, comes to court and asks that the defendants who have made conflicting claims upon the same property or who consider themselves entitled to demand compliance with the obligation be required to litigate among themselves in order to determine who is entitled to the property or payment or the obligation [Beltran v. PHHC, 1969] Filing of answer and other pleadings

Service of pleadings to co-defendants

Pre-trial

Decision 1. Complaint filed by the person against whom conflicting claims are or may be made. [ibid] o The docket and other lawful fees paid by the complainant, and costs and litigation expenses shall constitute a lien or charge upon the subject matter of the action, unless otherwise ordered by the court. [R62.7] 2. Court order requiring the conflicting claimants to interplead with one another. If the interests of justice so require, the court may direct that the subject matter be paid or delivered to the court. [Rule 62.2] 3. Summons, copy of complaint and order served upon the conflicting claimants. [Rule 62.3] 4. Each claimant shall file his answer within 15 days from service of the summons, serving a

PURPOSE
• To compel conflicting claimants to interplead and litigate their several claims among themselves. [Rule 62.1] To protect a person against double vexation in respect of one liability [Beltran, supra]

WHEN PROPER
• Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest in the subject matter or an interest which is not disputed by the claimants. [Rule 62.1] Cannot be availed of to resolve the issue of breach of undertakings made by defendants,

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copy thereof upon each of the other conflicting claimants, who may file their reply thereto. a) If claimant fails to plead within the time herein fixed, the court may, on motion, declare him in default and render judgment barring him from any claim in respect to the subject matter. b) Within the time for filing an answer, each claimant may file a motion to dismiss. o Grounds: a. impropriety of the interpleader action, or b. other appropriate grounds specified in Rule 16. o The period to file the answer shall be tolled. o If the motion is denied, an answer may be filed within the remaining period, in no case less than 5 days (reckoned from notice of denial) [Rule 62.4]. 5. The parties may file counterclaims, crossclaims, third-party complaints and responsive pleadings thereto. [Rule 62.5] 6. Pre-trial 7. Court shall determine conflicting claimants’ respective rights and adjudicate their several claims. [Rule 62.6]

REMEDIAL LAW II. DECLARATORY RELIEF
REQUISITES
1. subject matter of the controversy must be a deed, will, contract or other written instrument, statute, executive order or regulation, or ordinance [Rule 63.1]; the terms of said documents and the validity thereof are doubtful and require judicial construction [Santos v. Aquino, 94 Phil 65] no breach of the documents in question. [Reparations Commission v. Northern Lines, 1970] Otherwise, an ordinary civil action is the remedy. Concept of a cause of action in ordinary civil actions does not apply. If before the final termination of the case, a breach or violation of an instrument or a statute, etc. should take place, the action may be converted into an ordinary action. [Rule 63.6] actual justiciable controversy [Edades v. Edades, 99 Phil 675] adverse interests between the parties A declaratory relief is not available for a declaration of citizenship (Villa-Abrille vs. Republic, 1956) or the validity of a registration certificate (Obiles vs. Republic, 1953) as they are unilateral in nature and without conflicting adverse interests. issue must be ripe for judicial determination [Tolentino v. Board of Accountancy, 90 Phil 83] adequate relief is not available through other means or other forms of action or proceedings. [Ollada v. Central Bank, 1962] o A court decision cannot be the subject of a declaratory relief since there exists other remedies, i.e., appeal or a motion for clarificatory judgment (Tanda vs. Aldaya, 1956)

2.

3.

o o

4. 5. o

6. 7.

WHO MAY FILE
1. a person interested under a deed, will, contract or other written instrument 2. a person whose rights are affected by a statute, executive order or regulation, ordinance or any other governmental regulation [Rule 63.1]

PARTIES
• all persons who have or claim any interest which would be affected by the declaration [Rule 63.2] If action involves the validity of a statute/executive order/regulation/other governmental regulation, the Solicitor General shall be notified. [Rule 63.3] If action involves the validity of a local government ordinance, the prosecutor/attorney of the LGU involved shall be notified. [Rule 63.4]
Subject Matter Validity of a statute, EO or regulation, or any governmental regulation Validity of a local government ordinance Constitutionality of a local Notice Given To Sol Gen

Prosecutor or attorney of the LGU Sol Gen

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CIVIL PROCEDURE
government ordinance

REMEDIAL LAW

Non-joinder of interested persons is not a jurisdictional defect; but persons not joined shall not be prejudiced in their interests unless otherwise provided by the Rules (R63.2; Baguio Citizens Action vs. CityCouncil of Baguio, 1983) third-party complaint not available in a declaratory relief (Commission of Customs vs. Cloribel, 1977); but a compulsory counterclaim may be set up (Visayan Packing vs. Reparations Commission, 1987)

Action for Declaratory Relief By whom filed – (1) any person interested under a deed, will, contract or other WRITTEN instrument, or (2) any persn whose rights are affected by a statute, executive order or regulation, ordinance or any other governmental regulation When – BEFORE breach or violation thereof Where – RTC Why – (1) to determine any question of construction or validity arising, and (2) for a declaration of rights or duties, thereunder Action for Reformation/Quiet Title/Consolidate Ownership (SEC. 1)

Parties - all persons who have or claim any interest which would be affected by the declaration; Rights of persons NOT parties shall NOT be prejudiced. (SEC. 2) Solicitor General – shall be notified and be heard whenever: (1) an action involves the validity of a statute, executive order or regulation, or any other governmental regulation (SEC. 3) (2) an action alleges a LGU ordinance to be unconstitution al (SEC. 4) Prosecutor or LGU attorney – shall be notified and heard in any action involving the validity of local ordinance. (SEC. 4)

WHERE FILED
• • in the proper RTC [Rule 63.1] not within the original jurisdiction of the Supreme Court, even if pure questions of law are involved. [Remotigue vs. Osmeña, 1967]

Filing of Petition

WHEN COURT MAY REFUSE TO DECLARE RIGHTS/CONSTRUE INSTRUMENTS
1. where a decision would not terminate the uncertainty or controversy which gave rise to the action, or 2. where the declaration or construction is not necessary and proper under the circumstances. [Rule 63.5]

Exercise of Court’s power

SIMILAR REMEDIES COVERED BY RULE 63
1. Action to quiet title (Arts. 476-481 Civil Code) 2. Action for reformation of instrument (Arts. 1359-1369 Civil Code) 3. Action to consolidate ownership (Art. 1607 Civil Code) [Rule 63.1 par. 2]

Court, motu proprio or upon motion, may refuse to exercise the power to declare rights and to construe instruments – grounds (1) where it would not terminate the uncertainty or controversy which gave rise to the action (2) where it is not necessary and proper under the circumstances EXCEPTION: action for reformation/quiet title/consolidate ownership (SEC. 5)

NO

YES

When – a breach or violation should take place BEFORE the termination of the case (SEC. 6)

Conversion into ordinary action

Termination of Case

RULE 63 – DECLARATORY RELIEF AND SIMILAR REMEDIES

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CIVIL PROCEDURE III. REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMELEC AND COA
SCOPE
• • Applicable only to judgments and final orders of the COMELEC and COA [Rule 64.1] Judgments/orders of the Civil Service Commission are now reviewable by the Court of Appeals under Rule 43, eliminating recourse to the Supreme Court (SC). [RA 7902; SC Revised Administrative Circular No. 1-95] An aggrieved party may bring the questioned judgment, etc. directly to the SC on certiorari under Rule 65. [Rule 64.2] o such petition for certiorari shall not stay the execution of the judgment, etc. sought to be reviewed unless otherwise directed by the Supreme Court [Rule 64.8] • 2. •

REMEDIAL LAW
Failure to comply with foregoing requirements shall be sufficient ground for dismissal. Order to Comment [Rule 64.6] If the SC finds the petition sufficient in form and substance, it shall order the respondents to file their comments on the petition within 10 days from notice thereof. Grounds for dismissal: a. Petition not sufficient in form and substance b. Petition was filed manifestly for delay c. the questions raised are too unsubstantial to warrant further proceedings. Comments of Respondents [Rule 64.7] Requirements: a. original copy with 1) certified true copies of such material portions of the record as are referred to in the comment 2) certified true copies of other supporting papers b. 18 legible copies with plain copies of all documents attached to the original. a copy of the comment shall be served on the petitioner. Decision [Rule 64.9] Case is deemed submitted for decision upon: a. filing of the comments on the petition, and such other pleadings or papers as may be required or allowed. b. expiration of the period to file the pleadings. o EXCEPTIONS: SC sets case for oral argument or requires parties to submit memoranda,

3. •

• 4. •

PROCEDURE
1. File petition for review. • When [Rule 64.3]: o Within 30 days from notice of judgment/final order/resolution sought to be reviewed o Filing of motion for reconsideration/new trial with Constitutional commission interrupts the 30-day period. If motion is denied, aggrieved party may file petition within remaining period, which shall not be less than 5 days from notice of denial. • Form [Rule 64.5]: a. verified and accompanied by (annexes): 1. a clearly legible duplicate original or certified true copy of the subject judgment, etc. 2. certified true copies of such material portions of the record referred to in the petition 3. other documents relevant and pertinent to the petition 4. proof of service of a copy of the petition on the Commission and the adverse party 5. proof of the timely payment of the docket and other lawful fees b. 18 legible copies (containing plain copies of all documents attached to the original copy of the petition) • Contents [Rule 64.5]: a. name of aggrieved party (petitioner) b. respondents: Commission concerned and person(s) interested in sustaining the judgment a quo c. facts d. issues involved e. grounds and brief arguments relied upon for review f. prayer for judgment annulling or modifying the question judgment, etc. g. material dates showing that it was filed on time h. certification against non-forum shopping • Findings of fact of the Commission supported by substantial evidence shall be final and nonreviewable.

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CIVIL PROCEDURE IV. CERTIORARI, PROHIBITION AND MANDAMUS
Certiorari GROUNDS When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted: Prohibition When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasijudicial, or ministerial functions, are a. without or in excess of its or his jurisdiction ; or b. with grave abuse of discretion amounting to lack or excess of its or his jurisdiction Mandamus When any tribunal, corporation, board, officer or person a. unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station; or b. unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled AND there is no other plain, speedy and adequate remedy in the ordinary course of law (R65.3) Those Those exercising exercising judicial and/or judicial or non-judicial quasi-judicial functions functions FORM OF PETITION -verified -verified -alleging the facts with certainty -PRAYER: that judgment be rendered annulling / modifying the proceedings of such tribunal, etc., and granting such incidental reliefs as law and justice may require. -alleging the facts with certainty -PRAYER: that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require.

REMEDIAL LAW
Those exercising judicial and/or non-judicial functions

-verified -alleging the facts with certainty -PRAYER: that judgment be rendered commanding the respondent, immediately or some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent. -contains a certificate of non-forum shopping.

a. without or in excess of its jurisdiction; or

b. with grave abuse of discretion amounting to lack or excess of its or his jurisdiction 1

AND there is no appeal, or any plain, speedy, and adequate remedy2 in the ordinary course of law (R65.1)

AND there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law (R65.2)

PURPOSE To correct an To prevent the act performed commission or by the carrying out of respondent an act ACT SOUGHT TO BE CONTROLLED Discretionary Discretionary acts and ministerial acts PETITIONER Aggrieved Aggrieved person person RESPONDENT 3
1

To compel the performance of the act desired

-accompanied by a certified true copy of the subject judgment, etc., copies of all relevant pleadings and documents, and a certification of non-forum shopping.

-accompanied by a certified true copy of the subject judgment, etc., copies of all relevant pleadings and documents, and a certification of non-forum shopping.

Ministerial acts


Aggrieved person

Without jurisdiction Excess of jurisdiction Grave abuse of discretion

If respondent do not have the legal power to determine the case If respondent has the legal power to determine the case but oversteps such power If respondent has the legal power to determine the case but acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of his judgment

The original action of certiorari not a substitute for appeal (Lobite vs. Sundiam 1983). Exceptions: a. the appeal is not a speedy and adequate remedy (Salvadores vs. Pajarillo 1947) b. the orders were issued either in excess of or without jurisdiction (Aguilar vs. Tan 1970) c. special considerations, i.e., public welfare or public policy (Jose vs. Zulueta 1961) d. the order is a patent nullity (Marcelo vs. De Guzman 1982) e. the decision in the certiorari case will avoid future litigations (St. Peter Memorial Park vs. Campos 1975)

A remedy is plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the lower court or agency. (Silvestre vs. Torres, 1946)
3

2

When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person, the petitioner shall join, as private respondent or respondents with such public respondent or respondents, the person or persons

interested in sustaining the proceedings in the court; and it shall be the duty of such private respondents to appear and defend, both in his or their own behalf and in behalf of the public respondent or respondents affected by the proceedings. xxx If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal parties. However, unless otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein. [Rule 65.5]

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CIVIL PROCEDURE
• A motion for reconsideration must first be availed of before certiorari – to enable the lower court to correct its mistakes without the intervention of the lower courts (BA Finance vs. Pineda 1982) Exceptions: a. the order is a patent nullity (Vigan Elec. Light vs. Public Service Commission 1964) b. the questions raised in the certiorari have been duly raised and passed upon by the lower court (Fortich-Celdran vs. Celdran 1967) or are the same as those raised and passed upon in the lower court (Pajo vs. Ago 1960) c. there is an urgent necessity for the resolution of the question and delay would prejudice the interests of the government (Vivo vs.Cloribel 1966) d. the MR would be useless (People vs. Palacio 1960) e. the petitioner was deprived of due process and there is extreme urgency for relief (Luzon Surety vs. Marbella 1960) f. the proceeding was ex parte in which the petitioner had no opportunity to object (Republic vs. Maglanoc 1963) g. the issue raised is purely a question of law or where the public interest is involved (PALEA vs. PAL 1982) Questions of fact cannot be raised in an original action for certiorari. Only established or admitted facts may be considered. [Suarez v. NLRC, 1998] Findings of fact of CA are not binding upon SC in an original action for certiorari (Medran vs. CA, 1949) Prohibition is a preventive remedy. However, to prevent the respondent from performing the act sought to be prevented during the pendency of the proceedings for the writ, the petitioner should obtain a restraining order and/or writ of preliminary injuction. [Regalado] Prohibition is the remedy where a motion to dismiss is improperly denied. [Enriquez v. Macadaeg, 84 Phil 674] A writ of mandamus will not issue to control the exercise of official discretion or judgment, or to alter or review the action taken in the proper exercise of the discretion of judgment, for the writ cannot be used as a writ of error or other mode of direct review. However, in extreme situations generally in criminal cases, mandamus lies to compel the performance of the fiscal of discretionary functions where his actuations are tantamount to a wilful refusal to perform a required duty. [Regalado] General Rule: In the performance of an official duty or act involving discretion, such official can only be directed by mandamus to act but not to act in one way or the other. EXCEPTION: gross abuse of discretion, manifest injustice, palpable excess of authority [Kant Wong v. PCGG, 1987] Mandamus can be availed of only by the party who has direct legal interest in the right sought to be enforced. HOWEVER, if the question is one of public right, it is sufficient to show that the petitioner is a citizen. [Tanada v. Tuvera, 1985]

REMEDIAL LAW
1. File petition for certiorari / prohibition / mandamus. • When filed: o Not later than 60 days from notice of judgment/order/resolution o If a motion for reconsideration/new trial is filed, the 60-day period shall be counted from notice of denial of motion. o Extension may be granted for compelling reasons, not exceeding 15 days. [Rule 65.4] • Where filed: 1) Supreme Court 2) Court of Appeals o If it involves the acts of a quasi-judicial agency, the petition shall be filed only in the CA, unless otherwise provided by law or the Rules. 3) Regional Trial Court, it it relates to acts / omissions of a lower court / corporation / board / officer / person. 4) Sandiganbayan, if it is in aid of its appellate jurisdiction. [Rule 65.4] 2. Order to comment • If the petition is sufficient in form and substance to justify such process, the court shall issue an order requiring the respondent(s) to comment on the petition within 10 days from receipt of a copy thereof. • Such order shall be served on the respondents in such manner as the court may direct, together with a copy of the petition and any annexes thereto. [Rule 65.6] 3. Hearing or Memoranda • After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the court may hear the case or require the parties to submit memoranda. [Rule 65.8] 4. Judgment • If after such hearing or submission of memoranda or the expiration of the period for the filing thereof, the court finds that the allegations of the petition are true, it shall render judgment for the relief prayed for or to which the petitioner is entitled. • The court, however, may dismiss the petition if it finds the same to be (1) patently without merit, (2) prosecuted manifestly for delay, or that (3) the questions raised therein are too unsubstantial to require consideration. [Rule 65.8] 5. Service and enforcement of order or judgment. • A certified copy of the judgment rendered shall be served upon the court, quasi-judicial agency, tribunal, corporation, board, officer or person concerned in such manner as the court may direct, and disobedience thereto shall be punished as contempt. • An execution may issue for any damages or costs awarded in accordance with section 1 of Rule 39. [Rule 65.9]

PROCEDURE

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CIVIL PROCEDURE V. QUO WARRANTO
• Quo warranto is the remedy to try disputes with respect to the title to a public office.
QUO WARRANTO Basis: the occupant is disqualified from holding the office by reason of ineligibility or disloyalty If proceeding succeeds, respondent will be ousted but petitioner will not assume the office ELECTION CONTEST Challenges the right of a person to hold office on the ground of irregularities in the conduct of the elections Successful protestant will assume the office if he obtained a plurality of the valid votes

REMEDIAL LAW

CONTENTS OF PETITION
• Action against a person for usurping a public office, position or franchise (1) name of the person who claims to be entitled thereto (2) averment of his right to the same and that the respondent is unlawfully in possession thereof. All persons who claim to be entitled to the public office/position/franchise may be made parties. [Rule 66.6]

VENUE
1. Supreme Court 2. Court of Appeals 3. RTC exercising jurisdiction over the territorial area where the respondent or any of the respondents resides 4. Where Sol Gen commences action– RTC in Manila, CA or SC [Rule 66.7]

QUO WARRANTO ACTIONS ELECTIVE OFFICE APPOINTIVE OFFICE Issue: eligibility of the Issue: validity of the respondent appointment Occupant declared Court will oust the person ineligible/disloyal will be illegally appointed and will unseated but petitioner order the seating of the will not be declared the person who was legally rightful occupant of the appointed and entitled to office the office.

WHEN FILED
• action against a public officer or employee for his ouster from office – within one year after the cause of such ouster, or the right of the petitioner to hold office or position, arose action for damages sustained by reason of usurpation – within one year after the entry of the judgment establishing the petitioner’s right to the office in question [Rule 66.11] The one-year period is not interrupted by the prosecution of any administrative remedy as, in quo warranto proceedings, no one is compelled to resort to administrative remedies since public interest requires that the right to public office should be determined as speedily as possible. [Fernandez v. Dela Paz, 1988]

HOW COMMENCED
• By a verified petition [Rule 66.1] •

BY WHOM/AGAINST WHOM
a. By Government, brought in the name of the Republic of the Philippines, against: a. A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise b. A public officer who does not or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office c. An association which acts as a corporation within the Phils without being legally incorporated or without lawfully authority so to act [Rule 66.1] • When Solicitor General or public prosecutor MUST commence action: 1. when directed by the President of the Phils. 2. when upon complaint or otherwise, he has good reason to believe that any case specified in Sec. 1 can be established by proof. [Rule 66.1] 3. at the request and upon the relation if another person (ex relatione), but leave of court must first be obtained. [Rule 66.3] • When Solicitor General or public prosecutor MAY commence action: o with permission of the court o at the request and upon the relation of another person o officer bringing such action may first require an indemnity for the expenses and costs of the action in an amount approved by and deposited in court. [Rule 66.3] 2. By a person claiming to be entitled to a public office or position, brought in his own name, against another who usurped or unlawfully held or exercised such public office or position [Rule 66.5] •

JUDGMENT
• When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the petitioner or relator recover his costs. [Rule 66.9] If judgment be rendered in favor of the person averred in the complaint to be entitled to the public office he may, after taking the oath of office and executing any official bond required by law, take upon himself the execution of the office, and may immediately thereafter demand of the respondent all the books and papers in the respondent's custody or control appertaining to the office to which the judgment relates. The person adjudged entitled to the office may also bring action against the respondent to recover the damages sustained by such person by reason of the usurpation. [Rule 66.10]

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CIVIL PROCEDURE VI. EXPROPRIATION
CONCEPT AND BASIS OF EXPROPRIATION
• Eminent domain is defined as the power of the nation or a sovereign state to take, or to authorize the taking of, private property for a public use without the owner’s consent, conditioned upon payment of just compensation. The exercise of the power of eminent domain is constrained by two constitutional provisions: (1) that private property shall not be taken for public use without just compensation under Article III (Bill of Rights), Section 9; and (2) that no person shall be deprived of his/her life, liberty, or property without due process of law under Art. III, Sec. 1. (Barangay Sindalan etc. et al. v. CA et al., 2007) Rule 67 primarily governs the exercise of the right of eminent by the State acting through the national government. (Regalado) Expropriation by local government units is governed by the Local Government Code of 1991 (R.A. 7160) Two stages in expropriation proceedings: 1. Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts. This stage is terminated by either an order of dismissal of the action or order of the condemnation declaring that expropriation is proper and legal. These orders are final and therefore appealable. (Municipality of Biñan v. Garcia, 1989) 2. Determination of just compensation. This is done with the assistance of not more than three (3) commissioners. The order fixing just compensation is also final and appealable. (Ibid). Just compensation is to be determined as of the date of the taking of the propriety or the filing of the complaint, whichever comes first. There is taking when the owner is actually deprived or dispossessed of his property; when there is a practical destruction or a material impairment of the value of his property or when he is deprived of the ordinary use thereof. (Ansaldo v. Tantuico, 1990) An expropriation suit is incapable of pecuniary estimation. Accordingly, it falls within the jurisdiction of RTCs, regardless of the value of the subject property. (Bardillon v. Bgy. Masili, 2003)

REMEDIAL LAW
occupying any part thereof or any interest therein, showing as far as practicable the separate interest of each defendant. 4. The following must be clearly stated in the complaint , if applicable: a. If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied by private individuals; b. If the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners. [Rule 67.1]

ENTRY OF PLAINTIFF UPON PROPERTY
• The plaintiff shall have the right to take or enter upon the possession of the real property involved upon: 1. filing of complaint for expropriation 2. service of notice to the defendant 3. Deposit with the authorized government depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held by such bank subject to the orders of the court. Deposits shall be in money (legal tender) or, if the court authorizes it, certificate of deposit of a government bank payable on demand to the authorized government depositary. o If personal property is involved, its value shall be provisionally ascertained and the amount to be deposited shall be promptly fixed by the court. o After deposit, the court shall order the sheriff or other proper officer to place the plaintiff in possession of the property and promptly submit a report thereof to the court with service of copies to the parties. [Rule 67.2] If the ownership of the property taken is uncertain, or there are conflicting claims to any part thereof, the court may order any sum(s) awarded as compensation for the property to be paid to the court for the benefit of the person adjudged in the same proceeding to be entitled thereto. But the judgment shall require the payment of the sum(s) awarded to either the defendant or the court before the plaintiff can enter upon the property, or retain it for the public use or purpose if entry has already been made. [Rule 67.9]

ANSWER
IF THE PLAINTIFF HAS NO OBJECTION OR DEFENSE TO THE EXPROPRIATION OR TAKING OF THE PROPERTY Defendant may file and serve notice of appearance and a manifestation that he has no objection or defense, specifically designating or identifying the property in which he claims to be interested within the time stated in the summons. Thereafter, the defendant IF THE PLAINTIFF HAS OBJECTION OR DEFENSE TO THE EXPROPRIATION OR TAKING OF THE PROPERTY Defendant shall serve his ANSWER within the time stated in the summons.

PROCEDURE
• See appended flowcharts.

COMPLAINT FOR EXPROPRIATION
• • The complaint for expropriation must be VERIFIED. CONTENTS: 1. The right and purpose of expropriation 2. Description of the real or personal property sought to be expropriated; 3. The complaint shall join as defendants all persons owning or claiming to own, or

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shall be entitled to notice of all proceedings affecting the same.

REMEDIAL LAW
Powers and duties of commissioners: 1. Parties can present evidence before the commissioners and the latter have the power to administer oaths or hearings before them; 2. They can, after due notice to the parties to attend, view and examine the property sought to be expropriated and its surroundings and may measure the same; EXCEPTION: when the parties agrees otherwise, the commissioners cannot view and examine the property 3. The commissioners shall assess the consequential damages to the property taken and deduct from such consequential damages the consequential benefits derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or person taking the property. In no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken. [Rule 67.6] 4. The commissioners shall make full and accurate report to the court of all their proceedings. The report shall be filed within 60 days from the date the commissioners were notified of their appointment. Upon filing of the report, the clerk of court shall serve copies thereof on all interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if the parties desire. [Rule 67.7] After the 10-day period for objecting to the commissioners’ report, the court, after hearing, may: 1. ACCEPT the report and render JUDGMENT in accordance therewith; 2. RECOMMIT the report to the commissioners for further report of facts; 3. SET ASIDE the report and APPOINT new commissioners; 4. ACCEPT the report IN PART and REJECT it IN PART; 5. Make such order or render judgment s shall secure to the plaintiff the property essential to the exercise of his right of expropriation and to the defendant just compensation for the property so taken. [Rule 67.8]

GENERAL RULE: All defenses or objections not alleged in the answer are deemed waived. o EXCEPTION: The court, in the interest of justice, may allow the answer to be amended not later than 10 days from filing. At the trial of the issue of compensation, whether or not the defendant has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award. The answer to the complaint for expropriation shall: 1. Specifically designate or identify the property in which he claims to have an interest; 2. State the nature and extent of the interest claimed; and 3. Adduce all of defendant’s objections or defenses to the taking of his property No counterclaim, cross-claim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading. [Rule 67.3]

ORDER OF EXPROPRIATION
• It declares that the plaintiff has a lawful right to take the property sought to be expropriated for the public use or purpose described in the complaint, upon payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint whichever is earlier. It is issued by the court in which the complaint for expropriation is filed when: o objections or defenses of the defendant have been overruled, or o the defendant raised no such defense or objection, or o no party appears to defend. [Rule 67.4]

COMPENSATION
Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. The measure is not the taker’s gain, but the owner’s loss. To compensate is to render something which is equal in value to that taken or received. The word “just” is used to intensify the meaning of the word “compensation”; to convey the idea that the equivalent to be rendered for the property taken shall be real, substantial, full, ample. In eminent domain or expropriation proceedings, the general rule is that the just compensation which the owner of condemned property is entitled to is the market value. Market value is “that sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree on as a price to be given and received therefor.” (BPI v. CA, 2004) Upon the rendition of the order of expropriation, the court shall appoint not more than 3 competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. [Rule 67.5]

JUDGMENT
• The judgment entered in expropriation proceedings shall state definitely, by an adequate description, the particular property or interest therein expropriated, and the nature of the public use or purpose for which it is expropriated. When real estate is expropriated, a certified copy of such judgment shall be recorded in the registry of deeds of the place in which the property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose. [Rule 67.13] Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment, with legal interest thereon from the taking of the possession of the property, or after tender to him of the amount so fixed and payment of the costs, the plaintiff shall have the right to

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enter upon the property expropriated and to appropriate it for the public use or purpose defined in the judgment, or to retain it should he have taken immediate possession thereof under Sec. 2. [Rule 67.10] The right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use or purpose shall not be delayed by an appeal from the judgment. But if the appellate court determines that plaintiff has no right of expropriation, judgment shall be rendered ordering the RTC to forthwith enforce the restoration to the defendant of the possession of the property, and to determine the damages which the defendant sustained and may recover by reason of the possession taken by the plaintiff. [Rule 67.11]

REMEDIAL LAW VII. FORECLOSURE OF REAL ESTATE MORTGAGE
• The cause of action in a foreclosure suit is generally the non-payment of the mortgage loan, but it may be on other grounds which under the contract warrant the foreclosure, such as the violation of the other conditions therein. Foreclosure may be made: 1. judicially – governed by Rule 68 2. extrajudicially – proper only when so provided in contracts in accordance with Act. No. 3135; governed by A.M. No. 9910-05-0. A foreclosure action must be brought in the RTC of the province where the land or any part thereof is situated. If a mortgage contract covers several distinct parcels of land situated in different provinces, the action may be brought in the RTC of any of the provinces and the judgment will be enforceable against any of the parcels of land involved. [Monte de Piedad v. Rodrigo, 56 Phil 301]

COMPLAINT’S CONTENTS
1. Date and due execution of the mortgage; 2. Date of assignment of mortgage, if any; 3. The names and residences of the mortgagor and mortgagee; 4. Description of the mortgaged property; 5. Statement of the date of the note or other documentary evidence of the obligation secured by the mortgage; 6. Amount claimed to be unpaid; 7. The names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in the action. [Rule 68.1]

JUDGMENT
• If upon the trial, the court shall find the facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs, and shall render judgment for the sum so found due and order that the same be paid to the court or to the judgment obligee within a period of not less than 90 days nor more than 120 days from the entry of judgment (“equity of redemption”). In default of such payment the property shall be sold at public auction to satisfy the judgment. [Rule 68.2] When the defendant, after being directed to do so, fails to pay the amount of the judgment within the period specified therein, the court, upon motion, shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under execution. Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof, and when confirmed by an order of the court, also upon motion, it shall operate to divest the rights in the property of all the parties to the action and to vest their

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rights in the purchaser, subject to such rights of redemption as may be allowed by law. Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property, unless a third party is actually holding the same adversely to the judgment obligor. The said purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure. [Rule 68.3] •

REMEDIAL LAW
A CERTIFIED COPY of the final order confirming the sale shall be registered in the Registry of Deeds.
IF NO RIGHT OF REDEMPTION EXISTS The Certificate of Title in the name of the mortgagor shall be cancelled, and a new one issued in the name of the purchaser. IF A RIGHT OF REDEMPTION EXISTS The Certificate of Title in the name of the mortgagor shall NOT be cancelled, but the Certificate of Sale and the order confirming the sale shall be registered and a brief memorandum thereof shall be made by the Registrar of Deeds upon the certificate of title IF THE PROPERTY IS NOT REDEEMED The FINAL Deed of Sale executed by the sheriff in favor of the purchaser at the foreclosure sale shall be registered with the Registry of Deeds. The Certificate of Title in the name of the mortgagor shall be cancelled and a new one shall be issued in the name of the purchaser.

DISPOSITION OF THE PROCEEDS OF THE SALE
• Claims to be satisfied by the proceeds of the public sale of mortgaged property (in order): 1. Costs incurred in the sale of property 2. Claim of the person foreclosing the property 3. Claims of junior encumbrancers in the order of their priority If proceeds of the sale exceeds the cost of the sale as well as the claims of the person foreclosing the property and junior encumbrancers, if any the residual amount shall be given to the mortgagor or his agent, or to the person entitled to it. [Rule 68.4] If the proceeds of the sale is less than the amount of the claims to be satisfied the person foreclosing the property may move for a DEFICIENCY JUDGMENT from the court confirming the foreclosure sale, to recover the amount of the deficiency in his claim.
IF THE PROPERTY IS REDEEMED The Deed of Redemption shall be registered with the Registry of Deeds and a brief memorandum thereof shall be made by the Registrar of Deeds on said certificate of title.

DEFICIENCY JUDGMENT
• Definition. A judgment against a debtor for the unpaid balance of the debt if a foreclosure sale or a sale of repossessed personal property fails to yield the full amount of the debt due; also termed a deficiency decree. (Black’s Law Dictionary) Sec. 6 provides for a deficiency judgment which shall be rendered, on motion, when the foreclosure sale did not produce proceeds sufficient to satisfy the judgment. o In extrajudicial foreclosure, the mortgagee can also recover by action any deficiency in the mortgage account which was not realized in the foreclosure sale. [PNB v. CA, 1999] A motion for deficiency judgment may be made only after the sale and after it becomes known that a deficiency exists. (Governor of the Philippine Islands v. Torralba Vda. de Santos, 1935) No deficiency judgment may be rendered against the owner who is not a mortgagor and has not assumed personal liability for the debt. The remedy is an ordinary action against the debtor. (Philippine Trust Co. v. Echaus Tan Siua, 1929) If the debtor dies, the deficiency may be filed as a claim against his estate. (Rule 86.7) •

Right of redemption is the right granted to the debtor-mortgagor, his successor-in-interest or any judicial creditor of said debtor-mortgagor or any person having a lien in the property subsequent to its mortgage or deed of trust, under which the property is sold, to redeem the property within one (1) year from the registration of the sheriff’s certificate of foreclosure sale. (De Castro v. Intermediate Appellate Court, 1988) The right of redemption in relation to a mortgage is understood in the sense of a prerogative to re-acquire mortgaged property after registration of the foreclosure sale. It exists only in the case of the extrajudicial foreclosure of the mortgage. No such right is recognized in a judicial foreclosure, except only where the mortgagee is the Philippine National Bank or a bank or banking institution. (Huerta Alba Resort, Inc. v. CA, 2000) However, the mortgagor has the “equity of redemption.” Equity of Redemption is the right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the amount fixed in the decision of the court within 90 to 120 days after entry of judgment or even after the foreclosure sale but prior to its confirmation. (Limpin v. Intermediate Appellate Court, 1988)

REGISTRATION [Rule 68.7]

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CIVIL PROCEDURE VIII. PARTITION
• Partition of property may be: 1. Extrajudicial – by agreement 2. Judicial – compulsory; governed by Rule 69 Even if the parties resorted to judicial partition, they may still make an amicable partition of the property. [Secs. 2 and 12] Rule 69 applicable to partitions of estates composed of personal property, or of both real and personal property. [Sec. 13] Stages in an Action for Partition: 1. Determination of the propriety of partition. This involves a determination of whether the subject property is owned in common and whether all the co-owners are made parties in the case. The order may also require an accounting of rents and profits recovered by the defendant. This order of partition is appealable. (Miranda v. Court of Appeals, 1976) If not appealed, then the parties may partition the common property in the way they want. If they cannot agree, then the case goes into the second stage. However, the order of accounting may in the meantime be executed. (De Mesa v. CA, 1994) 2. The actual partitioning of the subject property. This is also a complete proceeding and the order or decision is appealable. When there was a prior partition, the fact that the share of each co-heir has not been technically described and the title over the whole lot remains uncancelled does not negate such partition. There can be no partition again because there is no more common property. (Noceda v. CA, 1999) Oral partition of land when the same is fully consummated is valid and binding upon the parties thereto. (Crucillo v. IAC, 1999) All persons considered as co-owners and interested in the property to be partitioned are indispensable parties to the action and must be impleaded. (Sepulveda v. Pelaez, 2005) Parties to a partition proceeding, who elected to take under partition, and who took possession of the portion allotted to them, are estopped to question title to portion allotted to another party. A person cannot claim both under and against the same instrument. In other words, they accepted the lands awarded them by its provisions, and they cannot accept the decree in part, and repudiate it in part. They must accept all or none. Parties who had received the property assigned to them are precluded from subsequently attacking its validity of any part of it. (Maglucot-aw et al. v. Maglucot et al., 2000) Partition may be inferred from circumstances sufficiently strong to support the presumption. Thus, after a long possession in severalty, a deed of partition may be presumed. It has been held that recitals in deeds, possession and occupation of land, improvements made thereon for a long series of years, and acquiescence for 60 years, furnish sufficient evidence that there was an actual partition of land either by deed or by proceedings in the probate court, which had been lost and were not recorded. And where a tract of land held in common has been subdivided into lots, and one

REMEDIAL LAW
of the lots has long been known and called by the name of one of the tenants in common, and there is no evidence of any subsequent claim of a tenancy in common, it may fairly be inferred that there has been a partition and that such lot was set off to him whose name it bears. (Maglucot-aw et al. v. Maglucot et al., supra)

COMPLAINT
• • Filed by person having the right to compel the partition of real estate. Contents: 1. Nature and extent of the complainant’s title 2. Adequate description of the real estate of which the partition is demanded 3. All other persons interested in the property must be impleaded. [Rule 69.1]

VENUE
• Actions for partition should be filed in the RTC of the province where the property or part thereof is situated. If several dintinct parcels of land are situated in different provinces, venue may be laid in the RTC of any of said provinces. [Pancho v. Villanueva, 99 Phil 611]

WHEN TO FILE
• The right of action to demand partition does not prescribe [De Castro v. Echarri, 20 Phil 23], EXCEPT where one of the interested parties openly and adversely occupies the property without recognizing the co-ownership [Cordova v. Cordova, 102 Phil 1182] in which case, acquisitive prescription may set in. If a co-owner repudiates the co-ownership and makes known such repudiation to the other coowners, then partition is no longer a proper remedy of the aggrieved co-owner. He should file an accion reivindicatoria, which is prescriptible. (Roque v. IAC, 1988)

ORDER OF PARTITION
• After trial, if the court finds that the plaintiff has the right to the property subject of partition, it shall issue an order demanding the partition of the real estate among all the parties in interest.

PARTITION BY AGREEMENT
After the issuance of the order of partition, the parties will then be asked if they agree to make partition of the property among themselves.

If they agree, proper instruments of conveyance will be executed to effect the partition.

After the execution of instruments of conveyance, the court shall confirm the partition through a final order.

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The final order of partition and the instruments of conveyance shall be registered with the Registry of Deeds where the property is situated. [Rule 69.2]

REMEDIAL LAW
2. RECOMMIT the report to the commissioners for further report of facts if there is cause to do the same 3. SET ASIDE the report and APPOINT new commissioners 4. ACCEPT the report IN PART and REJECT it IN PART 5. Make such order and render such judgment as shall effectuate a fair and just partition of the real estate or of its value, if the property is assigned or sold between the several owners thereof. [Rule 69.7]

A party shall recover from another his just share of rents and profits received by such other party from the real estate in question, and the judgment shall include an allowance for such rents and profits. [Rule 69.8] A final order decreeing partition and accounting may be appealed by any party aggrieved thereby. [Rule 69.2]

JUDGMENT PARTITION BY COMMISSIONERS
• If the parties are unable to agree upon the partition, the court shall appoint not more than 3 competent and disinterested persons as commissioners to make the partition, commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct. [Rule 69.3] Duties of Commissioners [Rule 69.4]: 1. view and examine the real estate, after due notice to the parties to attend at such view and examination 2. hear the parties as to their preference in the portion of the property to be set apart to them and the comparative value thereof 3. set apart the same to the parties in lots or parcels as will be most advantageous and equitable, having due regard to the improvements, situation and quality of the different parts thereof. If the commissioners should determine that the real estate cannot be divided without prejudice to the interests of the parties, the court may order that the property be assigned to one of the parties willing to take the same PROVIDED he pays to the other parties such amounts as the commissioners deem equitable O EXCEPTION: if one of the parties asks that the property be sold instead of being so assigned, then the court shall ORDER the commissioners to sell the real estate at pubic sale under such conditions and within such time as the court may determine. [Rule 69.5] The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition, or the assignment of real estate to one of the parties or the sale of the same. Upon filing the report, the clerk of court shall serve copies thereof on all interested parties with notice that they are allowed 10 days within which to file objections to the findings of the report, if they so desire. No proceeding had before or conducted by the commissioners shall pass the title to the property or bind the parties until the court accepts the commissioners’ report and rendered judgment thereon. [Rule 69.6] Upon the expiration of the 10-day period, or even before the expiration of such period but after the interested parties filed their objections to the report/statement of agreement, the court, upon hearing, may: 1. ACCEPT the commissioners’ report and render JUDGMENT based upon it.
IF ACTUAL PARTITION IS PROPERLY MADE CONTENTS OF JUDGMENT Judgment shall state definitely, by metes and bounds and adequate description, the particular portion of the real estate assigned to each party. Judgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment. Judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser EFFECTS OF JUDGMENT Judgment shall vest in each party to the action in severalty the portion of the real estate assigned to him.

IF THE WHOLE PROPERTY IS ASSIGNED TO ONE OF THE PARTIES AFTER PAYMENT IF PROPERTY IS SOLD AND SALE IS CONFIRMED BY THE COURT

Judgment shall vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties. Judgment shall vest the real estate in the purchaser(s), making the payment(s) free from the claims of any parties to the action.

A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated. [Rule 69.11]

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CIVIL PROCEDURE IX. FORCIBLE ENTRY AND UNLAWFUL DETAINER

REMEDIAL LAW
any land or building is unlawfully withheld, after the expiration or termination of the right to hold possession by virtue of an express or implied contract. may also be brought by the legal representative or assigns of any such lessor, vendor, vendee, or other persons. must be brought at any time within 1 year after the unlawful withholding of possession in the proper Municipal Trial Court against the person unlawfully withholding possession or persons claiming under them. action must be for the restitution of possession of property together with damages and costs. [Rule 70.1] commenced by lessor only after (1) demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee, or (2) by serving written notice of such demand upon the person found on the premises, or (3) by posting such notice on the premises if no person be found thereon, and the lessee fails to comply therewith after 15 days in the case of land or 5 days in the case of buildings. [Rule 70.2] o EXCEPTIONS (prior demand not required): a. Where purpose of the action is to terminate the lease by reason of the expiry of its term, and is not for failure to pay rentals or comply with the terms of the lease contract. [De Santos v. Vivas, 96 Phil 538] b. When the purpose of the suit is not for ejectment but for the enforcement of the terms of the contract. [Guanson v. Ban, 77 Phil 7] c. When the defendant is not a tenant but a mere intruder. [id] Demand upon a tenant may be oral. (Jakihaca v. Aquino, 1990) A person who occupies the land of another at the latter's tolerance or permission, without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which, an action for unlawful detainer may be instituted against him. (Dakudao v. Consolacion, 1983) This rule as to tolerance does not hold true in a case where there was forcible entry at the start, but the lawful possessor did not attempt to oust the intruder for over 1 year, and only thereafter filed forcible entry suit following demand to vacate. (Muñoz v. CA, 1992) Tolerance must be presented right from the start of possession sought to be recovered to categorize a cause of action as one of unlawful detainer. (Refugia v. CA, 1996) When failure to pay rent or comply with the condition of lease is the ground for ejectment, plaintiff should give 2 demands (which may be embodied in 1 demand letter): 1. demand to pay rental or comply with conditions of the lease, and if this is not complied with, 2. demand to vacate (Zobel v. Abreu, 1956) Notice and demand to vacate is required on a lease on a month-to-month period to render effective the termination of the lease upon the expiration of the month, and prevent an implied renewal of the lease. (Rivera v. Florendo; Yap v. Cruz, 1992) An alternative demand to either renew the expired lease contract at a higher rental rate or vacate is not a definite demand to vacate and

ACTIONS FOR THE RECOVERY OF POSSESSION OF REAL PROPERTY
1. Accion Interdictal –the summary action for forcible entry (detentacion) where the defendant’s possession of property is illegal ab initio, or the summary action for unlawful detainer (desahucio) where the defendant’s possession was originally lawful but ceased to be so by the expiration of his right to possess, both of which must be brought within one year from the date of actual entry to the land, in case of forcible entry, and from the date of last demand, in case of unlawful detainer, in the proper municipal trial court or metropolitan trial court. Nature: a. special civil action involving realty; b. subject to the Rules on Summary Procedure; [Rule 70.3] c. under the original exclusive jurisdiction of first level courts; d. nature of the action is determined by the allegation of the complaint and the character of the relief sought; (Abrin v. Campos, 1991) e. one co-owner may institute the action. 2. Accion Publiciana - is a plenary action for recovery of the right to possess and which should be brought in the proper regional trial court when the dispossession has lasted for more than one year. 3. Accion Reivindicatoria - or accion de reivindicacion, seeks the recovery of ownership and includes the jus utendi and the jus fruendi, which must be brought in the proper regional trial court. It is thus an action whereby plaintiff alleges ownership over a parcel of land and seeks recovery of its full possession. [Javier v. Veridiano, 1994]

• •

FORCIBLE ENTRY
• resorted to when a person is deprived of possession of any land or building by (1) force, (2) intimidation, (3) strategy, (4) threat, or (5) stealth. (FISTS) must be brought at any time within 1 year after such unlawful deprivation in the proper Municipal Trial Court against the person unlawfully depriving him of possession or against any person or persons claiming under them. action must be for the restitution of possession of property together with damages and costs. [Rule 70.1] The owners of a property have no authority to use force and violence to eject alleged usurpers who were in prior physical possession of it. They must file the appropriate action in court and should not take the law into their own hands. (Laurora v. Sterling Technopark, 2003)

UNLAWFUL DETAINER
• resorted to when a lessor, vendor, vendee, or other person against whom the possession of •

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therefore, insufficient basis for the filing of an action for unlawful detainer. (Penas, Jr. v. CA, 1994) Refusal to collect or accept rentals is not a defense. There must be consignation. (Uy v. CA, 1989)
FORCIBLE ENTRY Possession becomes unlawful right from the very start (i.e. from the time of entry) as he acquires possession by FISTS. The deprivation of physical possession of land and building is effected through force, intimidation, strategy, threat or stealth (FISTS). The issue centers on who was in prior possession de facto. Previous demand upon defendant to vacate not required. The plaintiff must allege and prove that he was in prior physical possession of the premises until deprived thereof. 1-year period counted from date of actual entry on the land. UNLAWFUL DETAINER Possession was lawful at first but later becomes illegal, as when the lease contract has expired and the lessee refuses to vacate the premises despite demand. The unlawful withholding of possession is made after the expiration or termination of the right to hold possession under any contract, express or implied. The issue centers on whether the defendant’s right to possess has expired or not. Previous demand to vacate required (jurisdictional). The plaintiff need not be in prior physical possession.

REMEDIAL LAW
2. After the court has examined the allegations in the complaint and supporting evidence attached to the same, the court may: a. DISMISS the case outright based on the grounds for dismissal for ordinary civil actions apparent in the complaint, or b. ISSUE SUMMONS, if the no ground for dismissal is found. [Rule 70.5] • Cases requiring referral to conciliation, where there is no showing of compliance with such requirement, shall be dismissed without prejudice, and may be revived only after that requirement have been complied with. [Rule 70.12] 3. The defendant shall file his ANSWER and serve a copy of it to the plaintiff within 10 days from service of summons. [Rule 70.6] • Failure of the defendant to answer within the period provided above shall give power to the court, motu propio or on motion, to render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein. [Rule 70.7] • Affirmative and negative defenses not pleaded in the answer are deemed waived. o EXCEPTION: lack of jurisdiction over the subject matter. • Cross-claims and compulsory counterclaims not pleaded in the answer shall be barred. o Answers to the counterclaims or crossclaims shall be served and filed within 10 days from service of the answer in which they are pleaded. • When the defendant raises the defense of ownership in his pleadings, and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved ONLY to determine the issue of possession. [Rule 70.16] • Where there is a defense of tenancy, there must be a preliminary hearing on the question of tenancy relations. (Bayog v. Natino, 1996) If there is a prima facie showing of tenancy, the court should dismiss the case for lack of jurisdiction (jurisdiction belongs to the DARAB). (Baranda v. Padios, 1987) 4. Not later than 30 days after the last answer is filed, a PRELIMINARY CONFERENCE shall be held. • Rule 18 applicable. • Effects of failure to appear:
WHEN THE PLAINTIFF DOES NOT APPEAR It shall be a cause for the dismissal of his complaint. All cross-claims shall be dismissed. The defendant who appears in the absence of the plaintiff shall be entitled to the judgment on his counterclaim. WHEN THE DEFENDANT DOES NOT APPEAR

1-year period counted from date of last demand or last letter of demand.

PLEADINGS
• • Must be verified. [Rule 70.4] Allowed pleadings [Rule 70.4]: 1. Complaint 2. Compulsory Counterclaim pleaded in the answer 3. Cross-claim pleaded in the answer 4. Answer Prohibited pleadings and motions [Rule 70.13]: 1. Motion to dismiss EXCEPTIONS: a. Motion to dismiss based on lack of jurisdiction over the subject-matter b. Motion to dismiss for failure to comply with section 12 (referral to conciliation) 2. Motion for a Bill of Particulars 3. Motion for New Trial 4. Motion for reconsideration of a judgment 5. Motion for reopening of trial 6. Petition for relief from judgment 7. Motion for extension to file pleadings, affidavits or other papers 8. Memoranda 9. Petition for Certiorari, Mandamus or Prohibition against any interlocutory order issued by the court 10. Motion to declare defendant in default 11. Dilatory motion for postponement 12. Reply 13. Third-party complaints 14. Interventions

The plaintiff shall be entitled to judgment. (This is true when there is only one defendant or when all of the defendants did not appear.)

PROCEDURE
1. Filing of complaint.

GENERAL RULE: No postponement of the preliminary conference shall be granted. o EXCEPTION: Highly meritorious grounds and without prejudice to such sanctions as the court in the exercise of sound discretion may impose on the movant. [Rule 70.8] 5. The court shall issue an ORDER stating matters taken up during the preliminary conference

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within 5 days after the termination of the same. • Contents of the Order: a. Whether the parties have arrived at an amicable settlement, and if so, terms thereof; b. The stipulations or admissions entered into by the parties; c. Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall b rendered within 30 days from issuance of the order; d. A clear specification of material facts which remain controverted; e. Such other matters intended to expedite the disposition of the case. [Rule 70.9] 6. The parties shall submit affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them within 10 days from receipt of the order. [Rule 70.10] • Affidavits required to be submitted shall state only facts of direct personal knowledge of the affiants which are admissible in evidence, and shall show their competence to testify to the matters stated therein. • Violation of this requirement may subject the party or the counsel who submits the same to disciplinary action and shall be cause to expunge the inadmissible affidavit or portion thereof from the records. [Rule 70.14] 7. Judgment • GENERAL RULE: The court shall render judgment within 30 days from the date of its receipt of the affidavits and position papers OR the expiration of the period for filing the same. [Rule 70.11] o EXCEPTION: Should the court find it necessary to clarify certain material facts, it may during the 30-day period issue an ORDER specifying the matters to be clarified and require the parties to submit affidavits or other evidence on the said matters within 10 days from receipt of said order. Judgment shall be rendered within 15 days after receipt of the last affidavit or the expiration of the period for filing the same. [Ibid.] o The court shall not resort to the foregoing procedure just to gain time for the rendition of the judgment. [Id.] • If the trial court finds that the allegations of the complaint are TRUE, it shall render judgment in favor of the plaintiff for the: a. restitution of the premises, b. the just sum due as arrears of rent or reasonable compensation for the use and occupation of the premises. c. attorney’s fees and costs. [Rule 70.17] • If the court finds that the allegations of the plaintiffs are NOT TRUE, it shall render judgment for the defendant to recover his costs. [Ibid.] • The judgment rendered in an action for forcible entry shall be conclusive with respect to the possession only, and it shall not in any way affect the title or ownership of the land or building. Hence, such judgment shall not bar an action between the same parties with respect to the title of the land or building. • 8. •

REMEDIAL LAW
The judgment or final order shall be appealable to the appropriate RTC. [Rule 70.18] Execution of judgment GENERAL RULE: If judgment is rendered against a defendant, execution shall issue immediately. [Rule 70.19 and 70.21] o EXCEPTION: Appeal has been duly perfected by the defendant and bond has been posted. Although immediately executory, the judge should not order immediate execution in his decision. (Lu v. Siapno, 2000) There must be notice of the judgment (Dy v. CA, 1991) and a motion with notice to the adverse party. (Kaw v. Anunciacion, 1995) Procedure for staying the execution of judgment: a. defendant perfects his appeal in due time; b. defendant files a sufficient supersedeas bond approved by the Municipal Trial Court; and c. during the pendency of the appeal, he deposits with the appellate court the amount of rent due from time to time under the contract, if any, on or before the 10th day of each succeeding month. [Rule 70.19] o BUT upon motion of the plaintiff within 10 days from the perfection of the appeal to the RTC, the court may still issue a preliminary mandatory injunction to restore the plaintiff in possession if the court is satisfied that the defendant’s appeal is frivolous or dilatory, or that the appeal of the plaintiff is prima facie meritorious. [Rule 70.20]

PRELIMINARY INJUNCTION
• The court may grant preliminary injunction in accordance with Rule 58 to prevent the defendant from committing further acts of dispossession against the plaintiff. A possessor deprived of his possession may moved for a preliminary mandatory injunction within 5 days to restore him in hi possession of the property. The court then shall decide the motion within 30 days from the filing thereof. [Rule 70.15]

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CIVIL PROCEDURE X. CONTEMPT
How Committed DIRECT CONTEMPT

REMEDIAL LAW
INDIRECT CONTEMPT Can be committed Can be committed only in the presence anywhere as long as of or so near a court the acts mentioned or judge. in Sec. 3 are done. The person guilty of misbehavior is summarily adjudged by the court against which the contempt was committed at the very moment of the perpetration. [Rule 71.1] The person guilty of misbehavior may be punished only after charge in writing has been filed, and an opportunity given to the accused to be heard by himself or counsel [Rule 71.3] If the contempt is directed against an RTC, a court of equivalent or higher rank:

DEFINITION
• Contempt of court is a defiance of the authority, justice or dignity of the court, such conduct as tends to bring the authority and administration of the law into disrespect of, to interfere with, or prejudice parties litigant or their witnesses during litigation. It is defined as a disobedience to the court by setting up an opposition to its authority, justice and dignity. It signifies not only a willful disregard or disobedience to the court’s order but such conduct as tends to bring the authority of the court and the administration of law into disrepute or in some manner to impede the due administration of justice. (Heirs of Trinidad de Leon Vda. de Ramos v. Court of Appeals, 2004) Direct Contempt (Contempt In Facie Curiae) – a misbehavior committed in the presence of or so near a court or judge so as to obstruct or interrupt the proceedings before the same, including: o disrespect toward the court o offensive personalities toward others o refusal to be sworn or to answer as a witness or to subscribe an affidavit/deposition when lawfully required to do so. can be punished summarily without hearing. It is conduct directed against or assailing the authority and dignity of the court or a judge, or in the doing of a forbidden act. [Encinas v. National Bookstore, 2005; Rule 71.1] Indirect Contempt (Constructive Contempt) – a misbehavior perpetrated outside of the sitting of the court [Patricio v. Suplico, 1991]; – Acts of indirect contempt: a. Misbehavior of an officer of the court in the performance of his official duties or in his official transactions; b. Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts to or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto; c. Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt; d. Any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of justice; e. Assuming to be an attorney or an officer of the court, and acting as such without authority; f. Failure to obey a subpoena duly served; g. The rescue or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. [Rule 71.3]
Nature of Proceedings

Punishment

If the contempt is directed against an RTC, a court of equivalent or higher rank:

FINE = not FINE = not exceeding P2,000; or exceeding P30,000; or IMPRISONMENT = not exceeding 10 days; or both IMPRISONMENT = not exceeding 6 months; or both

If the contempt is directed against a lower court:

If contempt is directed against a lower court:

FINE = not FINE = not exceeding P200; or exceeding P5,000; or

IMPRISONMENT = IMPRISONMENT = not exceeding 1 day; not exceeding 1 or both month; or both [Rule 71.7] [Rule 71.1] How proceedings commenced Summarily adjudged by the court against which the contempt is directed and punished there and then. [Rule 71.1] a.) By the court motu propio thru an ORDER or any FORMAL CHARGE

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b.) In all other cases, by a VERIFIED PETITION. (If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact, but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision.) [Rule 71.4] Remedy No appeal, but subject to certiorari or prohibition. [Rule 71.2] May be appealed to the proper court as in criminal cases, but execution shall not be suspended until BOND is filed. [Rule 71.11]

REMEDIAL LAW
a judge for the benefit of the opposing party therein. [People v. Godoy, 1995]; remedial or compensatory in nature; instituted for the benefit of private party. 2. Criminal Contempt is conduct directed against the authority and dignity of a court or of a judge, as in unlawfully assailing or discrediting the authority and dignity of a court or a judge or in doing a forbidden act [People v. Godoy, 1995]; punitive in nature, thus, the proceedings are to be conducted in accordance with the principles and rules applicable to criminal cases [SEC v. Recto, 1999]. The violation of a TRO issued by the SEC or any quasi-judicial tribunal is criminal contempt so that acquittal of the respondents is unappealable. [SEC v. Recto, 1999] A writ of execution issued by a court after 5 years from entry of final judgment is void, and disobedience thereto does not constitute indirect contempt. [Crucillo v. IAC, 1999] The power to declare a person in contempt of court serves to protect and preserve the dignity of the court, the solemnity of the proceedings therein and the administration of justice. But this must be wielded sparingly. For this power should be exercised on the preservative and not on the vindictive principle. Only occasionally should the court invoke its inherent power in order to retain that respect without which the administration of justice must falter or fail. [Panado v. CA, 1998] Only the court which rendered the order commanding the doing of a certain act is vested with the right to determine whether or not the order has been complied with, or whether a sufficient reason has been given for non-compliance, and, therefore, whether a contempt has been committed. The power to determine the existence of contempt of court rests exclusively with the court contemned. No court is authorized to punish a contempt against another. [Igot v. Meralco, 200)] Quasi-judicial agencies that have the power to cite persons for indirect contempt pursuant to Rule 71 can only do so by initiating them in the proper RTC. It is not within their jurisdiction and competence to decide the indirect contempt cases. These matters are still within the province of the RTCs. [LandBank v. Listana, 2003]

Procedure for Indirect Contempt [Secs. 4-6] Who initiates court motu propio party How it is initiated By ORDER or any WRITTEN CHARGE requiring respondent to show cause why he should not be held in contempt. By a VERIFIED PETITION with supporting particulars and certified true copy of documents or papers involved and full compliance with the requirements for filing initiatory pleadings in ordinary civil actions.

Where it is initiated

When the contempt is directed against an RTC or equivalent or higher rank: Same court When the contempt is directed against a lower court: (1) RTC of the place where the lower court is sitting; or (2) in same lower court subject to appeal to higher court

Hearing and Bail

If hearing is not immediately conducted, respondent may be released upon filing of BOND in the amount fixed by the court. Appeal may be taken in proper courts as in criminal cases. Execution of judgment shall not be suspended even by appeal UNLESS bond is filed conditioned upon the performance by the respondent of that judgment should it be decided against him on appeal.

Appeal Execution of Judgment

Two Aspects of Contempt of Court: 1. Civil Contempt is the failure to do something ordered to be done by a court or

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