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Civil Procedure

Review Notes for 12 March 2015 Long Quiz

By Troy Colmenares
3/10/15 3:31:34 PM


Motion to dismiss must be filed
within 15 days after service of summons, AND
before filing the answer to the complaint of pleading asserting a claim.
1. Lack of jurisdiction over the person of the defendant
2. No jurisdiction over the subject matter of the claim
3. Improper venue (court may not dismiss motu propio case on improper venue.)
4. Plaintiff has no capacity to sue
5. Litis pendentia
Requisites for Lis Pendens (or is it Litis Pendentia?)
a. Same parties or at least represent same interest
b. Same right asserted and same relief prayed for
c. Relief founded on the same facts
d. Identity in these particulars should be such that if the pending case has
already been disposed of it could be pleaded as a bar to present litigation
e. Claim is barred by prior judgment and statute of limitations
6. Res judicata or prescription
Requisites of Res Judicata
a. Former judgment or order must be final
b. Court rendering judgment must have jurisdiction over the parties and subject
c. Judgment must be on the merits
d. Identity of parties, of subject matter and causes of action
7. Pleading states no causes of action
8. Claim has been Paid, Extinguished, Abandoned or Waived
9. Claim is unenforceable under the provisions of the statute of frauds
10. Condition precedent has not complied with
Evidence must be adduced in order to prove complied of fact raised in a motion to
dismiss. Such evidence shall be reproduced automatically if the case goes on trial.
Resolutions of Motions:
1. Dismiss the action final act thus appealable
2. Deny the motion to dismiss interlocutory hence not appealable except by
certiorari under Rule 65
3. Order the amendment of pleading
IF the motion is denied then the movant has the balance of the period to file a
responsive pleading to file his answer, but it should not be less than 5 days.
Motion to dismiss granted based on the following is a bar from refilling of the
same action
1. Action is barred from prior action
2. Claim has been paid, waived, abandoned or extinguished

Civil Procedure
Review Notes for 12 March 2015 Long Quiz
By Troy Colmenares
3/10/15 3:31:34 PM

3. Claim is unenforceable
4. Res judicata
If a motion to dismiss is based on failure to state cause of action, the rule is if detect
may be corrected by amendment, court should allow amendment; however of plaintiff
cannot or does not amend, dismissal is with prejudice.
Grounds for motion to dismiss may be pleaded as an affirmative defense during
trial even if the motion to dismiss has been denied.
The dismissal of the complaint shall be without prejudice to the prosecution in the
same or separate action of a counterclaim pleaded in the answer.
A motion to dismiss on the ground of failure to state a cause of action in the
complaint must hypothetically admit the truth of the facts alleged in the complaint. The
admission, however, is limited only to all material and relevant facts which are well
pleaded in the complaint. The demurrer does not admit the truth of mere epithets
charging fraud; nor allegations of legal conclusions; nor an erroneous statement of law;
nor matters of evidence; nor to legally impossible facts.
Note from Regalado:
If the same motion also raised other grounds or invoked some affirmative relief
which necessarily involves the exercise of jurisdiction of the court, such special
appearance will be of no avail and the party is thereby deemed to have submitted
himself to the jurisdiction of the court.
Where summons was not served on two of the defendants and a lawyer filed, in
their behalf but without their authority, a motion for extension of time to answer
the court does not acquire jurisdiction over said defendants.
Where a party invokes the jurisdiction of a court to obtain affirmative relief and
fails, he cannot thereafter repudiate such jurisdiction.
It has been held that even if the claim in the complaint was below the
jurisdictional limit for the then CFI, if the defendant, instead of moving to dismiss,
filed a counterclaim for P12,000 which was then within the exclusive original
jurisdiction of said CFI, such counterclaim cured the defect. It is submitted,
however, that said resolution, under the facts therein, was more properly
sustainable under the principle of estoppel by laches on the part of the
defendant, as discussed in the preliminary chapter of this book, and which
principle was also relied on by the Supreme Court in its aforesaid resolution in
that case.
Where the owner of a condominium corporation sold a unit thereof on
installments with reservation of ownership until the price is fully paid, and the
buyer defaults, the courts, and not the SEC, have jurisdiction over the nature of
the action because the owner remains as stockholder for the unit sold, hence no
intra-corporate issue is involved. Xxx An action to compel a corporation to issue
shares of its capital stock in payment of its contractual obligation is and
undertaking in favor the plaintiff will not be dismissed on the ground that the
court has no jurisdiction over the nature of the action since such situation does
not involve an intra-corporate matter contemplated in PD 902-A and is not within

Civil Procedure
Review Notes for 12 March 2015 Long Quiz
By Troy Colmenares
3/10/15 3:31:34 PM

the jurisdiction of SEC. xxx However, an action to compel the defendant

corporation to render an accounting and distribution of the shares of stock, with
the dividends due thereon, of plaintiffs predecessor-in-interest is an intracorporate conflict and is not within the jurisdiction of the courts but the SEC.
Where a motion to dismiss for improper venue is erroneously denied, the remedy
is prohibition.
Where the plaintiff is not the real party in interest, the ground for the motion to
dismiss is lack if cause of action.
Res judicata, as a ground for dismissal, requires a previous final judgment in a
case prosecuted between the same parties involving the same subject-matter
and cause of action.
If the allegations of the complaint, or evidence presented, clearly indicate that the
action has prescribed, or where there is no issue in fact as to prescription, the
defense of prescription cannot be invoked against the State.
Where the plaintiff has not exhausted all administrative remedies, the complaint
not having alleged the fact of such exhaustion, the same may be dismissed for
lack of cause of action.
Same doctrinal rules will apply where the case was covered by the Katarungang
Pambaragay Law (PD 1508) and not excepted from the compulsory process of
arbitration required therein as precondition for filing a complaint in court.
The complaint may be dismissed where the complainant, after due notice,
willfully fails to appear on the date set for mediation, conciliation or arbitration.
A compromise of the controversy is not permitted by law, as where it involves
civil status, validity of marriage or legal separation, grounds for legal separation,
future support, jurisdiction and future legitime family relations shall include
o Between husband and wife
o Between parent and child
o Among other ascendants and their descendants; and
o Among brothers and sisters.
Failure to allege in the complaint that earnest efforts had been made by the
plaintiff before filing the action is not a ground for a motion to dismiss
o if one of the parties is a stranger or
o where the suit between collateral relatives who are not brothers or sisters
and, therefore, not members of the same family.
The doctrine of forum non conveniens us bit a ground for a motion to dismiss.
The omnibus motion rule provides that defenses or objections not pleaded either
in a motion to dismiss or in the answer are deemed waived, except objections
specified therein which are considered not waivable.
Lack of jurisdiction over the subject-matter may be invoked as a defense at any
stage of the action.
An action cannot be dismissed on the ground that the complaint is vague or
indefinite. The remedy of the defendant is to move for a bill of particulars or avail
of the proper mode of discovery.
Courts will still decide cases, otherwise moot and academic, if
o There is grave violation of the Constitution;

Civil Procedure
Review Notes for 12 March 2015 Long Quiz
By Troy Colmenares
3/10/15 3:31:34 PM

An exceptional character of the situation and paramount public interest is

o The constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar and the public
o The case is capable of repetition yet evading public review.
An order denying a motion to dismiss is interlocutory and not appealable but
an order granting a motion to dismiss is final and appealable.
While an order denying a motion to dismiss is interlocutory, and non-appealable,
if the denial was with grave abuse of discretion or is without or in excess of
jurisdiction, prohibition will lie Certiorari and prohibition are proper remedies
from such order of denial.
The plaintiff must move for leave to amend the complaint before the dismissal
order becomes final.
The action cannot be refilled if it was dismissed on any of these grounds:
o Res judicata;
o Prescription;
o Extinguishment of the claim or demand; and
o Unenforceability under the Statute of Frauds
A motion to dismiss is not a responsive pleading, hence the filing thereof does
not preclude the plaintiff from doing what he can lawfully do before the defendant
files his answer, i.e. amend his complaint.
Affirmative defenses:
o Fraud
o Illegality and estoppel
o And by jurisprudence, ultra vires acts and unconstitutionality


Plaintiff may cause the dismissal of an action by filing of a notice thereof before the
service of the answer or of a motion of summary judgment. Such dismissal is without
prejudice except:
1. It is stated in the notice that dismissal is with prejudice
2. Plaintiff has once dismissed in a competent court an action based on the same
Dismissal of the action does not count as a bar to the institution of an action by
the defendant which he could have brought as a cross claim or counter claim.
*National Coconut Corp. v. Kalaw, et al., 94 Phil 282 (1954) When two dismissal
rule does not apply. Rule 17 contemplates a case wherein the first action was dismissed
finally, followed by the dismissal of a second action base on or including the claim
covered by the first action. The Rules does not apply to a situation where the first action
is still pending, and the claim involved was merely reinstated in the pending first action.

Civil Procedure
Review Notes for 12 March 2015 Long Quiz
By Troy Colmenares
3/10/15 3:31:34 PM

If a counterclaim has been pleaded before the plaintiffs motion to dismiss, dismissal is
only limited to the complaint.
Dismissal due to the fault of the plaintiff may be motioned by the defendant or upon
courts own
order, such is with prejudice to filing a new action.
Instances of plaintiffs own fault (hence, dismissal is with prejudice to the filing of
a new action):
1. Failure of the plaintiff to appear without justifiable cause on date of presentation
of evidence (does not apply to probate of wills)
2. Failure of the plaintiff to prosecute his action for an unreasonable length of time
3. Failure of plaintiff to comply with the Rules of Court or any court order
The same rules apply to counter claim cross or third party complaint but must be made
before a responsive pleading or motion for summary judgment is served or if none,
before introduction of evidence.
However, the dismissal of a petition for probate of a will in a previous special
proceedings due to the failure of the petitioner and his counsel to appear on the date
and time set for the hearing thereof is not an adjudication on the merits.
Notes from Regalado
Dismissal is effected not by motion but by mere notice of dismissal which is a
matter of right such dismissal is without prejudice, except:
o Where the notice of dismissal so provides
o Where the plaintiff has previously dismissed the same case in a court of
competent jurisdiction; and
o Even where the notice of dismissal does not provide that it is with
prejudice but it is premised on the fact of payment by the defendant of the
claim involved.
The two-dismissal rule requires that both dismissals are granted by a court of
competent jurisdiction.
Where the plaintiff moves for the dismissal of his complaint to which a
counterclaim has been interposed, the dismissal shall be limited to the complaint.
Such dismissal shall be without prejudice to the right of the defendant to either
prosecute his counterclaim in a separate action or to have the same resolved in
the same action.
Secs 1 and 2 of this rule refers to the dismissal of the entire case.
The dismissal of the case for failure of the plaintiff to appear at the trial, to be
valid, now requires that
o His non-appearance is without justifiable cause, and
o Such prejudicious absence is limited to the date or dates when the
presentation of his evidence in chief on the complaint was scheduled or
since the plaintiffs presence is now required only during the presentation of
his evidence in chief, his absence during the presentation of the evidence of the

Civil Procedure
Review Notes for 12 March 2015 Long Quiz
By Troy Colmenares
3/10/15 3:31:34 PM

defendant or the other parties, or even at the rebuttal or subsequent stages of

the trial, is not a ground for dismissal.
When the dismissal does not contain any condition at all, it has the effect of an
adjudication on the merits as it is understood to be with prejudice.
Failure to comply with a court order is a ground for dismissal of the case.
Unjustifiable inaction on the part of the plaintiff to have the case set for trial is
ground for dismissal for failure to prosecute.
It is plaintiffs failure to appear at the trial, and not the absence of his lawyer,
which warrants dismissal.
A motion for reconsideration of an order dismissing the case for failure to
prosecute need not be accompanied by affidavits of merits.
The principle that the dismissal of the complaint carries with it the dismissal of
the counterclaim applies to instances where the court has no jurisdiction over the
main case.


PRE-TRIAL a MANDATORY conference and personal confirmation before the judge
between the party litigants and their respective counsel.
Pre-trial is done after the last pleading is served and filed, plaintiff must move ex parte
that case be set for pre-trial.
Court considers the following during pre-trial:
a. Possibility of amicable settlement or arbitration
b. Simplification of the issues
c. Amendments to the pleadings
d. Stipulations or admissions of facts and documents
e. Limitation of number of witness
f. Preliminary reference of issues to a commissioner
g. Propriety of judgment on the pleadings, summary judgments, or dismissal of
h. Advisability or necessity of suspending the proceedings
i. Other matters for the prompt disposition of the action
Non-appearance during pre-trial must be for valid cause shown or if the party is
represented by a person authorized by him in writing to enter into an amicable
settlement, submit to alternative modes of dispute resolution or enter stipulations and
Failure to appear during pre-trial will cause:
If plaintiff dismissal with prejudice, unless otherwise ordered by the Court.

Civil Procedure
Review Notes for 12 March 2015 Long Quiz
By Troy Colmenares
3/10/15 3:31:34 PM

If defendant plaintiff may be allowed to present evidence ex parte and the Court to
render judgment on the basis thereof.
Parties must file a pre-trial brief and ensure receipt of such at least 3 days before date of
The pre-trial brief shall contain, among others:
a. A statement of their willingness to enter into an amicable settlement
b. The 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 of or their intention to avail themselves of
discovery procedures or referral to commissioners
f. The number and names of the witnesses, and the substance of their respective
Failure to file the pre-trial brief shall have the same effect as failure to appear at the pretrial.
There shall be a record of the pre-trial where in the court issues an order which recites
matters taken up during the pre-trial.

Notes from Regalado

The pre-trial and trial on the merits of the case must be held on separate
The pre-trial may be properly scheduled even if the plaintiff had not yet
filed his answer to the defendants compulsory counterclaim since no
answer is required to be filed thereto.
The trial court has discretion to declare a property non-suited
Where the defendant is declared in default for his failure to appear at the
pre-trial, his remedy is to file a motion for reconsideration If denied with
grave abuse of discretion, certiorari is the remedy The remedy of the
plaintiff who is non-suited, on the other hand, is to appeal from the order of
Where the defendant was present at the pre-trial, the court has no
authority to thereafter call a second pre-trial and declare defendant in
default for his absence therein.

Intervenor must:
1. Have legal interest in the matter of controversy
2. Have legal interest in the success of either of the parties
3. Have legal interest against both

Civil Procedure
Review Notes for 12 March 2015 Long Quiz
By Troy Colmenares
3/10/15 3:31:34 PM

4. Be so situated as to be adversely affected by a disposition or distribution of the

property by a separate proceeding
Motion to intervene may be files at any time before judgment is rendered by the trial
Answer to complaint-in-intervention must be filed within 15 days from notice of court
admitting the complaint.
Complaint in intervention is merely collateral to the principal action. Hence, it will be
dismissed it main action is dismissed.
A complaint in intervention that seeks affirmative relief prevents a plaintiff from taking a
voluntary dismissal of the main action. Such a case is not subject to dismissal upon
intervenors petition showing him to be entitled to affirmative relief. The petition will be
preserved and heard regardless of the disposition of the main action.
An ancillary action.
Proper in the situations enumerated in the

An original action.
Presupposes that the plaintiff has no
interest in the subject matter of the action
or has an interest therein which in whole or
in part is not disputed by the other parties
to the action.
Defendants are already original parties to Defendants are being sued to implead
the pending suit.
Denial of motion for intervention is final and appealable.
Remedy for allowing or denying motion for intervention- either certiorari or mandamus
(to prevent multiplicity of suits)

Notes from Regalado:

Intervention will not be allowed where it would enlarge the issues in the
action and expand the scope of the remedies.
When an intervenor has become a party to a suit, the trial court cannot
dismiss the intervention suit on the basis of an agreement between the
original parties to the action unless the intervenor is a party in such
When an intervening petition has been filed, a plaintiff may not dismiss the
action in any respect to the prejudice of the intervenor.
Where the intervenors rights are interwoven in the pending case and he
had due notice of the proceedings, he will thereafter be estopped from
questioning the decision rendered therein through another action.
An improper denial of a motion for intervention is correctible by appeal
but if there is grave abuse of discretion, mandamus will lie on the other

Civil Procedure
Review Notes for 12 March 2015 Long Quiz
By Troy Colmenares
3/10/15 3:31:34 PM

hand, an improper granting of a motion for intervention may be

controverted by certiorari and prohibition.


Clerk of court keeps a calendar of cases for pre-trial, trial, those whose trials have been
adjourned or postponed and those motions set for hearing.
Preference of dates shall be given to habeas corpus, election, special civil action and
those cases so required by law.
Assignment of cases shall be done exclusively by raffle in open session with notice, so
parties or counsel will be prevented from choosing judges to hear their case.
Notes from Regalado
Four separate calendars reflecting the cases for pre-trial, for trial, those whose
trials were adjourned and postponed and those those requested to be set for

SUBPOENA is a process directed to a person requiring him to attend and testify at a
hearing or trial or investigation or for the taking of his deposition.
SUBPOENA DUCES TECUM process which requires a person to bring with him
books, documents or other things under his control.
SUBPOENA AD TESTIFICATION - process which requires a person to attend and to
testify at the hearing or the trial of an action or at any investigation conducted by
competent authority or for the taking of his deposition.


An order to appear and testify or to

produce books and documents
May be served to a non-party
Needs tender of kilometrage, attendance
and reasonable cost of production fees

Order to answer a complaint

Served on the defendant
Does not need tender of kilometrage and
other fees

Subpoena may be issued by:

a. The court before whom witness is required to attend;
b. The court of the place where the deposition is to be taken;

Civil Procedure
Review Notes for 12 March 2015 Long Quiz
By Troy Colmenares
3/10/15 3:31:34 PM

c. The officer or body authorized by law to do so in connection with its

d. Any Justice of the SC or CA in any case or investigation pending within the
Prisoner may be issued a subpoena a but for prisoners sentenced to death, reclusion
perpetua or life imprisonment and confined in a penal institution, authorized by the
Supreme Court is necessary.
Subpoena shall state the name of the court and title of the action and directed to the
person required to attend. If it is a subpoena duces tecum then it must contain a
reasonable description of the books, documents or things demanded which must appear
prima facie relevant.
a. It is unreasonable or oppressive
b. The articles sought to be produced do not appear to be relevant.
c. Person asking for subpoena does not advance cost of production
a. The witness is not bound thereby if witness resides more than 100 km from the
place where he is to travel by the ordinary course of travel, or if he is a detention
prisoner and no permission is obtained from the court in which his case is
pending. (known as VITIATORY RIGHT, applicable only in civil cases).
b. Witness fees and kilometrage allowed by rules not tendered when subpoena
Service of subpoena shall be made in the same manner as personal or substituted
service of summons.
Tender of fees and kilometrage is not necessary if subpoena is served by or on behalf of
the Republic of the Philippines.
Attendance may be compelled by issuance of a warrant of arrest against the witness and
the sheriff to bring the witness before court where attendance is required.
Failure without valid cause to obey a subpoena shall be deemed contempt.