CIVPRO Reviewer | Dean M. V. F.

Leonen | AY 2009-2010, 2nd Semester

Page 1 of 54 How long? Continuously for period of not less than 3 weeks 3. APPOINTMENT 399 (d) o PB shall take into consideration oppositions and recommendations to proposed appointment made during the period of posting o When? Within 10 days after posting o How? Appointment shall be in writing, signed by PB and attested to by the secretary 4. POSTING of approved members 399 (e) o Where? 3 conspicuous places in the barangay o How long? For the entire duration of their term 5. If majority of inhabitants are members of indigenous cultural communities, local system of dispute resolution through their council of elders or datus shall be recognized without prejudice to the applicable provisions of this Code. 399 (e) 6. OATH of office o Before the PB o TERM: 3 years unless sooner terminated by: y Resignation y Transfer of residence OR place of work y Withdrawal of appointment by the PB, with the concurrence of the majority of all the members of the lupon Vacancies 401 PB shall immediately appoint a qualified person Hold office only for the unexpired portion of the term o

CAVEAT: If you are not Karichi and you use this as reference for CivPro under Dean Leonen, you are a CHEATEEEEEEER!!! LOL? NO SERIOUSLY. Use at your own risk.
Part I. Dispute Resolution in General
RA 7160, BOOK III, TITLE I, CHAPTER VII (KATARUNGANG PAMBARANGAY)
LUPONG TAGAPAMAYAPA A. Composition 399 (a) Punong barangay (hereinafter PB) as the chairman Barangay Secretary as the lupon secretary Duties of lupon secretary 399 (a) 1. Record the results of mediation proceedings before PB 2. Submit a report thereon to proper city/muni court 3. Receive and keep the records of proceedings submitted to him by the various conciliation panels 10 to 20 members, to be appointed by the punong barangay B. Term Constituted every 3 years 399 (a) C. Functions 402 1. Exercise administrative supervision over the conciliation panels (i.e. pangkat ng tagapagkasundo) 2. Meet regularly once a month to: a. Provide a forum for exchange of ideas among its members and the public on matters relevant to amicable settlement of disputes b. Enable various conciliation panel members to share with one another their observations and experiences in effecting speedy resolution of disputes 3. Exercise such other powers AND perform such other duties and functions as may be prescribed by law or ordinance D. Powers 420 Administer oaths in connection with any matter relating to ALL proceedings in the implementation of KP E. Qualification of members 399 (b) 1. Actually residing OR working in the barangay 2. Not otherwise expressly disqualified by law Disqualifications 410 (d) a. Relationship b. Bias c. Interest d. Any other similar ground discovered AFTER the constitution of the pangkat 3. Possessing: a. Integrity b. Impartiality c. Independence of mind d. Sense of fairness e. Reputation for probity F. Procedure for appointing the members of the lupon 1. NOTICE to constitute lupon 399 (c) o Contains what? Names of proposed members, who have expressed willingness to serve o By whom? Prepared by the punong barangay o When? Within first 15 days from start of his term 2. POSTING of proposed members 399 (c) o Where? In 3 conspicuous places in the barangay

G.

COVERAGE OF KATARUNGANG PAMBARANGAY 408 A. Parties actually residing in the same city or municipality B. Exceptions: 1. Where one party is the government, or any subdivision or instrumentality thereof 2. Where one party is a public officer or employee, AND the dispute relates to the performance of his official functions 3. Offenses punishable by imprisonment exceeding 1 year OR a fine exceeding P5000 4. Offenses where there is no private offended party 5. Where the disputes involves real properties located in different cities or municipalities, unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon 6. Dispute involving parties who actually reside in barangays of different cities or municipalities, except where [1] such barangay units adjoin each other AND the [2] parties agree to submit their differences to amicable settlement by an appropriate lupon 7. Such other classes of disputes which the President may determine in the interest of justice OR upon the recommendation of the Secretary of Justice. The court in which non-criminal cases not falling within the authority of the lupon under this Code are filed may, at any time before trial, motu proprio refer the case to the lupon concerned for amicable settlement VENUE A. Where to file complaint? 408 1. Same barangay: lupon of said barangay 2. Different barangay within same city/municipality: a. If only one respondent barangay of respondent b. If several respondents complainant chooses 3. Real property or interest therein: location of property OR the larger portion thereof Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester 4. B. Arising at workplace/institution: location of such workplace/institution Objections to venue 408 (d) 1. Raised in the mediation proceedings before the PB 2. Failure to do so, it shall be deemed waived 3. Legal questions which may confront the PB in resolving questions to venue o may be submitted to Secretary of Justice or his duly designated representative o any ruling thereof shall be binding 3.

Page 2 of 54 In case of vacancy (e.g. disqualified under 410 d): parties choose again OR in case of failure, PB draws lots again 405 4. 3 members constituting the pangkat shall elect a chairman and secretary (in effect, isa lang yung walang title hehe) -Duties of the pangkat secretary: o Prepare minutes of pangkat proceedings o Submit a copy (duly attested to by lupon chair) to the lupon sec and proper city/muni court o Issue and cause to be served notices to the parties o Issue certified true copies of any public record in his custody that is not by law otherwise declared confidential Conciliation proceedings 410 (d) 1. Convene not later than 3 days from constitution, on the day and hour set by the lupon chair 2. What they ought to do: o Hear both parties and their witnesses o Simplify issues o Explore all possibilities for amicable settlement 3. Has the power to issue summons for personal appearance of parties and witnesses before it Disqualification of a member 410 (d) Due to relationship, bias, interest or other similar grounds Resolve by affirmative vote of majority of the pangkat (i.e. two votes Decision shall be final no remedy if decided against the movant because after all, it s not as if you ll agree. Resulting vacancy filled by the procedure earlier mentioned Period to arrive at a settlement OR resolution 410 (e) It also has a deadline: Within 15 days from day it convened Extendible at the discretion of pangkat: Only for 15 days, except in clearly meritorious cases Pre-condition to filing of complaint in court (this is where we learn that it is a condition precedent) 412 (a) Lupon/pangkat sec must issue a certification (attested by the chairman) that: A. Certification to file action 1. There has been a confrontation between the parties before the lupon chair (i.e. PB) 2. No conciliation or settlement has been reached B. Certificate of repudiation settlement has been repudiated by the parties thereto Where parties may go directly to court 412 (b) 1. Accused is under detention 2. Person has otherwise been deprived of personal liberty calling for habeas corpus proceedings 3. Actions are coupled with provisional remedies e.g. prelim injunction, attachment, delivery of personal property (replevin) and support pendente lite 4. Action may otherwise be barred by the statute of limitations

PROCEDURE There are actually three possible phases/proceedings in Katarungang Pambarangay. I say possible because while the first two are mandatory (i.e. condition precedent for filing a civil action) the third one is completely optional. 1. 2. 3. Mediation before the PB Failing that: Conciliation before the pangkat ng tagapagkasundo or conciliation panels At any stage of the proceedings AND by agreement of the parties: Arbitration before the lupon chair OR pangkat

C.

D.

SUSPENSION OF PRESCRIPTIVE PERIOD OF OFFENSES 410 (b) y All these proceedings (mediation, conciliation and arbitration) toll the running (i.e. suspend/interrupt) of the prescriptive periods for offenses AND cause of actions upon filing of the complaint with PB. y It shall resume upon receipt by the complainant of certificate of repudiation OR certificate to file action issued by pangkat/lupon secretary. y However, the interruption shall not exceed 60 days. Therefore, this means that there is a time bar for the entire KP proceeding. MEDIATION A. Filing of the complaint 410 (a) 1. Who may file? Any individual who has a cause of action against another, involving any matter within the authority of the lupon 2. Where? With the lupon chairman of the barangay i.e. PB 3. Form? May be [1] orally OR [2] in writing B. Mediation by lupon chairman 410 (b) 1. Summon the respondent (When? Within next working day after receipt of complaint) 2. Notice to the complainant & witness to appear before him C. If he succeeds: Amicable settlement 411 1. In writing 2. Language/dialect known to them 3. Signed by the parties 4. Attested to by the lupon/pangkat chairman D. If he fails in his mediation efforts: Proceed to conciliation 1. Within 15 days from first meeting (i.e. PB s fixed deadline to effect a mediation) 2. Set a date for the constitution of the pangkat CONCILIATION A. Constitution of the pangkat 404 1. Constitute for each dispute brought before the lupon 2. When? After the mediation proceeding failed (i.e. lapse of 15 days without amicable settlement) B. Composition 404 1. Parties choose 3 members from the list of lupon members 2. If they fail to agree on pangkat membership: PB draws lots

E.

F.

G.

ARBITRATION 413 A. When allowed? At any stage of the proceedings B. How entered into? 1. Agreement of parties in writing ( agreement to arbitrate ) 2. That they shall abide by the arbitration award of lupon chair OR pangkat (kasi nga it may be done in either stage) C. Repudiation of agreement to arbitrate 1. When allowed? With 5 days from the date thereof (only half of the period allowed for settlements and arb awards) 2. Procedure? See separate heading for Repudiation D. Arbitration award 1. In writing Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester 2. In a language or dialect known to the parties
y y y

Page 3 of 54 Implication: KP is mandatory for the complainant but optional for the respondent. What does a mediator do? It s a go-between. Kalinga s warring tribes and mansasakusa. The Brad Pitt ambition dispute but then he s gay so him first before me. What is the difference of amicable settlement from any other contracts? What is its consequence that does not visit other contracts? It has the effect of a final judgment, it goes directly to enforcement. Execution without the need of going to the court. Is there default in KP like in Rule 9.3 for failure to appear? No. There are reasons why it s not possible. 1. Law does not grant authority to the PB to cite a party in default, because he does not adjudicate, only mediates. He is part of the LGU which is under executive, hence how can you apply an issuance of the judiciary to another branch without violating the principle of separation of powers? 2. We cannot assume that ROC applies to an out of court or quasi-judicial proceeding. Appeal is not available in amicable settlement. It s final. It is decided by parties coming to a meeting of the mind. No sense bringing it to court for reinterpretation. Why not allowed to appeal an amicable settlement? What does an adjudicator do that a mediator doesn t? Trial, i.e. evaluation of the evidence as to the existence of constitutive facts and whether the law has been validly invoked. Whether or not the cause of action exists. Question of fact, question of law. Evidence. Repudiation: After the 10 day period can counsel now be present? Yes. To represent the party? No. ARBITRATION Arbitral award More party autonomy as to who decides and how to decide Choice of procedure: may be institutional (e.g. UNCITRAL), ad hoc (e.g. 3 hearings only, memorandum) Evidence Arbitrators have market incentive. They are chosen because of the quality and acceptability of their arb awards. They are not necessarily lawyers but it s better if they are. 1M upfront for arbitration which will stand a lifetime and with more satisfactory results.

PROCEEDINGS 414 A. Public and informal B. Exception: exclude the public from the proceedings in the interest of privacy, decency or public morals C. How to invoke the exception? Motu proprio by lupon/pangkat chair OR upon request of a party D. Appearances 414 1. Always appear in person 2. No lawyers or representatives allowed Exception: Minors and incompetents, assisted by their nextof-kin who are not lawyers EFFECT OF AMICABLE SETTLEMENT & ARBITRATION AWARD 416 A. Have the force and effect of a final judgment [Implication: No longer appealable kasi it s as if the 15 day appeal period has lapsed and judgment already entered] B. Exception: Court referred cases under 408 (g) in which case: Compromise settlement agreed upon by the parties before the lupon/pangkat chair shall be [1] submitted to the court and [2] only upon approval thereof shall it have the force and effect of a judgment of said court s C. When to have force and effect of an FJ? Upon expiration of 10 days (i.e. period to repudiate) Exception to the force and effect of an FJ: repudiation of settlement OR petition to nullify the award has been filed before the proper city or municipal court REPUDIATION 418 A. Who may repudiate? Any party to the dispute B. When? Within 10 days from the date of settlement C. How? 1. File with the lupon chair 2. What? Statement to that effect, sworn to before him (PB) D. Grounds? Consent is vitiated by FVI: fraud, violence or intimidation E. Effect? Sufficient basis for issuance of CTFA EXECUTION 417 A. 6 months from date of settlement execution by the lupon B. After the lapse of such time execution by action in the appropriate city or municipal court TRANSMITTAL OF SETTLEMENT AND ARB AWARD TO COURT 417 A. Duty of the lupon sec to transmit the settlement/arb award to the appropriate city/muni court B. When? Within 5 days from date of award OR from lapse of 10 day period repudiating the settlement C. Duty of the lupon sec to furnish copies to o Each of the parties o Lupon chairman Dean s discussion: y Supposing a complainant who resides in QC wants to file a case against two respondents, one lives in QC and the other in Makati. y Does the lupon ever meet as a body? y Then he goes ballistic. You want to be a LAWyer, not a caser, jurisprudence, articleser. Law is about remembering. You clutch tightly. You eat, sleep and die with law. y Failure to do a condition precedent may be waived. How? When it is not seasonably raised before an answer is filed.

ADJUDICATION Judgment Rules of procedure strictly laid down in the RoC

Always Philippine laws (or conflicts of law) Judges are promoted regardless of the quality of their decisions (rumors that he s on the tape)

1M for the entire procedure 5K for every appearance

Galuba v Laureta y Any party who fails to avail himself of the remedy (repudiation within 10 days) must face the consequences of the amicable settlement as he can no longer file an action in court to redress his grievances. y Amicable settlement and arb award have the force and effect of FJ unless repudiation has been made within the 10 day period or a petition for nullification of award has been filed in court. y P.D. 1508 does not provide for a judicial procedure for the annulment of an amicable settlement, because the remedy of repudiation supplants the remedy of a court annulment. y Petition for nullification refers to an arbitral award and not to an amicable settlement. Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester

rd

Page 4 of 54 arbitrators to appoint the 3 arbitrator within 10 days from notice By court order a. Parties are unable to agree upon a single arbitrator b. Arbitrator appointed is unwilling or unable to serve AND his successor has not been appointed in the manner in which 1st one was appointed c. In case of 3 arbitrators: Either party fails or refuses to name his arbitrator within 15 days after receipt of demand for arb d. In case of 3 arbitrators: Arbs appointed by each party OR appointed by party and the court fail to agree upon or select the third arb e. If agreement is silent as to number of arbitrator: court s discretion according to the importance of the controversy

Morata v. Go y Extent of authority of the lupon covers all types of disputes. y 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 competence of the metropolitan and municipal trial courts, but for actions cognizable by the regional trial courts as well. Royales v. IAC y 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. y The remedy is a MOTION TO DISMISS on the ground of FAILURE TO COMPLY WITH A CONDITION PRECEDENT, NOT lack of jurisdiction.

2.

D.

RA 876 (ARBITRATION LAW)

A. How entered into? 1. Submission to arbitration existing controversy 2. Arbitration clause in a contract controversy that may thereafter arise Both submission and contract are valid, enforceable and irrevocable, save upon legal grounds to revoke a contract Must be in writing, subscribed by the party sought to be charged Deemed a consent of parties to the jurisdiction of RTC where any parties reside to enforce such contract/submission How instituted? 1. Contract to arbitrate - By service by either party of demand for arbitration - Contents of demand: a. Nature of controversy b. Amount involved c. Relief sought d. True copy of the contract providing for arbitration 2. Submission to arbitration - By filing with the CoC of RTC having jurisdiction of the submission agreement - Filed by any party but executed by both - Contents of the submission agreement: a. Nature of controversy b. Amount involved - If neglect/fail/refuse to arbitrate: send demand like No. 1 3. In case of default in answering the demand - File with the CoC: copy of the demand AND notice of service to the other party - Petition for order directing arbitration to proceed in the manner agreed upon Appointment of Arbitrator 1. By demand for arbitration a. Single arbitrator: set forth specific time within which parties shall agree upon such arbitrator b. Three arbitrators: Name the appointed arbitrator, require the other party to name his within 15 days from receipt, notify the 1st party and require the two

B.

Arbitrators; Qualifications and Challenge of 1. Qualifications a. Of legal age b. In full enjoyment of civil rights c. Know how to read and write d. Not related by blood or marriage within 6th degree to either party e. No financial, fiduciary or other interest in controversy or cause to be decided or result of the proceeding f. No personal bias which might prejudice the right of any party to a fair and impartial award g. Not to advocate party s cause or act as his champion 2. Grounds for challenge: Failure to meet any of qualifications; arisen after the arbitration agreement OR were unknown at the time of arbitration 3. Procedure to challenge a. Challenge before the arbitrator himself b. If he does not yield: Renew challenge with the RTC where the challenged arbitrator reside Arbitration proper 1. Arbitrators shall: a. set time and place for the hearing b. cause notice to be given to each party c. may proceed even if one party is absent BUT shall not make an award solely on default of a party d. set adjournment upon own motion and only at the hearing and for a good cause 4. Who may be present? a. Party to said arbitration b. Person in his regular employ, duly authorized in writing c. Practicing atty at law but the party desiring to be represented by counsel shall notify the other party of such intention, at least 5 days prior to hearing d. Persons having direct interest in the controversy e. Other persons discretion of the arbitrator 5. ORAL HEARING a. Arb asks parties for: brief statement of issues AND agreed statement of facts b. Parties may offer such evidence AND produce such additional evidence c. Arb shall receive evidence and identify them. d. Exhibits to remain in custody of CoC and returned to parties at the time award is made. e. Ocular inspection by arbitrators f. Close hearing 6. WRITTEN SUBMISSIONS (in lieu of a hearing) Karichi E. Santos | UP Law 2012

E.

C.

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester c. Only by agreement of parties in writing d. Submission of arguments and documents e. Opportunity to reply Reopening a. When? After closing BUT before award is rendered b. How? Motu proprio of arbs OR upon request of party 1.

Page 5 of 54 When? Upon the grant of the order confirming, modifying or correcting the award

7.

K.

Appeals 1. Appeal: any order made in the proceeding under this Act 2. Certiorari: judgment entered upon an award

F.

Arbitral Award 1. When ? Absent stipulation, within 30 days after closing of hearing or declaration of the closing (if written submission) Except: extended by mutual consent of the parties 2. Form? In writing, singed and acknowledge by majority of arbitrators 3. Contents: grant remedy or relief which they deem just and equitable; within the scope of agreement of parties; only those matter submitted to them 4. In case of settlement: Parties may request of the arb that such settlement be embodied as an award signed by the arbitrators Confirming of award 1. When? Within 1 month after award is made 2. Where? Court having jurisdiction 3. Court grants the order unless the award is vacated, modified or corrected Vacating an award 1. Grounds for vacating a. Award was procured by corruption, fraud, or other undue means b. Evident partiality or corruption in the arbitrators or any of them c. Arbitrators were guilty of misconduct in refusing: - to postpone the hearing upon sufficient cause shown - to hear evidence pertinent and material to the controversy d. One or more of the arb was disqualified to act AND willfully refrained from disclosing such disqualifications e. Guilty of any other misbehavior which the rights of any party have been materially prejudiced 2. Effects of vacation a. Court s discretion: Grant new hearing either before the same arb or new arb chosen in the same manner b. Provision of time for rendering an award deemed applicable to the new arbitration, commence from the date of the court s order Correcting/modifying an award 1. Grounds: a. Where there was evident miscalculation of figures or evident mistake in description of things, persons, property referred to in the award b. Where the arbitrators have awarded upon matters not submitted to them, not affecting the merits of the decision upon the matter submitted c. Where the award is imperfect in a matter of form not affecting the merits of the controversy, AND if it had been a commissioner s report, the defect could have been amended or disregarded by the court 2. Action of the court: modify or correct the award in order to: a. Effect the intent of the award b. Promote justice between the parties Judgment

G.

H.

Dean s discussion: y What are the things you look for in a good mediator? Patience, communication skills, creativity. y Being a lawyer is not required, but it is an advantage. Why? 1. Assistance in drafting 2. Outer things not agreed upon, otherwise it will be void ab ignition 3. Reduce expenses y Disadvantages of getting a lawyer? 1. Cost, of course, you still pay billable hours. Unless he s a priest in which case, donation only. 2. Old lawyers have bias for adjudication 3. If mediator not respected by parties, the agreement is likewise not respected. If mediator is good, there ll be harmony and parties will not go beyond the face value of conflicts, no proxies of another conflic1t. y Arbitration award if not repudiated on time becomes nonrepudiatable. It is not the result of the parties agreement. When it is completed, it becomes part of the settlement. The voluntariness stops there because of the arbitration clause. y It is likewise not appealable. y Adjudication is your BATNA. SCRA is a chronicle of lawyer s failures, unless it s La Bugal. y What are the examples of conditions precedent? Final demand in case of default Exhaustion of administrative remedies Katarungang Pambarangay i.e. certificate to file action y However, because you are entitled to dismiss does not mean that you actually have to file. Why? [1] weaker counsel, [2] evidence is already with you at the time of trial, go to trial immediately so you won t have to gather, take and preserve evidence y However, be sure to empower you client and communicate all the possible avenues and the consequences of each Lack of jurisdiction Competence/authority of the court to try, hear and decide a case Failure to comply with condition precedent Vice or defect; failure of the plaintiff to prepare. CoA is already there but the condition present is not complete. Prematurity of CoA Defect in the pleading; CoA not alleged properly in the pleading

I.

Lack of CoA No right-duty correlative or utter lack of breach

RA 9285 (ADR ACT OF 2004)

y

Why ADR and not KP? Do punong barangays run for office because they want to be a mediator? No! They don t campaign for resolution of conflicts. It is in fact a mandated mediator It has no training in proper way. What did ADR 2004 add to the process? What is given priority? ADR or KP?

J.

Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester

y

Page 6 of 54 MTD. Excellent recitation Mr. Baguisi, by saying yes to everything I said. ARBITRATION What are the kinds of arbitration? 1. Domestic a. EO 1008 - construction industry b. RA 876 - domestic c. PD 442 - labor disputes excluded from RA 9285 because it falls under Labor Arb 2. International a. Commercial governed by UNCITRAL b. Non-commercial - not covered by UNCITRAL; international law in general e.g. US-Iran Tribunal Appointment of Arbitrators y It s a critical step because they give an award. y Look at the qualification and challenge impartiality. y Appointing authority: which functions are not accepted by the ADR? y Look at UNCITRAL Procedure and Model Law, what is not adopted? What is amended in RA 876? UNCITRAL y Is it possible to have a domestic corporation fully owned by foreigners? No. But why would foreigners do that? [1] Tax is cheaper here. [2] For purposes of speculation. y What decides whether UNCITRAL applies? y Ang haba. Nakakatamad itype.

Why is ADR alternative ? Why is it not a good label? Because it s as if one thing is more important than the other. Different kinds of ADR Conciliation = negotiation Early neutral evaluation neutral means credible. Give parties a lowdown. If with counsel, it s already partisan. Availability heuristics we tend to believe the first story that comes to us. It is more believed than the response Mini-trial Stage trial where evidence is presented, nonthreatening. The danger here, however, is it might be too long, the limited evidence might get polluted. Mediation-arbitration If parties don t agree, arbitration takes place. Are these compulsory on the parties, by statute, the parties without doing anything? Generally, dispute resolution is consensual. It harks on party autonomy which translates to voluntary and their own arrangements Is ADR a contractual outcome? Yes. They put UNCITRAL as an annex, it s one of a kind. Betrays the sloth of your Congress. That s why ADR is so complicated. Party autonomy allowed to actually configure how tho settle the dispute. Adjust procession in relation to the convenience of the parties. Why do people go to lawyers? Because there s conflict. If you can give them a satisfactory way out of a mess, then do. Remember principled negotiation, make sure it s in their k. You configure a system that prevents litigation, it s built-in the contract. What s an institutional mediator ? It should be in the roster.

y 1. 2.

3.

4.

y y y

Confidentiality of proceedings y Why confidentiality? To encourage candor. y Truth puts you in jail. So Jesus is wrong when he said that truth sets you free. y What are the exceptions to the confidentiality rule? y What if a mediator takes notes during the proceeding? Can this be subpoenaed? Enforcement of Mediated Settlement in RA 9285 y Valid and binding upon agreement/consen y Mediation clause is not arbitration. Does a mediated settlement need confirmation? No. Because [1] the law does not say, [2] ordinary rules on contract apply. It is considered as a novation of contract. y How is it enforced? Different from KP? KP does not need confirmation either, it is straight to execution. y Mr. Camizo and Mr. Mendoza are starting to look alike. With apologies to one of you, I don t know who. PROBLEM: Parties live in Cubao and Fairview. They are covered by KP because it s both in QC. There is a mediation clause in the contract. It failed (because it does not guarantee an agreement). Without going through KP, a party sued. Can defendant file MTD for failure to comply with condition precedent? Mediation clause is there because they don t trust the PB. Here you find the seeming conflict between ADR and KP. We are formal, professional and WE ARE NOT CUTE!!! Possible argument for plaintiff (oppose MTD): There s nothing in the ADR that prohibits disregarding the KP. It s waivable. Both parties have waived it by being subject to the mediation clause. Jurisprudential doctrine in Royales: It s qualified mandatory. Court may proceed even without it if defendant does not file Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester

Page 7 of 54 b. Quasi-judicial agencies, instrumentalities, boards, commissions

Part II. Jurisdiction

What is jurisdiction? y It is the power to hear, try and decide a case. y Under the Constitution, it is the Congress that possesses the power to apportion the jurisdiction of the courts. It comes from the principle of checks and balances. In this light, it may be said that to a certain extent, the Congress has judicial power. y The Constitution also prescribes the original and appellate jurisdiction of the SC. It may be modified by law as long as it is not diminished. y Consequences/implications of jurisdiction conferred by law : o Authority of court can only be changed by another law, NOT by the actions of the parties, nor passage of time.

BATAS PAMBANSA BILANG 129 (JUDICIARY REORGANIZATION ACT)

Municipal Trial Court A. Exclusive and original 1. Personal property and demand below P300,000 (outside MM) and P400,000 (Metro Manila) 2. Real property or interest therein: assessed value does not exceed P20,000 (outside MM) and P50,000 (Metro Manila) 3. Forcible entry and unlawful detainer cases Regional Trial Court A. Exclusive and original 1. Subject matter is incapable of pecuniary estimation 2. Real property or interest therein: assessed value exceeds P20,000 (outside MM) and P50,000 (Metro Manila) 3. Contract of marriage and marital relations (RA 8369 - Family Court) 4. Demand exceeds P300,000 (outside MM) and P400,000 (Metro Manila) 5. All cases not within the exclusive jurisdiction of any court, tribunal or any person or body exercising judicial or quasijudicial functions B. Exclusive and appellate 1. Decisions of MTC C. Concurrent with CA and SC and original (enforceable only within is region) 1. Certiorari 2. Mandamus 3. Prohibition 4. Quo Warranto 5. Habeas corpus D. Concurrent with SC and original 1. Actions affecting ambassadors, public ministers and consuls Court of Appeals A. Concurrent with RTC and SC and original 1. Certiorari 2. Mandamus 3. Prohibition 4. Quo Warranto 5. Habeas corpus B. Exclusive and original 1. Annulment of judgment of RTC (Rule 47) C. Exclusive and appellate 1. Final judgment, decision, orders, resolutions and awards of a. RTC

Supreme Court A. Concurrent with RTC and original 1. Actions affecting ambassadors, public ministers and consuls B. Concurrent with RTC and SC and original 1. Certiorari 2. Mandamus 3. Prohibition 4. Quo Warranto 5. Habeas corpus C. Exclusive and original 1. Certiorari, prohibition and mandamus against: a. CA b. COMELEC c. COA d. Sandiganbayan D. Appellate 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. Dean s discussion: y Jurisdiction is not change by what the parties will do. y Is an EO a law? Yes, under the Constitution in force that time, Marcos had legislative powers due to Amendment No. 6. y Is POEA a court? Constitution merely says jurisdiction of courts ? Because it s a statute, it refashioned the structure of the court analysis from Javier because Court did not reason out fully.

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 Jurisdiction of the tribunal (statute exists which impliedly amended BP 129) Determines the authority of the court EXHAUSTION OF ADMINISTRATIVE REMEDIES Condition precedent

Motion to dismiss for LACK OF JURISDICTION OVER THE SUBJECT MATTER Does NOT prescribe (R 9.1)

Does NOT go into the authority of the court (a vice of authority of the court, i.e. a kangaroo court, there exists a decision but it is without legal effect, a nullity) Motion to dismiss for FAILURE TO COMPLY WITH A CONDITION PRECEDENT Must be seasonably filed or else deemed waived (before filing an answer)

Santos v. NW Jurisdiction cannot be left to the consent or agreement of the parties whether or not such agreements are explicitly prohibited. Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester ** This doctrine is SUI GENERIS 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: An action for damages must be brought at the option of the plaintiff: 1. 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 2. Where he has a place of business through which the contract has been made, or 3. Before the court at the place of destination. 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). Lopez v. NW y 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. y 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. y 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. Dean s discussion on Santos and Lopez: y What is wanting in both Santos and Lopez? Court could have ruled on the legal effect of a treaty and its level vis--vis a stature and the Constitution. Whether or not a treaty related to law modifies BP 129? Is it a constitutional obligation (via incorporation doctrine) that trumps a statute? y Implied: File where the treaty provides y What is the net effect of these cases? Removed jurisdiction in the domestic and removed a remedy from a nation. The counsels failed to raise as a defense discrimination as to nationality. y Who does the treaty protect anyway? The airlines, since they travel all over the place, they will only answer cases in three places. Bulao v. CA y Allegations set forth in the complaint determine the true nature of action and consequently, the jurisdiction of the courts. y The relief he prayed for did not change Civil Case No. 70 into a water dispute coming under the jurisdiction of the National Water Research Council. 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 Dean s discussion: y What was the first line of the decision? Barely one month after effectivity of Ergo, it emphasized the absence of jurisdiction but at the end, it still did not follow. It created a paradox. SC in fact avoided the issue of authority. y What are the elements of laches? o o o

Page 8 of 54 Breach of RD correlative Rt of cause of action Unreasonable delay that it will be raised at any other time Sir sees it as a specie of fraud. Doctrine: There is inequity, although there was actually jurisdiction. Where party is barred by laches, it is estopped from raising the issue of lack of jurisdiction. What constitutes now an unreasonable delay? It is not only the delay or the unreasonableness but also the reliance that constitutes laches.

y y

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 (for purposes of determining jurisdiction) 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. OR IN OTHER WORDS: There must be a proper joinder of parties in order for the totality rule to apply. Law involved: Sec 33(1) of BP 129 Where there are several claims or CoA between same or different parties, embodied in same complaint, the amount of demand shall be the totality of the claims in all the CoA, irrespective of whether the causes of action arose out of the same or different transactions. Dean s discussion: y Totality of claims rule apply, provided joinder is correct. y How many times do you die? Tibetan Buddhist says infinity. y What s wrong with R 2.5 subpar (c) and (d)? It changes the jurisdiction, but RoC is not a statute. y Art VII Sec 5 of Constitution says that SC can promulgate rules of procedure, but are jurisdictional rules also procedure? No. You may question the constitutionality of this rule in SC but it s the same court that promulgated it. There s no justice. 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 in the proper court (CFI) and go to trial without an objection. Dy v. CA 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 service accompanies the motion for execution of the judgment. Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester

Page 9 of 54 Dean s discussion: y He does not agree with this case. SC had to make a choice among several ties. It could have decided from another perspective i.e. the PoV of owner. Logic tells you something different. Court has done everything to make it canonical. y Bar makes you a good lawyer, but not necessarily good. y Basis of jurisdiction: o Nature of action o Relationship of plaintiff and def - Family Court o Pecuniary - character of relief o Damages - look a the value of the relief Spouses Diu v. Ibajan y 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. y 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. DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES o Parties must first avail of all the means afforded by administrative processes prior to seeking the intervention of the court. o He must not merely initiate the prescribed administrative procedure to obtain relief, but must also pursue it to its appropriate conclusion before seeking judicial intervention in order to give that administrative agency an opportunity to decide the matter by itself correctly and prevent unnecessary and premature resort to court. Crusaders Broadcasting System, Inc. v. NTC y 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. y Tribunals 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. Mere invocation of agricultural tenancy does not ipso facto divest MTC of jurisdiction over a complaint for ejectment. This is especially true in the instant case in which the essential requisites of a tenancy relationship have not been duly established. Dean s discussion: y This is doctrinally correct but there is serious social impact. y Puts the farmer at an economic disadvantage, because there are a lot of forums. They have pro bono lawyers. Sometimes, they can only name their children after you, which may even raise a personal issue as to the lawyer Anak mo yan no?! y Pragmatically, MTCs are nearer than RTC in the provinces.

Manchester Development Co. v. CA y 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. y 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. y Henceforth all complaints, petitions, answers and other similar pleadings should specify the amount of damages being prayed for not only in the BODY OF THE PLEADING but also in the PRAYER, and said damages shall be considered in the assessment of the filing fees in any case. Any pleading that fails to comply with this requirement shall not be accepted nor admitted, or shall otherwise be expunged from the record. Dean s discussion: y Look at the procedure!!! Mine the decision for procedures and what the lawyers did!!! y Why can t it be the amended complaint? If no docket fees, no complaint at all, no jurisdiction over the res. y How is jurisdiction invoked? y On the flipside: Jurisdiction is dependent on the knowledge of the court i.e. allegations in the plaintiff s complaint. Why not wait for the evidence? Because it s administratively not feasible! y Physical filing of complaint is complete. Physical legal. Legal = payment of PROPER docket fees. y Can counsel pay docket fees for client? No. 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. Where the filing of the initiatory pleading is not accompanied by payment of the docket fee, the court may allow payment of the fee within a reasonable time but in no case beyond the applicable prescriptive or reglementary period. The pattern and the intent to defraud the government of the docket fee due it is obvious not only in the filing of the original complaint but also in the filing of the second amended complaint. A more liberal interpretation of the rules is called for considering that, unlike Manchester, private respondent demonstrated his willingness to abide by the rules by paying the additional docket fees as required. Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading and payment of the prescribed filing fee but, subsequently, the judgment awards a claim not specified in the pleading, or if specified, the same has been left for determination by the court, the additional filing fee therefor shall constitute a lien on the judgment. Bgy. San Roque, Talisay, Cebu v. Heirs of Francisco 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. Amount is to be determined only after the court is satisfied with propriety of expropriation. y Jurisdiction of ALL expropriation proceedings are with the Regional Trial Courts, regardless of the value of the subject property.

Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester DAR v. Cuenca 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. All doubts should be resolved in favor of the DAR, since the law has granted it special and original authority to hear and adjudicate agrarian matters. Southern Cross v. Cement Manufacturers The phrase in 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. Dean s discussion: y This is very unFilipino. Who do you protect - the Filipino producers or the consumers? It depends on the downstream monopoly. But you re talking about housing here! y What was the lynchpin? Bifurcating jurisdiction at the appellate level is frowned upon. y This case settled the legal issues but not the economic ones. y You cannot take two appeals at the same time. That is to insure the stability of the institution.
y y y y

Page 10 of 54 Plaintiff has the advantage of choosing the CoA that he can support. Sun Tzu tells us that we should avoid those with easy defenses. If you don t have any defense in fact: Use procedure, use the Constitution and then corruption. Your life is going to be all about deadlines, until you become a partner. You should like what you re doing.

RULE 2: ACTIONS IN GENERAL

2.1 Ordinary civil actions, basis of. Every ordinary civil action must be based on a cause of action. 2.2 Cause of action, defined. A cause of action is the act or omission by which a party violates the rights of another. 2.3 One suit for a single cause of action. A party may not institute more than one suit for a single cause of action. 2.4 Splitting of cause of action, effect of. If two or more suits are instituted on the basis of a single cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for dismissal of the others. 2.5 Joinder of causes of action. A party may, in one pleading, assert, in the alternative or otherwise, as many CoA he may have against an opposing party, subject to the following conditions: a. The party joining the CoA must comply with the rules on joinder of parties (3.6); b. The joinder shall not include special civil actions OR actions governed by special rules; c. Where the CoA are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the RTC, provided: one of the CoA falls within the jurisdiction of said court AND the venue lies therein; d. Where the claims in all the causes of action are principally for the recovery of money, the aggregate amount claimed shall be the test of jurisdiction. 2.6 Misjoinder of cause of action. Misjoinder of CoA is not a ground for dismissal of an action. A misjoined cause of action may, on motion OR on the initiative of the court, be severed and proceeded with separately. SPLITTING OF CAUSE OF ACTION 9.1 Defenses and objections not pleaded. Defenses and objections not pleaded either in a MTD or in the ANSWER are deemed waived. However, when it appears from the pleadings and the evidence on record that the court has no jurisdiction over the subject matter there is another action pending between same parties for the same cause the action is barred by a prior judgment by statute of limitations the court shall dismiss the claim.
y y

Part III. 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.

Part IV. Ordinary Civil Actions

What is Rule 1, Sec 3, Par a? A civil action is one by which a party sues another for the enforcement or protection of a right OR prevention or redress of a wrong A civil action may either be ordinary or special. Both are governed by the rules for ordinary CA, subject to the specific rules prescribed for a special CA. When is an action commenced? y Under R 1.5: A civil action is commenced by the filing of the original complaint in court. The Leonen Principles of Professional Competence 1. 2. 3. 4. 5. 6. 7. Know the law, the text, chapter and verse. Interpret law based on canonical doctrine. Given a set of facts, identify the laws involved. Devise options. Pursue an option. Communicate with the client. Ethical manner and self-fulfilling.

Theory of the Case: A Restatement Dean s discussion: y A civil case depends on: a. CoA you can identify b. Facts you can prove c. Evidentiary

y y

Effect of splitting cause of action: Litis pendentia and res judicata Grounds for dismissal under o Rule 16 (e) and (f) (but this has a time bar) o Survives Rule 9.1 o Rule 39.47 You only have one chance to prove your claim. Otherwise, barred for forever. So you only file when you are able to present the evidence. Although plaintiff can decide the CoA, if they are not ready, they lose forever. There is justice in this world, after all. Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester

Page 11 of 54 3.1 Who may be parties; plaintiff and defendant. Only [1] natural or [2] juridical persons OR [3] entities authorized by law may be parties in a civil action. The term plaintiff may refer to the claiming party, the counter-claimant, the cross-claimant OR the rd th 3 /4 etc-party plaintiff. The term defendant may refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the 3rd/4th etc-party defendant. 3.2 Parties in interest. A real party in interest is the party who stands to be benefited or injured by the judgment in the suit OR the party entitled to the avails of the suit. Unless otherwise authorized by law OR these Rules, every action must be prosecuted or defended in the name of the real party in interest. 3.3 Representatives as parties. Where the action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case AND shall be deemed to the RPII. A representative may be a [1] trustee of an express trust, [2] a guardian, [3] an executor or administrator, [4] a party authorized by law or these Rules. An agent acting in his own name AND for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal. 3.4 Spouses as parties. Husband and wife shall sue OR be sued jointly, except as provided by law. 3.5 Minor or incompetent persons. A minor or a person alleged to be incompetent may sue or be sued, with the assistance of his father, mother, guardian or if he has none, his guardian ad litem. 3.6 Permissive joinder of parties. All persons in whom or against who a right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally or in the alternative, may, except as otherwise provides in these Rules, be allowed to join as plaintiffs or be joined as defendants, where any question of fact or law common to all such plaintiffs and defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest. 3.7 Compulsory joinder of indispensable parties. Parties in interest without whom no final determination can be had of an action shall be joined as either plaintiffs or defendants. 3.8 Necessary party. A necessary party is one who is not indispensable, but who ought to be joined as a party if complete relief is to be accorded as to those already parties OR for a complete determination or settlement of the claim subject of the action. 3.9 Non-joinder of necessary parties to be pleaded. Whenever in any pleading in which a claim is asserted, a necessary party is not joined, the pleader shall: [1] set forth his name, if known and [2] state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted party if jurisdiction over his person may be obtained. The failure to comply with the order for his inclusion without justifiable cause shall be deemed a waiver of the claim against such party. Karichi E. Santos | UP Law 2012

MISJOINDER OF CAUSE OF ACTION Remedy is motion to severe Exception: in class suit specifically Mathay case where the entire case was dismissed instead of being severed. 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. Recovery under one remedy bars the recovery under the other. Full payment made by some and their subsequent release resulted in the extinguishment of the liability of the other solidary debtors. Dean s discussion: y The result of this case is correct but the reason is questionable. Bacolod is more reliable in terms of reasoning. It s a cleaner solution. Use it in the exams, instead of this. This only causes confusion. y Mistake of this case: It s not the singleness of the act BUT the singleness of cause of action. y It should have said: Although there are different CoA, you cannot recover twice. It is substantive law, but it does not mean you cannot file twice. City of Bacolod v. SM Brewery The filing of a separate 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. A single act may entitle the plaintiff to several reliefs. It is the filing of separate complaints for several reliefs arising from a single cause of action that constitutes a splitting up of a cause of action and is prohibited by Section 2, Rule 2 of the Rules of Court. Dean s discussion: y You cannot repeat this again because that would be harassment. So harassed it dies, killing me softly. You complete it to perfection because there is no second chance. y Primary (deficiency) and/or secondary (surcharge) right. Bayang v. CA The ownership of the land is disputed 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 TO A CIVIL ACTION

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester

Page 12 of 54 latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party may be recovered as costs. 3.17 Death or separation of a party who is a public officer. When a public officer is a party in an action in his official capacity and during its pendency dies, resigns or otherwise ceases to hold office, the action may be continued and maintained by or against his successor if, within 30 days after the successor takes office or such time as may be granted by the court, it is satisfactorily shown to the court by any party that there is a substantial need for continuing or maintaining it AND that the successor adopts or continues or threatens to continue and adopt the action of his predecessor. Before a substitution is made, the party or officer to be affected, unless expressly assenting thereto shall be given reasonable notice of the application therefor and accorded an opportunity to be heard. 3.18 Incompetency or incapacity. If a party becomes incompetent or incapacitated, the court, upon motion with notice, may allow the action to be continued by or against the incompetent or incapacitated person assisted by his legal guardian or guardian ad litem. 3.19 Transfer of interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court, upon motion, directs the person to whom the interest is transferred to be substituted in the action OR joined with the original party. 3.20 Action on contractual money claims. When the action is for the recovery of money arising from contract, express or implied, AND the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall be instead allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person. 3.21 Indigent party. A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte application and hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. Such authority shall include an exemption from payment of docket and other lawful fees, and of transcript of stenographic notes which the court may order to be furnished him. The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides. Any adverse party may contest the grant of such authority at any time before judgment is rendered by the trial court. If the court should determine after hearing that the party declared as an indigent is in fact a person with sufficient income or property, the proper docket and other lawful fees shall be assessed and collected by the clerk of court. If payment is not made within the time fixed by the court, execution shall issue or the payment thereof, without prejudice to such other sanctions as the court may impose.

The non-inclusion of a necessary party does not prevent the court from proceeding in an action AND the judgment rendered therein shall be without prejudice to the rights of such necessary party. 3.10 Unwilling co-plaintiff. If the consent of any party who should be joined as plaintiff cannot be obtained, he may be made a defendant and the reason therefor shall be stated in the complaint. 3.11 Misjoinder and non-joinder of parties. Neither misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party OR on its own initiative at any stage of the action and on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately. 3.12 Class suit. When the subject matter of the controversy is one of common or general interest to many person so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interest of all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest. 3.13 Alternative defendants. Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other. 3.14 Unknown identity or name of defendant. Whenever the identity or name of the defendant is unknown, he may be sued as the unknown owner, heir, devisee or by such other designation as the case may require; when his identity or true name is discovered, the pleading must be amended accordingly. 3.15 Entity without juridical personality as defendant. When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known. 3.16 Death of party; duty of counsel. Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of the counsel to [1] inform the court within 30 days after such death of the fact thereof and to [2] give the name and address of his legal representative/s. Failure of the counsel to comply with this duty shall be a ground for disciplinary action. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. The court shall forthwith order said legal representative/s to appear and be substituted within a period of 30 days from notice. If no legal representative is named by the counsel for the deceased party, OR if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time, to procure the appointment of an executor or administrator for the estate of the deceased and the

Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester 3.22 Notice to the Solicitor General. In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules or regulations, the court, in its discretion, may require the appearance of the SolGen who may be heard in person OR through a representative duly designated by him. 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. The consequence of the action being brought in the name of a representative or one who is NOT a real party in interest: MTD on the ground of FAILURE TO STATE CoA FAILURE TO STATE CoA Failure of the pleadings; manner of pleading There is/may be a cause of action but it was not pleaded property; it s never about the capacity of the parties LACK OF CAUSE OF ACTION Failure of the cause of action There was no problem in the pleading, but the facts alleged lead to the conclusion that there is NO cause of action; results in the merits i.e. no evidence to support the existence of the CooA

Page 13 of 54 2. 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 3. 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. Dean s discussion: Different classification of parties y As to relationship between parties in relation to another cause of action and another set of reliefs: Proper/necessary and indispensable y As to relationship to cause of action in the same case: real party in interest and representative capacity

RULE 4: VENUE
4.1. Venue of real actions. Actions affecting title to OR possession of real property or any interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the RP involved or a portion thereof is situated. Forcible entry and detainer actions shall be commenced and tried in the MTC of the municipality or city wherein the RP involved or a portion thereof is situated. 4.2. Venue of personal actions. All other actions may be commenced and tried [1] where the plaintiff or any principal plaintiff resides OR [2] where the defendant or any of the principal defendant resides OR [3] in the case of a non-resident defendant, where he may be found, at the election of the plaintiff. 4.3. Venue of actions against nonresidents. If any of the [1] defendants does not reside AND is not found in the Philippines, AND [2]the action affects the [a] personal status of the plaintiff, or [b] any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides OR where the property or any portion thereof is situated or found. 4.4. When Rule not applicable. This rule shall not apply: (a) In those cases where a specific rule or law provides otherwise (b) Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. Diaz v. Adiong The objection to improper venue, although mandatory, must be seasonably raised, otherwise the same is deemed waived. The venue though technically wrong may yet be considered acceptable to the parties for whose convenience the rules on venue had been devised. The laying of venue is procedural rather than substantive, relating as it does to jurisdiction of the court over the person rather than the subject matter. Venue relates to trial and not to jurisdiction. Distinction between venue and jurisdiction (from Riano): Karichi E. Santos | UP Law 2012

Aranico-Rabino v. Aquino Failure to comply with an order of the court to include indispensable parties is a ground for dismissal under R17.3. 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. Even if it was not impleaded, the court may still validly proceed with the case. Barfel Development Corporation v. CA Joinder of admittedly PROPER PARTIES is PERMISSIVE and 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. Whenever a case may be decided between party litigants, 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 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: 1. The existence of a subject matter of common interest, and

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester

Page 14 of 54 association of persons that is made a party, must be averred. A party desiring to raise an issue as to the legal existence of any party OR the capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include supporting particulars as are peculiarly within the pleader s knowledge. o Alternative claims and defenses 8.2 Alternative causes of action or defenses. A party may set forth two or more statements of a claim/defense alternatively OR hypothetically, either in one CoA/defense OR in separate CoA/defense. When two or more statements are made in the alternative, and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. o Condition precedents 8.3 Conditions precedent. In any pleading, a general averment of the performance or occurrence of all conditions precedent shall be sufficient. o Fraud and mistake 8.5 Fraud, mistake condition of the mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity. x x x o Condition of mind 8.5 Fraud, mistake condition of the mind. x x x Malice, intent, knowledge or other conditions of the mind may be averred generally. o Judgments 8.6 Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. o Official documents 8.9 Official document or act. In pleading an official document or official act, it is sufficient to aver that the document was issued or the act done in compliance with law. Need to bring in new parties 6.12 Bringing new parties. When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained. Chi: Is this, in effect, a compulsory joinder of indispensable parties in case of compulsory counterclaims?

VENUE
Place where the case is to be heard and filed Matter of procedural law Establishes the relationship between plaintiff and defendant Maybe conferred by act or agreement of parties Not a ground for motu proprio dismissal; EXCEPT: in summary procedure

JURISDICTION
Authority to hear and determine a case Substantive law Establishes the relationship between the court and subject matter Fixed by law and cannot be conferred by the agreement of the parties Lack of jurisdiction over subject matter is a ground for motu proprio dismissal

PLEADINGS (SUBSTANTIAL REQUIREMENTS)

In general
Defined
6.1 Pleadings defined. Pleadings are the written statements of the respective claims and defenses of the parties, submitted to the court for appropriate judgment.

What kinds of pleadings are allowed

6.2 Pleadings allowed. The claims of a party are asserted in a COMPLAINT, COUNTERCLAIM, CROSS-CLAIM, THIRD (FOURTH ETC) PARTY COMPLAINT or COMPLAINT-IN-INTERVENTION The defenses of a party are alleged in the ANSWER to the pleading asserting a claim against him. The answer may be responded to by a REPLY.

Liberal construction
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. Litigations should as much as possible be decided on the merits and not on technicality. Technicality, when it deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration from courts, and because there is no vested right in technicalities, in meritorious cases, a liberal, not literal interpretation of the rules becomes imperative and technicalities should not be resorted to in derogation of the intent and purpose of the rules, which is the proper and just determination of a litigation.

How allegations are made

o In general 8.1 In general. Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts. If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated. o Capacity 8.4 Capacity. Facts showing the [1] capacity of a party to sue or be sued OR the [2] authority of a party to sue or be sued in a representative capacity OR the [3] legal existence of an organized

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Complaint
Defined and in general
6.3 Complaint. The complaint is the pleading alleging the plaintiff s cause/s of action. The names and residences of the plaintiff and defendant must be stated in the complaint. Tantuico v. Republic The remedy for a complaint with unclear/general allegations or conclusions of law is a MOTION FOR BILL OF PARTICULARS, NOT a MTD for failure to state a cause of action. Dean s discussion: There are two possible remedies available to the defendant before filing his answer: 1. Motion for Bill of Particulars 2. MTD 3. Answer However, you cannot file MBP if you had already asked for MTD. You are estopped from saying that you did not understand the complaint. However again, don t file MBP all the time especially if you can ask for judgment on the pleadings (no material issues). o Actions based upon a document 8.7 Action or defense based on document. Whenever an action or defense is based upon a written instrument or document, the substance of such instrument/document shall be set forth in the pleading and the original OR a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading OR said copy may with like effect be set forth in the pleading.

Answer
Defined and in general
6.4 Answer. An answer is a pleading in which a defending party sets forth his defenses

Types of defenses
1. Negative 6.5 Defenses. Defenses may either be negative OR affirmative. (a) A negative defense is the specific denial of the material fact/s alleged in the pleading of the claimant essential to his cause/s of action. o How alleged, generally 8.10 Specific denial. A defendant must [1] specify each material allegation of fact the truth of which he does not admit AND, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. [2] Where a defendant desires to deny only a part of an averment, he shall specify so much of it as true and material AND shall deny only remainder. [3] Where a defendant is without knowledge or information sufficient to form belief as to the truth of a material averment made in the complaint, he shall so state and this shall have the effect of a denial. Three kinds of specific denial (in Riano): 4. Specific absolute 5. Partial specific denial; to Dean, this is qualified denial 6. Denial by avowal of knowledge o Capacity of parties 8.4 Capacity. Facts showing the [1] capacity of a party to sue or be sued OR the [2] authority of a party to sue or be sued in a representative capacity OR the [3] legal existence of an organized association of persons that is made a party, must be averred. A party desiring to raise an issue as to the legal existence of any party OR the capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include supporting particulars as are peculiarly within the pleader s knowledge. o Genuinenesss of document 8.8 How to contest such a document. When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding Section, the GENUINENESS and DUE EXECUTION of the instrument shall be deemed admitted unless the adverse party, UNDER OATH, [1] specifically denies them AND [2] sets forth what he claims to be the facts; but the requirement of an oath does not apply when [1] the adverse party does not appear to be a party to the instrument OR when [2] compliance with an order for an inspection of the original instrument is refused.

Allegations
o In general 8.1 In general. Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts. If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated. 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. existence of a legal right in the plaintiff, 2. correlative duty in the defendant, and 3. act/omission of def 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. o Capacity of parties 8.4 Capacity. Facts showing the [1] capacity of a party to sue or be sued OR the [2] authority of a party to sue or be sued in a representative capacity OR the [3] legal existence of an organized association of persons that is made a party, must be averred. A party desiring to raise an issue as to the legal existence of any party OR the capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include supporting particulars as are peculiarly within the pleader s knowledge.

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Page 16 of 54 summons is made on the government official designated by law to receive the same, the answer shall be filed within 30 days after receipt of summons by such entity. 11.3 Answer to the amended complaint. Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within 15 days after being served with a copy thereof. Where its filing is not a matter of right, the defendant shall answer the amended complaint within 10 days from notice of the order admitting the same. An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed. This rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended third party complaint, and amended complaint-in-intervention.

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. Dean s discussion: y Due execution - there s such a contract but that the document is invalid due to vitiated consent, does not follow Statute of Frauds, does not follow formalities of contract y Genuineness - that there s no such document y Why does the RoC put documentary evidence on a special plane? Documents are important because o More reliable than witnesses o Repository of past events 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 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. NEGATIVE PREGNANT: 2. Affirmative 6.5 Defenses. Defenses may either be negative OR affirmative. (b) An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. The affirmative defenses include: fraud, statute of limitation, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy and any other matter by way of confession or avoidance. 3. Implied admissions 9.1 Defenses and objections not pleaded. Defenses and objections not pleaded in an MTD or in the ANSWER are deemed waived. x x x Dean: General denial is considered as an admission. Plaintiff may move for judgment on the pleadings.

Waiver of defenses
9.2 Compulsory counterclaim or cross-claim not set up barred. A compulsory counterclaim OR a cross-claim not set up shall be barred. Director of Lands v CA

All defenses not interposed in a motion to dismiss or in an answer are deemed waived. Counterclaims
Defined and in general
6.6 Counterclaim. A counterclaim is any claim which a defending party may have against an opposing party. 6.7 Compulsory counterclaim. A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of OR is connected with the transaction or occurrence constituting the subject matter of the opposing party s claim AND does not require for its adjudication the presence of third parties of whom the court cannot acquire the jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount AND nature thereof, except that in an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount. Dean s discussion: y It is not a cause of action, it is a pleading. The fact that it s contained in the ANSWER is only accidental. y Can you have more than 1 CoA? Yes. y Can you have an alternative defendant other than the plaintiff in the original action? Yes. Then how do you gain jurisdiction over that indispensable party? Procure summons and cause it to be served. Implication: 2.5 and 3.6 can apply in a counterclaim. y Verification and certification against forum-shopping needed in an answer if it contains a counterclaim. BA Finance v. Co The dismissal of the complaint for non-appearance 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. Compulsory counterclaim cannot "remain pending for independent adjudication by the court." This is because a compulsory counterclaim is auxiliary to the proceeding in the Karichi E. Santos | UP Law 2012

Periods to plead
11.1 Answer to the complaint. The defendant shall file his answer to the complaint within 15 days after service of summons, unless a different period is fixed by the court. 11.2 Answer of a defendant foreign private juridical entity. Where the defendant is a foreign private juridical entity AND service of

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester original suit and merely derives its jurisdictional support therefrom. Remedy for defendant if plaintiff moves to dismiss: object (Under 17.2)

Page 17 of 54 11.10 Omitted counterclaim or cross-claim. When a pleader fails to set up a counterclaim or cross-claim through oversight, inadvertence or excusable neglect OR when justice requires, he may, by leave of court, set up the counterclaim or crossclaim by AMENDMENT before judgment. 3. 111.1 119.3 In criminal actions

SUMMARY OF THE RULES (what happens to the counterclaim upon dismissal of the complaint) 1. Dismissal by MOTION of the PLAINTIFF (Under 17.2) y RULE: Counterclaim is dismissed, without prejudice to refilling (answer became functus officio) y EXCEPTION (i.e. not dismissed): Defendant must MANIFEST his preference to resolve the counterclaim in the same action within 15d from the notice of the motion to dismiss 2. Dismissal by FAULT of the PLAINTIFF, upon motion of the DEFENDANT (Under 17.3) y RULE: Counterclaim is dismissed y EXCEPTION (i.e. not dismissed): Defendant must MANIFEST his preference to resolve the counterclaim in the same action (No period stated. Silent. It s difference from 17.2) 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 Dean s discussion: y Wouldn t the rational for compulsory counterclaim (inconsistency of decisions) apply here? No, because jurisdiction cannot be abrogated by the RoC. So questionable validity din ang last part ng 6.7

Shafer 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. 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 impliedly instituted.

Kinds of counterclaims
1. Compulsory 6.7 Compulsory counterclaim. A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of OR is connected with the transaction or occurrence constituting the subject matter of the opposing party s claim AND does not require for its adjudication the presence of third parties of whom the court cannot acquire the jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount AND nature thereof, except that in an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount. 9.2 Compulsory counterclaim or cross-claim not set up barred. A compulsory counterclaim or a cross-claim not set up shall be barred. 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, but yes for permissive counterclaims. The "one compelling test of compulsoriness" is the logical relationship between the claim alleged in the complaint and that in the counterclaim, that is, where conducting separate trials of the respective claims of the parties would entail a substantial duplication of effort and time, as where they involve many of the same factual and/or legal issues. Lim Tanhu v. Remolete A counterclaim is compulsory if: 1. The same evidence to sustain it will also refute the CoA 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. 2. Permissive

How raised
6.9 1. Included in answer Counter-counterclaims and counter-cross-claims. A counterclaim may be asserted against an original counterclaimant. A cross-claim may also be filed against an original crossclaimant. 11.8 Existing counterclaim or cross-claim. A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein. 2. After answer Counter-counterclaims and counter-cross-claims. A counterclaim may be asserted against an original counterclaimant. A cross-claim may also be filed against an original crossclaimant. 11.9 Counterclaim or cross-claim arising after the answer. A counterclaim OR a cross-claim which either matured OR was acquired by a party after serving his pleading may, with the permission of the court, be presented as a counterclaim or a cross-claim by SUPPLEMENTAL PLEADING before judgment.

6.9

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CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester Dean s discussion: y Why is there compulsory? Why not everything permissive? Because it does not have the same CoA as the complaint. NEVER because it s a different party asserting a claim. In effect, it starts a new claim. y Difference between affirmative defense AND counterclaim COUNTERCLAIM AFFIRMATIVE DEFENSE
A pleading in itself New matters form a new CoA Does not necessarily controvert the claims in the complaint Not a pleading Not a CoA but a matter of defense

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y

Cross-claims are always compulsory. As well as 3P complaints, in fact limited only to SIR (subrogation, indemnity, reimbursement/contribution). As you go farther from plaintiff, the rules become more restrictive. Cross-claims are contained in a separate document. UNLESS if the codefendant is not yet a party to the action (serve summons) because the plaintiff failed to implead him BUT he is an indispensable party. If jurisdiction is not acquired, it is not compulsory. 3. In case main action fails

What is the primordial value of compulsory counterclaims? Because the evidence used is the same, it is susceptible to conflicting decisions if different judges/courts are made to weigh and decide in separate cases. It is in the interest of administration of justice, to ensure that it will not be delayed nor made to suffer. It is not the economy of court nor convenience of parties, rather the avoidance of inconsistent decisions. What are the options when the defendant files MTD grounded on failure to state a CoA? i. There is no answer yet, so amend ii. Withdraw iii. Oppose the MTD Build your repertoire of strategies for the defendant: i. MBP ii. MTD iii. Answer iv. Take order of default and save face: anyway, you ll have remedies of non-defaulting defendant after the judgment, and that wouldn t be much of a problem you had been entitled to notices during the ex parte hearing

BA Finance v Co Henceforth, for the guidance of Bench and Bar, if any of the grounds to dismiss under Sec. 3, Rule 17, of the Rules of Court arises, the proper recourse for a defendant who desires to pursue his compulsory counterclaim in the same proceeding is not to move for the dismissal of the complaint; instead a. move to have plaintiff declared non-suited on the complaint so that the latter can no longer present his evidence thereon, b. simultaneously move that he be declared as in default on the compulsory counterclaim, and c. reserve the right to present evidence ex parte on his counterclaim. This will enable defendant who was unjustly haled to court to prove his compulsory counterclaim, which is intertwined with the complaint, because the trial court retains jurisdiction over the complaint and of the whole case. The non-dismissal of the complaint, the non-suit notwithstanding, provides the basis for the compulsory counterclaim to remain active and subsisting. 4. For failure to raise permissive counterclaims Just file it in a separate action.

Remedies
1. For failure to raise compulsory counterclaims 9.2 Compulsory counterclaim or cross-claim not set up barred. A compulsory counterclaim OR a cross-claim not set up shall be barred. Visayan Packing v. Reparations A compulsory counterclaim cannot be made the subject of a separate action but should be asserted in the same suit involving the same transaction or occurrence giving rise to it. The omission is not however irremediable or irreversibly fatal. The Rules provide that when a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable negligence, or when justice requires, he may, by leave of court, set up the counterclaim or cross-claim by AMENDMENT before judgment 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. [Rules governing OCA are supplemental to SCA.] 2. Oversight, inadvertence, excusable neglect et al 11.10 Omitted counterclaim or cross-claim. When a pleader fails to set up a counterclaim or cross-claim through oversight, inadvertence or excusable neglect OR when justice requires, he may, by leave of court, set up the counterclaim or crossclaim by AMENDMENT before judgment. Dean s discussion: y Whose burden is it to prove that there is oversight or inadvertence? y If not proved, no counterclaim allowed.

Answer to Counterclaim
In general
6.4 Answer. An answer is a pleading in which a defending party sets forth his defense.

Period to plead
11.4 Answer to a counterclaim or cross-claim. A counterclaim or cross-claim must be answered within 10 days from service.

Reply
Defined and in general
6.10 Reply. A reply is a pleading, the office or function of which is to DENY or ALLEGE facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. If a party does not file such reply, all the new matters alleged in the answer are deemed controverted. If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an AMENDED or SUPPLEMENTAL COMPLAINT.

When required
6.10 Reply. x x x only when there are new matters alleged by way of defense in the answer contained in an actionable document i.e. affirmative defense + actionable document

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Page 19 of 54 the third-party defendant the liability asserted against him by the original plaintiff. 6.12 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. A 3PC is available only if the defendant has a right to demand contribution, indemnity, subrogation or any other relief from the supposed third-party defendants in respect to the plaintiff's claim. Dean: the other tenants here were not indispensable, only necessary.

1. Challenge due authenticity of documents 8.8 How to contest such a document. When an action OR defense ( HENCE ALSO APPLICABLE TO AN ANSWER) is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding Section, the GENUINENESS and DUE EXECUTION of the instrument shall be deemed admitted unless the adverse party, UNDER OATH, [1] specifically denies them AND [2] sets forth what he claims to be the facts; but the requirement of an oath does not apply when [1] the adverse party does not appear to be a party to the instrument OR when [2] compliance with an order for an inspection of the original instrument is refused. 2. Usury 8.11 Allegations Not specifically denied deemed admitted. Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath.

Period to plead
11.6 Reply. A reply may be filed within 10 days from service of the pleading responded to.

Third/Fourth Party Complaint

Defined
6.11 Third (fourth, etc)-party complaint. A 3 (4 etc)-party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth etc)-party defendant, for CONTRIBUTION, INDEMNITY and SUBROGATION, in respect of its opponent s claim. Go v. CA Where an action for CONTRIBUTION, INDEMNITY, SUBROGATION OR ANY OTHER RELIEF, 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 discussion: A third-party complaint is NOT MANDATORY. It is rd the discretion of the defendant NOT to file a 3 party complaint; there may be business considerations and other practical reasons not to file it. RTC judges think they know everything. 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 IN RESPECT of the claim of third party plaintiff's opponent (6.12), or that it be CONNECTED WITH THE PLAINTIFF S CLAIM. Balbastro v. CA Admission of 3PComplaint is discretionary with the court Requirements for a third party complaint: 1. 3PC should assert a derivative or secondary claim from 3PD 2. 3PD must not be a party to the action, otherwise (cross or counterclaim) 3. Claim against the 3PD must be based upon original plaintiff s claim against original defendant. The crucial characteristic of a claim under section 12 of Rule 6, is that the original "defendant is attempting to transfer to
rd th

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. Dean s discussion: y When the third party complaint filed contains CoA which does not result to contribution, subrogation and indemnity, can Courts motu proprio dismiss it? No. The judge can only cringe. y However if improper CoA (i.e. not for CIS) was not brought, is it barred? No, no legal basis to say barred. y [Chi: Wouldn t the omnibus motion rules likewise apply to the answer to third-party complaint ? Sir s probable answer according to the other notes : MTD does not apply because it does not include this ground. Remedy is motion to sever]

Remedies when denied - Appeal

De Dios v Balagot As to the appealability of the order disallowing the third party complaint, suffice it to reiterate that the same would finally dispose of defendant's right to enforce his warranty against eviction, since a separate action for the same, without having thus summoned to the suit the vendor, would not prosper. After said disallowance, nothing further was left to be done in the court a quo, as regards defendant's right to enforce against Deudor the warranty of eviction. Said denial was therefore appealable. Dean: This case is exceptional because there s a statutory provision (CC) that requires the filing of 3rd party complaint.

Answer to Third/Fourth Party Complaint

In general
6.13 Answer to third (fourth etc)-party complaint. A third (fourth, etc)-party defendant may allege in his answer his defenses, counterclaims or cross-claims including such defenses that the third party plaintiff may have against the original plaintiff s claim. In proper

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CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester cases, he may also assert a counterclaim against the original plaintiff in respect of the latter s claim against the third-party plaintiff.

Page 20 of 54 iv. instructions to the postmaster to return the mail to the sender after 10 days if not delivered The registry return card shall be filed immediately upon its receipt by the sender, OR in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee.

Time to plead
11.5 Answer to third (fourth etc)-party complaint. The time to answer a 3rd (4th etc)-party complaint shall be governed by the same rule as the answer to the complaint. (I.e. 15 days after service of summons).

SERVICE OF PLEADINGS, MOTIONS AND ORDERS

Filing and Service defined
13.2 Filing and service, defined. FILING is the act of presenting the pleading or other paper to the clerk of court. SERVICE is the act of providing a party with a copy of the pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side.

Extension of Time to plead

11.11 Extension of time to plead. Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules. The court may also, upon like terms, allow an answer OR other pleading to be filed after the time fixed by these Rules.

PLEADINGS (FORMAL REQUIREMENTS)

In general
1. 2. Rule 7 Parts of a Pleading Rule 22 Computation of Time

Coverage
13.1 Coverage. This Rule shall govern the filing of all pleadings and other papers, as well as the service thereof, except those for which a different mode of service is prescribed. (e.g. summons) 13.4 Papers required to be filed and served. Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment, or similar papers shall be filed with the court AND served upon the parties affected. 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.

Service
Rule 13 Filing and Service of Pleadings, Judgments and other Papers

Proof of Service
13.12 Proof of filing. The filing of a pleading/paper shall be proved by: 1. its existence in the record of the case 2. if not in the record, but claimed to have been filed personally: a written or stamped acknowledgment of its filing by the CoC on a copy of the same 3. if not in the record, but claimed to have been filed by regmail: a. registry receipt AND b. affidavit of the person who did the mailing, containing: i. full statement of date and place of depositing the mail in the post office ii. sealed envelope addressed to the court iii. postage fully prepaid iv. instructions to the postmaster to return the mail to the sender after 10 days if not delivered 13.13 Proof of service. A. Proof of personal service shall consist of: 1. written admission of the party served 2. official return of the server 3. affidavit of the party serving, containing: i. full statement of date, place and manner of service B. Proof of service by ordinary mail: 1. affidavit of the person mailing of facts showing compliance with Section 7 of this Rule C. Proof of service by registered mail: 1. registry receipt issued by the post office 2. affidavit of the person mailing, containing: i. full statement of date and place of depositing the mail in the post office ii. sealed envelope addressed to the court iii. postage fully prepaid

Modes of Service 1. In general, filing

13.3 Manner of filing. The filing of pleadings, appearances, motions, notices, orders, judgments and all other papers shall be made by presenting the original copies thereof, plainly indicated as such, personally to the CoC OR by sending them by registered mail. Personally: CoC shall endorse on the pleading the date and hour of filing. Registered mail: The date of mailing of motions, pleadings or any other papers or payments or deposits, as shown by the post office stamp on the envelope OR the registry receipt shall be considered as the date of their filing, payment or deposit in court. The envelope shall be attached to the records of the case.

2. In general, service

Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester 13.5 Modes of Service. Service of pleadings, motions, notices, orders, judgments and other papers shall be made either personally OR by mail. 13.9 Service of judgments, final orders or resolutions. Judgments, final orders, resolutions shall be served either personally OR by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party. a. Personal 13.6 Personal service. Hello b. Mail 13.7 Service by mail. Hello

Page 21 of 54

3. Substituted Service
13.8 Substituted service. If the service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the 2 preceding sections, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the CoC, with proof of failure of both personal service and service by mail. The service is complete at time of such delivery.

13.13 Proof of service. A. Proof of personal service shall consist of: 1. written admission of the party served 2. official return of the server 3. affidavit of the party serving, containing: i. full statement of date, place and manner of service B. Proof of service by ordinary mail: 1. affidavit of the person mailing of facts showing compliance with Section 7 of this Rule C. Proof of service by registered mail: 1. registry receipt issued by the post office 2. affidavit of the person mailing, containing: i. full statement of date and place of depositing the mail in the post office ii. sealed envelope addressed to the court iii. postage fully prepaid iv. instructions to the postmaster to return the mail to the sender after 10 days if not delivered The registry return card shall be filed immediately upon its receipt by the sender, OR in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee.

Lis Pendens
13.14 Notice of lis pendens. In an action affecting the title or the right of possession of real property, the plaintiff AND the defendant, (when affirmative relief is claimed in his answer), may record in the office of registry of deeds of the province in which the property is situated a notice of the pendency of the action. Said notice shall contain the names of the parties and the object of the action/defense, and a description of the property in the province affected thereby. Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected, thereby be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names. The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is [1] for the purpose of molesting the adverse party OR that it is [2] not necessary to protect the rights of the party who caused it to be recorded. Roxas v Dy 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. While a notice of lis pendens cannot ordinarily be cancelled for as long as the action is pending and unresolved, the proper court has the authority to determine whether to cancel it under peculiar circumstances, e.g., where the evidence so far presented by the plaintiff does not bear out the main allegations in the complaint.

4. Priority
13.11 Priorities in modes of service and filing. Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed.

Upon party in default

9.3 Default; declaration of. x x x (a) Effect of order of default A party in default shall be entitled to notice of subsequent proceedings BUT not to take part in the trial. x x x

Completion of Service
13.10 Completeness of service. The

Proof of Service
13.12 Proof of filing. The filing of a pleading/paper shall be proved by: 1. its existence in the record of the case 2. if not in the record, but claimed to have been filed personally: a written or stamped acknowledgment of its filing by the CoC on a copy of the same 3. if not in the record, but claimed to have been filed by regmail: a. registry receipt AND b. affidavit of the person who did the mailing, containing: i. full statement of date and place of depositing the mail in the post office ii. sealed envelope addressed to the court iii. postage fully prepaid iv. instructions to the postmaster to return the mail to the sender after 10 days if not delivered

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CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester

Page 22 of 54 B.

AMENDED AND SUPPLEMENTAL PLEADINGS

Amendments In general
10.1 Amendments in general. Pleadings may be amended by [1] ADDING or STRIKING out an allegation or the name of any party OR by [2] CORRECTING a mistake in the name of the party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities and in the most expeditious and inexpensive manner.

Substantial amendment

1. Matter of right 10.2 Amendment as a matter of right. A party may amend his pleading ONCE as a matter of right at any time before a responsive pleading is served OR in the case of a reply, at any time within 10 days after it is served. 2. Matter of discretion 10.3 Amendment by leave of court. Except as provided in the next preceding section, substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay. Orders of the court upon matters provided in this Section shall be made upon motion filed in court (read: written motion) AND after notice to the adverse party, AND an opportunity to be heard. Metropolitan Bank v. Presiding Judge Granting of leave to file an amended pleading is a matter particularly addressed to the sound discretion of the trial court and that discretion is broad, subject only to the limitations that the amendments should [1] not substantially change the cause of action or alter the theory of the case or that it was [2] made to delay the action. Once exercised, that discretion will not be disturbed on appeal, except in case of abuse thereof In determining whether a different cause of action is introduced by amendments to the complaint, what is to be ascertained is whether the defendant shall be required to answer for a liability or legal obligation wholly different from that which was stated in the original complaint. An amendment will not be considered as stating a new cause of action if the facts alleged in the amended complaint show substantially the same wrong with respect to the same transaction, OR if what are alleged refer to the same matter but are more fully and differently stated, or where averments which were implied are made in expressed terms, and the subject of the controversy or the liability sought to be enforced remains the same. 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 Dean s discussion: y Formal amendment may be made even after judgment. Substantial amendment only before judgment. y How does one do an amendment? 1. Insertion additional text in ALL CAPS 2. Deletion just by deleting it y What should you file to amend? 1. Motion for leave (whenever you want to do anything) What does this contain? Plaintiff, through counsel, respectfully allege that: Allegations: complaint was filed, amended as a matter of right, new facts discovered (not happened ) in the interim, (if applicable: no answer yet) You sign three times as counsel (explanation, notice of hearing) 2. Attach the motion sought to be admitted (15.9) Karichi E. Santos | UP Law 2012

Liberality
Barfel Development Co. v. CA The amendment 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. Liberality in allowing amendments is greatest in the early stages of a law suit, decreases as it progresses and changes at times to a strictness amounting to a prohibition. Amendment should not prejudice the adverse party or place him at a disadvantage. Dean s discussion: y It s just like Little Einstein: crescendo - early, decrescendo - later. y If defendant files MTD grounded on failure to state CoA but you really believe that there is CoA, you can just amend (especially if it s the first time because that s still a matter of right).

Form
10.7 Filing of amended pleadings. When any pleading is amended, a new copy of the entire pleading incorporating the amendments, which shall be indicated by appropriate marks, shall be filed.

Effect
10.8 Effect of amended pleadings. An amended pleading: [1] supersedes the pleading that it amends. However, ADMISSIONS in superseded pleadings may be [2] received in evidence against the pleader; and CLAIMS/DEFENSES alleged therein not incorporated in te amended pleading shall be [3] deemed waived. Dean s discussion: y To function as an evidence, it must be formally offered at first. y Does that make amendment a futile exercise (since it can be used against you)? No, as long as you have explanation for the changes you make.

Kinds
A. Formal amendment
10.4 Formal amendments. A defect in the designation of the parties AND other clearly clerical or typographical errors may be summarily corrected by the court, at any stage in the action, at its initiative OR on motion, provided no prejudice is cause thereby to the adverse party.

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester for purposes of expediency Court must issue an order to amend Two ways to amend a complaint: express and implied (i.e. to conform to evidence or authorize presentation thereof) Lessons you should learn from last part of 10.5: In pre-trial and trial, always stay awake and alert. Master the issue (usually by looking at the PT order) Within what period is it a matter of right? It depends, is there a responsive pleading? In case of an answer, you ask if there is an affirmative defense containing an actionable document. This matters because an amendment as a matter of right is to be answered within 15 days after service, while if discretion it is within 10 days from notice of its admission. Why is it a matter of right? Because no defenses are formed yet. When defendant answers (puts his input), it s no longer your own forum. Caveat: Sometimes a good pleader will just file nonsensical complaint and then you will file MTD, it will only set you up to see your theory. Even after MBP or MTD you can still amend as a matter of right. Punchline: If someone tells you Let s have coffee. You say: MBP! Why are you inviting me? 3. To conform to evidence

Page 23 of 54 lower court were issued either in excess of or without jurisdiction.

y y y

Periods to answer
A. Amendments
11.3 Answer to an amended complaint. Where plaintiff files an amended complaint as a MATTER OF RIGHT, the defendant shall answer the same within 15 days after being served with a copy thereof. Where its filing is NOT A MATTER OF RIGHT, the defendant shall answer the amended complaint within 10 days from notice of the order admitting the same. An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed. This Rule shall apply to the answer to the amended: counterclaim, cross-claim, third (fourth etc)-party comlaint, complaint-inintervention.

y y

B. Supplemental complaint
11.7 Answer to supplemental complaint. A supplemental complaint may be answered within 10 days from notice of the order admitting the same, unless a different period is fixed by the court. The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed.

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. If the defendant permits evidence to be introduced without objection and which supplies the necessary allegations of a defective complaint, then the evidence is deemed to have the effect of curing the defects of the complaint. The insufficiency of the allegations in the complaint is deemed ipso facto rectified. Dean s discussion: y Is there a remedy for this? Yes. Raise as an error on appeal.

Supplemental Pleadings
10.6 Supplemental pleadings. Upon motion of a party, the court may, upon reasonable notice AND upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within 10 days from notice of the order admitting the supplemental pleading. Shoemart v. CA Supplemental pleadings supplies deficiencies in aid of an original pleading, not to entirely substitute/dispense with the latter. Unlike in an amended complaint, the original complaint exists side by side with the supplemental complaint. In the case at bar, the supplemental pleading merely served to aver supervening facts which were then not ripe for judicial relief when the original pleading was filed. Dean s discussion: y It is not discovery that is critical but OCCURRENCE. Discovered recently happened just now. y Distinguish between amendment and supplemental pleading y Why do amended pleadings supersede the original one? Because the facts that happened in the past is relevant for purposes of legal relief. y Why don t supplemental pleadings supersede the original one? Because the allegations therein does not necessarily relate to the cause of action already contained in the original complaint. y Exception (i.e. facts are prior to the filing of complaint but still considered as supplemental ) Bill of Particulars

Remedies
Philbank v. IAC NB: The original complaint in this case has been dismissed, so in effect, there s no complaint to be amended to begin with. An amendment at this stage of the proceeding, when the complaint had already been dismissed, the writ of attachment discharged and declared of no further force and effect will definitely work to the prejudice and disadvantage of the private respondent. It has been ruled that amendment will not be allowed when the same will prejudice the adverse party or place him at a disadvantage. The proper remedy available to herein petitioner from the order dismissing the complaint is appeal, not a petition for certiorari. And when the remedy of appeal is available, the extra ordinary remedy of certiorari cannot be resorted to because the availability of appeal proscribes recourse to the special civil action of certiorari. PNB v. Florendo 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. Even when appeal is available and is the proper remedy, the court has allowed a writ of certiorari when the orders of the

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CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester

Page 24 of 54 COPY OF THE PLEADING-IN-INTERVENTION shall be attached to the motion and served on the original parties. 19.3 Pleadings-in-intervention. The intervenor shall file a: COMPLAINT-IN-INTERVENTION if he asserts a claim against either or all of the original parties OR an ANSWER-IN-INTERVENTION if he unites with the defending party in resisting a claim against the latter. 19.4 Answer to complaint-in-intervention. The ANSWER TO THE COMPLAINT-IN-INTERVENTION shall be filed within 15 days from notice of the order admitting the same, unless a different period is fixed by the court.

BILL OF PARTICULARS/INTERVENTION
Bill of Particulars
Picking important points in Rule 12:
y

y y y y

y y

When? Before responding to a pleading (ideally, answer); if pleading is a reply, MBP should be file within 10 days from service Purpose? To enable defendant to properly prepare his responsive pleading, in case any matter is not averred with sufficient definiteness or particularity Contents of the motion? [1] point out the defects complained of, [2] paragraphs where they are contained, [3] details desired If granted? Comply within 10 days How to comply? [1] Separate pleading OR [2] Amended pleading Effect of non-compliance/insufficient compliance? Court may: [1] order the striking out of the pleading/portions thereof to which the order was directed OR [2] make such other order as it deems just Effect of filing MBP? Stay the period for filing responsive pleading Effect of bill on pleading? Becomes a part thereof (Dean said it s works like a supplemental pleading)

Metropolitan Bank v. Presiding Judge Subject matter: Compromise agreement between original parties, after the intervenor has already been admitted. 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. Even if parties come to an agreement, it can t affect the rights of the Court has already granted the intervention AND the intervenor is not a party thereto the motion has alrdy be granted Dean s discussion: y Intervention is a remedy not a proceeding. y When to intervene? Only before judgment. Cannot be allowed during appeal, except if it s La Bugal. y Why prior to judgment? Because intervenor can always file a separate action, rather than constrain an actual case. y In vernacular, an intervenor is a salingpusa y 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. Cario v. Ofilada [Case of the dismissed teachers] 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. Dean s discussion:

Tantuico v 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 v 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.

Intervention
19.1 Who may intervene. A person who: [1] has legal interest in the [a] matter in litigation [b] in the success of either of the parties [c] interest against both OR [2] is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court, may with leave of court, be allowed to intervene in the action. The court shall consider: [1] whether or not the INTERVENTION will unduly delay or prejudice the adjudication of the rights of the original parties AND [2] whether or not the INTERVENOR S RIGHTS may be fully protected in a separate proceeding. Time to intervene. The MOTION TO INTERVENE may be filed at any time before rendition of judgment by the trial court. A

19.2

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CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester

y y

Page 25 of 54 2. 3. Extraterritorial service (14.15) Residents temporarily out of the Philippines (14.16)

y y

Don t intervene in the case of the others even though each of their cases would be a precedent/test case for the other cases. In this case, there were different subject matters (employment of Teacher A and Teacher B) although they are in the same category. It is not a proper subject of intervention. There should be a common subject matter even if there are different legal interest. It should not be the same legal interest because that would make him an indispensable party. Illustration: Ordinance prohibiting BCJ/Sputnik/GI tattoo. What would you get from having that? Your seatmate will not bother you anymore. What are the forms you file? A complaint-in-intervention may be amended. See 11.3

Who serves
14.3 By whom served. The summons may be served by the [1] SHERIFF, [2] his DEPUTY or [3] other PROPER COURT OFFICER, or [4] for justifiable reasons, by any SUITABLE PERSON AUTHORIZED by court issuing the summons.

On whom
1. In general
14.1 Clerk to issue summons. Upon the filing of the complaint and the payment of the requisite legal fees, the CLERK OF COURT shall forthwith issue the corresponding summons to the defendants. 14.6 Service in person of defendant. Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, OR if he refuses to receive and sign for it, by tendering it to him.

SUMMONS
Definition and purpose
Dean s discussion: y The long arm of the court used to reach the defendant. y To acquire jurisdiction over the defendant and for purposes of due process rights of the defendant

Duty to issue
14.1 Clerk to issue summons. Upon the filing of the complaint and the payment of the requisite legal fees, the CLERK OF COURT shall forthwith issue the corresponding summons to the defendants. 14.5 Issuance of alias summons. If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the PLAINTIFF S COUNSEL, stating the reasons for the failure of service, within 5 days therefrom. In such a case (i.e. failure of service) OR if the summons has been lost, the clerk on demand on the plaintiff, may issue an ALIAS SUMMONS.

2.

Entity without juridical personality

14.8 Service upon entity without juridical personality. When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, OR upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought.

3.

Associations

Form Content
14.2 Contents. The summons shall be [1] directed to the DEFENDANTS, [2] signed by the CLERK OF COURT under seal, and contain: (a) name of the court and names of the parties to the action (b) direction that defendant answer within the time fixed by these Rules (c) notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for A COPY OF THE COMPLAINT and ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM, if any, shall be attached to the original and each copy of the summons.

a. Domestic 14.11 Service upon domestic private juridical entity. Hello Dean says: This enumeration is EXCLUSIVE. Rebollido v. CA [Summon served upon the secretary of the legal department] 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 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. Service on a mere employee or clerk of a corporation is not sufficient . 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. Citing Delta Motors v Mangosing: The purpose is to render it reasonably certain that the corporation will receive prompt and proper notice in an action against it or to insure that the summons be served on a representative so integrated with the corporation that such person will know what to do with the legal

If with leave of court

14.17 Leave of court. Any application to the court under this Rule for leave to effect service in any manner for which leave of court is necessary shall be made by motion IN WRITING, supported by AFFIDAVIT of the plaintiff or some person on his behalf, setting forth the grounds for the application. Applicable to: 1. Service upon defendant whose identity or whereabouts are unknown (14.14)

Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester papers served on him. In other words, 'to bring home to the corporation notice of the filing of the action'. However, there had been substantial compliance (as the PURPOSE OF NOTICE WAS SATISFIED) in this case so the Court considered the service of summons to be proper.

Page 26 of 54 14.16 Residents temporarily out of the Philippines. When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section. No more Dean notes hereinafter. Running out of time!!! PANIC!!! Venturanza v. CA Effort or attempt should first be made to personally serve the summons and after this has failed, a substituted service may be caused upon the defendant, and the same must be REFLECTED IN THE PROOF OF SERVICE. The presumption of regularity in the performance of official functions by the sheriff is not applicable in this case where it is patent that the sheriff's return is defective. 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. It is only when a defendant cannot 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.

Summit Trading v. Avendano [Summons was served on the personal sec of the president.] Service upon a private domestic corporation/partnership may be upon a person acting as an agent within the meaning of 14.13. We are not saying that service on such a secretary is always proper. Generally, it is improper. The president himself must be served personally with the summons if it is desired to effect the service on that particular officer. b. Foreign 14.12 Service upon foreign private juridical entity. When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its [1] resident agent designated in accordance with law for that purpose [2] if there be no such agent, on the government official designated by law to that effect [3] on any of its officers or agents within the Philippines. c. Public corporation 14.13 Service upon public corporations. When the defendant is the Republic of the Philippines, service may be effected on the SOLICITOR GENERAL; in case of a province, city or municipality, or like public corporations, service may be effected on its EXECUTIVE HEAD, or on such other officer/s as the law or the court may direct.

4.

Minors

14.10 Service upon minors and incompetents. When the defendant is a minor, insane or otherwise an incompetent, service shall be made upon him personally AND on his legal guardian if he has one OR if none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service may also be made on his father or mother.

9.

Non-residents

14.15 Service upon entity without juridical personality. Upon

Modes of service
1.
14.6

5.

Insane and incompetents

Personal

14.10 Service upon minors and incompetents. When the defendant is a minor, insane or otherwise an incompetent, service shall be made upon him personally AND on his legal guardian if he has one OR if none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service may also be made on his father or mother.

Service in person on defendant. Whenever practicable, the summons shall be served by HANDING A COPY thereof to the defendant in person, OR if he refuses to receive and sign it, by TENDERING it to him. Dean says: what are the chances that he will not refuse it? How exactly do you do it? You ask Are you Ixara Maroto? If she says yes, Here you go. You have been served.

6.

Prisoners
14.7

2.

Substituted
Service upon entity without juridical personality. Hello

14.9 Service upon prisoners. officer having the management of such jail/institution who is deemed deputized as a special sheriff for said purpose.

7.

Unknown defendant

14.14 Service upon defendant whose identity or whereabouts are unknown. In any action where the defendant is designated as an unknown owner or the like OR wherever his whereabouts are unknown AND cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him BY PUBLICATION in a newspaper of general circulation and in such places and for such time as the court may order.

8.

Residents temporarily out

Laus v. CA [Situationer: Writ of execution already issued as a result of judgment by default. Respondent filed MTD instead of MNT/MR/Set aside order of default.] The substituted service should be availed of only when the defendant cannot be served promptly in person. Impossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the failure of such efforts. The statement should be made in the proof of service. This is necessary because substituted service is in derogation of the usual method of service. It has been held that it is a method extraordinary in character, and hence may be used only as prescribed in the circumstances authorized by statute. Thus, the Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester statutory requirements of substituted service must be followed strictly, faithfully, and any substituted service other than that authorized by the statute is considered ineffective 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 court has no jurisdiction to adjudicate the controversy as to him until such time.

Page 27 of 54 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 process 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 14.18 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. Using doctrine of processual presumption, the service of summons was valid.

3.

Extraterritorial

14.15 Extraterritorial service. Hello Dean s discussion: y What are the steps for summons by publication? 1. Plaintiff files motion for leave to serve summons by publication (formal requirement under R15, substantive under R14) + affidavits setting forth the ground R14.17) 2. Ex parte hearing 3. Court issues order granting the motion: which shall state manner, time and place of publication 4. Plaintiff files proof of service (i.e. R14.19: affidavit of printer + copy of publication + proof of service by reg mail) 5. Plaintiff sends by registered mail: copy of summons, complaint and order of publication to defendant s last known address Dial Co. v. Soriano [Domestic company filed an action for injunction against foreign companies. Summons were served through DHL.] Only in 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 non-resident's property has been attached WITHIN the Philippines 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. Extraterritorial service of summons and complaint upon the nonresident defendants cannot subject them to the processes of the RTC which are powerless to reach them outside the region over which they exercise their authority. Jurisdiction in personam over non-residents, so as to sustain a money judgment, must be based upon personal service within the state which renders the judgment. 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 Karichi E. Santos | UP Law 2012

Chi s interp: The court has no a power to cite in default a defendant who has not been properly served with summons. Since orders and judgments emanating therefrom is null and void for lack of jurisdiction over the person of the defendant. 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. In an action in personam: juris over the person of def may be acquired by [1] voluntary appearance OR [2] service 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 [Summons issued by Japanese court directed to Phil corporation doing business in Japan] 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. 14.14 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

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester jurisdiction upon the issuing court over the person of the defendant. jurisdiction whether ratione personae or ratione materiae in an attachment proceeding is ancillary to jurisdiction ratione personae or ratione materiae in the main action against the defendant. 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.

Page 28 of 54

Waiver of service
14.20 Voluntary appearance. The defendant s voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall NOT be deemed a voluntary appearance. Delos Santos v. Montesa 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 39.2 who is obliged to serve a copy of such motion on the adverse party s counsel.

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 Dean s discussion: Attachment is possible only for tangible properties. Otherwise, it is impossible to convert in personam to in rem. It is quite archaic because we now have to protect IPO. Rule 57.1.f: Grounds upon which commencement may issue In an action against a party who does not reside and is not found in the Philippines OR on whom summons may be served by publication Citizens Surety v. Herrera 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) 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 coowner 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. Dean s discussion: Downside: It s possible that defendant does not have property.

Return of service
14.4 Return. When the service has been completed, the server shall within 5 days therefrom: [1] serve a COPY OF THE RETURN, personally OR by registered mail, to the plaintiff s counsel [2] return the SUMMONS to the clerk who issued it, accompanied by proof of service. 1. Proof of service 14.18 Proof of service. The proof of service of a summons shall: [1] made IN WRITING by the server and [2] SET FORTH the manner, place and date of service; [3] SPECIFY [a] any papers which have been served with the process and [b] the name of the person who received the same; [4] SWORN TO if made by a person other than a sheriff or his deputy Dean says: sheriffs do not need to swear because they are public employees who, upon their employment, take an oath that they will perform their duties faithfully 2. Proof of service by publication 14.19 Proof of service by publication. If the service has been made by publication, service may be proved by: [1] affidavit of the printer, his foreman or principal clerk OR the editor, business/advertising manager [2] to which affidavit, a copy of the publication shall be attached [3] affidavit showing the deposit of the COPY OF SUMMONS and ORDER FOR PUBLICATION in the post office, postage prepaid, directed to the defendant by registered mail to his last known address

Registered mail
14.19 Proof of service by publication. If the service has been made by publication, service may be proved by: [1] affidavit of the printer, his foreman or principal clerk OR the editor, business/advertising manager [2] to which affidavit, a copy of the publication shall be attached [3] affidavit showing the deposit of the COPY OF SUMMONS and ORDER FOR PUBLICATION in the post office, postage prepaid,

Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester directed to the defendant by registered mail to his last known address PERSONAL
14.6 - Tendering

Page 29 of 54 15.8 Omnibus motion rule. Subject to the provisions of 9.1, a motion ATTACKING a pleading, order, judgment or proceeding shall include all objections then available, and all objections not so included shall be deemed waived.

SUBSTITUTED
14.7 When? Cannot serve within a reasonable time How? Leave copy: [a] residence with person of suitable age & discretion residing [b] office/regular place of business with competent person in charge thereof 14.14 By publication under whereabouts are unknown

2.
15.5

Notice of hearing
Notice of hearing. The notice of hearing shall [1] be addressed to all the parties concerned, and [2] specify the time and date of the hearing which must not be later than 10 days after the filing of the action.

NATURAL 14.11 - Service upon its officers i.e. president, managing partner, general partner, corporate secretary, in-house counsel, treasurer 14.12 Service upon: 1. resident agent 2. government official designated by law 3. any of its officers/agents in the Philippines 14.8 Service upon: 1. any one of them 2. any person in charge of office or place of business maintained in such name

Dean says: Sign twice [1] motion itself [2] notice of hearing

DOMESTIC J

3.
15.6

Proof of service
Proof of service necessary. No written motion set for hearing shall be acted upon by the court without proof of service thereof.

14.14 By publication

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.

ENTITY

FOREIGN J

Hearing of motions
15.4 Hearing of a motion. Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be SET FOR HEARING by the applicant.

MOTIONS
In General
15.1 Motion defined. A motion is an application for relief other than by a pleading.

Form
15.2 Motions must be in writing. All motions shall be IN WRITING, except: [1] those made in open court OR [2] in the course of a hearing or trial.

Every WRITTEN MOTION REQUIRED TO BE HEARD and the NOTICE OF HEARING THEREOF shall be served in such a manner as to ensure receipt by the other party at least 3 days before the date of hearing, unless the court for a good cause sets the hearing on shorter notice. Kasi nga yung mga non-written motions (i.e. oral motions) take place during the course of trial or hearing. So no need to set em. So in effect, all motions are to be heard, the court may act upon without prejudicing the rights of the adverse party. eto lang yung talagang exception 15.7 Motion day. Except for motions requiring immediate action, all motions shall be scheduled for a hearing on Friday afternoons OR if Friday is a non-working day, in the afternoon of the next working day. Dean says: Non-working day in the place of hearing ha

1.

Generally

15.10 Form. The Rules applicable to pleadings shall apply to written motions so far as concerns caption, designation, signature and other matters of form.

2.
15.2

May be oral
Motions must be in writing. All motions shall be IN WRITING, except: [1] those made in open court OR [2] in the course of a hearing or trial.

Orosa v. Court of Appeals Motion for additional time to answer = voluntary submission Parties and counsel should not assume that courts are bound to grant the time they pray for. A motion not acted upon is deemed denied.

3.
15.9

Motions for leave

Motion for leave. A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted.

MOTION TO DISMISS
Nature
Lagutan v. Icao (1993)

Contents
1. Omnibus motion rule

Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester Under Rule 16, the motion to dismiss must be filed within the time for a responsive 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, no other.

Page 30 of 54 (e) That there is another action pending between the same parties and for the same cause; (f) That the action is barred by a prior judgment or by statute of limitations; (g) That the pleading asserting the claim states no cause of action; (h) That the claim or demand set forth in the plaintiff s pleading has been paid, waived, abandoned or otherwise extinguished; (i) That the claim on which the action is based is unenforceable under the provisions of the statutes of fraud; (j) That a condition precedent for filing the claim has not been complied with; 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. Laus v CA Quick Facts: Torres filed a complaint against Laus for collection of sum of money. Laus did not file an answer. Upon motion of Torres, TC declared Laus in default and eventually rendered a judgment 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. 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. 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) 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) Quick Facts: Boticano filed a complaint against Chu for damages. The summons was returned unserved. Chu was declared in Karichi E. Santos | UP Law 2012

Galeon v. Galeon (1993) NOT VERACITY, ONLY SUFFICIENCY Test of sufficiency of statement of cause of action is whether, admitting the veracity (aka hypothetical admission ) 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 Demetrio Galeon, who 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. (Remedy here is MBP) 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 resolution of MTD until after trial on the merits stating that the grounds relied thereon did not appear to be indubitable. 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. NB: 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. Dean s discussion: 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. p470 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.

Grounds
16.1 Grounds. Within the time for BUT before filing the ANSWER to the complaint/pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:

(a) That the court has no jurisdiction over the person of the defending party; (b) That the court has no jurisdiction over subject matter of the claim; (c) That the venue is improperly laid (d) That the plaintiff has no legal capacity to sue;

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester 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. Main issue: WoN jurisdiction over the person of the defendant may be raised for the first time on appeal? 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. -

Page 31 of 54 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.

DBP v Pundogar (1993) Quick 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, Jacinto 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. RES JUDICATA; Elements of res judicata: 1. former final judgment 2. court that rendered judgment was with jurisdiction 3. judgment was on the merits 4. identity between the [a] parties, [b] COA, [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. RE: PRESCRIPTION - 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. RE: 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.

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 CA A motion to dismiss based on litis pendencia generally abates the second case. There are however limitations to this rule. 1. 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. 2. The court may also permit the plaintiff to discontinue the first suit and thereby defeat the plea in abatement a. where the second suit is necessary in order to protect and secure the plaintiff s full rights, or b. where the abatement of the second would result in possible loss of substantial rights on the part of the plaintiff. Dean s discussion: y GR: the first one is dismissed y Exceptions: st o 1 case is more for vexation of party or BF in filing nd o 2 case is more appropriate one y Two different criteria in determining which case to abate o More appropriate action o Which case would put the court in a better position to serve the interests of justice y Requirements for litis pendetia 1. Identity of: a. Parties (as qualified in UP v CA) b. Cause of action (right-duty correlative) c. Res (or subject matter) 2. Court s competence y Add a third one for res judicata: 3. Final judgment a. 17.3 Dismissal due to the fault of the plaintiff b. If trial: judgment is always on the merits, so judgment on the merits is redundant Andersons Group, Inc. v CA 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 of action and relief sought. Further, it is required that the identity Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester be such that any judgment 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. RoC says that a civil action is commenced by the mere filing of the complaint.

Page 32 of 54 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 nemo debet bis vexari pro una et eadem causa. UP v CA Case of the Tasaday hoax 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. Gatmaytan v. CA Interesting tidbit: Atty. Gatmaytan filed 9 separate cases against their lessor when they failed to pay their law office s rent and electric bills. As a result he was ordered to pay P5K fine (15 day imprisonment in default thereof) AND 6 months suspension. 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. Dean s discussion: y What are the advantages and disadvantages of filing an MTD and a raising the grounds in an affirmative defense instead? ADVANTAGE
MTD Court immediately hears the case, you ll see the other party s evidence right away The sprinter who loses wind If dismissed, it s adjudication on the merits. Plaintiff cannot refile Slowly but surely

Abalos v CA The principle of res judicata embraces two concepts: bar by former judgment and conclusiveness of judgment . BAR BY FORMER JUDGMENT: 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. CONCLUSIVENESS OF JUDGMENT: 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 (39.49). In this case, neither concept applies. (First case: 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. 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. former final judgment 2. court that rendered judgment was with jurisdiction 3. judgment was on the merits 4. identity between the [a] parties, [b] COA, [c] subject matter Other doctrines reiterated: Basis / grounds of res judicata: 1. it is the interest of the state that there should be an end to litigation interest reipublicae ut sit finis litium;

DISADVANTAGE
If case is dismissed, generally without prejudice to refilling Except: 17.1, 17.2, 18.5 If you really want to bury him, wait til trial (unless 16.6: preliminary hearing )

AFF DEF

Sometimes veteran lawyers will set you up. If you already have the evidence, don t take the bait. File the answer immediately.

Who files
Defendant or any party against whom a claim is asserted (def in a counterclaim or cross-claim)

How pleaded
1. Period

Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester 16.1 Grounds. Within the time for BUT before filing the ANSWER to the complaint/pleading asserting a claim x x x 16.4

Page 33 of 54 Time to plead. If the motion is DENIED, the movant shall file his answer within the balance of the period prescribed in Rule 11 to which he was entitled at the time of serving his motion, but not less than 5 days in any event, computed from his receipt of the notice of denial. If the pleading is ordered to be AMENDED, he shall file his answer within the period prescribed by Rule 11 counted from the service of the amended pleading, unless the court provides a longer period.

2.
16.6

As affirmative defense
Pleading grounds as affirmative defenses. If no MTD has been filed, any of the grounds for dismissal provided in this Rule may be pleaded as an affirmative defense AND in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss has been filed.

3.
The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a COUNTERCLAIM pleaded in the answer. Dean says: y Exception: Lack of jurisdiction over the person because 14.20 only applies to an MTD. If defendant files an answer, it is already a voluntary submission. Waiver of defective summons, cures the defect in the pleading. (Mapa vs. CA, de los Santos vs. Montesa) y Exception to the exception: Laus v CA when the defendant has not been properly summoned Hadji Ali Mamadsual, et al. v. Moson 1. Any of the grounds for dismissal provided for in 16.1, 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 the Rules of Court shall apply in a suppletory manner in civil cases.

On other grounds and omnibus motion rule

9.1 Defenses and objections not pleaded. Defenses and objections not pleaded either in a MTD or in the ANSWER are deemed waived. However, when it appears from the pleadings and the evidence on record that - the court has no jurisdiction over the subject matter - there is another action pending between same parties for the same cause - the action is barred by a prior judgment - by statute of limitations the court shall dismiss the claim.

DISMISSAL OF ACTIONS
Dean discussed a lot of nice and enlightening insights about this topic but I have no more time to type em all out.

By Plaintiff
1. Through choice
17.1 Dismissal upon notice by plaintiff. A complaint may be dismissed by the plaintiff by filing a NOTICE OF DISMISSAL at any time before service of the answer OR of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on OR including the same claim. Can only be availed of once. Int l Container Terminal Services, Inc. v. 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 possible (2nd is possible only if the counterclaim is permissive).

Hearing and Order

16.3 Resolution of a motion. After the hearing, the court may: [1] dismiss the action or claim (i.e. GRANT the motion) [2] DENY the motion [3] order the AMENDMENT of the pleading. The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. Municipality of Binan v. CA Under 16.6, the grounds for a MTD 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.

2.
17.3

Failure to prosecute (non-suited)

Dismissal due to the fault of the plaintiff. If, for no justifiable cause, the plaintiff [a] fails to appear on the date of the presentation of his evidence in chief on the complaint [b] prosecute his action for an unreasonable length of time [c] comply with these Rules or any order of the court the complaint may be dismissed upon MOTION of the defendant or upon the court s OWN MOTION, without prejudice to the right of the defendant to prosecute his counterclaim in the same OR in a separate action. This dismissal shall have the effect of an ADJUDICATION UPON THE MERITS, unless otherwise declared by the court. generally with prejudice to refilling Karichi E. Santos | UP Law 2012

Effects
1.
16.5

Of dismissal
Effect of dismissal. Subject to the right of appeal, an order granting a MTD based on paragraphs f (res judicata and prescription), h (extinguishment of demand/claim) and (i) unenforceable under SoF) shall bar the refilling of the same action or claim.

2.

On period for pleading

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester 18.5 Effect of failure to appear. (At pre-trial) The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shall be without prejudice, unless otherwise ordered by the court. A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof.

Page 34 of 54 Where a compulsory counterclaim is made the subject of a separate suit, it may be o abated on the ground of litis pendentia and/or o 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.

Calalang v. CA Counsel for plaintiff was 15 minutes late because of traffic in Kamias Road due to stalled jeepney, the case had already been dismissed by the time he arrived. Case dragged on for 7 years because of reasons not solely attributable to plaintiff. A contributing factor was Judicial Reorg Act and it was passed to no less than four judges. 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.

DBP v Pundogar A dismissal order is generally deemed to be without prejudice to the filing of another action. The only instance when dismissal of an action is with prejudice is, when the order itself so states. Stated differently, when the court issues, upon the plaintiff's instance, a dismissal order that is silent as to whether it is with or without prejudice, such as in the case at bar, the presumption is, that it is without prejudice. Vallangca v. CA For purposes of invoking res judicata as a valid defense, 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.

By Court
17.2 Dismissal upon motion of the plaintiff. Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff s instance save upon approval of the court AND upon such terms and conditions as the court deems proper. If a COUNTERCLAIM has been pleaded by a defendant prior to the service upon him of the plaintiff s motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within 15 days from notice of the motion, he manifests his preference to have his counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without the approval of the court.

DEFAULTS
9.3 Default; declaration of. If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court, in its discretion, requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. (a) Effect of order of default. - A party in default shall be entitled to notice of subsequent proceedings, but not to take part in the trial. (b) Relief from order of default. - A party declared in default may at any time after notice thereof, file a motion under oath to set aside the order of default upon proper showing that (requisites): - his failure to answer was due to FRAUD, ACCIDENT, MISTAKE OR EXCUSABLE NEGLIGENCE - he has a meritorious defense. Karichi E. Santos | UP Law 2012

Dismissal of Counterclaims
17.2 Dismissal upon motion of the plaintiff. x x x If a COUNTERCLAIM has been pleaded by a defendant prior to the service upon him of the plaintiff s motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within 15 days from notice of the motion, he manifests his preference to have his counterclaim resolved in the same action. x x x

Effect of Dismissal
Meliton v. CA

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester In such a case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice. (c) Effect of partial default. When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented. (d) Extent of relief to be awarded. - A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for NOR award unliquidated damages. (e) Where no defaults allowed. If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exist AND if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated.

Page 35 of 54 defendant shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof. 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 decided under old rules 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 as in default and the same was granted. Note however that: [1] this was under Summary Procedure wherein motion to declare defendant in default is a prohibited pleading and [2] the defendant had filed an answer. Held: Lower courts erred in citing defendant in default. What it should have done is to issue a preliminary 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. A 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." Defendants could not be in default after they had answered the complaint.

Nature in general
9.3 Default; declaration of. If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court, in its discretion, requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. 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 (defaulting) 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.

Effect of Default
9.3 Default; declaration of. (a) Effect of order of default. - A party in default shall be entitled to notice of subsequent proceedings, but not to take part in the trial. (c) Effect of partial default. When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented. Dulos v. CA Karichi E. Santos | UP Law 2012

When allowed
1. 2.
18.5

Failure to answer Pre-trial, failure to appear

Effect of failure to appear. (At pre-trial) The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shall be without prejudice, unless otherwise ordered by the court. A similar failure on the part of the

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester Quick facts: Dulos was declared in default for failure to appear in pretrial 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: RTC was correct in dismissing the special civil action. Ratio: y A case may be dismissed for failure of a party to appear at the pre-trial conference. 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.

Page 36 of 54

9.5 Default; declaration of. (d) Extent of relief to be awarded. - A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for NOR award unliquidated damages. 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 (in default), 9.3 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 (as in default), 18.5 provides that the award may exceed the amount or be different in kind from the prayed for.

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.
At what stage the order of default was discovered or noticed BEFORE JUDGMENT Requisites: 1. Failure to answer or appear on pre-trial was due to FAME 2. He has a meritorious defense AFTER JUDGMENT but BEFORE FINALITY AFTER JUDGMENT has BECOME FINAL AND EXECUTORY Within time allowed therefore (i.e. 15 days after judgment), even if no petition to set aside has been filed Available remedy

Default order, plaintiff presented evidence ex-parte i.e. in default (9.3) Judgment against the defendant should not exceed the AMOUNT OR to be different in KIND from that prayed for

Defendant filed an answer but failed to appear at hearing i.e. as in default (18.5) Award may exceed the amount or be different in kind from the prayed for

Dean says: In the latter case, there is already an answer from the defendant wherein the court could properly base awards even if not prayed for by the plaintiff.

3.

Where not allowed

Motion to set aside order of default (Rule 9.3.b)

Procedure after order of default

9.3 Default; declaration of. If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court, in its discretion, requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. 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 pre-trial; pre-trial and trial on the merits are usually held on separate days to enable the parties to prepare for trial.

Motion for new trial (Rule 37) Petition for relief from judgment (Rule 38) Appeal

Dean says: The remedy against default depends on the stage. 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.

Order of Default
1. When some answer and other default
9.3 Default; declaration of. (c) Effect of partial default. When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented.

Remedies
1. Liberality

2.

Extent of relief to be awarded

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 Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester 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 every chance to fight their case fairly and in the open, without resort to technicality. 2. 41.1

Page 37 of 54 Subject of appeal. An appeal may be taken from a judgment or final order that completely disposes of the [1] case OR of a [2] particular matter therein only when declared by these Rules to be appealable). No appeal may be taken from: (a) An order denying a petition for relief or any similar motion seeking relief from a judgment (b) An interlocutory order (c) An order disallowing OR dismissing an appeal (d) An order denying a motion to set aside judgment by consent, confession OR compromise on the ground of fraud, mistake or duress OR any other ground vitiating consent (e) An order of execution (f) A judgment or final order for or against one or more several parties or in separate claims, counter-claims and third party complaints, while the main case is pending, unless the court allows an appeal therefrom and (g) An order dismissing an action without prejudice In any of the foregoing circumstances, the aggrieved paty may file an appropriate special civil action as provided in Rule 65. 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 Set 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 Karichi E. Santos | UP Law 2012

Modes

a. Motion to set aside 9.3 Default; declaration of. - (b) Relief from order of default. - A party declared in default may at any time after notice thereof, file a motion UNDER OATH to set aside the order of default upon proper showing that (requisites): [1] his failure to answer was due to FRAUD, ACCIDENT, MISTAKE OR EXCUSABLE NEGLIGENCE (FAME) [2] he has a MERITORIOUS DEFENSE. In such a case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice. Dean says: there should be two different affidavits for the evidence on the FAME and the meritorious defense. There should be two affidavits of merit. b. Motion for new trial 37.1 Grounds of and period for filing motion for new trial and reconsideration. Within the period for taking an appeal, the aggrieved party may move the TC to: [1] set aside the judgment/final order and [2] grant new trial for one or more of the following causes materially affecting the substantial rights of the said party: (a) Fraud, accident, mistake or excusable negligence (FAME) which ordinary prudence could not have guarded against AND by reason of which the aggrieved party has probably been impaired in his rights. (b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at trial, AND which if presented would probably alter the result. x x x c. Petition for relief from order Petition for relief from judgment, order or other proceedings. When a [1] judgment or final order is entered AND [2] any other proceeding is thereafter taken against a party in any court through FAME, he may file a petition in such court and in the same case, praying that the judgment, order or proceeding be SET ASIDE. Petition for relief from denial of appeal. When a [1] judgment or final order is rendered by any court in a case AND [2] a party thereto, by FAME, has been prevented from taking an appeal, he may file a petition in such court and in the same case, praying that the appeal be GIVEN DUE COURSE. d. Appeal

38.1

38.2

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester 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.

Page 38 of 54

RULE 34: JUDGMENT ON THE PLEADINGS

34.1 Judgment on the pleadings. Where the ANSWER [1] fails to tender an ISSUE OR [2] otherwise admits the MATERIAL ALLEGATIONS of the adverse party s pleading, the court may, on motion of that party, direct judgment on such pleading. However, in actions for declaration of nullity OR annulment of marriage OR for legal separation, the material facts alleged in the complaint shall always be proved.

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. Dean s discussion: y Generally, a remedy available to the PLAINTIFF. Available to the DEFENDANT only as to his counterclaim. y Complaint Answer answer did not tender material issue move for JoP y Issue tendered is not important in relation to the plaintiff s CoA i.e. there may be genuine issues but it does not pertain to MATERIAL FACTS y Non-material issue one that does not support the CoA

Ramnani v. CA A satisfactory showing of the movant of the existence of FAME 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 nonappearance 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 for 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.

RULE 35: SUMMARY JUDGMENTS

From Riano: y Accelerated judgment y A procedural technique to promptly dispose of cases where the facts appear undisputed and certain from the pleadings, depositions, admissions and affidavit on record or for weeding out sham claims or defenses at an early stage of the litigation to avoid the expense of a trial. y Its object is to separate what is formal or pretended in denial or averment from what is genuine and substantial so that only the latter may subject a party in interest to the burden of trial. Judgment on the pleadings
Answer tenders no issue 3 days notice of hearing Filed by the claiming party Based on the pleadings alone

Motion for summary judgment

While there is an issue, there is no genuine factual issue 10 day notice of hearing Filed by either claiming or defending party Based on pleadings, affidavits, admissions and depositions

35.1

Summary judgment for claimant. A party seeking to: [1] recover upon a claim, counterclaim, or cross-claim OR [2] obtain a declaratory relief may, at any time AFTER THE PLEADING IN ANSWER THERETO HAS BEEN SERVED, move with supporting affidavits, deposition or admissions for a summary judgment in his favor upon all or any part thereof. Summary judgment for defending party. A party against whom a claim, counterclaim, or cross-claim is [1] asserted OR a [2] declaratory relief is sought may, at ANY TIME, move with supporting affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof.

35.2

Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester 35.3 Motion and proceeding thereon. The motion (for SJ) shall be served at least 10 days before the time specified for the hearing. The adverse party may serve opposing affidavits, deposition or admission at least 3 days before the hearing. After the hearing, the JUDGMENT SOUGHT shall be rendered forthwith if the pleadings, affidavits, depositions and admissions on file show that: except as to the amount of damages, [1] there is NO GENUINE ISSUE as to any material fact and [2] that the moving party is entitled to a judgment as a matter of law. Form of affidavits and supporting papers. Supporting and opposing affidavits shall: [1] be made on personal knowledge, [2] set forth such facts as would be admissible in evidence, [3] show affirmatively that the affiant is competent to testify to the matters stated therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith. Affidavits in bad faith. Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to this Rule are presented in bad faith OR solely for the purpose of delay, the court shall forthwith ORDER the offending party or counsel to pay to the other party the amount of the reasonable expenses which filing of the affidavits caused him to incur, including the attorney s fees. It may, after hearing, further adjudge the offending party or counsel guilty of contempt.

Page 39 of 54 court to grant petitioner s motion for summary judgment will not issue where petitioners failed to establish [1] a clear legal right to the relief sought, and [2] 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.

35.5

35.6

Dean s discussion: y It bars dismissal upon notice by plaintiff. y There is longer period for notice (10 days, instead of the 3 day) y Issues are tendered BUT there is doubt on whether the party has evidence to support its claims. y Affords the parties opportunity to take a peek at the evidence of the other party. Why? Since the opposition to the motion is the presentation of opposing affidavit/admissions/depositions. y It is special in that it commands other the party to present evidence even before pre-trial. y ALLEGATION + DENIAL = ISSUE BUT HERE, the issue is only physical but not genuine y GENUINE means can be supported by evidence y GENUINE ISSUE + NO EVIDENCE = motion for summary judgment y Issue to be settled upon hearing: WON there is genuine issue. It does not seek to weigh the evidence but only to DETERMINE THE EXISTENCE (not the CREDIBILITY). 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 amount 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 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

Paz v. CA 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

1. 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. Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester 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. HEARING ON A MOTION
Only on factual issues not related to the cause of action

Page 40 of 54 TRIAL
To support or deny or impeach the credibility of evidence Relating to the constitutive facts of COA or condition precedent

2.
35.4

Partial
y y

Case not fully adjudicated on motion. If on motion under this Rule, [1] judgment is not rendered upon the [a] whole case OR for [b] all the reliefs sought AND [2] a trial is necessary, the COURT, at the hearing of the motion, [1] by examining the pleadings and evidence before it AND [2] by interrogating the counsel shall ASCERTAIN: [1] what material facts exists without substantial controversy [2] what are actually and in good faith controverted. It shall thereupon MAKE AN ORDER: [1] specifying the: [a] facts that appear without substantial controversy [b] extent to which amount of damages or other relief is not in controversy [2] directing such further proceedings in the action as are just. The facts so specified shall be deemed established, and the trial shall be conducted o the controverted facts accordingly.

What do you put in the affidavit? Positive facts, not negations (e.g. if you say there is no contract, how do you prove a nothing ?) With the new rules on discovery, MSJ may not be that effective anymore. Difference between final order and final judgment FINAL ORDER JUDGMENT

Finishes the case but not on the Disposes of the case on the merits merits The same for purposes of remedies: (appeal/MR/MNT) that s why you ll have to distinguish between interlocutory order and final order For purposes of res judicata: depends if the final order is with or without prejudice E.g of with prejudice 17.3, MTD 16

RULE 18: PRE-TRIAL

Nature
18.2 Nature and purpose. The pre-trial is mandatory. x x x

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. Dean says: This case was asked in 1987 Bar. He remembers because it was HIS bar and he did not get it. Therefore: y MSJ denied interlocutory y MSJ granted final y MSJ partially granted interlocutory o EXCEPTION: if the entire CoA is decided and it is not related to the other CoA (read: severable) final order o E.g. permissive counterclaim More discussions: y Difference between hearing on a motion and trial as to purpose

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-trial all issues of law and fact which they intend to raise at the trial, except as such as may involve privileged or impeaching matters. Dean s discussion: y Who appears for a juridical entity? See the AoP/AoI or bylaws as to who is authorized to represent it y What are the two stages of pre-trial? o Preliminary conference informal; before the CoC o Pre-trial hearing

When
18.1 When conducted. After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial.

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.

Requirements for appearance

18.4 Appearance of parties. It shall be the duty of the parties and their counsel to appear at pre-trial. The NON-APPEARANCE of a party may be excused only if: Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester [1] a valid cause is shown therefor OR [2] if a representative shall appear in his behalf fully authorized in writing to: [a] enter into amicable settlement [b] submit to alternative modes of dispute resolution [c] enter into stipulations OR admissions of facts and of documents

Page 41 of 54

Consequences
1.
18.7

Order
Record of pre-trial. x x x Should the action proceed to trial, the order shall explicitly LIMIT and DEFINE the issues to be tried. The contents of the order shall CONTROL the subsequent course of the action, unless modified before trial to prevent manifest injustice.

Procedure
1.
18.1

2.
18.2

Judgment on the pleadings

Duty to set
When conducted. After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial.

Nature and purpose. The pre-trial is mandatory. The court shall consider: xxx (g) The propriety of rendering judgment on the pleadings, OR summary judgment OR of dismissing the action should a valid ground therefor be found to exist; Judgment on the pleadings. Where the ANSWER [1] fails to tender an ISSUE OR [2] otherwise admits the MATERIAL ALLEGATIONS of the adverse party s pleading, the court may, on motion of that party, direct judgment on such pleading. However, in actions for declaration of nullity OR annulment of marriage OR for legal separation, the material facts alleged in the complaint shall always be proved.

2. 18.3

Notice
Notice of pre-trial. The notice of pre-trial shall be served on the counsel OR on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him.

34.1

3.
18.6

Pre-trial brief required

Pre-trial brief. The parties shall file with the COURT and serve on the ADVERSE PARTY, in such manner as to ensure their receipt thereof at least 3 days before the date of the pretrial, their respective pre-trial briefs, which shall contain, among others:

3.
18.2

Summary judgment

(a) A statement of their willingness to enter into amicable settlement OR alternative modes of dispute resolution, indicating the desired terms thereof; (b) A summary of admitted facts and proposed stipulation of facts; (c) The issues to be tried or resolved; (d) The documents or exhibits to be presented, stating the purpose thereof; (e) A manifestation of their having availed OR their intention to avail themselves of discovery procedures OR referral to commissioners; (f) The number and names of the witnesses and the substances of their respective testimonies; Failure to file the pre-trial brief shall have the same effect as failure to appear at pre-trial.

Nature and purpose. The pre-trial is mandatory. The court shall consider: xxx (g) The propriety of rendering judgment on the pleadings, OR summary judgment OR of dismissing the action should a valid ground therefor be found to exist;

See Rule 35

4.

Suspensions

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. .

Effect of failure to appear

1. On plaintiff
Dismissal due to the fault of the plaintiff. If, for no justifiable cause, the plaintiff [a] fails to appear on the date of the presentation of his evidence in chief on the complaint [b] prosecute his action for an unreasonable length of time [c] comply with these Rules or any order of the court the complaint may be dismissed upon MOTION of the defendant or upon the court s OWN MOTION, without prejudice to the right of the defendant to prosecute his counterclaim in the same OR in a separate action. This dismissal shall have the effect of an ADJUDICATION UPON THE MERITS, unless otherwise declared by the court. generally with prejudice to refilling 17.3

4.
18.7

Record or Order of Pre-trial

Record of pre-trial. The proceedings in the pre-trial shall be recorded. Upon the termination thereof, the court shall issue an ORDER which shall recite in detail: [1] matters taken up in the conference [2] action taken thereon [3] amendments allowed to the pleadings [4] agreements OR admissions made by the parties as to any of the matters considered. Should the action proceed to trial, the order shall explicitly LIMIT and DEFINE the issues to be tried. The contents of the order shall CONTROL the subsequent course of the action, unless modified before trial to prevent manifest injustice.

2.

On defendant

Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester 18.5 Effect of failure to appear. The failure of the PLAINTIFF to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shall be without prejudice, unless otherwise ordered by the court. A similar failure on the part of the DEFENDANT shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof.

Page 42 of 54

Preferences
20.1 Calendar of cases. x x x Preferences shall be given to habeas corpus cases, election cases, special civil actions and those so required by law. Dean says: Only directory.

a.

Compare with default

IN DEFAULT AS IN DEFAULT
Def has already filed an answer, the court may grant such relief as the pleadings would warrant No immediate judgment There must be an ex parte presentation of evidence first Silent

Assignment of Cases
20.2 Assignment of cases. The assignment of cases to the different branches of a court shall be done exclusively by raffle. The assignment shall be done in open session of which adequate notice shall be give so as to afford interested parties the opportunity to be present.

Relief to be awarded not limited to that prayed for May grant immediate judgment Ex parte presentation of evidence depends on the court s discretion Def entitled to receive copies all notices

TRIAL
Notice of Trial
30.1 Notice of trial. Upon entry of a case in the trial calendar, the clerk shall notify the parties of the date of its trial in such manner as shall ensure his receipt of that notice at least 5 days before such date.

3.
18.6

No pre-trial brief
Failure to file the pre-trial brief shall have the same effect as failure to appear at pre-trial.

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 bylaws 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.

Adjournments and Postponements

30.2 Adjournment and postponements. A court may adjourn a trial from day to day and to any stated time, as the expeditious and convenient transaction of business may require, but shall have no power to adjourn a trial for longer than 1 month for each adjournment, nor more than 3 months in all, except when authorized in writing by the Court Administrator, Supreme Court.

1.
30.3

Absence of evidence
Requisites of motion to postpone trial for absence of evidence. A motion to postpone a trial on the ground of absence of evidence can be granted only upon AFFIDAVIT showing: [a] materiality or relevancy of such evidence [b] due diligence has been used to procure it. But if the adverse party ADMITS THE FACTS TO BE GIVEN IN EVIDENCE, even if he objects or reserves the right to object their admissibility, the trial shall not be postponed.

2.
30.4

Illness of party or counsel

Requisites of motion to postpone trial for illness of party or counsel. A motion to postpone a trial on the ground of illness of a party/counsel may be granted if it appears upon AFFIDAVIT or SWORN CERTIFICATION that the [a] presence of such party/counsel at the trial is indispensable [b] the character of his illness is such as to render his nonattendance excusable.

RULE 20: CALENDAR OF CASES

Calendar
20.1 Calendar of cases. The clerk of court, under the direct supervision of the judge, shall keep a calendar of cases for pre-trial, trial, those whose trials were adjourned or postponed, and those with motions to set for hearing. Preferences shall be given to habeas corpus cases, election cases, special civil actions and those so required by law.

Dean s discussion: y If you re part of a law firm with 1000 lawyers, use sparingly. y Can you present counsel as witness? Yes, but that would look ridiculous. Imagine you will examine yourself and you also object to yourself. I ve seen that happen. y Can you call the adverse party to the witness stand? No, unless you serve interrogatories first. Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester

y

Page 43 of 54 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.

Not because it s adversarial does it mean you have to be odious. We re a small community, don t make it hard for the other party to obtain adjournment.

Subpoena
See Rule 21 Dean s discussion: y In practice, don t get coerce an unwilling witness, it might say something you don t want. y 2 Kinds of subpoena o Ad testificandum o Duces tecum y Grounds to quash o Irrelevant (don t judge the weight of evidence) o Oppressive/meant to harass y Limits of subpoena o 100 km, ordinary mode of transportation o Dead, disabled o In prison

2.
30.6

Agreed statements of facts

Agreed statement of fact. The parties to any action may agree, in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe.

Conduct
1.
30.5

18.2d Nature and purpose. (Pre-trial) x x x The court shall consider: xxx [d] The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof 18.7 Record of pre-trial. x x x Upon the termination thereof, the court shall issue an ORDER which shall recite in detail: xxx [4] agreements OR admissions made by the parties as to any of the matters considered. x x x

Order of trial
Order of Trial. Subject to the provisions of 31.2 (on separate trials), and unless the court for special reasons otherwise directs, the trial shall be limited to the issues in the pre-trial order and shall proceed as follows:

(a) Plaintiff shall adduce evidence in chief of his complaint (b) Defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and third-party complaint (c) Third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim and fourth-party complaint (d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them (e) The parties against who any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in order to be prescribed by the court (f) The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case and (g) Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue OR to submit their respective memoranda or any further pleadings. If several defendants or third-party defendants and so forth, having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence. Municipality of Bian 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 16.5 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

3.
30.7

Statements of judge
Statement of judge. During the hearing or trial of a case, any statement made by the judge with reference to the case OR to any of the parties, witnesses or counsel, shall be made of record in the stenographic notes.

Dean says: Especially for purposes of ensuring impartiality. Make sure the stenographer is listening to you and not sleeping. One time, the judge was against me, he went to his chambers while I was presenting a witness.

4.
30.8

Suspension of actions
Suspension of actions. The suspension of actions shall be governed by the provisions of the Civil Code.

From Riano (page 586): y One or both parties have expressed a willingness to discuss a possible compromise y It appears that before the commencement of the action or proceeding, offered to discuss a possible compromise but the other party refused the offer

5.
30.9

Duty of judge and power to delegate

Judge to receive evidence; delegation to clerk of court. The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. However, in default OR ex parte hearings, and in any case where the parties agree in writing, the court may delegate the reception of evidence to its clerk of court who is a member of the bar. The clerk of court shall have no power to rule on objections to any question OR to the admission of exhibits, which objections shall be resolved by the court upon submission of his report

Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester and the transcripts within 10 days from termination of the hearing.

Page 44 of 54

RULE 33: DEMURRER TO EVIDENCE

33.1 Demurrer to evidence. After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law, the plaintiff has shown no right to relief. If his motion is DENIED, he shall have the right to present evidence. If the motion is GRANTED but ON APPEAL the order of dismissal is REVERSED, he shall be deemed to have waived the right to present evidence.

a.

Trial by Commissioner
See Rule 32

Dean s discussion: y This is rarely done. They sit with the judges and recommend. Judges are generally allergic to this. They don t like second persons to decide the facts. This is the closest we can get to a jury, though. y Normally for examination of long accounts and ex parte presentation of evidence.

Consolidation of Trial
31.1 Consolidation. When actions involving common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

Compare with Permissive Joinder

PCGG v. Sangdiganbayan [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 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.

Syiangco v. Costibolo 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 judgment 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 judgment 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 judgment in the absence of contrary evidence, the case still remains before the trial court, and the natural step is to accept evidence from the defense. 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 judgment on the merits on the basis of plaintiff s evidence.

RULE 36: JUDGMENTS, FINAL ORDERS AND ENTRY

Form
36.1 Rendition of judgments and final orders. A judgment or final order determining the merits of the case shall be in writing, personally and directly prepared by the judge, stating clearly and distinctly the facts on which it is based, signed by him, and filed with the clerk of court.

Severance of trial
31.2 Consolidation. The court, in furtherance of convenience OR to avoid prejudice, may order a SEPARATE TRIAL of any claim, cross-claim, counterclaim or third-party complaint OR of any separate issue OR of any number of claims, cross-claims, counterclaims, third-party complaints or issues. Ceniza v CA Amusing case about ancient meter-reader and alleged overcharging by Visayan Electric Company. Judgment by the Trial Court favored the complainants, but the appeal of Visayan Electric was heeded and the CA reversed the judgment. 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 Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester rendering final and executory the judgment 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 judgment, 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 judgment or final order to be final and executory.

Page 45 of 54 the action or proceeding or any part thereof OR rendering a judgment by default against the disobedient party x x x

4. 5. 6.

Default Judgment Judgment after ex parte presentation of evidence Compromise judgment

Kinds (as to finality)

1.
36.1

Rendition of judgment
Rendition of judgments and final orders. A judgment or final order determining the merits of the case shall be in writing, personally and directly prepared by the judge, stating clearly and distinctly the facts on which it is based, signed by him, and filed with the clerk of court.

40.2 41.3 42.1

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 Compromise 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 judgment based on a compromise agreement could be rendered. The usual doctrine is that a compromise agreement constitutes law between the parties and that a judgment based thereon is immediately final and executory. (Not applicable in this case) Dean s discussion: y A judgment based on a compromise is a waiver of appeal because the losing party agreed to the judgment, and in a sense, a final judgment. y There is a presumption that the agreement was voluntary and intelligently done. y 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. Judgment based on compromise Judgment based on confession
Agreement only on application of norms some facts, and NOT with respect to the relief and application of norms to the entire case Not a final judgment; Appealable

2.
36.2

Entry of judgment
Entry of judgments and final orders. If no APPEAL or MNT or MR is filed within the time allowed provided in these Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments. The date of finality of the judgment or final order shall be deemed to be the date of its entry. The record shall contain the dispositive part of the judgment or final order, and shall be signed by the clerk, with a certificate that such judgment or final order has become final and executory. PFRFJ Execution

38.3 39.6

3.

Entry of satisfaction of judgment

39.44 Entry of satisfaction of judgment by clerk of court. B. 39.45 Entry of satisfaction of judgment with or without admission. B.

Kinds (as to process of procuring)

1. 2. 3.
29.3

Agreement with respect to both the normative and descriptive (or the facts and the laws) of the entire case; includes the relief Appeal is waived; operates as final judgment because there is a presumption that the agreement was voluntary and intelligently done

Judgment on the Pleadings Judgment on Demurrer to Evidence Summary Judgment

Other consequences. IF any party or an officer or managing agent of a party refuses to obey an order made under sec 1 of this Rule requiring him to answer designated questions OR an order under R27 (produce document/thing for inspection/copying/photographing/permit it to be done) OR an order under R28 (submit to a physical or mental examination), the court may make such orders in regard to the refusal as are just, and among others the following: x x x [c] An order striking out pleadings/parts thereof OR staying further proceedings until the order is obeyed OR dismissing

7.

Orders for dismissal

a. b. c. d. Motion to Dismiss Dismissal under R 17 Dismissal under R 18.5 Dismissal under R 29.5

Kinds (as to parties)

1.
36.3

As against one or more several parties

Judgment for or against one or more of several parties. A

2.

Several judgment
Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester 36.4 Several judgments. In an action against several defendants, the court may, when a several judgment is proper, render judgment against one or more of them, leaving the action to proceed against the other.

Page 46 of 54 (c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment/final order which appears upon its face to have been so adjudge OR which was actually and necessarily included therein or necessary thereto.

3.
36.6

Against entity without juridical personality

Judgment against entity without juridical personality. When judgment is rendered against two or more persons sued as an entity without juridical personality, the judgment shall set out their individual or proper names, if known.

2.

Foreign

39.48 Execution of special judgments. A

Amendment of Judgment Kinds (as to claims)

1. 1. 2.
36.5

Before it becomes final and executory

Entire At various stages or separate judgments

Separate judgments. A Remedies Available: y Motion for Reconsideration (Rule 37) asking the trial court to look at the case one more time and to rethink the decision y Motion for New Trial (Rule 37) asking the trial court to annul the judgment and re-do the trial y 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 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 judgments, to make them conformable to the law applicable provided that said judgments 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.

Kinds (as to how executed)

1.
39.4

Judgments not stayed on appeal

Judgments not stayed by appeal. Judgment in actions for injunction, receivership, accounting and support (IRAS), and such other judgments as are now of may hereafter be declared to be immediately executory, shall be enforceable after their renditions and shall not be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court. On appeal, therefrom, the appellate court in its discretion may make an order suspending, modifying, restoring or granting the IRAS. The stay of execution shall be upon such terms as to bond or otherwise as may be considered proper for the security or protection of the rights of the adverse party.

2.

After it becomes final and executory

2.
39.9

Judgments for money

Execution of judgments for money. A

3.

Judgments for specific acts

39.10 Execution of judgments for specific act. A

Remedies Available: y Petition for Relief from Judgment (Rule 38) filed in the court of origin within 6 months from finality, and within 60 days from discovery of the ground for relief. y 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 Can the Court of Appeals modify a decision after sustaining the trial court s denial of the petition of relief from judgment? No. The filing of the petition for relief from judgment with the trial court was an unequivocal admission that the period of appeal had already expired; therefore, it presupposes a final judgment, which is already final and executory. It can neither be amended nor modified. [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.

4.

Special judgments

39.11 Execution of special judgments. A

Effect of Judgment and Final Orders

1. Local

39.47 Effect of judgments or final orders. The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce judgment or order, may be as follows: xxx (b) In other cases, the judgment/final order is, with respect to the matter directly adjudged OR as to any other matter that could have been raised in relation thereto, CONCLUSIVE between the parties and their successor in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity.

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CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester

Page 47 of 54

3.

Judgments nunc pro tunc

RULE 37: NEW TRIAL OR RECONSIDERATION

Grounds and nature
37.1 Grounds of and period for filing motion for new trial and reconsideration. Within the period for taking an appeal, the aggrieved party may move the TC to: [1] set aside the judgment/final order and [2] grant new trial for one or more of the following causes materially affecting the substantial rights of the said party: (a) Fraud, accident, mistake or excusable negligence (FAME) which ordinary prudence could not have guarded against AND by reason of which the aggrieved party has probably been impaired in his rights. (b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at trial, AND which if presented would probably alter the result. Within the same period, the aggrieved party may also move for reconsideration upon the grounds that the [1] damages awarded are excessive [2] evidence is insufficient to justify the decision or final order [3] decision or final order is contrary to law. 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.

Cardoza v Singson (1990) 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 judgment was made, and in 1981, the trial court issued an order that a nunc pro tunc judgment 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 then as now. It contemplates the situation where there is a failure of expression or articulation, and an exception to the general rule that final judgments cannot be substantially altered. There is no substantial alteration in this case because judgments subject to retroactive corrections usually have clerical errors.

Annulment of judgment
Top Management Programs Co. v CA (1993) The title to a land was awarded to the lawyers who litigated for the landowners and the decision has become final and executory. Plaintiff comes to Court as a third party seeking annulment of the judgment based on extrinsic fraud. A person need not be a party to the judgment sought to be annulled, however, it is still essential that he prove his allegation that the judgment 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) 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 unauthorized counsel. They sought a petition for relief from judgment. An action to declare the nullity of a void judgment does not prescribe. Vda. De Macoy v 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.

Motion for New Trial

1. Distinguished from Motion to reopen trial

Agulto v 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.
MOTION TO REOPEN TRIAL When the judge retires after trial and before judgment Granted in the interest of justice Form under R15 MOTION FOR NEW TRIAL After judgment, during the 15 day reglementary period Limited to 2 grounds under R37 Needs affidavit of FAME and affidavit of merits

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CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester

Page 48 of 54 Director of Lands v 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. o 37.5 Second MNT Second motion for new trial. A MNT shall include all grounds available and those not so included shall be deemed waived. A second MNT, based on a ground not existing nor available when the first motion was made, may be filed within the time herein provided excluding the time during which the first motion had been pending. x x x o 37.5 Second MR

2.

Grounds

Velasco v Ortiz 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 v 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.

Second motion for new trial. x x x No party shall be allowed a second motion for reconsideration of a judgment or final order. Dean says: Wag kang makulit.

2.
37.4

For resolution
Resolution of a motion. A motion for new trial OR reconsideration shall be resolved within 30 days from the time it is submitted for resolution.

Contents
1.
37.2

In general
Contents of a motion for new trial or reconsideration. The motion shall be made IN WRITING, stating the GROUND/S therefor, a WRITTEN NOTICE of which shall be served by the movant on the adverse party. x x x

Motion for Reconsideration

Dean says: You ask the court to look at the normative if it has been properly applied. There is nothing wrong with the facts, but only an interpretation of law.

2.
37.2

Motion for New Trial

Periods
37.1 A. A

1.

For filing

o Effect of motions for extension of time to file nd 41.3 2 Par Period of ordinary appeal. The period of appeal shall be interrupted by a timely MNT or MR. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. 40.2 2 Par
nd

Contents of a motion for new trial or reconsideration. x x x A MNT shall be proved in the manner provided for proof of motions. A motion for the cause mentioned in Par A of preceding section shall be supported by: AFFIDAVITS OF MERITS which may be rebutted by affidavits. A motion for the cause mentioned in Par shall be supported by: [1] affidavits of the witnesses whom such evidence is expected to be given or [2] duly authenticated documents which are proposed to be introduced in evidence. x x x

3.
37.2

Motion for Reconsideration

Contents of a motion for new trial or reconsideration. x x x A MR shall POINT OUT specifically the findings (of facts) or conclusions (of law) of the judgment/final order which are [1] not supported by the evidence [2] contrary to law making express reference to the testimonial or documentary evidence OR to the provisions of law alleged to be contrary to such findings or conclusions. x x x

When to appeal. The period of appeal shall be interrupted by a timely MNT or MR. No motion for extension of time to file a motion for new trial or reconsideration shal be allowed.

Habaluyas v 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 a motion may be filed only in cases pending with the Supreme Court.

4.
o Not required for appeal 37.2

Pro forma motion and its effects

Contents of a motion for new trial or reconsideration. x x x Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester A pro forma motion for new trial or reconsideration shall NOT TOLL the reglementary period of appeal. x x x Pojas v 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.

Page 49 of 54 (a) An order denying a petition for relief OR any similar motion seeking relief from judgment.

Action upon Motion for New Trial

1.
37.3

Options in general
Action upon motion for new trial or reconsideration. The TC may [1] SET ASIDE the judgment or final order and GRANT A NEW TRIAL, upon such terms as may be just OR [2] DENY the motion. If the court finds that excessive damages have been awarded or that the judgment/final order is contrary to the evidence OR law: it may AMEND such judgment or final order accordingly.

2.

Granting
a. Effect in general

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. 37.6 Effect of granting of MNT. If new trial is granted in accordance with the provisions of this Rule, the original judgment/final order shall be VACATED, and the action shall stand for TRIAL DE NOVO; but the recorded evidence taken upon the former trial, in so far as the same is material and competent to establish the issues, shall be USED AT THE NEW TRIAL WITHOUT RETAKING THE SAME.

3.
37.7

Partial new trials

Partial new trial or reconsideration. If the grounds for the motion under this Rule appear to the court to affect the issues as to only a part or less than all of the matter in controversy, or only one or less than all of the parties to it, the court may order new trial or grant reconsideration as to such issues, if severable, without interfering with the judgment/final order upon the rest. Effect of order for partial new trial. When less than all of the issues are order retried, the court may either enter a judgment/final order as to the rest OR stay the enforcement of such judgment/final order until after new trial.

37.8

4.

Denying
a. Remedies

37.9

Remedy against order denying motion for new trial or reconsideration. An order denying a MNT or MR is not appealable, the remedy being an APPEAL from the judgment or final order.

41.1a Subject of appeal. x x x No appeal may be taken from:

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CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester

Page 50 of 54 David v. CA (1992) A petition for relief from judgment under Rule 38 presupposes a final judgment or loss of the right to appeal. Dean s discussion: y A judgment based on a compromise immediately becomes a final judgment. y Reason: waiver of taking an appeal. y 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.

RULE 38: RELIEF FROM JUDGMENT, ORDERS OR OTHER PROCEEDINGS

Grounds and nature
38.1 Petition for relief from judgment, order or other proceedings. When a [1] judgment or final order is entered AND [2] any other proceeding is thereafter taken against a party in any court through FAME, he may file a petition in such court and in the same case, praying that the judgment, order or proceeding be SET ASIDE. Petition for relief from denial of appeal. When a [1] judgment or final order is rendered by any court in a case AND [2] a party thereto, by FAME, has been prevented from taking an appeal, he may file a petition in such court and in the same case, praying that the appeal be GIVEN DUE COURSE.

38.2

Time for filing

38.3 Time for filing petition; contents and verification. A petition provided for in either of the preceding sections of this Rules must be VERIFIED, filed within 60 days after the petitioner learns of the judgment or final order or other proceeding to be set aside, AND not more than 6 months after such judgment or final order was entered, or such proceeding was taken; x x x

1.

Grounds

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 exceptions i.e., where the attachment of the affidavit of merit in the petition for relief is unnecessary: o where there was NO JURISDICTION over the defendant or the subject matter of the action o where a judgment was taken by default before defendant s time to answer has expired o where it was entered by mistake, or was obtained by fraud, and other similar cases, o when the applicant had no notice of the trial 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.

Contents
1.
38.3

Affidavit of merit
Time for filing petition; contents and verification. A petition provided for in either of the preceding sections of this Rules must be VERIFIED, x x x and must be ACCOMPANIED with affidavits showing the FAME relied upon AND facts constituting the petitioner s good and substantial cause of action or defense, as the case may be.

2.

When MR considered as petition for relief

Dulos v CA 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. A motion for reconsideration may be considered a motion for new trial under 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.

2.

Requires final judgment or loss of appeal

Action of court before answer

1. Power to deny

Villa Rey Transit v. Far East Motor Co. (1978) A petition for relief presupposes a final and unappealable judgment.

Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester 38.4 Order to file an answer. If the petition is sufficient in form and substance to justify relief, the court in which it is filed, shall issue an order requiring the adverse parties to ANSWER the same within 15 days from receipt thereof. The order shall be served in such manner as the court may direct, together with the copies and the accompanying affidavits. a. Remedies after denial

Page 51 of 54 which the adverse party may have acquired on the property of the petitioner.

3.
38.6

Proceedings after answer is filed

Proceedings after answer is filed. After the filing of an answer OR the expiration of the period therefor, the court shall HEAR the petition and if after such hearing, it finds that the allegations thereof are not true, the petition shall be DISMISSED; but if it finds said allegations to be true, it shall set aside the judgment/final order/other proceeding complained of upon such terms as may be just. Thereafter, the case shall stand as if judgment/final order/other proceeding had never been rendered, issued or taken. The court shall then proceed to hear and determine the case as if a timely motion for a new trial or reconsideration had been granted by it.

41.1 Subject of appeal. x x x No appeal may be taken from: (a) An order denying a petition for relief or any similar motion seeking relief from a judgment (b) An interlocutory order x x x

2.
38.5

Preliminary injunction pending proceedings

Preliminary injunction pending proceedings. The court in which the petition is filed may grant such PI as may be necessary for the preservation of the rights of the parties, upon the filing by the petitioner of a bond in favor of the adverse party, conditioned that if the petition is dismissed, OR the petitioner fails on the trial of the case upon its merits, he will pay the adverse party all damages and costs that may be awarded to him by reason of the issuance of such injunction or the other proceedings following the petition; but such injunction shall not operate to discharge or extinguish any lien which the adverse party may have acquired on the property of the petitioner.

4.
38.7

Where denial of appeal is set aside

Procedure where the denial of an appeal is set aside. Where the denial of an appeal is set aside, the lower court shall be REQUIRED TO GIVE DUE COURSE and to ELEVATE THE RECORD of the appealed case as if a timely and proper appeal had been made.

Action of court after giving due course

1. Granting of petition for relief
a. Remedies

3.
38.4

Order to file an answer

Order to file an answer. If the petition is sufficient in form and substance to justify relief, the court in which it is filed, shall issue an order requiring the adverse parties to ANSWER the same within 15 days from receipt thereof. The order shall be served in such manner as the court may direct, together with the copies and the accompanying affidavits.

Procedure
1.
38.4

Order to file an answer

Order to file an answer. If the petition is sufficient in form and substance to justify relief, the court in which it is filed, shall issue an order requiring the adverse parties to ANSWER the same within 15 days from receipt thereof. The order shall be served in such manner as the court may direct, together with the copies and the accompanying affidavits.

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 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.

2.

Denying petition for relief

2.
38.5

Availability of preliminary injunction

Preliminary injunction pending proceedings. The court in which the petition is filed may grant such PI as may be necessary for the preservation of the rights of the parties, upon the filing by the petitioner of a bond in favor of the adverse party, conditioned that if the petition is dismissed, OR the petitioner fails on the trial of the case upon its merits, he will pay the adverse party all damages and costs that may be awarded to him by reason of the issuance of such injunction or the other proceedings following the petition; but such injunction shall not operate to discharge or extinguish any lien

Service Specialists v. Sheriff of Manila (1986) 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, Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester 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 52 of 54

Part V. Provisional Remedies

RULE 57: PRELIMINARY ATTACHMENT
Oate 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 application for discharge of the attachment by counter-affidavit or other evidence, in addition to that on which the attachment was made (Rule 57 Sec. 13).

Remedies after Petition for Relief expires

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.

Reopening not allowed

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.

MODES OF 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 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.

Karichi E. Santos | UP Law 2012

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester 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 53 of 54 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 re-establish 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 irreparable 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 Security 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 Karichi E. Santos | UP Law 2012

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-Murcia 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 complainant does not

CIVPRO Reviewer | Dean M. V. F. Leonen | AY 2009-2010, 2nd Semester the damages inflicted. If full compensation can be 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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Part VI. Special Civil Actions

RULE 59: RECEIVERSHIP

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.

Karichi E. Santos | UP Law 2012