CIVPRO Ratio Reviewer | Dean MVFL AY 2009-2010, 2nd Semester

Page 1 of 20 2. 3. Where he has a place of business through which the contract has been made, or Before the court at the place of destination.´

DISPUTE RESOLUTION IN GENERAL
Galuba v. Laureta In order to reject an amicable settlement already entered into, it must be done in accordance with Section 13 of P.D. 1508 (it must be repudiated within 10 days from the date of the settlement). P.D. 1508 does not provide for a judicial procedure for the annulment of an amicable settlement. Morata v. Go The conciliation process at the barangay level, prescribed by PD 1508 as a pre-condition of filing a complaint in court, is compulsory not only for cases falling under the exclusive competent of the metropolitan and municipal trial courts, but for actions cognizable by the regional trial courts as well. Royales v. IAC The non-compliance with the barangay conciliation process may make the complaint vulnerable to dismissal on the ground of lack of cause of action or prematurity, EXCEPT where the defendants failed to object to the exercise of jurisdiction by the court over the case in their answer and even during the entire proceeding. The remedy is a MOTION TO DISMISS on the ground of FAILURE TO COMPLY WITH A CONDITION PRECEDENT, NOT lack of jurisdiction.

The Warsaw convention establishes jurisdiction in the international sense, while the domestic law is applied to determine the specific court in a country that has proper jurisdiction pursuant of Art 28(1). Such jurisdiction cannot be left to the consent or agreement of the parties whether or not such agreements are explicitly prohibited. ** This doctrine is SUI GENERIS Lopez v. NW Jurisdiction over the subject matter is determined by the allegations in the complaint and is not made to depend upon allegations in the answer or the motion to dismiss, and continues until the case is finally terminated. While jurisdiction over the subject matter of the case may be raised at any stage of the proceedings as the same is conferred by law, a party may be barred from raising it on the ground of laches or estoppel. Posterior changes in the doctrine canNOT retroactively be applied to nullify a prior final ruling in the same proceeding where prior adjudication was had, whether the case should be civil or criminal in nature. Bulao v. CA Allegations set forth in the complaint determine the nature of action. Tijam v. Sibonghanoy A party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent and, after obtaining or failing to obtain such relief, repudiate or question the same jurisdiction Abalos v. CA Once a party to a case submits to the jurisdiction of the court and participates in the trial on the merits of the case, he cannot thereafter, upon a judgment unfavorable to his cause, take a total turn about and say that the condition precedent of compliance with P.D. No. 1508 had not been met. Flores v. Mallare Philipps Where 2 or more plaintiffs sue one defendant in a single complaint or 1 plaintiff sues several defendants in a single complaint, based on several causes of action for or against each, respectively, the TOTALITY RULE applies only where: 1. The causes of action arose from the same series of transactions; and 2. There is a common question of fact or law among them. There must be a PROPER JOINDER OF PARTIES in order for the totality rule to apply. Ortigas and Co. v. CA Appellate jurisdiction over cases involving PURELY LEGAL QUESTIONS is exclusively vested in the Supreme Court and cases erroneously brought to it shall be sent to the proper court for hearing as if it was originally brought before it as prescribed by the Judiciary Act. The Court of First Instance shall dismiss a case on appeal if tried by an inferior court without jurisdiction EXCEPT when the parties therein file their pleadings and go to the trial without an objection to its jurisdiction as provided in Sec. 11, Rule 40 of the Rules of Court. Dy v. CA

JURISDICTION
Javier v. CA EO 247 granted POEA jurisdiction over all claims of overseas contract workers. A case cannot have a civil aspect cognizable by the regular court and at the same time a labor aspect cognizable by the labor tribunal, and the issue of jurisdiction may be raised at anytime and at any stage of the action. DOCTRINE OF PRIMARY ADMINISTRATIVE JURISDICTION: Agencies vested with the power to exercise quasi-judicial functions over disputes specified in the statute granting the same shall have jurisdiction to hear such cases, not the regular courts. PRIMARY JURISDICTION EXHAUSTION OF ADMINISTRATIVE REMEDIES Condition precedent Does NOT go into the authority of the court Motion to dismiss for FAILURE TO COMPLY WITH A CONDITION PRECEDENT Must be seasonably filed or else deemed waived (before filing an answer)

Jurisdiction of the tribunal Determines the authority of the court Motion to dismiss for LACK OF JURISDICTION OVER THE SUBJECT MATTER Does NOT prescribe

Santos v. NW The jurisdiction of a case involving international transportation within the territories of two contracting parties is governed by the Art. 28 (1) of the Warsaw Convention: ³An action for damages must be brought at the option of the plaintiff: In the territory of one of the high contracting parties, either before the court of the domicile of the carrier or of his principal place of business, or

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UP Law 2012

CIVPRO Ratio Reviewer | Dean MVFL AY 2009-2010, 2nd Semester In a civil case decided under the RULES OF SUMMARY PROCEDURE, the immediate execution of the judgment of the Regional Trial Court may not be effected unless prior notice of the judgment or order had been served on the losing party and proof of such service accompanies the motion for execution of the judgment. Manchester Development Co. v. CA The court acquires jurisdiction over a case only upon: 1. The filing of the complaint; and 2. The payment of the proper docket fees. 3. Certificate to file action. An amendment of the complaint or similar pleading will NOT vest jurisdiction in the court, much less the payment of the docket fee based on the amounts in the amended pleading. Sun Insurance v. Asuncion It is not only the filing of the complaint, but the payment of the prescribed docket fee, that vests a trial court with jurisdiction over the subject matter or nature of the action. Bgy. San Roque, Talisay, Cebu v. Heirs of Fransisco Pastor The issue of EXPROPRIATION is primarily the right of the government to expropriate, which is NOT CAPABLE OF PECUNIARY ESTIMATION, and recovery of just compensation is merely incidental to the expropriation proceedings. Therefore, jurisdiction of ALL expropriation proceedings are with the regional trial courts, regardless of the value of the subject property. Spouses Diu v. Ibajan The pendency of an action questioning the ownership of property will not divest the city or municipal trial court of its jurisdiction over the ejectment case and neither will it bar the execution of a judgment thereon. It is incorrect for the RTC to dismiss a forcible entry case on appeal on the ground that it can only decide the issue of possession after the issue of ownership would have been resolved elsewhere. Zabat v. CA The Courts cannot set aside administrative decisions on matters within their executive jurisdiction except upon proof of grave abuse of discretion, fraud or error of law. Parties must first avail of all the means afforded by administrative processes prior to seeking the intervention of the court. Crusaders Broadcasting System, Inc. v. NTC Findings of fact of administrative tribunals (e.g. NTC) will be accorded respect, and on occasion, even finality, by reason of their acquired expertise on specific matters within their particular jurisdiction. ³Tribunals with special competence´ (e.g. NTC) have primary jurisdiction over matters within its expertise. Rivera v. Santiago The allegations in the complaint determine the jurisdiction of the court. The court need not go beyond such allegations (i.e. prove them) in order to determine the issue of jurisdiction. When TENANCY is averred as a defense and is shown, prima facie to be a real issue, the MTC must dismiss the case for lack of jurisdiction as the issue of tenancy is properly under the jurisdiction of the the DARAB. DAR v. Cuenca

Page 2 of 20 All controversies on the implementation of the CARP fall under the jurisdiction of the DAR, even though they raise questions that are also legal or constitutional in nature. Southern Cross v. Cement Manufacturers The phrase ³in connection with´ in Sec. 29 of the SMA pertains both to the imposition and non-imposition of the S.M. and the jurisdiction upon appeal lies with the CTA.

SPECIAL PROCEDURAL RULES
Del Rosario v. CA All types of ejectment cases are now under summary procedure regardless of WoN the issue of ownership is pleader by a party. Under the Revised Rules on Summary Procedure, the adjudication of cases can be done on the basis of affidavits and position papers.

RULE 2: ACTIONS IN GENERAL
Joseph v. Bautista Where there is only ONE wrong/ONE injury arising from SEVERAL WRONGFUL ACTS, there is only ONE CAUSE OF ACTION, regardless of the number of rights violated. Other related ratios: Recovery under one remedy bars the recovery under the other. Full payment made by some and their subsequent release resulted in the extingushment of the liability of the other solidary debtors City of Bacolod v. SM Brewery The filing of a seaparate action for the claim for a surcharge (when there was already an action for the claim of the deficiency), which arose from the same action violating the same right duty correlative, constitutes a splitting of the cause of action. The filing of separate complaints for several reliefs arising from a single Cause of action constitutes a splitting up of a cause of action and is prohibited by Section 2, Rule 2 of the Rules of Court. Bayang v. CA The land in dispute in one civil case, and the income from that land being claimed in another civil case arise from the same cause of action. Therefore, the filing of the second case constitutes a splitting of the cause of action. Enriquez v. Ramos Where the TWO COMPLAINTS are based on TWO DISTINCT DEBTS (one for payment of check in Manila and the other for foreclosure of mortgage to satisfy debt in Quezon City), there are TWO DIFFERENT CAUSES OF ACTION and therefore, the rule against splitting of a single cause of action does not apply. Cuevas v. Pineda EXHAUSTION OF ADMINISTRATIVE REMEDIES DOCTRINE: The jurisdiction of an administrative agency to resolve issues which are within its competence and expertise cannot be rejected after it has been invoked. RULE 3: PARTIES Filipinas Industrial Corporation v. San Diego Rule 3, Sec. 2: Every action must be brought in the name of the REAL PARTY IN INTEREST. A REPRESENTATIVE is one who does not stand to be benefited or be injured by the judgment, therefore, the action may not be brought in his name. UP Law 2012

CIVPRO Ratio Reviewer | Dean MVFL AY 2009-2010, 2nd Semester The consequence of the action being brought in the name of a representative or one who is NOT a real part in interest: MOTION TO DISMISS on the ground of FAILURE TO STATE A CAUSE OF ACTION FAILURE TO STATE A LACK OF CAUSE OF CAUSE OF ACTION ACTION Failure of the pleadings; Failure of the cause of manner of pleading action There is/may be a cause There was no problem in of action but it was not the pleading, but the pleaded property facts alleged lead to the conclusion that there is NO cause of action Aranico-Rabino v. Aquino Failure to include INDISPENSIBLE PARTIES is ground for dismissal of the complaint. Laperal Development Corporation v. CA A PROPER PARTY is one which ought to be party if complete relief is to be accorded as between those already parties but even if it was not impleaded. The court may still validly proceed with the case if the party was not an indespensable party but only a proper party. Barfel Development Corporation v. CA Joinder of admittedly PROPER PARTIES is PERMISSIVE, that judgment will be decreed even if all the parties are not present if the court will be able to proceed to a decree and do justice to the parties already before it, without injury to those who are absent but equally interested in the litigation and who cannot conveniently be made parties to the suit. Interest existing in some other persons whom the process of the court cannot reach will not prevent a decree upon the merits. Oposa v. Factoran CLASS SUIT: The subject matter of the complaint (the right to a balanced and healthful ecology) is of common and general interest to not just to several individuals but to all citizens of the Philippines. The standing of the petitioners to sue in behalf of succeeding generations is based upon the concept of INTERGENERATIONAL RESPONSIBILITY regarding the right to a balanced and healthful ecology in accord with the rhythm and harmony of nature. Mathay, et al. v. Consolidated Bank An action does NOT become a class suit merely because it is designated as such in the pleadings. Whether the suit is or is not a class suit depends upon the ATTENDING FACTS and the existence of which, which should be ALLEGED IN THE COMPLAINT: The existence of a subject matter of common interest, and The existence of a class and the number of persons in the alleged class, in order that the court can determine whether the members of the class are so numerous as to make it impracticable to bring them all before the court and The claimants actually before it adequately represent the class and the subject matter of general or common interest. Veterans Manpower and Protective Services v. CA The consent of the state to be sued must emanate from statutory authority, hence from a legislative act and without such consent, the TC did not acquire jurisdiction over the public respondents. RULE 4: VENUE Diaz v. Adiong

Page 3 of 20 The objection to improper venue, although mandatory, must be seasonably raised, otherwise the same is deemed waived. The petitioner, having submitted his person to the jurisdiction of the court, may no longer raise it.

PLEADINGS In General
Gerales v. CA Pleadings and remedial laws should be LIBERALLY CONSTRUED in order that the litigants may have ample opportunity to prove their respective claims. Possible denial of substantial justice due to technicalities should be avoided. The courts should be liberal in setting aside orders of default because default judgments are generally frowned upon, unless it clearly appears that the reopening of the case it intended for delay.

Complaint
Tantuico v. Republic The remedy for a complaint with unclear/general allegations is a MOTION FOR BILL OF PARTICULARS, NOT a motion to dismiss for failure to state a cause of action. Metropolitan Bank v. Quilts The complaint must allege the ULTIMATE FACTS upon which the plaintiff bases his cause of action. Bare statements of CONCLUSIONS OF LAW, not sustained by a statement of facts, does NOT aid in the setting forth of a cause of action. Mathay v. Consolidated Bank A complaint must state ULTIMATE FACTS constituting the three essential elements of a cause of action: 1. The existence of a legal right in the plaintiff, 2. The correlative duty in the defendant, and 3. the act/omission of defendant in violation of the plaintiff¶s right. Otherwise, the complaint must succumb to a motion to dismiss on the ground of failure to state a cause of action. CONCLUSIONS OF LAW, such that one is entitled to something or an act is unlawful wrong, add nothing to the pleading, it being necessary to plead specifically the facts upon which such conclusion is founded.

Answer
Donato v. CA GENERAL RULE: The genuineness and due execution of the instrument is deemed admitted unless the adverse party under oath, specifically denies them. EXCEPTIONS: 1. The adverse party does NOT appear to be a PARTY to the instrument. 2. Non-compliance of the order for an inspection of the original. PHILAMGEN v. Sweet Lines Failure to specifically deny the due execution and genuineness of an instrument amounts to a JUDICIAL ADMISSION which is conclusive and, consequently, the instrument need not be presented formally in evidence for it may be considered an admitted fact. RIGHT OF ACTION: the right to presently enforce a cause of action and it is vested only upon the fulfillment of the UP Law 2012

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CIVPRO Ratio Reviewer | Dean MVFL AY 2009-2010, 2nd Semester conditions precedent upon which it is based, which fact must be sufficiently alleged. In the absence of any statutory limitation and subject only to the requirement on the reasonableness of the stipulated limitation period, the parties to a contract of carriage may fix by agreement a shorter time for the bringing of a suit on a claim for the loss of or damage to the shipment than that provided by the statute of limitations

Page 4 of 20 Rule 9, Sec. 4: A counterclaim not set up shall be barred if it arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. There is nothing in the nature of a special civil action for DECLARATORY RELIEF that proscribes the filing of a counterclaim based on the same transaction, deed or contract subject of the complaint.

Counterclaims
BA Finance v. Co The dismissal of the complaint for nonappearance of the plaintiff at the pre-trial carries with it the dismissal of the compulsory counterclaim unless the defendant reserves the right to present evidence. ** SUMMARY OF THE RULES: 1. Dismissal by MOTION of the PLAINTIFF y RULE: Counterclaim is dismissed y EXCEPTION: Defendant must MANIFEST his preference to resolve the counterclaim in the same action within 15 days from the notice of the motion to dismiss 2. Dismissal by FAULT of the PLAINTIFF, upon motion of the defendant y RULE: Counterclaim is dismissed y EXCEPTION: Defendant must MANIFEST his preference to resolve the counterclaim in the same action (No period stated. 15 days?) Reyes v. CA A compulsory counterclaim is BARRED if it is NOT set up. When a compulsory counterclaim is applied to Municipal Courts, it presupposes that the amount involved is w/in the court¶s jurisdiction. Maceda v. CA A counterclaim in the MTC beyond its jurisdictional limit may be pleaded only by way of DEFENSE to weaken the plaintiffs claim, but NOT to obtain AFFIRMATIVE RELIEF Schafer v. RTC Judge There is no need for the insured to wait for the decision of the trial court finding him guilty of reckless imprudence in order to claim from the insurance company. The occurrence of the injury to the third party immediately gives rise to the liability of the insurer. Meliton v. CA The dismissal of the case without prejudice indicates the absence of a decision on the merits and leaves the parties free to litigate the matter in a subsequent action as though the dismissal action had not been commenced. A counterclaim partakes of the nature of a complaint and/or cause of action against the plaintiff. There is no need to pay docket fee for a compulsory counterclaim. Javier v. IAC A defendant in a criminal case cannot institute a separate civil action for damages raising a compulsory counterclaim, when the civil aspect of the criminal case is deemed instituted. Lim Tanhu v. Remolete A counterclaim is compulsory if: 1. The same evidence to sustain it will also refute the cause or causes of action alleged in plaintiff's complaint, and 2. It is obvious that it cannot, by its very nature, remain pending for independent adjudication by the court. Visayan Packaging v. Reparations

Third/Fourth Party Complaint
Go v. CA Where an action for CONTRIBUTION, INDEMNITY, SBROGATION OR ANY OTHER RELEIF, in respect of an opponent¶s claim, involves the participation of a person not made a party to the action, the defending party should file a THIRD-PARTY COMPLAINT against such other person, rather than present him/her as a defense witness. ** DEAN¶S CRITIQUE: A third-party complaint is NOT MANDATORY. It is the discretion of the defendant NOT to file a 3rd party complaint; there may be business considerations and other practical reasons not to file it. Pascual v. Bautista For a THIRD-PARTY COMPLAINT to be properly raised in a pending action, it is not necessary that the claim be one arising from entirely dependent upon the main action; it is enough that it be ³IN RESPECT´ of the claim of third party plaintiff's opponent (Rule 6, Section 12, Rules of Court), or that it be ³CONNECTED WITH THE PLAINTIFF¶S CLAIM.´ Balbastro v. CA Section 12 of Rule 6 of the ROC does not authorize a defendant to bring into the case any person not a party to the action, who is not secondarily liable to said defendant for contribution, indemnity, subrogation or any other relief in respect to the claim of the plaintiff against the defendant. Procedural history: CFI ± appealed to CA ± went to SC via petition for certiorari Republic v. Central Surety The third party complaint is an ancillary suit which depends on the jurisdiction of the court over the main action. Since the trial court had acquired jurisdiction over the complaint, it necessarily follows that it likewise had jurisdiction over the third-party complaint which is but an incident thereof. This must be so because jurisdiction over the main case embraces all incidental matters arising therefrom and connected therewith. Thus it has been held that 'where a court has jurisdiction of a claim and the parties in the principal action, it generally has jurisdiction also of a suit or proceeding which is a continuation of or incidental and ancillary to the principal action, even though it might not have jurisdiction of the ancillary proceeding if it were an independent and original action or proceeding. De Dios v. Balagot A third-party complaint summoning the vendor for the enforcement of his warranty against eviction may be made AFTER the filing of the ANSWER but BEFORE TRIAL, pursuant to Sec. 11 of Rule 6.

SERVICE OF PLEADINGS, ORDERS AND MOTIONS
UP Law 2012

CIVPRO Ratio Reviewer | Dean MVFL AY 2009-2010, 2nd Semester Echaus v. CA No judgment or order, whether final or interlocutory, has juridical existence until and unless it is set down in writing, signed, and promulgated, i.e., delivered by the judge to the clerk of court for filing, release to the parties and implementation, and that indeed, even after promulgation, it doesn¶t bind the parties until and unless notice thereof is served on them by any of the modes prescribed by law. Roxas v. CA The notice of lis pendens may be cancelled only upon order of the court after proper showing that the notice is for the purpose of molesting the adverse party or that it isn¶t necessary to protect the rights of the party who caused it to be recorded.

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RULE 12: BILL OF PARTICULARS
Tantuico vs. Republic 1. Where allegations of the complaint are vague, indefinite or in the form of conclusions, the proper recourse would be not a motion to dismiss but a motion for bill of particulars. 2. The purpose of a bill of particulars is to amplify or limit a pleading, specify more minutely and particularly a claim or defense set up and pleaded in general terms, give information«to the opposite party and the court as to the precise nature of the cause of action or defense relied upon by the pleader. 3. In a motion for bill of particulars the only question to be resolved is whether or not the allegations of the complaint are averred with sufficient definiteness or particularity to enable the movant properly to prepare his responsive pleading and prepare for trial. Virata vs. Sandiganbayan The filing of a motion for bill of particulars is proper when the allegations in the complaint are general and suffer from lack of definiteness and particularity (applied Tantuico). The purpose of a bill of particulars is to enable the defendant to prepare an intelligent answer.

RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS Amendments
Barfel Development Co. vs. CA The amendments sought by private respondents which is to include a new party defendant at a late stage in the proceeding is not a formal but a substantial one. The effect would be to start trial anew with the parties recasting their theory of the case. Kinds Substantial Amendments ± Matter of Discretion Metropolitan Bank v. Presiding Judge Leave of court may be refused if it appears that the motion was made with intent to delay or that the cause of action is substantially altered. The courts should be liberal in allowing amendments to pleadings to avoid multiplicity of suits. This liberality is greatest in the early stages of the lawsuit, especially in this case where the amendment to the complaint in intervention was made before trial of the case. This case was discussed under intervention O¶Laco v. Co Cho Chit Where the plaintiff is allowed to introduce evidence to correct perceived defect in the complaint, the said complaint is deemed accordingly amended to conform to the evidence. Philbank v. IAC 1. Liberality in amendments is greatest in the early stages of a lawsuit, decreases as it progresses and changes at times to a strictness amounting to a prohibition. Amendments will not be allowed when the same will prejudice the adverse party or place him at a disadvantage. 2. The proper remedy for the dismissal of the urgent motion to admit the amended complaint is an appeal. When the remedy of appeal is available, the extraordinary remedy of certiorari cannot be resorted to because the availability of appeal prescribes such recourse. PNB v. Florendo 1. Where the court has no jurisdiction over the subject matter of the case, it is evident that the amendment of the complaint should not be allowed so as to confer jurisdiction upon the court over said property. 2. Even when appeal is available and is the proper remedy, the court has allowed a writ of certiorari when the orders of the lower court were issued either in excess of or without jurisdiction.

RULE 19: INTERVENTION
Metropolitan Bank v. Presiding Judge Intervention ± a person may, before or during the trial, be permitted by the court, in its discretion, to intervene in an action when he is so situated as to be adversely affected by a distribution or other disposition of property or has a legal interest in the matter in litigation Dean¶s Notes: Upon order of the court allowing the intervention, the intervenor becomes a party to the case. Thus, if there is a compromise between the plaintiff and the defendant, the intervenor must also be a party. Cariño v. Ofilada Intervention is a proceeding in a suit or action by which a third person is permitted by the court to make himself a party, either joining plaintiff in claiming what is sought by the complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding something adversely to both of them. It is never an independent action, but is ancillary and supplemental to the existing litigation. The right of an intervenor should only be in aid of the right of the original party. Where the right of the latter has ceased to exist, there is nothing to aid or fight for; hence, the right of intervention ceases. The words "an interest in the subject" mean a direct interest in the cause of action as pleaded, and which would put the intervenor in the legal position to litigate a fact averred in the complaint, without the establishment of which plaintiff could not recover. Accordingly, intervention is improper and should be disallowed if the claim of the intervenor could be decided or fully protected in a separate proceeding. Intervention may be allowed only before or during the trial. The term trial is used in its restricted sense, i.e., the period for the introduction of evidence of both parties. This period of trial terminates when the judgment begins.

RULE 14: SUMMONS
Domestic Associations Rebollido v. CA Since our law recognizes the liability of a dissolved corporation to an aggrieved creditor, it is but logical for the law to allow service of process upon a dissolved UP Law 2012

Supplemental Pleadings
Shoemart v. CA Supplemental pleadings ± supplies deficiencies in aid of an original pleading, not to entirely substitute the latter

CIVPRO Ratio Reviewer | Dean MVFL AY 2009-2010, 2nd Semester corporation. Otherwise, substantive rights would be lost by the mere lack of explicit technical rules. The Rules of Court on service of summons upon a private domestic corporation is also applicable to a corporation which is no longer a going concern (read: already dissolved). Also, substantial compliance with respect to whom the summons is served is allowed. Section 13, Rule 14 mandates: Service upon private domestic corporation or partnership. - If the defendant is a corporation organized under the laws of the Philippines or a partnership duly registered, service may be made on the president, manager, secretary , cashier, agent or any of its directors. The persons who should receive the summons should be those named in the statute; otherwise, those who have charge or control of the operations of the company or who may be relied upon to deliver the papers served upon them. Summit Trading v. Avendano Service upon a private domestic corporation or partnership may be made upon a person acting as an ³agent´ within the meaning of Sec. 13, Rule 14. (Background: in this case, summons was served on the personal secretary of the president) NOTE: According to MVF, the enumeration in Sec. 13, Rule 14 is EXCLUSIVE. Residents temporarily out Venturanza v. CA In an action strictly in personam, personal sevice of summons within the forum is essential to the acquisition of jurisdiction over the person of the defendant who does not voluntarily submit himself to the authority of the court. It is only when a defendant can not be personally served with summons within a reasonable time that a substituted service may be availed of, the same to be effected in the following manner: a) by leaving copies of the summons at the defendants' dwelling house or residence, with some person of suitable age and discretion then residing therein, or b) by leaving the copies at defendant's office or regular place of business, with some competent person in charge thereof. For 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, even though he may be temporarily out of the country at the time. Modes of Service; substituted Laus v. CA Before substituted service of summons may be availed of, the Sheriff must exert earnest efforts to effect the personal service of summons. The sheriff¶s return must (a) indicate the impossibility of service of summons within a reasonable time, (b) specify the efforts exerted to locate the petitioners and (c) state that it was served on a person of sufficient age and discretion residing therein. Service of summons may be made at night as well as during the day, or even on a Sunday or holiday because of its ministerial character. If service of summons is not validly effected, the court does not acquire jurisdiction over the person of the defendant. Orders, judgments, and writs issued by court not having jurisdiction are therefore null and void. If, a defendant has not been properly summoned, the period to file a motion to dismiss for lack of jurisdiction over his person does not commence to run until he voluntarily submits to the jurisdiction of the court, since the

Page 6 of 20 court has no jurisdiction to adjudicate the controversy as to him until such time. Mapa v. CA Jurisdiction over the defendant can be acquired either by his voluntary submission to such jurisdiction, as when he appears in court, or by service of summons upon him. Voluntary appearance is equivalent to service of summons; in fact, it even cures the defect of summons. 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. Northwest v. CA Matters of remedy and procedure such as those relating to the service of process upon a defendant are governed by the lex fori or the internal law of the forum. Section 14, Rule 14 of the Rules of Court provides that if the defendant is a foreign corporation doing business in the Philippines, service may be made: (1) on its resident agent designated in accordance with law for that purpose, or, (2) if there is no such resident agent, on the government official designated by law to that effect; or (3) on any of its officers or agents within the Philippines. If the foreign corporation has designated an agent to receive summons, the designation is exclusive, and service of summons is without force and gives the court no jurisdiction unless made upon him. Where the corporation has no such agent, service shall be made on the government official designated by law, to wit: (a) the Insurance Commissioner in the case of a foreign insurance company; (b) the Superintendent of Banks, in the case of a foreign banking corporation; and (c) the Securities and Exchange Commission, in the case of other foreign corporations duly licensed to do business in the Philippines. Whenever service of process is so made, the government office or official served shall transmit by mail a copy of the summons or other legal proccess to the corporation at its home or principal office. The sending of such copy is a necessary part of the service. Domicile in the state is alone sufficient to bring an absent defendant within the reach of the state's jurisdiction for purposes of a personal judgment by means of appropriate substituted service or personal service without the state. This principle is embodied in section 18, Rule 14 of the Rules of Court which allows service of summons on residents temporarily out of the Philippines to be made out of the country. The domicile of a corporation belongs to the state where it was incorporated. Modes of service; Extraterritorial Dial Co. v. Soriano Only in four (4) instances is extraterritorial service of summons proper, namely: "(1) when the action affects the personal status of the plaintiffs; (2) when the action relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent; (3) when the relief demanded in such action consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines; and (4) when the defendant nonresident's property has been attached within the Philippines"

UP Law 2012

CIVPRO Ratio Reviewer | Dean MVFL AY 2009-2010, 2nd Semester An action in personam is an action against a person on the basis of his personal liability, while an action in remedies is an action against the thing itself, instead of against the person." Sievert v. CA A court which has not acquired jurisdiction over the person of defendant, cannot bind that defendant whether in the main case or in any ancillary proceeding such as attachment proceedings. The service of a petition for preliminary attachment without the prior or simultaneous service of summons and a copy of the complaint in the main case does not of course confer jurisdiction upon the issuing court over the person of the defendant. Two situations: 1) prayer in a petition for a writ of preliminary attachment is embodied or incorporated in the main complaint itself as one of the forms of relief sought in such complaint - valid service of summons and a copy of the complaint will in such case vest jurisdiction in the court over the defendant both for purposes of the main case and for purposes of the ancillary remedy of attachment 2) petition for a writ of preliminary attachment is embodied in a discrete pleading - such petition must be served either simultaneously with service of summons and a copy of the main complaint, or after jurisdiction over the defendant has already been acquired by such service of summons If a court has no jurisdiction over the subject matter or over the person of the defendant in the principal action, it simply has no jurisdiction to issue a writ of preliminary attachment against the defendant or his property. Citizens¶ Surety v. Herrera (1972) In an action strictly in personam, personal service of summons, within the forum, is essential to the acquisition of jurisdiction over the person of the defendant, who does not voluntarily submit himself to the authority of the court. In other words, summons by publication cannot ± consistently with the due process clause in the Bill of Rights ± confer upon the court jurisdiction over said defendants Due process of law requires personal service to support a personal judgment, and, when the proceeding is strictly in personam brought to determine the personal rights and obligations of the parties, personal service within the state or a voluntary appearance in the case is essential to the acquisition of jurisdiction so as to constitute compliance with the constitutional requirement of due process Consolidated Plywood v. Breva (1988) As proper service of summons on the defendant was not effected, the trial court never acquired jurisdiction over his person and could not lawfully render valid judgment thereon. Personal service of summons within the forum is essential to the acquisition of jurisdiction over the person of the defendant who does not voluntarily submit himself to the court¶s authority. For service of summons by publication to be valid and effective, there must first be as attachment of the property of the defendant. Attachment converts the action into a proceeding in rem or quasi in rem If petitioner pursues its claim for reimbursement against its co-owner by filing a second action, personal service on the corporation on its president, manager, secretary, cashier, agent or any of its directors is a condition precedent to summons by publication. Waiver of service, Rule 14, Sec. 20

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Delos Santos v. Montesa (1993) Any mode of appearance in court by a defendant or his lawyer is equivalent to service of summons except to protest the jurisdiction of the court The prevailing party moving for execution pending appeal is obliged to serve a copy of such motion on the adverse party¶s counsel. - The court is not duty-bound to notify petitioners of the immediate enforcement of the appealed decision. It is the prevailing party moving for the execution pending appeal under Sec 2, Rule 39 of the Revised Rules of Court who is obliged to serve a copy of such motion on the adverse party¶s counsel.

RULE 15: MOTIONS
Contents, Rule 15, Sec. 3 Notice of Hearing, Rule 15, Sec. 5 Provident International Resources Co. v. Court of Appeals A notice of hearing addressed to the Clerk of Court, and not to the parties, is no notice at all. A motion that does not contain a notice of hearing to the adverse party is nothing but a mere scrap of paper. The Clerk of Court did not even have the duty to accept it, much more to bring it to the attention of the Presiding Judge. Hearing of Motions, Rule 15, Sec. 4, 7 Orosa v. Court of Appeals Parties and counsel should not assume that courts are bound to grant the time they pray for.

RULE 16: MOTION TO DISMISS
Nature Lagutan v. Icao (1993) Under Rule 16, the motion to dismiss must be filed within the time for pleading, that is, within the period to answer. When the complaint was dismissed not because of any evidence presented by the parties, as a result of the trial on the merits, but merely on a motion to dismiss filed by the defendants, the sufficiency of the motion should be tested on the strength of the allegations of facts contained in the complaint and no other. Galeon v. Galeon (1993) Test of sufficiency of statement of cause of action is ³whether, admitting the veracity of the facts alleged, the court could render a valid judgment.´ Trial court may not inquire into the truth of the averments in the complaint for purposes of disposing of a motion to dismiss. An averment in the complaint that he plaintiff is the son of one Demtrio Galeon, ³who during his lifetime, has acknowledged and recognized him as such illegitimate child,´ substantially complies with the rule on sufficiency of the statement of the cause of action. An action cannot be dismissed on the ground that complaint is vague or indefinite. Foster Parents Plan v. Demetriou Quick Facts: Employer conducted an investigation on disciplinary charges against an employee. Employee files a complaint for injunction with preliminary injunction and restraining order with RTC. Employer filed a MTD on the ground of lack of jurisdiction over subject matter. RTC held in abeyance UP Law 2012

CIVPRO Ratio Reviewer | Dean MVFL AY 2009-2010, 2nd Semester resolution of MTD until after trial on the merits stating that the grounds relied thereon did not appear to be indubitable. Ratio: The court has discretion to defer the hearing if the ground of MTD is not indubitable or uncertain. The deferment would tantamount to grave abuse of discretion if the grounds were lack of jurisdiction or failure to state a COA since in these events, allegation in the complaint are deemed admitted for purposes of MTD, hence can be resolved without waiting for trial on merits. Notes: In class sir only mentioned that when one file a MTD, the allegations are deemed HYPOTHETICALLY admitted for purposes of resolving such motion. He did not discuss any exceptions to this rule. However in the case of Halimao v. Villanueva (not assigned. P 470 of Riano), when the motion to dismiss is based on payment, waiver abandonment, release, or some other grounds of extinguishing an obligation, the admission is not merely hypothetical but ACTUAL. Please take note that this case was decided under the old rules, in the new rules the court SHALL NOT DEFER THE RESOLUTION OF THE MOTION even if the ground is not indubitable.

Page 8 of 20 This is an exception to the Rule that MTD for lack of jurisdiction over the person of the accused must be filed within the reglementary period provided in Rule 16 Sec 1. De los Santos v Montesa (1993) (supra, see waiver of service of summons) Quick Facts: Montesa filed a case for eviction against De los Santos. Summons was served to De los Santos¶ mother. He failed to submit an answer. Judgment was rendered against him. He filed a MFR, arguing that he never received the summons (lack of jurisdiction over the person) and the notice of conciliation (failure to state a cause of action). Ratio: Appearance in court of defendant or his counsel, absent any indication that the appearance was precisely to protest the jurisdiction over the person of the defendant, tantamount to voluntary submission. The fact that other grounds were included i.e. failure to state a cause of action indicates that there was voluntary submission. Boticano v Chu (1987) Facts: Boticano filed a complaint against Chu for damages. The summons was returned unserved. Chu was declared in default for failure to file a responsive pleading. A judgment was rendered against him. He filed a notice of appeal and a motion for extension of time to file record an appeal. His former counsel filed a motion for withdrawal and his new counsel filed a notice of appearance. CA set aside the judgment of the RTC for being null and void because the summons was improperly served. Ratio: Defects in jurisdiction arising from irregularities in the commencement of the proceeding, defective process or absence of process may be waived by failure to make seasonal objections. In this case Chu had the opportunity to raise the issue of lack of jurisdiction over his person when he submitted pleadings or when he appeared in court through counsel, but he did not, hence, there¶s voluntary submission.

Grounds
Javier v. CA Quick Facts: Employee of a maritime company died while on board a vessel. Widow of the employee demanded payment of death benefits from employer. Latter failed to pay. Widow filed a complaint with RTC for sum of money. Employer filed a MTD on the ground of lack of jurisdiction over the subject matter. It alleges that jurisdiction properly vests with POEA. Widow alleges that employer is already estopped from assailing jurisdiction since the latter already participated in the proceeding before the court. Ratio: Doctrine of estoppel cannot be properly invoked when the ground is lack of jurisdiction over the subject matter since such issue may be raised anytime at any stage of the action. Notes: See the 4 grounds in Rule 9 Sec 1. Such are not subject to the reglementary period provided in Rule 16 Sec 1. (supra, see substituted summons) Quick Facts: Torres filed a complaint against Laus for collection of sum of money. Laus did not file an anwer. Upon motion of Torres, TC declared Laus in default and eventually rendered a judgement against him. Thereafter, Laus by way of special appearance filed a MTD on the ground of lack of jurisdiction over his person, alleging that the service of summons was ineffective. SC found that summons was indeed improperly served. Ratio: If a defendant has not been properly summoned, the period to file a MTD for lack of jurisdiction over his person does not commence to run until he voluntary submits himself to the jurisdiction of the court. The court has no jurisdiction to adjudicate the controversy as to him until such time. A special appearance to file MTD on the ground of lack of jurisdiction over his person is not voluntary submission. Notes:

DBP v Pundogar (1993) Facts: DPB granted loans to IISMI, secured by real and chattel mortgage. IISMI failed to pay. It filed an action for injunction against DBP, CB, BOI and sheriff of Lanao. Preliminary injunction was initially issued but was subsequently dissolved resulting to the foreclosure of the properties of IISMI. 14 years later, IISMI, Jacino and Jacinto Steel Co, filed a complaint against DBP, NDC and NSC. Defendants filed a MTD on the grounds of res judicata, prescription, and failure to state a COA. Ratio: RES JUDICATA Elements of res judicata: former final judgment court that rendered judgment was with jurisdiction judgment was on the merits identity between the a. parties, b. COA, and c. subject matter Absolute identity of the parties is not required. Substantial identity is sufficient Identity of COA lies not in the form of action but whether the same evidence would support and establish the former and present COA. PRESCRIPTION

1. 2. 3. 4.

UP Law 2012

CIVPRO Ratio Reviewer | Dean MVFL AY 2009-2010, 2nd Semester For martial law to be considered as interruption to the period of prescription, it must be shown that during such time it was impossible to commence, continue or resist an action. FAILURE TO STATE A COA While MTD for failure to state a COA carries with it the admission of all material facts for purposes of the motion, an order denying such MTD does not imply that the complainant is assured of a ruling in his favor. The hearing on such motion only resolves the sufficiency of allegation in the complaint not resolve the issues raised in the complaint Tanpinco v IAC (1992) Facts: Complaint was filed by Tanpinco against Benedicto for payment of disturbance compensation with damages. Benedicto filed a MTD on the ground of failure to state a COA. According to him, he¶s not the real party in interest since the land he previously owned (where Tanpinco is a lessee) is already donated to DECS. MTD granted. Ratio: Where a suit is not brought against a real party in interest, the proper ground to raise is failure to state a COA. Diaz v. Adiong Unless and until the defendant objects to the venue in a motion to the dismiss prior to a responsive pleading, the venue cannot truly be said to have been improperly laid. Improper venue may be waived and such waiver may occur by laches ± a MTD belatedly filed could no longer deprive the TC of jurisdiction to hear and decide an action for damages. Objection to venue in civil actions arising from libel may be waived, it does not after all involve a question of jurisdiction. It is procedural rather substantive, relating to the jurisdiction of the court over the person rather than the subject matter. Venue relates to trial not to jurisdiction. Objections to improper venue must be made in a MTD before any responsive pleading is filed (Sec. 1, R16) ± having already submitted to the jurisdiction of the TC, petitioner may no longer object to the venue which although mandatory, is nevertheless waivable and must be seasonably raised. Hongkong and Shanghai Banking Co. v. Sherman (contract under Singaporean setting) Despite stipulation that parties agree to sue and be sued in a specific court (i.e. Manila) does not preclude the filing of suits in the residence of plaintiff or defendant. The plain meaning is that the parties merely consented to be sued in Manila. The agreement did not change or transfer venue. It is simply permissive. The parties solely agreed to add the courts of Manila as tribunals to which they may resort. Also, the parties did not stipulate that only courts of Singapore had jurisdiction. Neither did the clause operate to divest Philippine courts of jurisdiction. VICTRIONICS V COURT OF APPEALS: A motion to dismiss based on litis pendencia generally abates the second case. There are however limitations to this rule. If it appears to the court that the second action was not in fact vexatious, it may refuse to abate the second action, allow it to stand, and order the first one to be discontinued on proper terms. The court may also permit the plaintiff to discontinue the first suit and thereby defeat the plea in abatement where the second suit is necessary in order to protect and secure the plaintiff¶s full rights, or where the abatement of the second would result in possible loss of substantial rights on the part of the plaintiff. ANDERSONS GROUP, INC. V COURT OF APPEALS: To constitute lis pendens as a ground for dismissal of a civil action, it must appear that not only are the parties in the two actions the same but there is substantial identity in the cause

Page 9 of 20 of action and relief sought. Further, it is required that the identity be such that any judgement rendered in the other would, regardless of which party is successful, amount to res judicata on the case on hand. It is not required that the party be served with summons before lis pendens should apply. ABALOS V COURT OF APPEALS: The principle of res judicata embraces two concepts: ³bar by former judgment´ and ³conclusiveness of judgment´. The first refers to a situation where as between the first case where the judgment is rendered and the second case where such judgment is invoked, there is identity of parties, subject matter and causes of action, the judgment on the merits in the first case constitutes an absolute bar to the subsequent action not only as to as to every matter which was offered and received to sustain or defeat the claim or demand, but also as 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. On the other hand, the second concept refers to a situation where the second action between the parties is upon a different claim or demand, the judgment in the first case operates as an estoppel only with regard to those issues directly controverted, upon the determination of which the judgment was rendered. NABUS v CA The principle of res judicata embraces two concepts: bar by prior judgment and conclusiveness of judgment (Rule 39, Section 49). In this case, neither concept applies. (the first case involved an action to allow nabus to repurchase the land he sold to lim, pursuant to the Public Land Act, which gave him the right to repurchase within five years. this was dismissed for Nabus's failure to tender the purchase price. In the second action, Nabus seeks the rescission of the contract of sale between him and Lim, because Lim has yet to pay the remaining three installments of the purchase price). First, bar by prior by prior judgment does not apply because the last requisite was not met -- there was no identity in the cause of action between the two cases. the test to determine this is to ascertain whether or not the same evidence which is necessary to sustain the second action would have been sufficient to authorize a recovery in the first, even if the forms or nature of the two actions be different. Second, conclusiveness by judgment also does not apply. For a judgment in one action to be conclusive as to a particular matter in another action between the same parties or their privies, it is essential that the issues be identical. If a particular point or question is in issue in the second action, and the judgment will depend on the determination of that particular point or question, a former judgment between the same parties will be final and conclusive in the second if that same point or question was in issue and adjudicated in the first suit; but the adjudication of an issue in the first case is not conclusive of an entirely different and distinct issue arising in the second. Four requisites of bar by prior judgment: (1) the presence of a final former judgment; (2) the former judgment was rendered by a court having jurisdiction over the subject matter and the parties; (3) the former judgment is a judgment on the merits; and, (4) there is, between the first and the second actions, identity of parties, subject matter, and causes of action Other doctrines reiterated: - basis / grounds of res judicata: 1) it is the interest of the state that there should be an end to litigation ² interest reipublicae ut sit finis litium;

UP Law 2012

CIVPRO Ratio Reviewer | Dean MVFL AY 2009-2010, 2nd Semester 2) it is the interest of the state that there should be an end the hardship on the individual that he should be vexed twice for the same cause ² nemo debet bis vexari pro una et eadem causa. UP v CA In this case the Supreme Court held that although in the first case it was the UP faculty who were the parties and in the second case it was UP as an intervenor, there was a substantial identity of parties because they represent the same interests in the two petitions. The situation is akin to the adding of other parties to a case which had been finally resolved in a previous one. On the other hand, the requisite of identity of subject matter in the two petitions is wanting. The two motions to dismiss the complaint filed by Elizalde were separately resolved. (The first was the one filed by Bailen and Salazar which became the subject matter of the petition in G.R. No. 87248. The second motion to dismiss was filed by UP but on February 15, 1989, the lower court struck it off the record. UP filed a motion for the reconsideration of the said order of February 15, 1989, but the lower court denied it on the ground of impropriety of the motion to dismiss as UP had already filed an answer in intervention.) On the other other hand (haha) sir said in class that in this case there was substantial identity in subject matter and the real issue is that there was no identity of parties. It is also in this case that he pointed out UP's mistakes in tackling this case. confused much? Gatmaytan v. CA A party is guilty of forum shopping where he repetitively availed of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in, or already resolved adversely, by some other court.

Page 10 of 20 possible (2nd is possible only if the counterclaim is permissive). Calalang vs. CA Though it is within the discretion of the trial court to declare a party non-suited for non-appearance in the pre-trial conference, such discretion must not be abused. To be a sufficient ground for dismissal, delay must not only be lengthy but also unnecessary and dilatory resulting in the trifling of judicial process. Test of failure to prosecute: whether or not, under the circumstances, plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude; in the absence of a pattern or scheme to delay the disposition of the case or a wanton failure to observe the mandatory requirement of the rules on the part of the plaintiff, courts should decide to dispense with rather than wield their authority to dismiss.

By Court
Meliton v. CA Where a compulsory counterclaim is made the subject of a separate suit, it may be abated on the ground of litis pendentia and/or dismissed on the ground of res judicata. However, a dismissal of the compulsory counterclaim on the ground of lack of jurisdiction (e.g. for non-payment of docket fees) does not constitute res judicata. Such a dismissal is without prejudice and indicates the absence of a decision on the merits and leaves the parties free to litigate the matter in a subsequent action as though the dismissal action had not been commenced. Lastly, under Sec. 2, Rule 17, an action shall not be dismissed at the request of the plaintiff after the service of the answer except by order of the court and upon such terms and conditions as the court deems proper; in this case, the trial court reserved the petitioners counterclaims as a condition for the dismissal. Vallanga v. CA For purposes of invoking res judicata as a valid defines, the requisite of prior judgment may refer to a judgment that has become final before the second action is filed, or to one that becomes final after the filing of the second action but before the defense is actually set up in the Answer. Res judicata is unavailing when the prior judgment was on an action which was merely ancillary (such as an action for preliminary injunction) and not a main action. When the court issues, upon the plaintiff¶s instance, a dismissal order that is silent as to whether it is with or without prejudice, the presumption is that it is without prejudice. On the other hand, dismissal orders issued as a result of plaintiff¶s failure to prosecute which do not expressly state whether they are with or without prejudice are held to be with prejudice or on the merits.

Procedure
Hadji Ali Mamadsual, et al. v. Moson 1. Any of the grounds for dismissal provided for in Rule 16 Sec 1, except improper venue, may be pleaded as an affirmative defense, and a preliminary hearing may be had thereon as if a motion to dismiss had been filed. [Rule 16 Sec 5(now Sec 6)] 2. Under Sec 16 of the Ijra-At Al Mahakim Al Shari¶a, it is specifically provided that ³the Rules of Court shall apply in a suppletory manner´ in civil cases

Hearing and Order
Municipality of Binan v. CA Under Sec. 5, Rule 16 (now Sec. 6, Rule 16), the grounds for a motion to dismiss may be set up as affirmative defenses in the answer if no motion to dismiss has been filed. However, the preliminary hearing permitted under the said provision is not mandatory even when the same is prayed for, and rests largely on the sound discretion of the court. Also, a preliminary hearing on an affirmative defense for failure to state a cause of action is not necessary.

RULE 9, SEC. 3: DEFAULTS Nature
Lim Tanhu v. Ramolete When a motion to lift order of default is under oath, contains the reasons for failure to answer and as well as the facts constituting prospective defense, a formal verification or separate affidavit of merit is not necessary. Failure to serve summons is a proper ground for a motion to lift order of default and is, in essence, an attack on jurisdiction of the court. Being declared in default does not imply an admission that plaintiff¶s cause of action is lawful. A motion to dismiss an action against non-defaulted defendants should not be granted when such defendants and those declared in default are all indispensable parties to the action. Where a common cause of action is averred against several defendants some of whom are declared in default, the latter have a right to own the defenses interposed by answering defendants and to expect a result of the litigation totally common with them in kind and amount. UP Law 2012

RULE 17: DISMISSAL OF ACTIONS By Plaintiff
Int¶l Container Terminal Services, Inc. vs. CA The petitioner¶s compulsory counterclaim was dismissed when the petitioner did not object to, and actually moved for, the dismissal of the complaint. If it wanted the counterclaim to subsist, it should have objected to the dismissal or at least reserved its right to prosecute it, assuming this would be

CIVPRO Ratio Reviewer | Dean MVFL AY 2009-2010, 2nd Semester

Page 11 of 20 y The remedies available to a defendant declared in default are: 1. The defendant in default may, at any time after discovery thereof and before judgment, file a motion under oath to set aside the order of default on the ground that was failure to answer or appear on the date set for pre-trial was due to fraud, accident, mistake or excusable negligence, and that he has a meritorious defense; 2. If the judgment has already been rendered when the defendant discovered the default, but before the same has become final and executory, he may file a petition for new trial under Sec. 1(a) of Rule 37; 3. If the defendant discovered the default after the judgment has become final and executory, he may file a petition for relief under Sec. 2, Rule 38; and 4. He may also appeal from the judgment rendered against him as contrary to the evidence or the law, even if no petition to set aside the order of default has been presented by him. Situation At any time after discovery thereof and before judgment (NB: under present RoC, it¶s ³notice´ not ³discovery´) Requisites: 1. Failure to answer or appear on pre-trial was due to FAME 2. He has a meritorious defense Judgment rendered when defendant discovered default BUT before it has become final Discovered default after judgment has become final and executory Even if no petition to set aside y Available remedy Motion to set aside order of default

When Allowed
Bayog v. Natino There is nothing in Sec. 36 of B.P. 129 which bars the MCTC from taking cognizance of a belatedly filed answer. The Revised Rules on Summary Procedure do not provide that an answer filed after the reglementary 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. Malanyaon v. Sunga A party declared in default shall not be entitled to notice of subsequent proceedings nor take part in the trial but there is nothing in the Rules which authorizes the trial court to order the arrest of the party in default. A party declared in default may at any time after discovery thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident (such as illness in this case), mistake or excusable neglect and that he has a meritorious defense. Lesaca v. CA Quick facts: Defendants failed to appear during the second preliminary conference (second because during the first time, the parties asked to reset conference to explore possibilities of amicable settlement). Plaintiff moved to cite the defendant ³as in default´ and the same was granted. Note however that: [1] this was under Summary Procedure wherein motion to declare def in default is a prohibited pleading and [2] the defendant had filed an answer. Held: Lower courts erred in citing defendant in default. What is should have done is to issue a ³preliminary conference order´ and require the parties to submit their affidavits and other evidence. Ratio: It is the policy of the law to have every litigated case tried on the merits. It is for this reason that judgment by defaults are generally looked upon with disfavor. As this Court observed in the case of Coombs vs. Santos, 24 Phil. 446: ³A default judgment does not pretend to be based upon the merits of the controversy. Its existence is justified on the ground that it is the one final expedient to induce the defendant to join issue upon the allegations tendered by the plaintiff, and to do so without unnecessary delay. A judgment by default may amount to a positive and considerable injustice to the defendant; and the possibility of such serious consequence necessitates a careful examination of the grounds upon which the defendant asks that it be set aside." (Trajano vs. Cruz, 80, SCRA 712, 713.) The same doctrine was laid down by this court in Rosario vs. Alonzo, 8 SCRA 397 where we ruled that ³the defendants could not be in default after they had answered the complaint.´

Motion for new trial

Petition for relief from judgment Appeal

y

Effect
Dulos v. CA Quick facts: Dulos was declared in default for failure to appear in pre-trial conference, although he sent his sister as representative duly armed with SPA and notarized hospital certification. Instead of taking an appeal, he filed special civil action for certiorari and prohibition with preliminary injunction with RTC. Held: The special civil action was properly dismissed. Ratio: y A case may be dismissed for failure of a party to appear at the pre-trial conference. y In this case the Court held that a party cited in default is not entitled to notice. BUT that isn¶t true anymore because of the express provision of Rule 9, Sec 3 a and c.

Special civil action of certiorari is not and cannot be made a substitute for an appeal, where the latter remedy is available, as in this case. The filing of the petition for certiorari did not therefore suspend the period for appeal or prevent the judgment from becoming final. CAVEAT: I¶m not so sure if the following doctrines still stand under the present RoC. Will verify it later when I get to this part of my review and inform you thru text brig. o A motion for reconsideration of a judgment of default may be considered a petition for relief under Section 2 of Rule 38 only if the following requisites are present: (1) it must be verified; (2) it must be filed within 60 days from the time petitioner learns of the decision but not more than 6 months from entry thereof, and (3) in case of failure to file an answer, the motion must be accompanied by affidavits of merit showing the fraud, accident, mistake and excusable negligence relied upon. o A motion for reconsideration may be considered a motion for new trial under UP Law 2012

CIVPRO Ratio Reviewer | Dean MVFL AY 2009-2010, 2nd Semester Sec. 2, Rule 37, if it is accompanied by an affidavit of merit. Since petitioners assert that their rights were impaired because they were prevented from presenting evidence of their defenses, it was a fatal omission for them not to attach to their motion an affidavit of merit, i.e., an affidavit showing the facts constituting the valid defense which the movant may prove in case a new trial is granted. The requirement of such an affidavit is essential because a new trial would be only a waste of the time of the court if the complaint turns out to be groundless or the defense ineffective.

Page 12 of 20 every chance to fight their case fairly and in the open, without resort to technicality. Tan v. CA The remedy against a judgment by default is a motion for new trial under Rule 37 of the Rules of Court which should be filed within the period for perfecting an appeal, and that the timely filing thereof interrupts the 15-day reglementary period. A motion for new trial is the appropriate remedy when the defendant discovers that he has been declared in default and that a judgment has already been rendered, which has not, however, become final and executory as yet. It is not required that the defendant file first a motion to file the order of default "to regain his standing." Meralco v. La Campana ³Set aside : order of default :: Appeal :: judgment by default´ It must be clarified that under the Rules, what an aggrieved party seeks to set aside is the order of default, an interlocutory order which is, therefore, not appealable, and not the judgment by default, which is a final disposition of the case and appealable to the Court of Appeals. Notice that in the following pertinent provisions, the Rules expressly state that what may be set aside is the order of default, while the judgment itself may be appealed to a higher court. Fraud, as a ground for new trial, must be extrinsic or collateral, that is, it is the kind of fraud which prevented the aggrieved party from having a trial or presenting his case to the court, or was used to procure the judgment without fair submission of the controversy The motion to set aside judgment by default and/or for new trial is a mere pro forma motion inasmuch as it does not specify the facts constituting the alleged fraud which under the Rules must be alleged with particularity. Being a pro forma motion, it did not interrupt the running of the period to appeal. Special civil action of certiorari cannot be a substitute for a lost appeal. Oriental Media Inc. v. CA After the motion for reconsideration of the default judgment was denied, the proper procedure was to take an appeal from the said decision. The Rules of Court expressly provide that a party who has been declared in default may appeal from the judgment rendered against him even if no petition for relief to set aside the order of default has been presented by him. (Rule 41.2 par.3 1964 ROC) A petition for relief from judgment filed within the period for appealing is premature. Being the wrong remedial recourse at the time it was filed, the petition for relief from judgment did not interrupt the running of the period for appealing. Therefore, the judgment by default became final and executory after the lapse of the remaining period for taking an appeal. Certiorari is not a substitute for an appeal and should not be allowed where the petitioner has ± or had ± other remedies available. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. By filing a motion for reconsideration of the decision of default at the same time praying for affirmative relief and putting up affirmative defenses, and after denial of the motion, filing a petition for relief from judgment, petitioner waived the defense of lack of jurisdiction over his person.

Order of Default
Datu Samad Mangelen v. CA Judgment entered against a party in default shall not exceed the amount or be different in kind from that prayed for. Consequently, an award of exemplary damages should not have been made since it was not even prayed for. There is a difference between a judgment against a defendant based on evidence presented ex-parte pursuant to a default order and one against a defendant who had filed an answer but who failed to appear at the hearing. In the former, section 5 of Rule 18 provides that the judgment against the defendant should not exceed the amount or to be different in kind from that prayed for. In the latter, however, the award may exceed the amount or be different in kind from the prayed for Default order, plaintiff Defendant filed an answer presented evidence exbut failed to appear at parte hearing i.e. ³in default´ i.e. ³as in default´ Judgment against the Award may exceed the defendant should not exceed amount or be different in kind the amount or to be different from the prayed for in kind from that prayed for

Procedure After Order of Delault
Five Star Bus Co., Inc. v. CA After declaring a party as in default or non-suited, the trial court is not duty-bound to receive evidence ex-parte on the very same day it issued the default or non-suit order. The hearing that petitioners failed to attend was a pretrial; pre-trial and trial on the merits are usually held on separate days to enable the parties to prepare for trial. Monserrate v. CA

Remedies
Gerales v. CA Quick facts: The trial court ought to have considered the letter of respondent Enrique E. Pimentel as a responsive pleading even if it lacks the formalities required by law. Undoubtedly, the letter made mention of the fact that the parties mutually settled the case, which allegation may be deemed as an averment of an affirmative defense and if proven in a preliminary hearing pursuant to Section 5, Rule l6, would constitute a meritorious defense of private respondents which would bar petitioners from recovering damages from the former as the claim or demand set forth in plaintiffs¶ (petitioners¶) pleading had been paid or extinguished. Ratio: The courts should be liberal in setting aside orders of default for default judgment is frowned upon, and unless it clearly appears that the reopening of the case is intended for delay, it is best that the trial courts give both parties

UP Law 2012

CIVPRO Ratio Reviewer | Dean MVFL AY 2009-2010, 2nd Semester Ramnani v. CA A satisfactory showing of 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. The other condition is the existence of a meritorious defense, but either circumstance alone is not sufficient to justify the lifting of the order of default or the default judgment. A meritorious defense must concur with the satisfactory reason for that non-appearance of the defaulted party. In the absence of either conditions, the appropriate remedy is an ordinary appeal (Rule 41.2, 1964 ROC) and not a petition for certiorari. A petition fore certiorari will not prosper where there is no showing that the trial court committed grave abuse of discretion in refusing to set aside the default order and the default judgment. Laus v. CA Where the motion to dismiss on the ground of lack of jurisdiction over the person of the defendant (ie. substituted service of summons not validly effected) was filed before the defendant received a copy of the decision by default, if true, it would result in the nullification not only of the default order but of the decision as well. It is axiomatic that a void judgment can never become final and executory and may even be assailed or impugned any time. An action to declare the nullity of a void judgment does not prescribe. The failure of the defendant to appeal from the judgment by default did not render the judgment final and unassailable. Dulos v. CA The special civil action of certiorari is not and cannot be made a substitute for an appeal, where the latter remedy is available. The filing of the petition for certiorari does not therefore suspend the period for appeal or prevent the judgment from becoming final. Boticano v. Chu, Jr. A respondent¶s failure to file a motion to set aside the declaration of default does not preclude him from taking an appeal on the default judgment, but in the appeal only the evidence of the petitioner may be considered, the respondent not having adduced any defense evidence. If the respondent first asked to set aside the default judgment, the declaration of default would be set aside and he would be given the opportunity to present his evidence in the lower court, which will be put in record and elevated to the appellate court.

Page 13 of 20 Mandamus lies to compel the performance, when refused, of a ministerial duty, but not to compel the performance of a discretionary duty. The propriety of rendering summary judgment under Rule 34 of the Rules of Court rests on the sound exercise of the court¶s discretion. Mandamus to compel the court to grant petitioner¶s motion for summary judgment will not issue where petitioners failed to establish a clear legal right to the relief sought, and a mandatory and ministerial duty on the part of the trial court to render summary judgment (entitled to a judgment as a matter of law). Litigants may not be permitted to impose upon the court their notions of how cases should be resolved, nor direct the exercise of judgment or discretion by the court in a particular way. The court has to decide a question or issue according to its own judgment or understanding of the law, as well as the law¶s applicability to the attendant facts and circumstances. The controlling factor in a motion for summary judgment is the presence or absence of any genuine issue as to any material fact that would require the presentation of evidence. Where the facts pleaded by the parties are disputed or contested, proceedings for summary judgment cannot take the place of trial. Summary judgment can be resorted to only where there are no questions of fact in issue or were the material allegations of the pleadings are not disputed. A party who moves for summary judgment has the burden of demonstrating clearly the absence of any genuine issue of fact, or that the issues posed in the complaint is so patently unsubstantial as not to constitute a genuine issue for trial, and any doubt as to the existence of such an issue is resolved against the movant. Paz v. CA Summary Judgments Summary judgment may be rendered by the court upon application of a party when there is 1) no genuine issue as to any material fact and 2) that the moving party is entitled to a judgment as a matter of law. By genuine issue is meant an issue of fact which calls for the presentation of evidence as distinguished from an issue which is sham, fictitious, contrived, set up in bad faith and patently unsubstantial so as not to constitute a genuine issue for trial. The court can determine this on the basis of the pleadings, admissions, documents, affidavits and/or counter-affidavits submitted by the parties to the Court. Where the facts pleaded by the parties are disputed or contested, proceedings for a summary judgment cannot take the place of a trial. Courts should not render summary judgment hastily but rather, carefully assuming a scrutiny of facts in a summary hearing, considering that this remedy is in disparagement of a party's right to due process. A party who moves for summary judgment has the burden of demonstrating clearly the absence of any genuine issue of fact, and any doubt as to the existence of such an issue is resolved against the movant or the private respondents in the instant case. Effect of Summary Judgment (Entire) Bell Carpets International Trading Co. v. CA The summary judgment of the Trial Court becomes final and executory by reason if within the time appointed (i.e. 15 days from notice of the judgment), the adverse party fails to appeal. Summary judgment is unquestionably final, disposing of the case on the merits. It definitively declares which party was in the right and the nature and extent of the obligations of one party in relation to the other, and left nothing more to be done by the Trial Court. The remedy against such a judgment is an appeal, regardless of the questions sought to be raised on appeal, whether of fact, or of law, whether involving jurisdiction or grave abuse of discretion of the Trial Court. If no appeal is taken from the summary judgment, it become final and executory. UP Law 2012

RULE 34: JUDGMENT ON THE PLEADINGS
Tropical Homes v. CA On a judgment on the pleadings, proof of allegations in the complaint as well as the items prayed for is no longer required, as the defendant is deemed to have admitted the material allegations of fact of the complaint.

RULE 35: SUMMARY JUDGMENTS
Army and Navy Club of Manila, Inc. v. CA A summary judgment is one granted by the court upon motion by a party for an expeditious settlement of the case, there appearing from the pleadings, depositions, admissions, and affidavits that there are no important questions or issues of fact involved (except as to the mount of damages), and that therefore the moving party is entitled to a judgment as a matter of law. Considering that there is no genuine issue as to any material fact, a summary judgment is proper. Sps. Camilo Go v. CA

CIVPRO Ratio Reviewer | Dean MVFL AY 2009-2010, 2nd Semester

Page 14 of 20 alleged under oath that one of the parties, before commencement of the action or proceeding, offered to discuss a possible compromise but the other party refused the offer If despite all efforts exerted by the trial court and the parties the settlement conference still fails, then the action should have continued as if no suspension had taken place. This is laid down in Sec. 4, Rule 21, which reads Sec. 4. Period of suspension. No suspension for a period longer than sixty (60) days from notice of the order of suspension shall be allowed except upon justifiable grounds. If no compromise is arrived at within the period provided, the case shall continue as if no suspension of the proceeding had taken place. CITIBANK N.A. v. CHUA The Court held that "precipitate orders of default as these have the effect of denying the litigant the chance to be heard. While there are instances, to be sure, when a party may be properly defaulted, these should be the exceptions rather than the rule and should be allowed only in clear cases of an obstinate refusal or inordinate neglect to comply with the orders of the court. Absent such a showing, the party must be given every reasonable opportunity to present his side and to refute the evidence of the adverse party in deference to due process of law". Corporate powers may be directly conferred upon corporate officers or agents by statute, the articles of incorporation, the by-laws or by resolution or other act of the board of directors. In addition, an officer who is not a director may also appoint other agents when so authorized by the by-laws or by the board of directors. Such are referred to as express powers. Since the by-laws are a source of authority for corporate officers and agents of the corporation, a resolution of the Board of Directors of Citibank appointing an attorney in fact to represent and bind it during the pre-trial conference of the case at bar is not necessary because its by-laws allow its officers, the Executing Officer and the Secretary Pro-Tem, to execute a power of attorney to a designated bank officer, William W. Ferguson in this case, clothing him with authority to direct and manage corporate affairs.

Effect of Summary Judgment (Partial) Guevarra v. CA The rendition of summary judgment is not justified when the defending party tenders vital issues which call for the presentation of evidence Relief by summary judgment is intended to expedite or promptly dispose of cases where the facts appear undisputed and certain from the pleadings, depositions, admissions and affidavits. But if there be a doubt as to such facts and there be an issue or issues of fact joined by the parties, neither one of them can pray for a summary judgment. Where the facts pleaded by the parties are disputed or contested, proceedings for a summary judgment cannot take the place of a trial. As to "partial summary judgment.´, it is not a final or appealable judgment. It is merely a pre-trial adjudication that said issues in the case shall be deemed established for the trial of the case. Due to the fact that a partial summary judgment rendered by the trial court being is merely interlocutory and not ' a final judgment, it is puerile to discuss whether the same became final and executory due to the alleged failure to appeal said judgment within the supposed period of appeal. What the rules contemplate is that the appeal from the partial summary judgment shall be taken together with the judgment that may be rendered in the entire case after a trial is conducted on the material facts on which a substantial controversy exists.

RULE 18: PRE-TRIAL
Nature of Pre-Trial Caltex v. CA The determination of issues at a pre-trial conference bars the consideration of other questions on appeal. 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, the parties are expected to disclose at a pre-trail all issues of law and fact which they intend to raise at the trial, except as such as may involve privileged or impeaching matters. When, Rule 18, Sec 1 CALALANG v. CA: A pre-trial cannot validly be held until the last pleading has been filed, which last pleading may be the plaintiffs reply, except where the period to file the last pleading has lapsed. The period to appear and file the necessary pleading having expired on the Acropolis Trading Corporation, the lower court can direct that a pre-trial conference be held among the answering defendants. However, though it is within the discretion of the trial court to declare party non-suited for nonappearance in the pre-trial conference, such discretion must not be abused. Consequences Suspension GOLDLOOP PROPERTIES v. CA: Submission of a compromise agreement is never mandatory, nor is it required by any rule. Upon manifestation of the parties of their willingness to discuss a compromise, the trial court should have ordered the suspension of the proceedings to allow them reasonable time to discuss and conclude an amicable settlement, pursuant to Sec. 1, Rule 21, which states: Sec. 1. Grounds for suspension. Any party to an action may, at any time before the date set for pre-trial, file a petition with the court for the suspension of the proceedings with a view of securing a possible compromise if (1) it appears that any one or both of the parties have expressed at any time willingness to discuss a possible compromise, or (2) it is

RULE 20: CALENDAR OF CASES TRIAL
Municipality of Binan v. Garcia Nothing in the record reveals any valid cause to reverse the order of trial. What the Trial Court might have had in mind was the provision of Sec 5, Rule 16 of the Rules of Court allowing "any of the grounds for dismissal" in Rule 16 to "be pleaded as an affirmative defense and authorizing the holding of a "preliminary hearing thereon as if a motion to dismiss had been filed." Assuming this to be the fact, the reception of Francisco's evidence first was wrong, because obviously, her asserted objection or defense that the locational clearance issued in her favor by the HSRC was a legal bar to the expropriation suit was not a ground for dismissal under Rule 16. She evidently meant to prove the Municipality's lack of cause of action; but lack of cause of action is not a ground for dismissal of an action under Rule 16; the ground is the failure of the complaint to state a cause of action, which is obviously not the same as plaintiff's not having a cause of action.

PCGG v. Sangdiganbayan [Background: Case involves sequestration of SMC shares from various companies in line with the mandate of the Freedom Constitution to confiscate ill-gotten wealth. PCGG has a case for recovery, reconveyance, accounting and restitution of funds against Cojuangco and the Marcos UP Law 2012

CIVPRO Ratio Reviewer | Dean MVFL AY 2009-2010, 2nd Semester spouses. The various companies, meanwhile, filed for a certiorari, prohibition and injunction for the lifting of the writs of sequestration. PCGG amended its complaint to implead the various companies as respondents in the Cojuangco/Marcos case and filed a motion to consolidate that case with the one asking for lifting of the writs of sequestration. Sandiganbayan denied.] The issues raised in said two cases are not identical, though admittedly, the facts and circumstances involved are intertwined. The resolution of the issue in one case does not resolve the other. When the cases raise different issues, involve different subject matters, causes of action, parties and are even at different stages of the proceeding (the sequestration case have been partially heard already, the reconveyance case was at pre-trial), consolidation does not lie. The fact that the complaining companies in the sequestration case were subsequently impleaded as party defendants in the reconveyance case does not by itself warrant the consolidation of the two cases. The main object of consolidation is to avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, simplify the work of the trial court and save unnecessary costs and expense.

Page 15 of 20 the appeal of Visayan Electric was heeded and the CA reversed the judgement.] The perfection of an appeal in the manner and within the period laid down by law is not only mandatory but jurisdictional, and failure to perfect an appeal as legally required has the effect of rendering final and executory the judgement of the court below and deprives the appellate court of jurisdiction to entertain the appeal. Because the appellate court will hold no jurisdiction, it can only dismiss the appeal. Courts have defined a final order or judgement, which is appealable as one which either terminates the action itself or operates to vest some right in such manner as to put it out of the power of the court making the order to place the parties in their original condition. It disposes of the whole subject matter or terminates the particular proceedings or action, leaving nothing to be done but to enforce the execution of what has been determined. The parties¶ failure to seasonably file an appellate brief will cause a judgement or final order to be final and executory. Kinds (as to process of procuring) Compromise Judgement David v. CA [Background: David sued Afable for a sum of money and estafa. Before the case was decided, the defendant, and only the defendant, signed a ³Compromise Agreement´. It was used as a document attached to the amended complaint.] A compromise is a contract whereby the parties, by making reciprocal concessions, avoid litigation or put an end to one already commenced. The parties adjust their difficulties by mutual consent in the manner which they agree on, and which everyone of them prefers to the hope of gaining, balanced by the danger of losing. If it is not bilateral contract, it is a mere promise and a step towards the amicable settlement of the case, but it does not, by itself, settle the case or put an end to it. It contemplates the execution of a formal act after payment shall have been paid. The parties did not submit any separate compromise agreement for approval by the court and because of this, no judgement based on a compromise agreement could be rendered. The usual doctrine is that a compromise agreement constitutes law between the parties and that a judgement based thereon is immediately final and executory. (Not applicable in this case) Additional Notes: A judgement based on a compromise is a waiver of appeal because the losing party agreed to the judgment, and in a sense, a final judgment. There is a presumption that the agreement was voluntary and intelligently done. Contrasted to a judgment based on confession, the basis for this is the agreement only with respect to the application of the norms on some of the facts, and not with respect to the relief and the application of norms to the entire case, therefore, making it appealable. Amendment of Judgement Before it becomes final and executory Remedies Available: Motion for Reconsideration (Rule 37) ± asking the trial court to look at the case one more time and to rethink the decision Motion for New Trial (Rule 37) ± asking the trial court to annul the judgement and re-do the trial Appeal (Rule 41) ± asking a higher-level tribunal to review the decision based on questions of fact and/or law ETERNAL GARDENS MEMORIAL PARKS CORP. v IAC (1988) UP Law 2012

RULE 33: DEMURRER TO EVIDENCE
Syiangco v. Costibolo [Background: Costibolo borrowed money from his relatives, the Siayngco Spouses. He allegedly paid back the debt but no receipts were issues by virtue of the fact that they were relatives. The Siayngcos sued Costibolo for the amount, and finally, they decided to settle by making Costibolo confess the judgement under the condition that the Siayngcos will not move for a writ of execution. But they got a writ of execution anyway. Costibolo now seeks to annul the judgement due to extrinsic fraud and the Siayngcos filed a motion to dismiss or demurrer but reserved the right to present evidence should the Court deny their motion. The Trial Court denied their motion and did not allow the Siayngcos to present evidence.] After denying the motion to dismiss for insufficiency of plaintiff¶s evidence or demurrer to the evidence, the Court should permit the defendant to present his own evidence and give him his day in court, regardless of whether or not the defendant made a reservation of his right to present his evidence in the event of denial of his motion or demurrer. Under the rules, the defendant is entitled to move for a dismissal on the ground that upon the facts presented and the applicable law, the complainant has shown no right to relief. If the trial court denies the motion, i.e., finds that plaintiff¶s evidence is sufficient for an award of judgement in the absence of contrary evidence, the case still remains before the trial court, and the natural step is to accept evidence from the defence. Nothing is lost. However, if the demurrer is granted, but reversed on appeal, that¶s when the defendant loses the right to present evidence and he shall have been deemed to have elected to stand on the insufficiency of plaintiff¶s case and evidence. In such event, the appellate court that reverses the order of dismissal shall proceed to render judgement on the merits on the basis of plaintiff¶s evidence. y

RULE 36: JUDGMENTS, FINAL ORDERS AND ENTRY
Form Concept of Final Judgment and Final Order CENIZA v COURT OF APPEALS (1993) [Background: Amusing case about ancient meter-reader and alleged ³overcharging´ by Visayan Electric Company. Judgement by the Trial Court favoured the complainants, but

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CIVPRO Ratio Reviewer | Dean MVFL AY 2009-2010, 2nd Semester [Background: Case involving an agreement between Eternal Gardens and Seventh Day Adventist to create a memorial park over a land that still has a contentious title.] There is no question that courts have inherent power to amend their judgements, to make them conformable to the law applicable provided that said judgements have not attained finality. In fact, motions for reconsideration are allowed to convince the courts that their rulings are erroneous and improper and in so doing, said courts are given sufficient opportunity to correct their errors. After it becomes final and executory Remedies Available: Petition for Relief from Judgement (Rule 38) ± filed in the court of origin within 6 months from finality, and within 30 days from discovery of the ground for relief. Original Action to Annul (Rule 47) ± Court of Appeals have original and exclusive jurisdiction for this action, the only grounds available are extrinsic fraud and jurisdiction. David v. CA [Question: Can the Court of Appeals modify a decision after sustaining the trial court¶s denial of the petition of relief from judgement? Answer: No.] The filing of the petition for relief from judgement with the trial court was an unequivocal admission that the period of appeal had already expired; therefore, it presupposes a final judgement, which is already final and executory. It can neither be amended nor modified. ³[N]othing is more settled in the law than that when a final judgment becomes executory, it thereby becomes immutable and unalterable. The judgment may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the Court render it or by the highest Court of the land. The only recognized exceptions are correction of clerical errors or the making of so-called nunc pro tunc entries which cause no prejudice to any party, and, of course, where judgment is void.´ Judgments nunc pro tunc CARDOZA v SINGSON (1990) [Background: A decision promulgated in 1938 and affirmed in 1939 was moved for the issuance of a writ of injunction in 1979. The same year, the Court of Appeals certified the case. No entry of judgement was made, and in 1981, the trial court issued an order that a nunc pro tunc judgement be entered pursuant of the decision, together with the issuance of the writ of injunction. The losing party now claims grave abuse of discretion in the entry of judgment nunc pro tunc and the issuance of the writ of execution.] The issuance of a nunc pro tunc order was recognised in Lichauco v Tan Pho where an order or judgment actually rendered by a court at a former time had not been entered of record as rendered. There is no doubt that such an entry operates to save proceedings had before it was made. Additional Notes: Nunc pro tunc literally means ³then as now.´ It contemplates the situation where there is a failure of expression or articulation, and an exception to the general rule that final judgements cannot be ³substantially´ altered. There is no substantial alteration in this case because judgements subject to retroactive corrections usually have clerical errors. Annulment of Judgment TOP MANAGEMENT PROGRAMS CO. v CA (1993) [Background: The title to a land was awarded to the lawyers who litigated for the landowners and the decision has become

Page 16 of 20 final and executory. Plaintiff comes to Court as a third party seeking annulment of the judgement based on extrinsic fraud.] A person need not be a party to the judgement sought to be annulled, however, it is still essential that he prove his allegation that the judgement was obtained by the use of fraud and collusion and he would be adversely affected thereby. This kind of extrinsic or collateral fraud is defined as any fraudulent act of the prevailing party in the litigation which is committed outside of the trial of the case, whereby the defeated party has been prevented from exhibiting fully his side of the case, by fraud or deception practiced on him by his opponents. Relief is granted on the theory that by reason of this extrinsic or collateral fraud, there has never been a real contest before the court of the subject matter of the action. PALUWAGAN NG BAYAN v KING (1989) [Background: The officers of Mercantile Finance Corporation were not properly served summons and were held liable by a Compromise Agreement and decision entered into by an unauthorised counsel. They sought a petition for relief from judgement.] An action to declare the nullity of a void judgment does not prescribe. Vda. De Macoy vs CA A void judgment never acquires finality. It can be attacked anytime. An action to declare the nullity of a void judgment does not prescribe.

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RULE 37: NEW TRIAL RECONSIDERATION Grounds and Nature
Commission on Internal Revenue v. A. Soriano Co. The provisions of R37 of the RoC are applicable to motions for new trial before the CTA. Requisites for newly discovered evidence as a ground for new trial are: (1) the evidence was discovered after the trial (2) such evidence couldn¶t have been discovered and produced at the trial with reasonable diligence and (3) that it is material, not merely cumulative, corroborative or impeaching and is of such weight that, if admitted, will probably change the judgment.

Motion for New Trial
Agulto vs CA A distinction should be made between a Motion for New Trial and Motion to Reopen Trial. A Motion for New Trial may be filed after judgment but within the period for perfecting an appeal. A Motion to Reopen Trial may be presented only after either or both parties have formally offered and closed their evidence, but before judgment. There is no specific provision in the Rules of Court for Motions to Reopen Trial. It is albeit a recognized procedural recourse, deriving validity and acceptance from long established usage. A Motion for New Trial may be applied for and granted only upon specific and well defined grounds set forth in Rule 37. On the other hand, the reopening of a case for the reception of additional evidence after a case has been submitted for decision but before judgment is actually rendered is controlled by no other rule than that of the paramount interest of justice, resting entirely in the sound judicial discretion of the Trial Court. Velasco vs Ortiz UP Law 2012

CIVPRO Ratio Reviewer | Dean MVFL AY 2009-2010, 2nd Semester Failure to comply with the reglementary period for filing a motion for new trial due to pressure of work cannot be considered as excusable negligence that would warrant relief from judgment. Requisites of Motion for New Trial on the ground of newly discovered evidence. 1. The evidence had been discovered after trial. 2. The evidence could not have been discovered during trial even with the exercise of reasonable diligence. 3. The evidence is material not merely corroborative, cumulative or impeaching and is of such wait that if admitted, would probably alter the result. Tumang vs CA Newly discovered evidence need not be newly created evidence. It may and does commonly refer to evidence already in existence prior or during trial but which could not have been secured and presented despite reasonable diligence on the part of the party offering it. Evidence already in existence or available before or during trial which could have been presented and offered in evidence were it not for oversight or forgetfulness of the party or his counsel (forgotten evidence) is not newly discovered evidence under the Rules of Court. For evidence to be considered as newly discovered what is essential is that the offering party had exercised reasonable diligence to locate it before or during trial, but had nonetheless failed to secure it.

Page 17 of 20 by mistake, or was obtained by fraud, and other similar cases, as when the applicant had no notice of the trial, we ruled that an affidavit of merit is unnecessary. - Estoppel runs against a party who actively participates in the proceedings (just to not leave out anything). Conde v. IAC (1986) - Fraud is regarded as extrinsic or collateral where it has prevented a party from having a trial or from presenting all of his case to the court. In the case at bar, the fraud was in the nature of documents allegedly manufactured. Hence, it is intrinsic in nature. Meralco v. CA (1990) - 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. as where petitioner could have proceeded by appeal to vacate or modify the default judgment - Being a special remedy, a petition for relief is available only under exceptional circumstances in which equity and justice will prompt the court to give the petitioner a last chance to defend his right or to protect his interest. - The failure of petitioner¶s counsel to attend the pre-trial hearing is not excusable to justify the grant of relief. Villa Rey Transit v. Far East Motor Co. (1978) - A petition for relief presupposes a final and unappealable judgment. David v. CA (1992) - A petition for relief from judgment under Rule 38 presupposes a final judgment or loss of the right to appeal. - Sir¶s discussion: A judgment based on a compromise immediately becomes a final judgment Reason: waiver of taking an appeal. Note: The Court here ruled that the compromise agreement in this case was not proper as it was neither aimed to avoid litigation nor put an end to the cases already commenced between the parties.

Motion for Reconsideration
Habaluyas vs Japson Effective June 1, 1986, no motion for extension of time to file a motion for new trial or reconsideration may be filed with MTCs, RTCs, and the CA. Such amotion may be filed only in cases pending with the Supreme Court. Director of Lands vs Aquino A motion for new trial or reconsideration is not a prerequisite to an appeal, petition for review, or a petition for review on certiorari. Pojas vs Gozo-Dadole Motion for new trial must comply with the general rules on motions under Rule 15. A motion which does not meet the requirements is a considered a worthless piece of paper. The clerk has nor right to receive and the court has no authority to act on it. Fernan v. CA Every court has the power and the duty to review and amend or reverse its findings and decisions when its attention is timely called to any error or defect therein.

Time for Filing
First Integrated Bonding v. Hernando

Contents
Garcia v. CA, supra Dulos v. CA - A motion for reconsideration of a judgment of default may be considered a petition for relief under Section 2, Rule 38 only if the following requisites are present: a) it must be verified b) it must be filed within 60 days from the time petitioner learns of the decision but not more than 6 months from entry thereof c) in case of failure to file an answer, the motion must be accompanied by affidavits of merit showing the eFAME relied upon. - A motion for reconsideration may be considered a motion for new trial under Section 2, Rule 37, if it is accompanied by an affidavit of merit.

RULE 38: RELIEF FROM JUDGMENTS, ORDERS OR OTHER PROCEEDINGS Grounds and Nature
Garcia v. CA (1991) - A petition for relief from judgment must be accompanied with affidavits showing the fraud, accident, mistake or excusable negligence relied upon, and the facts constituting the petitioner¶s good and substantial cause of action or defense. - The affidavit of merit serves as the jurisdictional basis for a court to entertain a petition for relief, except for certain exceptions²i.e., where the attachment of the affidavit of merit in the petition for relief is unnecessary. Where there was no jurisdiction over the defendant or the subject matter of the action, where a judgment was taken by default before defendant¶s time to answer has expired, where it was entered

Proceedings
David v. CA, supra Cheeseman v. IAC It is not necessary that that prayer in a petition for a relief from judgment be the same prayer in the petitioner¶s complaint or in other pleadings. An order of a court granting a petition for relief under Rule 38 is interlocutory and is not appealable. Hence, the failure of the party who opposed the petition to appeal from such order or his participation in it, cannot be construed as a waiver of his objection to the

UP Law 2012

CIVPRO Ratio Reviewer | Dean MVFL AY 2009-2010, 2nd Semester petition for relief so as to preclude him from raising the same issue on appeal of the main case. Such a party need not repeat his objections to the petition for relief, or perform any act thereafter in order to preserve his right to question the same eventually, on appeal, it being sufficient for this purpose that he has made of record the action which he had desires the court to take of his objection to the action. Service Specialists v. Sheriff of Manila Petition for relief from judgment should be filed in the same case and in the same branch of the court which rendered the judgment from which relief was sought. A judgment or order denying relief is final and appealable while an order granting such relief is interlocutory. The rule is that in the course of an appeal from the denial or dismissal of a petition for relief from judgment, a party may also assail judgment the merits. However, the court may not reverse or modify a judgment which has already become final and executory. The purpose of the rule is to enable the appellate court to determine not only the existence of any of the grounds relied upon whether it be fraud, accident or execusable negligence, but also and primarily, the merit of the petitioner¶s cause of action or defense, as the case may be. If one of the grounds exists, the petition will prosper. If the petition for relief is against an order disallowing an appeal filed out of time and the petition is dismissed, the appeal from the denial or dismissal must apprised the appellate court of the merits of the case.

Page 18 of 20 Transactions entered into by the GSIS are within the ambit of the people¶s right to be informed but it does not include the right to compel custodians of official records to prepare lists, abstracts, summaries and the like. Revilla v. CA The lower court¶s observation on the credibility of the evidence is respected by the Supreme Court.

PROVISIONAL REMEDIES Rule 57: Preliminary Attachmant
Oñate v. Abrogar A writ of preliminary attachment may be validly applied for and granted even before the defendant is summoned or is heard from. The ratio behind this is that a preliminary attachment may be defined as the provisional remedy in virtue of which a plaintiff or other party may, at the commencement of the action or anytime thereafter, have the property of the adverse party taken into the custody of the court as security for the satisfaction of any judgment that may be recovered. An attachment may not be dissolved by a showing of its irregular or improper issuance if it is upon a ground which is at the same time the applicant¶s cause of action in the main case. The enforcement of the writ of attachment may not validly be effected until and unless proceeded or contemporaneously accompanied by service of summons. An exception to this is where a previous attempt to serve the summons and the writ of attachment failed due to factors beyond the control of either the plaintiff or the process server, provided that such service is effected within a reasonable period thereafter. In examinations conducted pursuant to Sec. 10 Rule 57 of the RoC, notice need only to be given to the garnishee except when there is need to examine the defendant K.O. Glass Construction Co., Inc. vs Valenzuela Requisites for issuance of a writ of attachment: Under the Rules, an affidavit must state that (1) a sufficient CoA exists (2) the case is one of those mentioned in Rule 57 Section 1(a) (3) there is not other sufficient security for the claim sought to be enforced by the action; and (4) the amount due to the applicant for attachment 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. Writ of attachment should be dissolved once defendant files a counterbond. Perla Compania de Seguros, Inc. vs Ramolete Garnishment is a species of attachment for reaching any property or credits pertaining or payable to a judgment debtor. In legal contemplation, it is a forced novation by the substitution of creditors. It is a warning to a person having in his possession property or credits of the judgment debtor not to pay the money or deliver the property to the latter, but rather to appear and answer the plaintiff¶s suit. All that is necessary for the TC to lawfully bind the person of the garnishee or any person who has in his possession credits belonging to the judgment debtor is service upon him of the writ of garnishment. Peroxide Philippines Corp. vs CA When an attachment is challenged for having been illegally or improperly issued, there must be a hearing with the burden of proof to sustain the writ being on the attaching creditor. And the attaching creditor should be allowed to oppose the UP Law 2012

Remedies
Ramirez v. CA There is no means whereby a defeated party may set aside a judgment which has already became final and executor unless a) the judgment is void for want of jurisdiction or for lack of due process or law or b) it has been obtained by fraud. Alvenida v. IAC There is no justification in law and in fact for a reopening of a case which has long become final and which has in fact been executed.

DISCOVERY
Republic v. Sandiganbayan The various modes or instruments of discovery are meant to serve 1) as a device, along with the pre-trial hearing under Rule 20, to narrow and clarify the basic issues between the parties and 2) as a device for ascertaining the facts relative to those issues. The basic purpose is to let the parties obtain the fullest possible knowledge of the issues and facts before trial. The inquiry extends to all facts which are relevant, excepting only those which are privileged. Thus, modes of discovery such as a) depositions b) interrogatories and c) request for admissions may be availed without leave of court and generally, without court intervention. Leave of court is only necessary in case there is no answer filed yet. The reason for this is that before an answer is filed, the issues are not clear yet. On the other hand leave of court is necessary in case the mode is a) production or inspection of documents or things or b) physical and mental examination of persons which shall be granted upon due application and after showing good cause. Bribonera v. CA and Po v. CA A party should not be forced to admit facts already admitted by his pleadings, nor should a party be compelled to make a second denial. Valmonte v. Belmonte

CIVPRO Ratio Reviewer | Dean MVFL AY 2009-2010, 2nd Semester application for discharge of the attachment by counteraffidavit or other evidence, in addition to that on which the attachment was made (Rule 57 Sec. 13). The ex parte discharge or suspension of the attachment is a disservice to the orderly administration of justice and nullifies the underlying role and purpose of preliminary attachment in preserving the rights of the parties pendente lite as an ancillary remedy. The proceeding in the issuance of a writ of preliminary attachment, as a mere provisional remedy, is ancillary to an action commenced at or before the time when the attachment is sued out. The judgment in the main action neither changes the nature nor determines the validity of the attachment. Consolidated Bank and Trust Corp. vs CA A writ of attachment may be ordered issued even ex parte, provided that there is compliance with Sec. 3 Rule 57. The absence of notice or hearing is allowed on the ground that the defendant might abscond or dispose of his property before a writ of attachment is actually issued. The judge has full discretion in considering the supporting evidence of the applicant. Towers Assurance Corporation vs Ororama Supermart Under Sec 17, so that the judgment creditor may recover from the surety on the counterbond, it is necessary (1) that execution be first issued against the principal debtor and that such execution was returned unsatisfied in whole or in part (2) that the creditor made a demand upon the surety for the satisfaction of the judgment; and (3) that the surety be given notice and a summary hearing in the same action as to his liability for the judgment under the counterbond. Santos vs CA Certiorari will not lie when the remedy of appeal is available. The rule that recovery of damages on account of the issuance of a writ of attachment cannot be subject of a separate action, is not applicable where damages are sought not because the writ of attachment was illegally or wrongfully issued by the court, but because said writ was caused to be levied upon the property of the plaintiff which was not a party in the case where the attachment was issued.

Page 19 of 20 complainant does not have the right that he claims, he is not entitled to an injunction to prevent a violation of such supposed right. Injunction, like other remedies, will issue only at the instance of a suitor who has sufficient interest or title in the right or property sought to be protected. A court of equity has no power to issue an injunction where only abstract rights are involved. For the court to act there must be an existing basis of facts affording a present right which is directly threatened by the act sought to be enjoined. The complainant¶s right or title, moreover, must be clear and unquestioned, for equity, as a rule, will not take cognizance of suits to establish title, and will not lend its preventive aid by injunction where the complainant¶s title or right is doubtful or disputed. The possibility of irreparable damage, without proof or violation of an actually existing right, is no ground for an injunction, being merely damnum absque injuria. Merville Park Homeowners Association, Inc. v. Velez A preliminary mandatory injunction is not a proper remedy to take property, possession of which is being disputed, out of the possession and control of one party and to deliver the same to the other party. It may issue pendent elite only in cases of extreme urgency, where the right to the possession, during the pendency of the main case, of the property involved is very clear; where considerations of relative inconvenience bear strongly in favor of the complainant seeking possession pendente lite; where there was willful and unlawful invasion of plaintiff¶s rights, over his protest and remonstrance, the injury being a continuing one; where the effect of the preliminary mandatory injunction is to reestablish and maintain a pre-existing and continuing relationship between the parties, recently and arbitrarily interrupted by the defendant, rather than to establish a new relationship during the pendency of the principal case. It is for the party requesting the writ to demonstrate clearly the presence of one or more of the above grounds. Gilchrist v. Cuddy (1915) Interference of contracts, while actionable, does not of itself entitle the plaintiff to the remedy of injunction. Injunction will only be proper when the plaintiff will suffer irreparable injury. The Court will grant the relief where the profits of the injured person are derived from his contractual relations with a large and indefinite number of individuals, thus reducing him to the necessity of proving in an action against the tortfeasor that the latter was responsible in each case for the broken contract, or else obliging him to institute individual suits against each contracting party and so exposing him to a multiplicity of suits. By ³irreparable injury´ is not meant such injury as is beyond repair, or beyond possible compensation in damages, nor necessarily great injury or great damage, but that species of injury, whether great or small, that ought not to be submitted to on the one hand or inflicted on the other; and, because it is so large on the one hand, or so small on the other, is of such constant and frequent recurrence that no fair or reasonable redress can be had therefor in a court of law. Social Secuity Commission v. Bayona An irreparable injury to authorize an injunction consists of a serious charge of, or is destructive to, the property it affects, either physically or in the character in which it has been held and enjoined, or when the property has some peculiar quality or use, so that its pecuniary value will not fairly recompense the owner of the loss thereof. An irreparable injury does not have reference to the amount of damages that may be caused but rather to the difficulty of measuring the damages inflicted. If full compensation can be

Rule 58: Preliminary Injunction
Bataclan, et al. v. CA, et al. (1989) A writ of preliminary injunction may be issued to maintain the status quo between the parties existing prior to the filing of the case until the issue on their status shall have been determined after trial. A writ of preliminary injunction, as an ancillary or preventive remedy, may only be resorted to by a litigant to protect or preserve his rights or interests and for no other purpose during the pendency of the principal action. In the issuance thereof, the courts are given sufficient discretion to determine the necessity for the grant of the relief prayed for as it affects the respective rights of the parties, with the caveat that extreme caution be observed in the exercise of such discretion. Quintessentially, it is with an equal degree of care and caution that courts ought to proceed in the denial of the writ. It should not just summarily issue an order of denial without an adequate hearing and judicious evaluation of the merits of the application. A perfunctory and improvident action in this regard would be a denial of procedural due process and could result in irreparable prejudice to a party. Bacolod-Murica Milling v. Capitol A writ of preliminary action will not issue unless the plaintiff shows that he is entitled to the relief demanded and that the complaint in the action is verified, and shows facts entitling the plaintiff to the relief demanded. Where it is clear that the

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CIVPRO Ratio Reviewer | Dean MVFL AY 2009-2010, 2nd Semester obtained by way of damages, equity will not apply the remedy of injunction. Zabat v. CA, et al. (2000) As a rule, injunction is not granted to take property out of the possession or control of one party to be placed into that of another whose title has not been clearly established by law. For the issuance of the writ of preliminary injunction to be proper, it must be shown that the invasion of the right sought to be protected is material and substantial, that the right of complainant is clear and unmistakable and that there is an urgent and paramount necessity for the writ to prevent serious damage.

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Rule 59: Recievership
Commodities Storage v. CA A receiver of real or personal property, which is the subject of the action, may be appointed by the court when it appears from the pleadings or such other proofs as the judge may require, that the party applying for such appointment has (1) an actual interest in it; and (2) that (a) such property is in danger of being lost, removed or materially injured; or (b) whenever it appears to be the most convenient and feasible means of preserving or administering the property in litigation. 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 based on facts and circumstances of each particular case.

Rule 60: Replevin Rule 61: Support Pendente Lite
Ramos v. CA In cases of support pendente lite, the court should allow the defendant to present evidence for the purpose of determining whether it is sufficient, prima facie, to overcome the application of for support pendente lite (i.e. adultery of the wife and child is fruit of adulterous relation). As defense should be established and not merely alleged, it would be unavailing if proof thereof is not permitted. It is not necessary to go fully into the merits of the case. It is sufficient that the court ascertain the kind and amount of evidence it may deem sufficient to enable it to justify resolve the application, one way or the other, in view of the mere provincial character of the resolution to be entered. As the confirmation of the order of recognition may said to be relate back to the date of the original decision, it lies within the discretion of the TC to direct the father to give support pending appeal [in view of child¶s poverty, it would be a travesty of justice to refuse support]. CA may grant alimony pendent lite. Reyes v. Ines-Luciano Adultery of wife as a defense must be established by competent evidence. Mere affidavits may satisfy the court to pass upon the application of support pendente lite. It is enough that the facts be established by affidavits or other documentary evidence appearing in the record.

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