You are on page 1of 103

Remedial Law Review Notes under Atty Ferdinand Tan

CONSOLIDATED NOTES in CIVIL PROCEDURE


Notes by: Paul Lemuel E. Chavez

CIVIL PROCEDURE NOTES


PRELIMINARIES
Remedial Law
Branch of law which prescribes the
method of enforcing the rights or
obtaining redress for their
invasions

Remedial Law vs Substantive Law


Substantive Law

Remedial Law

Part of the law


which creates,
defines, or
regulates rights
concerning life,
liberty, or property
or the powers of
agencies or
instrumentalities for
the administration
of public affairs

Refers to the
legislation providing
means or methods
whereby causes of
action may be
effectuated, wrongs
redressed, and relief
obtained (adjective
law)

Makes vested rights


possible

Has no vested
rights

Prospective in
application

Governs rights and


transactions which
took place
(retroactive)

Cannot be enacted
by SC

SC is expressly
empowered to
promulgate
procedural rules

Main Divisions of Remedial


Law:

1.
2.
3.
4.

Civil Procedure (Rules 1-71)


Special Proceedings (Rules 72-109)
Criminal Procedure (R110-R127)
Rules on Evidence (Rules 128-134)

What are the sources of Remedial


Law?

1. 1987 Constitution
2. BP 129 (Judiciary Reorganization
Act of 1980) as amended by
RA7691 (Act expanding the
jurisdiction of MTCs, MuTCs, MCTCs
3. Rules of Court
4. Supreme Court Administrative
Matters and Circulars
5. Supreme Court decisions
6. New Civil Code
7. Family Code
8. Local Government Code (RA 7160),
particularly the Katarungang
Pambarangay Law
9. Special Laws and amendments
10.Rules of Procedure on Small Claims
11.Revised Manual of the Clerk of
Court

Differentiate: Civil Actions, Special


Proceedings, Criminal Actions
Special
Proceedin
gs

Criminal
Procedure

Civil
Action

A remedy
by which a
party seeks
to establish
a status, a
right, or a
particular
fact (Rule 1
S3c)

The State
prosecutes
a person
for an act
or omission
punishable
by law
(Rule 1
S3b)

A party
sues
another for
the
enforceme
nt or
protection
of a right,
or the
prevention
or redress
of a wrong

A
proceeding
wherein a
person is
prosecuted
by the
State for
acts or
omissions
committed
in violation
of penal
laws, and
to impose
the
correspondi
ng penalty
provided
for by
penal laws
Governed

Governed

A civil
action may
be ordinary
or special.
(R1 S3a)

Both are

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

by special
rules, and
in the
absence of
special
provisions,
the rules
provided
for in
ordinary
civil
actions
shall be, as
far as
practicable
, apply
suppletory
(R72 S2)

by the
Revised
Rules of
Criminal
Procedure

May
involve
only one
party

Involves
the State
against the
accused

Involves 2
or more
parties

Initiated by
petition

Initiated by
complaint
(but filed in
court by
Information
)

Initiated by
complaint,
or, in some
special civil
actions, by
petition

Based on
an act or
omission
punishable
by law

Based on a
cause of
action

Except
Habeas
Corpus,
NOT based
on a cause
of action

governed
by the
Rules for
ordinary
civil
actions,
subject to
specific
rules
prescribed
for a
special civil
action (R1
S3a)

branch or instrumentality of the


government.

What are those other Courts as may


be established by Law?
Sandiganbayan
Family Courts (RA 8369)
Court of Tax Appeals
Sharia Court

A3 S1
No person shall be deprived of life, liberty,
or property without due process of law,
nor shall any person be denied the equal
protection of the laws.

A3 S9(Basis of Rule 67)


Private property shall not be taken for
public use without payment of just
compensation

A6 S30
No law shall be passed increasing the
appellate jurisdiction of the SC as provided
in this Constitution without its advice and
concurrence.

A8 S5 P1
The Supreme Court shall have the
following powers:
CONSTITUTIONAL PROVISIONS
Relating to CIVIL PROCEDURE
A8 S1

Judicial Power shall be vested in one


Supreme Court and in such lower courts as
may be established by law.
Judicial Power includes the duty of the
courts of justice to settle actual
controversies involving rights which are
legally demandable and enforceable, and
to determine whether or not there is grave
abuse of discretion amounting to lack or
excess of jurisdiction on the part of any

Exercise original jurisdiction over


cases affecting:
o Ambassadors
o Other public ministers and
consuls
Over petitions for
o Certiorari
o Prohibition
o Mandamus
o Quo warranto
o Habeas corpus

A7 S4
The Supreme Court en banc shall be the
sole judge of all contests relating to the
election, returns, and qualification of the

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

President or Vice President, and may


promulgate its rules for the purpose.

A8 S5 P5 (basis of Rules of Court)


The SC shall have the power to
promulgate rules concerning:

A7 S18
The Supreme Court may review, in an
appropriate proceeding filed by any
citizen, the sufficiency of the factual basis
of the proclamation of martial law or the
suspension of the privilege of the writ or
the extension thereof, and must
promulgate its decision thereon within 30
days from its filing.

1. Protection and enforcement of


constitutional rights
2. Pleading, practice, procedure in all
courts
3. Admission to practice of law
4. Integrated Bar
5. Legal assistance to the
underprivileged
Such rules shall (Limits to SC-rule
making power):

A8 S5 P2(Basis of Rule 56)


-

Review
Revise
Reverse
Modify
Affirm
o On appeal or certiorari, as
the law or the Rules of Court
may provide, final
judgments and orders of
lower courts in:

1. All cases in which constitutionality


or validity of any
a. treaty,
b. international or executive
agreement
c. law
d. presidential decree
e. proclamation
f. order
g. instruction
h. ordinance
i. regulation
i. is in question
2. all cases involving the legality of
any
a. tax
b. impost
c. assessment
d. toll
e. any penalty imposed in
relation thereto

1. Provide simplified and inexpensive


procedure for speedy disposition of
cases
2. Shall be uniform for all courts of
the same grade
3. Shall not diminish, increase, modify
substantive rights.
Rules of procedure of special court and
quasi judicial bodies shall remain effective
unless disapproved by the SC

A8 S2
The Congress shall have the power to
define, prescribe, and apportion the
jurisdiction of the various courts but may
not deprive the SC of its jurisdiction over
cases enumerated in S5 thereof.
No law shall be passed reorganizing the
Judiciary when it undermines security of
tenure of its members.

A3 S16
All persons shall have the right to speedy
disposition of cases before before all
judicial, quasi judicial, administrative
bodies.

3. all cases in which the jurisdiction of


any lower court is in issue
4. all criminal cases in which the
penalty imposed is reclusion
perpetua or higher
5. all cases in which only an error or
question of law is involved

A8 S14(basis for Rule 36)


No decision shall be rendered by any court
without expressing therein clearly and
distinctly the facts and the law on which it
is based.

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

No petition for review or motion for


reconsideration of a decision of the court
shall be refused due course or denied
without starting the legal basis therefor.

A9A S7 (basis of Rule 64)


Each Commission shall decide by majority
of all its Members in any case or matter
brought before it within 60 days from date
of its submission for decision or resolution.
A case or matter is deemed submitted for
decision or resolution upon the filing of the
last pleading, brief, or memorandum
required by the rules of the Commission or
by the Commission itself. Unless
otherwise provided by this Constitution or
by law, any decision, order, or ruling of
each Commission may be brought to the
SC on certiorari by the aggrieved party
within 30 days from receipt of a copy
thereof.

CIVIL PROCEDURE PROPER


Jurisdiction
Authority of the court to hear and
decide a case and to implement
its decision

Rule 30

Rule 36

Rule 39

Venue

Jurisdiction

Place where action


is instituted

Power of court to
hear and decide a
case

May be waived

Jurisdiction over
subject matter and
over nature of
action are conferred
by law and cannot
be waived

Procedural

Substantive

May be changed by
written agreement
of the parties

Cannot be subject
of the agreement of
the parties

Not a ground for


motu proprio
dismissal, except in
Summary Procedure

A ground for motu


proprio dismissal

General Jurisdiction
Power to adjudicate all
controversies except those
expressly withheld from the
plenary powers of the court.
It extends to all controversies
which may be brought before a
court within the legal bounds of
rights and remedies.
Special or Limited Jurisdiction
One which restricts the courts
jurisdiction only to particular cases
and subject to such limitations as
may be provided by the governing
law.
It is confined to particular causes,
or which can be exercised only
under the limitations and
circumstances prescribed by the
statute
Appellate Jurisdiction
Power and authority conferred
upon a superior court to rehear and
determine causes which have been
tried in lower courts, the
cognizance which a superior court
takes of a case removed to it, by
appeal or writ of error, from the
decision of a lower court or the
review by a superior court of the
final judgment or order of some
lower courts
Concurrent / Confluent /
Coordinate Jurisdiction
Power conferred upon different
courts, whether of the same or
different ranks, to take cognizance
at the same stage of the same case
in the same or different judicial
territories
E.g. CA, SC, Sandiganbayan, RTCin HC cases, Writ of Amparo, Writ of
Habeas Data
Original Jurisdiction
Power of the court to take judicial
cognizance of a case instituted for
judicial action for the first time
under conditions provided by law

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

and appellate jurisdiction, or the


authority of a court higher in rank
to re-examine the final order or
judgment of a lower court which
tried the case or elevated for
judicial review. It is jurisdiction
conferred upon or inherent in the
first instance
Jurisdiction conferred by law and
filed at the first instance (NOTE: all
civil actions)
Exclusive Jurisdiction
Power to adjudicate a case or
proceeding to the exclusion of all
other courts at that stage

Doctrine of Primary Jurisdiction


courts will not resolve a
controversy involving a question
which is within the jurisdiction of
an administrative tribunal,
especially where the question
demands the exercise of sound
administrative discretion requiring
special knowledge and experience
of said tribunal in determining
technical and intricate matters of
fact
courts shall not take cognizance of
a case unless it has been decided
at the administrative level

Jurisdiction of the court to the


exclusion of all other courts

Exclusive Original Jurisdiction


Power of the court to take judicial
cognizance of a case instituted for
judicial action for the first time to
the exclusion of all other courts
Territorial Jurisdiction
Refers to geographical area within
which the courts powers can be
exercised
In civil cases, assumes importance
in case of venue of real or mixed
action
In criminal cases, consideration of
territory and locus of crime
determine venue and jurisdiction
Territorial jurisdictions:
SC and CA
National
RTC
Regional jurisdiction
Inferior courts
Territorial jurisdiction as defined by
SC in BP129

Coordinate Jurisdiction
(same as Concurrent Jurisdiction)
Power conferred upon different
courts, whether of the same or
different ranks, to take cognizance
at the same stage of the same case
in the same or different judicial
territories

Ancillary Jurisdiction
Power of the courts to settle issues
which are incidental to main issue

Appeal by
Certiorari
Rule 45

Rule 65

Petition is based on
questions of law

Petition is based on
questions of
jurisdiction, whether
the lower court
acted without
jurisdiction or in
excess of
jurisdiction or with
grave abuse of
discretion

Mode of appeal

Mode of review /
SPECIAL CIVIL
ACTION

Involves review of
the judgment award
or final order on the
merits

Directed against
interlocutory order
of the court or
where there is no

*Power of tribunal considered with


reference to the territory within which it is
to be exercised.

Delegated Jurisdiction
The grant of authority to inferior
courts to hear and determine
cadastral and land registration
cases under certain conditions

Petition for
Certiorari

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

appeal or any plain,


speedy, or
adequate remedy
Filed within 15 days
from notice of
judgment, final
order, or resolution
appealed from

Filed not later than


60 days from notice
of judgment, order,
or resolution sought
to be reviewed

Stays judgment or
final order appealed
from

Unless a writ of
preliminary
injunction or
temporary
restraining order is
issued, the petition
does not stay the
challenged
proceeding

Appellant and
appellee are
original parties to
the action, and the
lower court or quasi
judicial agency is
not impleaded

Judge, court, quasi


judicial agency,
tribunal,
corporation, board
or officer or person
are public
respondents who
are impleaded in
the action

Motion for
reconsideration is
not required

Motion for
reconsideration or
for new trial is
required; if a motion
for reconsideration
or new trial is filed,
the period shall not
only be interrupted
but another 60 days
shall be given to
petitioner (SC
Admin Matter 0203)

Court is in exercise
of its appellate
jurisdiction and
power of review

Court exercises
original jurisdiction

Petition shall be
filed with the
Supreme Court

Petition shall be
filed with the RTC,
CA, Sandiganbayan,
Comelec

Original Jurisdiction of the Supreme


Court:
A8 S5 P1- (Rule 56)
The SC shall have exclusive original
jurisdiction over cases involving:
1. Ambassadors
2. Other public ministers and consuls
3. Over petitions for:

a.
b.
c.
d.
e.

Certiorari
Prohibition
Mandamus
Quo warranto
Habeas corpus

Appellate Jurisdiction of the Supreme


Court:
A8 S5 P2
The SC may review, revise, reverse,
modify, or affirm on appeal or certiorari,
as the law or the Rules of Court may
provide, final judgments and orders of
lower courts in:
1. All cases in which the
constitutionality or validity of any
treaty, internation or executive
agreement, law, presidential
decree, proclamation, order,
instruction, ordinance, or regulation
is in question
2. All cases involving the legality of
any tax, impost, assessment or toll,
or any penalty imposed in relation
thereto
3. All cases in which the jurisdiction of
any lower court is in issue
4. All criminal cases in which the
penalty imposed is reclusion
perpetua or higher (WITHIN THE
SCOPE OF CRIMINAL PROCEDURERULE 45)
5. All cases in which only an error or
question of law is imposed
1 and 2- PURE QUESTIONS OF LAW

JURISDICTION
SUPREME COURT

Administrative Supervision of the


Supreme Court:

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

1.
2.
3.
4.
5.

Over court personnel


Over Justices
Over Judges
Practice of Law
Members of the Integrated Bar

CA decisions
-

Appealable to SC under Rule 45

R45 S1- a party desiring to appeal by


certiorari from a judgment or final order or
resolution of the Court of Appeals may file
with the SC a verified petition for review
on certiorari. The petition shall raise only
questions of law which must be distinctly
set forth.

Note that questions of law can be raised


before the CA (BP129)

JURISDICTION (via Petition for


Review)
3. Rule 43- Exclusive appellate
jurisdiction over all final judgments,
resolution, orders, or awards of
quasi judicial agencies,
instrumentalities, boards, or
commissions (via Petition for
Review)
RTC
Exclusive Original Jurisdiction:
1. In all actions in which the subject of
litigation is incapable of pecuniary
estimation
2. Actions which cannot be quantified
into monetary estimation
Subject matter (BP129)

3. In all civil actions which involve


COURT OF APPEALS
Original jurisdiction / Original
Concurrent Jurisdiction
Original jurisdiction to issue writs of:
-

Mandamus
Prohibition
Certiorari
Habeas corpus
Quo warranto
Auxiliary writs and processes,
o Whether or not in aid of its
appellate jurisdiction

Exclusive Original Jurisdiction:


Exclusive original jurisdiction over
the actions for annulment of
judgments of RTCs

Appellate Jurisdiction:
1. Rule 41- over RTC decisions in the
exercise of its ORIGINAL
JURISDICTION (via Notice or Record
of Appeal)
-

RTC jurisdiction, first instance,


including Special Civil Actions

2. Rule 42- over RTC decisions in the


exercise of its APPELLATE

title to or possession of real


property or any interest therein,
where assessed value of property
involved exceeds 20k OMM or in
MM, value of property involved
exceeds 50k
Except actions of FE and UD of
lands and buildings, original
jurisdiction of which is conferred
with MTC, MuTC, MCTC
4. In all actions in admiralty and
maritime actions where demand or
claim exceeds 300k OMM or
exceeds 400k MM
5. In all matters of probate, testate or
intestate, where gross value of
estate exceeds 300k OMM or
exceeds 400k MM
Gross value- assessed value of property of
deceased before deduction (NOT market
value)
6. In all actions involving the contract
of marriage and marital relations
7. In all cases not within the exclusive
jurisdiction of any court, tribunal,
person or body exercising
jurisdiction of any court, tribunal,
person or body exercising judicial
or quasi judicial functions
(refer to 902-A below)

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

8. In all civil actions and special


proceedings falling within Exclusive
original jurisdiction of a Juvenile
and Domestic Relations Court and
of the Court of Agrarian Relations
as now provided by law
9. In all other cases in which the
demand, exclusive of interest,
damages of whatever kind,
attorneys fees, litigation expenses,
and costs or the value of property
in controversy exceeds 300k OMM
or exceeds 400k MM
1996 Bar- Gross value is 200k, property
located in Pampanga. What is the
jurisdiction and venue?
MTC of the place of decedents actual
residence at the time of his death, if a
resident of the Philippines. If a non
resident, then the MTC of the place where
his estate is located.

(RA8799 S5.2 as amended by PD902-A)exclusive and original jurisdiction of the


RTC to hear and decide following cases:

officers or managers of such


corporations, partnerships, or
associations
4. Petitions of corporations,
partnerships or associations to be
declared in the state of suspension
of payments, in cases where the
corporation, partnership or
association possesses sufficient
property to cover all its debts but
foresees the impossibility of
meeting them when the
respectively fall due or in cases
where the corporation, partnership
or association has no sufficient
assets to cover its liabilities, but is
under management of a
rehabilitation receiver or
management committee

Concurrent Original Jurisdiction:


With SC, CA, -- over petitions for certiorari,
mandamus, prohibition, quo warranto,
habeas corpus

Appellate Jurisdiction:
1. Cases involving devices or
schemes employed by or any acts
of the board of directors, business
associates, its offices or
partnership, amounting to fraud or
misrepresentation which may be
interest of the public and/or of the
stockholders, partners, members of
associations or organizations
registered with the Commission
2. Controversies arising out of
intracorporate or partnership
relations, between and among
stockholders, members or
associates, between any and all of
them and the corporation,
partnership, or association of which
they are stockholders, members or
associates respectively, and
between such corporation,
partnership or association and the
state insofar as it concerns their
individual franchise or right to exist
as such entity
3. Controversies in election or
appointment of directors, trustees,

Over all cases decided by MTCs, MuTCs,


MCTCs in their respective territorial
jurisdictions

MTC
(note: baligtarin ang RTC jurisdiction,
below 20-50, 300-400)
Ordinary Civil Actions:
1. exclusive original jurisdiction over
civil actions and probate
proceedings, testate and intestate,
including grant of provisional
remedies in proper cases, where
the value of the personal property,
estate or amount of the demand
does not exceed 300k OMM or
400k MM exclusive of interest,
damages, of whatever kind, AF,
litigation expenses and costs, the
amount of which must be
specifically alleged. Provided, that
interest, damages of whatever
kind, AF, litigation expenses, and
costs shall be included in the

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

determination of the filing fees.


Provided further that where there
are several claims or causes of
actions between the same or
different parties, embodied in the
same complaint, the amount of
demand shall be the totality of the
claims in all the causes of action,
irrespective of whether the cause
of action arose out of same or
different transactions
2. exclusive original jurisdiction over
cases of forcible entry or unlawful
detainer, provided that when, in
such cases, defendant raises
questions of ownership in his
pleadings and the question of
possession cannot be resolved
without deciding the issue of
ownership, the issue of ownership
shall be resolved only to determine
the issue of possession (see:
Summary Procedure)
3. exclusive original jurisdiction in all
civil actions involving title to or
possession of property or any
interest therein where assessed
value of property or interest therein
does not exceed 20k OMM or does
not exceed 50k MM exclusive of
interest, damages of whatever
kind, AF, litigation expenses, costs.
Provided that in cases of land not
declared for taxation purposes, the
value of such property shall be
determined by assessed value of
adjacent lots
4. civil cases where the demand does
not exceed 300k or not more than
400k MM
5. over actions involving personal
property valued at not more than
300k OMM or not more than 400k
MM
6. admiralty and maritime cases
where the demand or claim does
not exceed 300k OMM or does not
exceed 400k MM

recovered. Where AF are awarded,


the same shall not exceed 20k
2. All other civil cases, except probate
proceedings, where the total
amount of the plaintiffs claim does
not exceed 100k OMM or 200k MM
exclusive of interests and costs (as
amended by AM 2-11-9-SC)
3. Civil cases not higher than 100kSubject to the Rule on Small Claims
What if, gumitna? 150k?
Higher than 100k OMM, then subject to
Regular Proceedings in MTC
BUT, below 200k MM, hence, in such case,
subject to Summary Procedure pa rin

Why the need to discuss jurisdiction?


To know whether subject to Motion to
Dismiss (Rule S1b), that the court has no
jurisdiction over the subject matter of the
case

In Civil Procedure, SC-CA-RTC-MTC


In Criminal Procedure, SC-CASANDIGANBAYAN-RTC-MTC

Commencement of a Civil Action:


R1 S5
Civil action is commenced by the filing of
the original complaint in court and
payment of the requisite docket fees. If
an additional defendant is impleaded in a
later pleading, the action is commenced
with regard to him on the date of filing of
such later pleading, irrespective of
whether the motion for its admission, if
necessary, is denied by the court.

DOCKET FEES- needed to acquire


jurisdiction over the case

Summary Procedure:
1. All cases of FE and UD, irrespective
of the amount of damages or
unpaid rentals sought to be

Jurisdiction over plaintiff

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

By filing of original complaint in


court plus payment of requisite
docket fees

a wrong (R1
S3)

person who
has
committed
delict or
wrong
against him

Jurisdiction over defendant


By voluntary appearance or service
of summons

Reason for
the action

Remedy or
means
afforded or
the
consequent
relief

Formal
statement of
operative
facts that
give rise to
a remedial
right

Remedial
right given
to a person
because of
occurrence
of the
alleged facts

Matter of
procedure
and
depends on
the
pleadings
filed by the
parties

A matter of
right and
depends on
substantive
law

Not affected
by
affirmative
defenses
(fraud,
prescription,
estoppel,
etc)

Affected by
affirmative
defenses

Jurisdiction over subject matter


Conferred by law

Jurisdiction over the issue


Determined by allegations in the
complaint

Jurisdiction over the res


By actual or constructive seizure of
property by way of attachment or
execution

Action, Cause of Action, Right of Action


(Simplified Version)
Action

Cause of
Action

Right of
Action

Suit to
enforce
ones right
or for the
prevention
or redress of
a wrong

Act or
omission by
which a
party
violates a
right of
another

Remedial
right to file a
suit based
on cause of
action

Kinds of actions:
1ST GROUP: for purposes of venue under
Rule 4

Original Distinctions:
Action
Suit filed in
court for
enforcemem
t or
protection of
a right, or
the
prevention
or redress of

Cause of
Action

Right of
Action

Act or
omission by
which a
party violate
a right of
another (R2
S2)

Remdial
right or right
to relief
granted by
law to a
party to
institute an
action
against a

Real Action
-

Actions affecting title to or


possession of real property (A415
NCC in consideration)
Venue: R4 S1
Personal Action

Involves privity of
contract/personal property (A416417 of NCC in consideration)
Venue: R4 S2

10

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Mixed Action
-

directly

over a
particular
property to
an obligation
or lien
burdening it

Judgment is
binding on
the whole
world

Judgment is
bonding
only upon
the parties
impleaded
or their
successors
in interest

Judgment is
binding
upon
particular
persons

Examples:

Examples:

Examples:

Probate
proceeding,

Action for
specific
performance

Action for
partition

Action affecting title to or


possession of real property +
Privity of Contract
Venue: R4 S1

2ND GROUP: for purposes of determining


jurisdiction/service of summons
Action In Rem
-

Action which binds the whole world


Note: all Special Proceedings are in
rem actions
Summons/notification by
PUBLICATION

Action in Personam
-

Action which binds the parties

Action Quasi In Rem


-

Action
o
o
o
o

which binds interests


Foreclosure of mortgage
Partition
Attachment
Any interest or lien on real
property

Action in
rem

Action in
personam

Action
Quasi in
Rem

Directed
against the
thing itself

Directed
against
particular
persons

Directed
against
particular
persons

Jurisdiction
over person
of defendant
is not
required

Jurisdiction
over person
of defendant
is required

Jurisdiction
over the
person of
the
defendant is
not required
as long as
jurisdiction
over the res
is acquired

A
proceeding
to determine
the state or
condition of
a thing

An action to
impose a
responsibilit
y or liability
upon a
person

A
proceeding
to subject
the interest
of a named
defendant

cadastral
proceeding,

Action for
breach of
contract

Action to
foreclose
real estate
mortgage

Real Action

Personal
Action

Mixed
Action

Ownership
or
possession
of real
property is
involved

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

Both real
and personal
properties
are involved

Founded on
privy of real
estate

Founded on
privity of
contract

Founded on
both

Filed in the
court where
the property
or any part
thereof is
situated (R4
S1)

Filed in the
court where
the plaintiff
or any of the
plaintiffs
resides,
where
defendant or
any of the
defendants

Filed in the
court where
the property
or any part
thereof is
situated (R4
S1)

special
proceedings

11

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

resides, or in
case of non
resident
defendant,
where he
may be
found, at
election of
plaintiff (R4
S2)

real actions shall


govern (R4 S1)

actions govern (?)

Real Action

In rem action

Ownership or
possession of real
property is involved

Action directed
against the thing
itself

Example:

Example:

Example:

Filed in court where


property or portion
thereof is situated

Not necessarily;
depends on whether
the action is real,
personal, mixed

Accion
reivindicator
ia

Action for a
sum of
money

Accion
publiciana
with a claim
for damages

A proceeding
founded on privity
of real estate

A proceeding to
determine state or
condition of a thing

Judgment may bind


whole world, or
particular persons,
depending on
whether in rem, in
personam, quasi in
rem

Judgment is binding
upon the whole
world

Personal Action

Action in
personam

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

An action directed
against particular
persons, may be
real action, personal
action, mixed action

Founded on privity
of contract

Not necessarily;
because the action
may also be real or
mixed

Filed in court where


plaintiff or any of
defendants reside,
at option of plaintiff
(R4 S2)

R4 S1 or R4 S2 may
govern, depending
on whether the
action is real action
or personal action

Mixed Action

Quasi In Rem
Action

Both real and


personal properties
are involved

Both real and


personal properties
may also be
involved

Founded on both
privity of real estate
and privity of
contract

Action directed
against particular
persons, but
jurisdiction over
defendant is not
required as long as
jurisdiction over the
res is acquired

Rules on venue of

Rules on personal

PLEADING (R6 S1)


Sworn written statements of the
respective claims and defenses of
the parties submitted to the court
for appropriate judgment

Complaint (R6 S3)


The complaint is the pleading
alleging the plaintiffs cause or
causes of action.

Answer (R6 S4)


Pleading in which a defending party
sets forth his defenses

INITIATORY PLEADING
A pleading that initiates an action

RESPONSIVE PLEADING
A pleading that responds to
allegations in the adverse partys
pleading

12

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Reply
Answer to counter counter claim
Answer to counter cross claim

Initiatory Pleadings
Original complaint
Permissive counterclaim
Cross claim
Third party complaint
4th party complaint
Complaint in intervention
Petition
In special civil actions
In special proceedings
Counter counter claim
Counter cross claim
Counter Counter
Claim

Counter Cross
Claim

Any claim which


defending party in a
counterclaim may
have against the
original
counterclaimant

Any claim which a


defending party in a
cross claim may
have against the
original cross
claimant

COMPULSORYArises out of or is
necessarily
connected with the
transaction or
occurrence that is
the subject matter
of the opposing
partys claim

Can be an initiatory
pleading, if
permissive

PERMISSIVE- does
not arise of or is
necessarily
connected with the
transaction or
occurrence that is
the subject matter
of the opposing
partys claim

A motion IS NOT A PLEADING


A position paper IS NOT A PLEADING
A memorandum IS NOT A PLEADING
Why?
Motion is an application for relief other
than by a pleading (R15 S1)
Position Paper and Memorandum only
narrate facts of the case, issues, no cause
of action, no defenses, but only contain
discussions

Initiatory
Pleading

Responsive
Pleading

A pleading that
initiates an action

A pleading that
responds to
allegations in the
adverse partys
pleading

Original
complaint
Permissive
counterclai
m
Cross claim
Third party
complaint
4th party
complaint
Complaint
in
interventio
n

Responsive Pleadings

Answer to original complaint


Answer to permissive counterclaim
Answer to third party complaint
Answer to fourth party complaint
Answer to complaint in intervention
Comment or objection to petition
Compulsory counterclaim

Petition

Answer to
original
complaint
Answer to
permissive
counterclaim
Answer to
third party
complaint
Answer to
fourth party
complaint
Answer to
complaint in
intervention
Comment or
objection to
petition

In special civil
actions
Compulsory
counterclaim
In special

13

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

proceedings

Reply

Counter
counter
claim

Answer to
counter
counter claim

Counter
cross claim

Answer to
counter cross
claim

Need to be
verified, with
certification
against forum
shopping, plus
payment of
docket fees

Except when
otherwise provided by
law or these Rules,
need not be verified

No need for
certification against
forum shopping, and
not need for payment
of docket fees (Note:
compulsory
counterclaim, docket
fees are suspended)

Instances when
verification is needed:

Actionable
document
Allegations of
usury
Answer to
permissive
counterclaim
Succeeding
pleadings in
special
proceedings

Complaint- a pleading alleging plaintiffs


cause and causes of action

FLOW OF CIVIL PROCEDURE


I.

BARANGAY CONCILIATION
PROCEEDINGS

General Rule with respect to


Barangay Conciliation Proceedings:
S412, LGC
No complaint, petition, action or
proceedings involving any matter within
authority of the Lupon shall be filed or
instituted directly or indirectly in court or
in any other government office or
adjudication unless there has been a
confrontation between the parties before
the Lupon Chairman or the pangkat, and
that no conciliation or settlement has
been reacehed as certified by lupon or
pangkat chairman.

Exceptions to above rule:


S408, LGC
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 performance of his
official functions
offenses punishable by
imprisonment exceeding 1 year or
a fine exceeding 5k pesos
3. offenses where there is no private
offended party
4. where the dispute 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
5. disputes involving parties who
actually reside in barangays of
different cities or municipalities,
except where such barangay units
adjoin each other and the parties
thereto agree to submit their
differences to amicable settlement
by an appropriate lupon
6. such other classes of disputes
which the President may determine
in the interest of justice
7. where one of the parties is a
juridical entity

14

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

8. where accused is under police


custody or detention
9. where the person has otherwise
been deprived of personal liberty
calling for habeas corpus
proceeding
10. where the actions are coupled with
provisional remedies such as
preliminary injunction, attachment,
delivery of personal property, and
support pendent lite
where the action may otherwise be
barred by the statute of limitations
11. in case of labor disputes
12. action to annul a judgment upon a
compromise
13. CARL disputes
14. Disputes involving traditions of an
indigenous cultural community

Does the Exclusive Original


Jurisdiction of the RTC on actions
involving those incapable of
pecuniary estimation include
provisional remedies as falling within
the category?
No, because provisional remedies are
merely ancillary to the main action. The
category of actions incapable of pecuniary
estimation refers only to main actions.

Purpose of Barangay Proceedings:


Reduce the number of litigations and
prevent the deterioration of the quality of
justice which has been brought about by
indiscriminate filing of cases in the courts.
(Zamora vs Heirs of Izquierdo)

Venue of Barangay Conciliation


Proceedings:
S409, LGC
Disputes between persons
actually residing in the same
barangay shall be brought for
amicable settlement before the
lupon of said barangay

Those involving actual


residents of different
barangays within the same city
or munipality shall be brought in
the barangay where the
respondent or any of the
respondents actually resides, at the
election of the complainant
All disputes involving real
property or any interest
therein shall be brought in the
barangay where the real property
or the larger portion thereof is
situated
Those arising at the workplace
where the contending parties
are employed or at the
institution where such parties
are enrolled for study, shall be
brought in the barangay where
such workplace or institution is
located
Rules on appearance before Barangay
Proceedings:
S415, LGC
In all katarungang pambarangay
proceedings, the parties must appear in
person without the assistance of counsel
or representative, except for minors and
incompetents who may be assisted by
their next of kin who are not lawyers.

Effect of Amicable Settlement and


Arbitration Award:
S416, LGC
The amicable settlement and arbitration
award shall have the force and effect of a
final judgment of a court upon the
expiration of 10 days from the date
thereof, unless repudiation of the
settlement has been made or a petition to
nullify the award has been filed before the
proper city or municipal court.
However, this provision shall not apply to
court cases settled by the lupon under last
paragraph of S408 of this Code, in which
case the compromise settlement agreed
upon by the parties before the lupon shall
be submitted to the court and upon

15

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

approval thereof, have the force and effect


of a judgment of said court.

Rules on execution of judgment in


Barangay Proceedings:

Proceed with the trial, and when the


decision is adverse, file an appeal raising
as error the ground for denial of the
motion to dismiss. When the denial is
tainted with grave abuse of discretion
amounting to lack or excess of jurisdiction,
file petition for certiorari under Rule 65.

S417, LGC
The amicable settlement or arbitration
award may be enforced by execution by
the lupon within 6 months from the date of
the settlement. After the lapse of such
time, the settlement may be enforced by
action in the appropriate city or municipal
court.

Remedies of the parties in case of


failure of amicable settlement before
the lupon:
1. File the case before the proper
court
2. Repudiate the agreement (S418,
LGC)
3. File a petition before the MTC to
nullify the agreement (basis?)

Remedy in case of failure to comply


with Barangay Conciliation:
As defendant, file a motion to dismiss
under R16 S1j on the ground that a
condition precedent has not been
complied with.

Motion to dismiss was granted,


remedy of plaintiff?
Re file the case with the certification of
having undergone Barangay conciliation
proceedings, as the dismissal is without
prejudice.

** In between Barangay conciliation


and filing of complaint, if real
property is involved, plaintiff can file
adverse claim over the property, or
can file notice of lis pendens
Notice of Lis Pendens
-

II.

buyer beware
Notice to buyer of existence of an
adverse claim
o It is not a pleading
o There is need to register it
with the register of deeds

COMPLAINT

Complaint (R6 S3)


The complaint is the pleading
alleging the plaintiffs cause or
causes of action.
Undergone Barangay
Conciliation Proceedings
NOTE: If the case undergone Barangay
conciliation proceedings first, there must
be a specific allegation in the complaint
that there is compliance with Barangay
Conciliation proceedings
Pag wala, patay (?)- M2D S1j OR amend
the complaint (?)

Jurisdiction
IF, court has no jurisdiction, M2D R16 S1b

Motion to dismiss was denied,


remedy of defendant?

(importance of knowing BP129 as


amended by RA7691 Rules on Jurisdiction)

R16 S4 states that if the motion is denied,


movant shall file his answer within the
balance of the period granted by 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 the denial.

Granted- Refile
Denied- State R16 S4 (yung BUONG
SAGOT na Gusto ni Boss Atty Tan)

Summary Procedure:

16

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Cases covered:
1. All cases of FE and UD, irrespective
of the amount of damages or
unpaid rentals sought to be
recovered. Where AF are awarded,
the same shall not exceed 20k
2. All other civil cases, except probate
proceedings, where the total
amount of the plaintiffs claim does
not exceed 100k OMM or 200k MM
exclusive of interests and costs (as
amended by AM 2-11-9-SC)
3. Civil cases not higher than 100kSubject to the Rule on Small Claims

GENERAL RULE on Summary Procedure:


No Motion to Dismiss is allowed
(Prohibited Pleading)
EXCEPT:
1. Lack of jurisdiction over the subject
matter of the claim
2. Lack of jurisdiction over the person
of the defendant
3. Failure to comply with Barangay
Conciliation Proceedings

HOWEVER, with respect to SMALL CLAIMS


CASES,
ABSOLUTE RULE: motion to dismiss is not
allowed
Reason: defeats the purpose of Small
Claims Proceedings

Venue
-

Can be subject to stipulation of the


parties

State: Rules on venue


R4 S1
Actions affecting title to or possession of
real property or interest therein shall be
commenced and tried in the proper court
which has jurisdiction over the area
wherein the real property involved or a
portion thereof is situated.

Forcible entry and unlawful detainer


actions shall be commenced and tried in
the MTC of the municipality or city wherein
the real property involved or a portion
thereof is situated.
R4 S2
All other actions may be commenced and
tried where the plaintiff or any of the
principal plaintiffs resides, where the
defendant or any of the defendants
resides, or in case of a non resident
defendant he may be found at the election
of the plaintiff.
R4 S3
If any of the defendants does not reside
and is not found in the Philippines, and the
action affects the personal status of the
plaintiff or 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

EXCLUSIVITY OF VENUE- NOTE: Rule 4


SHALL NOT APPLY... if
R4 S4
1. The parties have validly agreed in
writing
2. The agreement in writing was
made before the filing of the action
3. Exclusive venue is stipulated
Atty Tans comment:
Rule 4 of the Rules of Court did not
provide for MAY, but SHALL
Suppose, Real property is subject of
dispute (real action). A lives in Pasay, B
lives in Manila, the real property is located
in Davao. Following Rule 4 S1, the suit
should be filed in Davao, being the place
where the property or portion thereof is
situated. However, the parties can
exclusively agree that the venue can be
filed in Baguio, provided that the
requisites of R4 S4 as to exclusivity of
venue are complied with
So, it means that Rule 4 S1 can be the
subject of agreement, and that the suit
can be filed somewhere else other than
what S1 provides? (Parang ok lang sana

17

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

kung concern e personal action under R4


S2- can be subject of agreement, pero
venue of REAL ACTION CAN BE SUBJECT
OF AGREEMENT?! Labo ata...)

Remedy: raise the ground as an


affirmative defense

Parties

Seems there is a loophole in Rule 4

(R3 S1)
If the venue is permissive,
Then the venue is in addition to the
rules on venue

Action was filed in the wrong venue:


I will file motion to dismiss under R16 S1c
on the ground that the venue is
improperly laid

The motion was granted (court issues


not a judgment but an ORDER).
Counsel for plaintiff. Remedy?
I will refile the case in the court of the
proper venue, because the order of
dismissal is without prejudice (R16).
EXCEPT: if there exists grave abuse of
discretion amounting to lack or excess of
jurisdiction, Certiorari Rule 65 is the
proper remedy

Only natural or juridical persons, or


entities authorized by law may be parties
in a civil action. The term plaintiff may
refer
to
the
claiming
party,
the
counterclaimant, cross claimant, or the 3rd
4th etc party plaintiff. The term defendant
may refer to the original defending party,
the defendant in the counterclaim, the
cross defendant, or the 3rd 4th etc party
defendant.
Plaintiff includes:
-

Counter counterclaimant
Counter cross claimant

Defendant includes:
-

Defendant in counter counterclaim


Defendant in counter cross claim
An unwilling co plaintiff or one who
should be joined as plaintiff but
refuses to give consent thereto (R3
S10)
A person necessary to a complete
determination or settlement of the
questions involved therein

Plaintiff
Motion to dismiss was denied.
Remedy for defendant?
Rule 16 S4
File an answer within the balance of the
period prescribed by Rule 11 to which he
was entitled at the time of serving his
motion but not less than 5 days in any
event, computed from his receiving of
notice of denial. Then, go to trial. When
the decision is adverse, file an appeal
raising as error the denial of the motion to
dismiss.
If the denial of the motion is
tainted with grave abuse of discretion
amounting to lack or excess of jurisdiction,
file petition for certiorari under Rule 65.

Motion to dismiss on the ground of


improper venue IS A PROHIBITED
PLEADING under the Rules on Summary
Procedure, and more so in Small Claims

A person having an interest in the


matter of the action or in obtaining
the relief demanded
Defendant
A person claiming an interest in the
controversy or the subject thereof
adverse to the plaintiff

3rd party plaintiff


A defending party who may with
leave of court file against a third
person not party to the action
called the 3rd 4th etc party
defendant a claim for contribution,
indemnity, subrogation, or any
other relief in respect of his
opponents claim (R6 S11)

18

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Cross Claimant
A party to an original action who
has a claim against a co party
arising out of the transaction or
occurrence that is the subject
matter either of the original action
or of a counterclaim therein (R6 S8)

Real Party 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 provided
by law or these rules, every action
must be prosecuted or defended in
the name of the real party in
interest(R3 S2)

Indispensable Party
An indispensable party is a party in
interest without whom no final
determination can be had of an
action who shall be joined either as
plaintiff or defendant (R3 S7)

Necessary Party
A necessary party is a party 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 (R3 S8)

Who is a proper party?


A proper Party is the same as a necessary
party, a party who is not indispensable but
who is 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 (R3 S8)
Party those presence is necessary to
adjudicate the whole controversy, but
those whose interests are so far separable
that final decree can be made in their

absence
without
affecting
them
(Quisumbing vs CA GR 93335 9/13/1990)

Representative party
R3 S3
Party acting in a fiduciary capacity. The
beneficiary shall be included in the title of
the case and shall be deemed to be the
real party in interest. It may be:
-

Trustee of an express trust


Guardian
Executor
Administrator
A party authorized by law or these
rules
o (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)

Pro Forma Party


Parties who are required to be joined as co
parties in suits by or against another party
as may be provided by the applicable
substantive law or procedural rule
EXAMPLE: Spouses- husband and wife
shall sue or be sued jointly, except as
provided by law (R3 S4)

Quasi Party
Parties in whose behalf a class or
representative suit is brought

Not a real party in interest: Remedy?


MOTION TO DISMISS on the ground of
failure to state cause of action
Granted- refile
Denied:
I will file an answer within the balance of
the period prescribed by Rule 11 to which i
am entitled at the time of serving my
motion, but not less than 5 days in any

19

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

event, computed from my receipt of notice


of denial. Then, proceed with the trial. In
case of adverse decision I will appeal the
judgment and assign as error the denial of
the motion to dismiss.
However, if the denial is tainted with GAD
amounting to lack or excess of jurisdiction,
then I will file petition for certiorari under
Rule 65.

JOINDER OF PARTIES
Requisites:
1. Right to relief arises out of the
same transaction or series of
transactions
2. Jurisdiction over plaintiffs and
defendants can be obtained
3. There is question of law or fact
common to all plaintiffs or
defendants
4. Such joinder is not otherwise
proscribed by the provisions of the
rules on jurisdiction and venue
R3 S6
All persons in whom or against whom any
right to relief in respect to or arising out of
the same or series of transactions is
alleged to exist, either jointly, severally, or
in the alternative, may, except as
otherwise provided in these rules, join as
plaintiffs or be joined as defendants in one
complaint, where any question of law or
fact common to all such plaintiffs or to all
such defendants may arise in the action;
but the court may make such orders as
may be just to prevent any plaintiff or
defendant from being embarrassed or put
to expense in connection with any
proceedings in which he may have no
interest.

Non joinder/Misjoinder of parties- not a


ground for motion to dismiss
IF so, remedy:
Amendment of the pleading (Rule 3 in
relation to Rule 10

Cause of Action
Act or omission by which a party
violates a right of another (R2 S2)

What are the elements of a cause of


action?
1. Plaintiff exercises a legal right
2. Correlative obligation the part of
defendant to respect plaintiffs
legal right
3. Defendant violates plaintiffs legal
right in a manner contrary to law,
morals, good customs, public
order, public policy
*STATE ALL CAUSES OF ACTION in the
PLEADING!
IF NOT, remedy:
M2D R16 S1g- failure to state cause of
action
GRANTED: refile; amend pleading
Denied:
I will file an answer within the balance of
the period prescribed by Rule 11 to which i
am entitled at the time of serving my
motion, but not less than 5 days in any
event, computed from my receipt of notice
of denial. Then, proceed with the trial. In
case of adverse decision I will appeal the
judgment and assign as error the denial of
the motion to dismiss.
However, if the denial is tainted with GAD
amounting to lack or excess of jurisdiction,
then I will file petition for certiorari under
Rule 65.

Joinder of Causes of Action (R2 S5)


A party may in one pleading assert, in the
alternative or otherwise, as many causes
of action as he may have against an
opposing party, subject to the following
conditions:
A. That the party joining the causes of
action shall comply with the rules
on joinder of parties
B. The joinder shall not include special
civil actions and actions governed
by Special Rules

20

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Special Civil Actions:


1. Interpleader (R62)
2. Declaratory Relief (R63)
3. Review of Judgments and Final
orders or resolutions of COMELEC,
CoA (R64)
4. Certiorari, Prohibition, Mandamus
(R65)
5. Quo Warranto (R66)
6. Expropriation (R67)
7. Foreclosure of Real Estate
Mortgage (R68)
8. Partition (R69)
9. Forcible Entry and Unlawful
Detainer (R70)
10. Contempt (R71)
INCLUDES: SPECIAL PROCEEDINGS
(SEGTARHHCVJCDC +)
Sum of money + Foreclosure of Mortgage
= CANNOT BE JOINED! (latter is a special
civil action)
Hence, sue in alternative / either or
C. Where the claims pertain to
different venues or jurisdictions,
the joinder shall be allowed in the
RTC provided that it falls within the
jurisdiction of said court and the
venue lies therein
D. Where the claims in all causes of
action are principally for recovery
of money, the aggregate amount
claimed shall be the test of
jurisdiction

If you are counsel for plaintiff, and


the causes of action are not joined,
remedy?
File a motion to amend the complaint (as a
matter or right before a responsive
pleading is filed, or with leave of court
after a responsive pleading is filed if the
amendment is substantialHere, di ko
alam kung substantial to...) R10 S2 and 3

Splitting a Single Cause of Action:


It is the act of dividing or indivisible
cause of action into several causes
of actions and bringing several
actions thereon

R2 S3
A party may not institute more than one
suit for a single cause of action

R2 S4
If 2 or more suits are instituted on the
basis of the same cause of action, the
filing of one or a judgment upon the merits
in any one is available as a ground for
dismissal of the others.

Supposing, the plaintiff split a single


cause of action, remedy?
As defendant, I will file a motion to dismiss
on the ground of litis pendencia or res
judicata (R16 S1 e or f)
GRANTED, remedy: APPEAL (dismissal is
with prejudice)
DENIED:
I will file an answer within the balance of
the period prescribed by Rule 11 to which i
am entitled at the time of serving my
motion, but not less than 5 days in any
event, computed from my receipt of notice
of denial. Then, proceed with the trial. In
case of adverse decision I will appeal the
judgment and assign as error the denial of
the motion to dismiss.
However, if the denial is tainted with GAD
amounting to lack or excess of jurisdiction,
then I will file petition for certiorari under
Rule 65.

PLEADING / PARTS OF A
PLEADING
Rule 7 S1
The caption sets forth:
a. Name of the court
b. Title of the action
c. Docket number if assigned
The title of the action indicates the names
of the parties. They shall be named in the
original complaint or petition.
But in
subsequent pleadings, it shall be sufficient
if the name of the first party on each side
be stated with an appropriate indication

21

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

when there are other parties.


Their
respective participation in the case shall
be indicated.

R7 S2
The body of the pleading shall set forth
its:
1.
2.
3.
4.

Designation
Allegation of the claims or defenses
Relief prayed for
Date of the pleading
Paragraph

The allegations in the body of a pleading


shall be divided into paragraphs so
numbered as to be readily identified each
of which shall contain a statement of a
single act of circumstances so far as can
be done with convenience.
A paragraph may be referred to by its
number in all succeeding pleadings.
Headings
When 2 or more causes of action are
joined, the statement of the first shall be
prefaced by the words first cause of
action, of the second by second cause of
action and so on for the others.
When one or more paragraphs in the
answer are addressed to one of several
causes of action in the complaint, they
shall be prefaced by the words answer to
the second cause of action or answer to
the second cause of action and so on; and
when one or more paragraphs are
addressed to several causes of action,
they shall be prefaced by words to that
effect.
Relief
The pleading shall specify the relief
sought, but it may add a general prayer
for such further or other relief as may be
deemed just and equitable.
Date
Every pleading shall be dated

R7 S3

Every pleading must be signed by the


party or counsel representing him
stating in either case his address which
should not be a post office box. The
signature of counsel constitutes a
certification by him that
1. he has read the pleading,
2. that to the best of his knowledge,
information or belief there is good
ground to support it, and
3. that it is not interposed for delay
An unsigned pleading produces no legal
effect
However, the court may, in its discretion,
allow such deficiency to be remedied if it
appear that the same was due to mere
inadvertence and not intended for delay.
1. Counsel who deliberately files
unsigned pleading
2. Signs a pleading in violation of
these rule,
3. or alleges scandalous or indecent
matter therein,
4. Or fails to promptly report to the
court a change of his address, shall
be subject to appropriate
disciplinary action

R7 S4
Except when otherwise specifically
required by law or rule, pleadings need
not be under oath, verified, or
accompanied by affidavit.
A pleading is verified by an affidavit that
1. the affiant has read the pleading
2. that the allegations therein are true
and correct of his personal
knowledge or based on authentic
records
A pleading required to be verified which
contains a verification based
1. on information and belief or
2. upon knowledge, information and
belief
3. or lacks a proper verification
shall be treated as an unsigned pleading

Is a jurat a part of a pleading?

22

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

The general rule is that pleadings need


not be verified. However, if the law or the
Rules require that a pleading be verified,
verification is done by way of affidavit. In
an affidavit, there is a need for jurat to be
present. Hence, in a verified pleading, a
jurat becomes part of a pleading.

What are the pleadings that need to


be verified?
Petition for relief from judgment or
order (R38 S3)
Petition for review from RTC to CA
(R42 S1)
Petition for review from CTA and q-j
agencies to the CA (R43 S5)
Appeal by certiorari from the CA to
SC (R45 S4)
Petition for annulment of judgment
or final orders and resolutions (R47
S4)
Complaint for injunction (R58 S4)
Application for appointment of
receiver (R59 S1)
Application for support pendent lite
(Rule 61 S1)
(all initiatory pleadings)
Original Complaint
Permissive Counterclaim
Cross Claim
3rd 4th etc party complaint
Complaint in intervention
Petition
(all Special Civil Actions)
Interpleader (R62)
Declaratory Relief and Similar
Remedies (R63)
Review of Judgments and Final
Orders or
Resolutions of COMELEC, CoA (R64)
Petitions for certiorari, prohibition,
mandamus (R65)

Quo Warranto (R66)


Expropriation (R67)
Foreclosure of Real Estate
Mortgage (Rule 68)
Partition (R69)
Forcible Entry and Unlawful
Detainer (R70)
Contempt (R71)
(all Special Proceedings)
Settlement of Estate of Deceased
(R73-90)
Escheat (R91)
Petition for guardianship of minors
(AM __-__-__-SC)
Petition for guardianship of
incompetents (R92-97)
Petition for custody of minors in
relation to habeas corpus, AM __-____-SC)
Trusteeship (R98)
Petition for Domestic Adoption
(Domestic Adoption Act,

Petition for inter country adoption


(Inter Country Adoption Act,
)
Habeas Corpus (R102)
Writ of Amparo (
)
Writ of Habeas Data (
)
Change of Name (R103)
Clerical Error Act (

Cancellation or Correction of
Entries in the Civil Registry (R108)
Voluntary Dissolution of
Corporations (Corporation Code
)
Judicial Approval of Voluntary
Recognition of Minor Natural
Children (Family Code,
)

23

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Constitution of the Family Home


(Family Code,
)

Motion for preliminary attachment


(R57 S3)

Declaration of Absence and


Presumptive

Motion for dissolution of


preliminary injunction (R58 S6)

Death (R107 in relation to Civil and


Family Code
)

Application for writ of replevin (R60


S2)

Petition for declaration of Nullity


and Annulment of Marriage (
)

Claim against estate of a decedent


(R86 9)
Motion for new trial on the ground
of newly discovered evidence in
criminal cases (R121 S4)

Petition for legal separation (


)

Pleadings not required be verified in


the manner and form prescribed by
S4 of this Rule but the same must be
under oath:

Does the answer need to be verified?


As a general rule, answers need not be
verified, save for following instances:

Denial of genuineness and due


execution of actionable document
(R8 S8)

Answer to allegations of usury in a


complaint to recover usurious
interests (R8 S11)

Denial of allegations of usury (R8


S11)

When the answer is based on an


actionable document (R8 S8)

Motion to set aside default order


(R9 S3b)

Answer under the Revised Rules on


Summary Procedure

Answer to written interrogatories


(R25 S2)
Answer to request for admission
(R26 S2)

The following pleadings or motion


with affidavit or affidavits of merit:
Motion to postpone for absence of
evidence (R30 S3)
Motion to postpone for illness of a
party or counsel (R30 S4)
Motion for summary judgment or
opposition thereto (R35 S1,2,3,5)
Motion for new trial on the ground
of fraud, accident, mistake, or
excusable negligence or opposition
thereto (r37 S2)

Answer in Small Claims Cases

If the pleading is not verified, as


counsel for plaintiff, remedy?
File for judgment on the pleadings under
Rule 34 S1, on the ground of admission of
material allegations of the adverse partys
pleadings. Ground is based on the fact
that an answer is filed, but there is no
genuine issue because the allegations are
deemed admitted.
R34 S1
Grounds for judgment on the pleadings:
Answer fails to tender an issue
Answer admits the material
allegations of the adverse partys
pleading

Petition for relief from judgment or


order (R38 S3)
Third party claim (R39 S16)

Who can verify a pleading?

Proof required of a redemptioner


(R39 S30)

A party need not sign the verification.

24

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

The following may sign verification:


Party
Partys representative
Partys Lawyer
Any person who personally knows
the truth of the facts alleged in the
pleading

How about an authorized


representative? Can he verify?
Yes, if armed with proper authority from
the party (Through SPA?)

R7 S5- certification against forum


shopping
Plaintiff or principal party shall certify
under oath in the complaint or other
initiatory pleading assisting a claim for
relief, or in a sworn certification annexed
thereto and simultaneously filed
therewith,
1. that he has not theretofore
commenced any action or filed any
claim involving the same issues in
any court, tribunal or quasi judicial
agency, and, to the best of his
knowledge, no such other claim or
action is pending therein
2. if there is no such other pending
action or claim, a complete
statement of the present status
thereof
3. if he should thereafter learn that
the same or similar action or claim
is filed or is pending, he shall
report that fact within 5 days
therefrom to the court where his
aforesaid complaint or initiatory
pleading has been filed
Failure to comply with the foregoing
requirements shall not be curable by mere
amendment of the complaint or pleading
but shall be cause for dismissal of the
case without prejudice, unless otherwise
provided, upon motion and after hearing.
Submission of a false certification or non
compliance with any of the undertakings
therein shall constitute indirect contempt
of court without prejudice to

corresponding administrative and criminal


actions.
If acts of party or counsel clearly
constitute wilful and deliberate forum
shopping, the same shall be ground for
summary dismissal with prejudice, direct
contempt, and cause for administrative
sanctions.

Forum Shopping:
Forum shopping is an act of malpractice of
filing multiple suits in different courts
either simultaneously or successively,
involving the same parties, and asking the
courts to rule on the same or related
causes and/or to grant the same or
substantially the same relief

3 ways of committing forum


shopping:
Filing multiple cases based on the
same cause of action and with the
same prayer the previous not
having been resolved (litis
pendencia)
Filing multiple cases based on the
same cause of action and with the
same prayer, the previous having
been resolved with finality (res
judicata)
Filing multiple cases based on
same causes of action but with
different prayers (splitting cause of
action on the ground of litis
pendencia or res judicata)

Pleadings requiring certification


against forum shopping:
Initiatory Pleadings
Original complaint
Permissive counterclaim
Cross claim
3rd 4th etc party complaint
Complaint in intervention
Petition

What is stated in certification against


forum shopping:

25

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

R7 S5
The plaintiff or principal party shall certify
under oath in the complaint or other
initiatory pleading asserting a claim for
relief, or in a sworn certification annexed
thereto and simultaneously filed
therewith:
1. That he has not theretofore
commenced any action or filed any
claim involving the same issues in
any court, tribunal or quasi judicial
agency and, to the best of his
knowledge, no such other action or
claim is pending therein
2. If there is such other pending claim
or action, a complete statement of
the present status thereof
3. If he should thereafter learn that
the same or similar action or claim
has been filed or is pending, he
shall report that fact within 5 days
therefrom to the court wherein his
aforeseaid complaint or initiatory
pleading has been filed

States the effects of: (R7 S5)


Failure to attach certification
against forum shopping
Failure to comply with the foregoing
requirements shall not be curable by mere
amendment of the complaint or pleading
but shall be cause for dismissal of the
case without prejudice, unless otherwise
provided, upon motion and after hearing.
Remedy is file motion to dismiss
R16 S1j, and if granted, plaintiffs
remedy is to refile the case with
the required certification, unless if
declared by the court as dismissal
with prejudice, hence, remedy is
appeal

Submission of a falser
certification or non compliance
of any of the undertakings
therein
Submission of a false certification or non
compliance of any of the undertakings
therein shall constitute indirect contempt
of court without prejudice to
corresponding administrative and criminal
actions

Willful and deliberate forum


shopping
If the acts of party or counsel clearly
constitute wilful and deliberate forum
shopping, the same shall be ground for
summary dismissal with prejudice, direct
contempt, and cause for administrative
sanctions.
Serves as FINAL ORDER, hence,
appeal is the proper remedy if
motion to dismiss under R16 S1j is
granted

Remedies in case of failure to attach


certification against forum shopping:
As counsel for defendant, file motion to
dismiss under Rule 16 S1j on the ground
that a condition precedent has not been
complied with.

Motion to dismiss was granted,


remedy?
As plaintiff, refile the case, on the ground
that the dismissal is without prejudice.

If the plaintiff committed wilful and


deliberate forum shopping, and the
complaint was dismissed, remedy?
As plaintiff, i will file notice of appeal
under Rule 41, because the dismissal is
without prejudice, hence, in the nature of
a final order.

Define, enumerate, each pleadings:


Complaint (R6 S3)
The complaint is the pleading
alleging the plaintiffs cause or
causes of action.
Counterclaim (R6 S6)
Any claim which a defending party
may have against an opposing
party
Compulsory Counterclaim (R6
S7)

26

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

A counterclaim 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 partys claim and
does not require for its adjudication
the presence of third parties of
whom the court cannot acquire
jurisdiction

A counterclaim that may be


asserted against an original
counterclaimant
Counter crossclaim
A cross claim which may be filed
against an original cross claimant

Permissive Counterclaim (R6


S7)
A counterclaim which being
cognizable by the regular courts of
justice does not arise out of or is
connected with the transaction or
occurrence constituting the subject
matter of the opposing partys
claim and may require for its
adjudication the presence of third
parties of whom the court cannot
acquire jurisdiction

Counterclaim

Cross claim (R6 S8)


Any claim by one party against a
co party arising out of the
transaction or occurrence that is
the subject matter either of the
original action or of a counterclaim
therein

Cross Claim

3rd 4th etc party complaint (R6


S11)
A claim that a defending party
may, with leave of court, file
against a person not a party to the
action, called a 3rd 4th etc party
defendant for contribution,
indemnity, subrogation, or any
other relief in respect of his
opponents claim
Complaint in intervention (R19
S1)
Pleading filed by an intervenor if he
answers a claim against either or
all of the original parties
Answer in intervention (R19
S3)
Filed by intervenor if he unites with
the defending party in resisting a
claim against the latter
Answer (R6 S4)
Pleading in which a defending party
sets forth his defenses
Counter counterclaim (R6 S9)

Original complaint
A

vs

Counterclaim

Counter Counter Claim

vs

and

(Original Complaint)
Cross Claim

Counter Cross Claim

Third Party Complaint


A vs B vs C (for CISA)
C is impleaded for CISA

Complaint In intervention
A vs B
C (or)
C wants to be impleaded in the action

THIRD PARTY
COMPLAINT

COMPLAINT IN
INTERVENTION

27

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Rule 6

Rule 19

A claim that a
defending party
may, with leave of
court, file against a
person not a party
to the action, called
a 3rd 4th etc party
defendant for
contribution,
indemnity,
subrogation, or any
other relief in
respect of his
opponents claim

Pleading filed by an
intervenor if he
answers a claim
against either or all
of the original
parties

Third party is
impleaded in the
suit for CISA

Intervenor is any
person who has a
legal interest in the
matter in ligitation,
or in the success of
either of the parties,
or who has an
interest against
both parties, or who
is so situated as to
be adversely
affected by the
distribution or other
disposition of
property in the
custody of the court
or of an officer
thereof

Third party has


legal interest and
wants to be
impleaded in the
suit

Initiatory Pleadings
Requires payment of docket fees

and certification
against forum
shopping
Docket fee is
required to be paid

Docket fees are


suspended

Failure to file
answer results in
declaration of
default

not

may require for its


adjudication the
presence of third
parties over whom
the court cannot
acquire jurisdiction

Does not require for


its adjudication the
presence of third
parties over whom
the court cannot
acquire jurisdiction

Not barred even if


not set up in the
action

Barred if not set up


in the action

Initiatory pleading

Not an initiatory
pleading

3PC vs Third party claim


Third Party
Complaint

Third Party Claim

Initiated by way of
complaint

By way of affidavit

Filed before the


court

Filed before the


sheriff

For CISA

Terceria

Pleading

Affidavit

Docket fees are


required to be paid

Not

Lis Pendens vs Litis Pendencia


Permissive Counterclaim vs Compulsory
Counterclaim (Simplified version)
Permissive CC

Compulsory CC

Does not arise out


of or is connected
with the transaction
or occurrence that
is the subject
matter of the
opposing partys
claim

Arises out of or is
connected with the
transaction or
occurrence that is
the subject matter
of the opposing
partys claim

Needs verification

Not

Lis Pendens

Litis Pendencia

buyer beware

Filing multiple suits


in different courts
involving same
parties, same
causes of action,
same facts, same
relief, the identity of
the 2 cases such
that any judgment
that may be
rendered in one
case, regardless of

Notice to buyer of
existence of an
adverse claim

28

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

which party is
successful, would
amount to res
judicata in the other
case
Notice

A ground for motion


to dismiss under
Rule 16

Simultaneous or after filing of the original


complaint/pleading asserting a claim,
PROVISIONAL REMEDIES may be
availed of, ancillary to the main action for
protection and preservation of rights while
the main action is pending
PROVISIONAL REMEDIES
-

Temporary,
auxiliary,
ancillary
remedies available to a litigant for
the protection and preservation of
his rights while the main action is
pending

The
following
remedies:
1.
2.
3.
4.
5.

are

the

provisional

Preliminary Attachment (Rule 57)


Preliminary Injunction (Rule 58)
Receivership (Rule 59)
Replevin (Rule 60)
Support Pendente Lite (Rule 61)

NOTE: Not Exclusive!


Protection orders
Provisional orders
Production orders
Witness protection orders
See: RA 9262, Rules on
Nullity/Annulment of
Marriage/Legal Separation, Petition
for Custody of Minors, Writ of
Amparo, Writ of Habeas Data
NOTE ALSO:
Injunction and replevin can be main
actions in themselves

PROVISIONAL REMEDIES

A. Preliminary Attachment (Rule


57)
When filed? (R57 S1)
At the commencement of the action or at
any time before entry of judgment, a
plaintiff or any proper party may have the
property of the adverse party attached as
security for the satisfaction of judgment
that may be recovered in the following
cases (See grounds)

Grounds
for
preliminary
attachment
(NOTE: TINATANONG SA BAR!)
Rule 57 S1
a. In an action for recovery of a
specified amount of money or
damages, other than moral and
exemplary, on a cause of action
arising from law, contract, quasi
contract, delict or quasi delict
against a party who is about to
depart from the Phils with
intent to defraud his creditors
b. In an action for money or
property
embezzled
or
fraudulently
misapplied
or
converted to his own use by a
public officer, or an officer of a
corporation, or an attorney,
factor, broker, agent, or clerk, in
the course of his employment as
such, or by any other person in
a fiduciary capacity, or for a
wilful violation of duty
c. In an action to recover the
possession of property unjustly
or
fraudulently
taken,
detained, or converted, when
the property, or any part thereof,
has been concealed, removed,
or disposed of to prevent its
being found or taken by the
applicant or an authorized
person
d. In an action against a party who
has been guilty of fraud in
contracting
the
debt
or
incurring the obligation upon
which the action is brought, or
in the performance thereof

29

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

e. In an action against a party who


has removed or disposed of his
property, or is about to do so
with intent to defraud his
creditors
f.

In an action against a party who


does not reside and is not
found in the Phils, or on whom
summons may be served by
publication

FE/UD- No
Amount 200k MM- yes
100k- no
Ordinary Civil Actions- yes

When is it necessary to issue summons?


In case of implementation of
preliminary attachment (3rd stage)

the

Requirements: (Rule 57 S3)


1. By way of motion or by way of
complaint
2. Verified
application
through
Affidavit
attached to motion or
complaint
-

Stages:
-

Stating the grounds


That there is no sufficient security

3. Allegation
of
the
ground
necessitating
the
need
for
preliminary attachment
4. Posting of bond in an amount to be
determined by the court

Publication
Order/Execution
o BOTH ARE EX PARTE
Implementation
o With Summons

How attached?
-

Garnishment
Levy on attachment
o Annotated on back of title,
warning
on
subsequent
buyer subject to outcome of
the case

How is attachment applied for?


By way of motion?
complaint?

Or by way of

EITHER

At the commencement of the complaint


By verified complaint

At any time before judgment


-

R57 S12 and S13


S12- Motion to discharge attachment upon
giving of counterbond

HOW?

Remedy in case of issuance of writ of


attachment:

By verified motion

S13- Motion to quash the


attachment on the ff grounds:
-

writ

of

That the writ was improperly or


irregularly issued or enforced
That the bond is insufficient

If the attachment is excessive, the


discharge shall be limited to the excess
Cany you apply for writ of attachment
before the MTC?
YES.
In all instances?
YES. Because under Summary Procedure,
not a prohibited pleading

Order of denial of motion to quash:


-

INTERLOCUTORY, hence,
o M4R R65 S4
o Certiorari R65 S1, R41 S1b

30

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Purpose of the bond:


-

To answer for damages incurred by


the adverse party in case writ of
attachment
is
improperly
or
irregularly enforced

Writ of
Preliminary
Attachment
Covers
real
or
personal property
At
the
commencement of
the action or at any
time before entry of
judgment
Amount of the bond
is the value of the
obligation (fixed by
the court)
May be resorted to
even if property is
in the possession of
a third person
B. Preliminary
58)

Writ of Replevin
Covers
only
personal property
Commencement of
the action or at any
time before answer
Amount of the bond
is
double
the
amount
of
the
personal property
Can be sought only
when defendant is
in actual possession
of the property
Injunction

(Rule

Injunction
-

Judicial writ, process, or proceeding


whereby a party is ordered to do or
refrain from doing a particular act

Preliminary Injunction
-

An order granted at any stage of an


action or proceeding prior to the
judgment requiring a party or a
court, agency, or a person to
refrain a particular act or acts

Preliminary Mandatory Injunction


-

An order requiring the performance


of a particular act or acts

Denial- interlocutory
-

Writ of
preliminary
injunction
A writ granted at
any stage of action
or proceeding prior
to the judgment or
final
order,
requiring a party or
a court, agency or
person
from
a
particular act or
acts. It may also
require
performance of a
particular act or
acts, in which case
it shall be known as
a
preliminary
mandatory
injunction

TRO
An order to restrain
particular act or
acts of a party for a
limited period of
time

GROUNDS for preliminary injunction (R58


S3):
a. That the applicant is entitled to the
relief demanded, and the whole or
part of such relief consists in
restraining the commission or
continuance of the act or acts
complained of, or in requiring the
performance of an act or acts,
either for a limited period or
perpetually
b. That the commission, continuance,
or non performance of the act or
acts complained of during the
litigation would probably work
injustice to the applicant, or
c. That a party, court, agency, or a
person is doing, threatening, or is
attempting to do, or is procuring or
suffering to be done, some act or
acts probably in violation of the
rights of the applicant respecting
the subject of the action or
proceeding, and tending to render
the judgment ineffectual

Remedy: certiorari

If FJ- appeal

Irreparable damage and injury


-

Can preliminary injunction be issued ex


parte?
NO (?). TRO- yes

Of such constant and frequent


recurrence
that
no
fair
or
reasonable redress can be had
therefore in court of law or where
there is no standard by which their

31

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

amount can be measured with


reasonable accuracy

How do you avail?


By way of MOTION or by way of VERIFIED
COMPLAINT
IF
by
verified
complaint,
at
the
commencement of the action or before
entry of judgment, INCORPORATED IN THE
BODY OF THE COMPLAINT
If by motion, then by an application for
relief complying with the Rules on Motion:
1. In writing, [except those made
upon in open court or in the course
of a hearing or trial ] (R15 S2)
2. Must be verified and accompanied
by an affidavit of merit if the
ground for the motion is FAME
3. Shall state the following (R15 S3)
a. Relief sought to be obtained
b. Grounds upon which it is
based and
c. If required by these Rules or
necessary to prove facts
alleged therein, shall be
supported by supporting
affidavits and other papers
4. Motion is set for hearing by
applicant (R15 S4)
5. Notice of hearing addressed to all
parties concerned, specifying the
time and date of hearing which
must not be later than 10 days
after the filing of the motion (R15
S5)
6. Motion and notice of hearing must
be served at least 3 days before
the date of hearing (3 day notice
rule)

Affidavit of the party serving


containing a full statement of the
date, place, and manner of service

If by service is by ordinary mail, proof


thereof shall consist of an affidavit of the
person mailing of facts showing
compliance with S7 of this Rule.
If service is by registered mail, proof shall
be made by such affidavit and registry
receipt issued by the mailing office
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.
8. If the motion is not served to the
other party by personal service,
such mode resorted to 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
(R13 S11)

Effect of failure to comply with


Sections, 4, 5, 6 of Rule 15?
1. *the motion shall be treated as a
worthless piece of paper which the
clerk of court has no right to
receive and the court has no
authority to act upon (mere scrap
of paper)
2. It does not interrupt the running of
the prescriptive/reglementary
period for the filing of the requisite
pleading
3. It will be ground for denial of the
motion
4. The motion shall be considered as
not filed

7. Proof of service of the motion


R13 S13
Proof of personal service shall consist of:
-

Written admission of party served


or
Official return of the server or

HOW?
At the commencement of the complaint
-

By verified complaint

At any time before judgment


-

By verified motion

32

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Status Quo Order


-

Order issued by the court to


maintain the last, peaceable,
actual, uncontested condition of
the parties before the action or
proceeding

TRO- order restraining particular act or


acts of a party for a limited period of time;
can be issued ex parte
(RULE 58- AM 7-7-12)

Sec. 5. Preliminary injunction not granted


without notice; exception. No preliminary
injunction shall be granted without
hearing and prior notice to the party
or persons sought to be enjoined. If it
shall appear from facts shown by affidavits
or by the verified application that great or
irreparable injury would result to the
applicant before the matter can be heard
on notice, the court to which the
application for preliminary injunction
was made, may issue ex parte a
temporary restraining order to be
effective only for a period of twenty
(20) days from service on the party or
person sought to be enjoined, except
as herein provided. Within the twenty-day
period, the court must order said
party or person to show cause at a
specified time and place, why the
injunction should not be granted. The
court shall also determine, within the
same period, whether or not the
preliminary
injunction
shall
be
granted, and accordingly issue the
corresponding
order.
However, subject to the provisions of the
preceding sections, if the matter is of
extreme urgency and the applicant will
suffer grave injustice and irreparable
injury, the executive judge of a multiplesala court or the presiding judge of a
single-sala court may issue ex parte a
temporary restraining order effective
for only seventy-two (72) hours from
issuance,
but
shall
immediately
comply with the provisions of the
next preceding section as to service
of summons and the documents to be
served therewith. Thereafter, within the
aforesaid seventy-two (72) hours, the
judge before whom the case is pending

shall conduct a summary hearing to


determine whether the temporary
restraining order shall be extended
until the application for preliminary
injunction can be heard. In no case
shall the total period of effectivity of
the
temporary
restraining
order
exceed twenty (20) days, including
the
original
seventy-two
hours
provided
herein.
In the event that the application for
preliminary injunction is denied or not
resolved within the said period, the
temporary restraining order is deemed
automatically vacated. The effectivity of a
temporary restraining order is not
extendible without need of any judicial
declaration to that effect, and no court
shall have authority to extend or renew
the same on the same ground for which it
was
issued.
However, if issued by the Court of Appeals
or a member thereof, the temporary
restraining order shall be effective for
sixty (60) days from service on the
party or person sought to be
enjoined. A restraining order issued by
the Supreme Court or a member thereof
shall be effective until further orders. l
The trial court, the Court of Appeals, the
Sandiganbyan or the Court of Tax Appeals
that issued a writ of preliminary injunction
against a lower court, board, officer, or
quasi-judicial agency shall decide the main
case or petition within six (6) months
from the issuance of the writ.

Lifetime (R57 S5 in relation to AM 7-712)


-

Effective only for a period of 20


DAYS from service on the party or
person sought to be enjoined.
o Court to order said party or
person to show cause at a
specified time and place
why injunction should not
be granted, w/n P injunction
should be granted, and
accordingly
issue
the
corresponding order

33

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

IF the matter is of EXTREME


URGENCY, applicant will suffer
grave injustice and irreparable
injury, executive judge of multi sala
court or presiding judge of single
sala court may issue EX PARTE TRO
o Effective for only 72 HOURS
from issuance,
But
shall
immediately comply
with provisions of the
next
preceding
section as to service
of
summons
and
documents to be
served

Court may grant preliminary injunction, in


accordance with the provisions of R58
thereof, to prevent defendant from
committing further acts of dispossession
against plaintiff.

Within the 72 hours, judge to


conduct summary hearing to
determine whether the TRO can be
extended until application for
preliminary injunction can be
heard,
o Total period of effectivity of
TRO shall NOT EXCEED 20
DAYS, including the original
72 hours provided therein

Upon motion of plaintiff, within 10 days


from perfection of appeal to the RTC, the
latter may issue a writ of preliminary
mandatory injunction to restore plaintiff in
possession if the court is satisfied that

CA issues: effective for 60 DAYS from


service on the party or person sought to
be enjoined
SC or member
further orders

issues:

effective

until

AGAIN...
TRO- order restraining acts of a party for a
limited period of time
20 days
72 hours (ex parte)- extreme urgency
20 days non extendible

Can the court issue injunction ex parte?


NO!- requires notice and hearing
Can MTC issue TRO?
Ordinary Civil Actions- Pwede
Forcibly Entry / UnlawFul Detainer- YES
R70 S15

A possessor deprived of possession


through Fe or UD may, within 5 days from
filing of complaint, present a motion in the
action for FE UD for issuance of writ of
preliminary
mandatory
injunction
to
restore him in his possession. The court
shall decide the motion within 30 days
from filing thereof
R70 S20

defendants appeal is frivolous or


dilatory, or
that the appeal of plaintiff is prima
facie meritorious

REMEDIES IN
INJUNCTION:

CASE

OF

PRELIMINARY

Granted: (Rule 57 S6)


-

quash the writ based on:

1. upon showing of insufficiency


2. on other grounds upon affidavits of
the party or person enjoined
3. if it appears after hearing that
although applicant is entitled to the
injunction or restraining order, the
issuance or continuance thereof, as
a case may be, would cause
irreparable damage to the party or
person enjoined while applicant
can be fully compensated for such
damages he may suffer
Other requirements for quashal of writ:
1. filing of bond in amount fixed by
court conditioned that he will pay
all damages which applicant may
suffer by the denial or dissolution
of the injunction or restraining
order
Denied:
-

M4R
Certiorari Rule 65

34

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Can there be injunction in criminal cases?

acts

YES, in case of preliminary injunction with


respect
to
preliminary
investigation
(general rule, no, but the enumerations
are the exceptions)

Directed against a
party

1. When prejudicial to the rights of


the accused
2. When there is need for protecting
the Constitutional rights of the
accused
3. To Prevent the long arm of the law
from being vindictive
4. When
prejudicial
involved in the case

question

is

5. In case of criminal prosecution


under an invalid law

Provisional remedy
By way of motion

desist
from
excluding
another
from a right or
office (ministerial)
Directed against a
Judicial
or
quasi
judicial
bodies
exercising
ministerial functions
Original action
By way of petition

C. Receivership (Rule 59)


-

Provisional remedy to preserve a


property subject of litigation from
further loss, wastage, damage,
dissipation for the protection of
another person

Where applied for?


Can MTC issue preliminary injunction?
YES, except in:
Case falling under Summary Procedure, if
the claim being 100k (Small Claims),
EXCEPT:
-

FE and UD
o R70- preliminary mandatory
injunction and preliminary
prohibitory injunction are
allowed

Prohibitory
Injunction
Provisional remedy
Rule 58
An order granted at
any stage of an
action
or
proceeding prior to
the
judgment
requiring a party or
a court, agency, or
a person to refrain a
particular act or
acts

Mandatory
Injunction
Provisional Remedy
Rule 58
An order requiring
the performance of
a particular act or

Prohibition
Special civil action
Rule 65
Petition in case a
person exercising J,
QJ,
Ministerial
Function
acted
without jur or with
GAD amounting to
lack or excess of
jurisdiction,
for
respondent to desist
from
further
proceedings
Mandamus
Special Civil Action
Rule 65
Requires
performance of a
ministerial act or to

1. Court where action is pending


2. CA
3. SC
Grounds: (R59 S1)
a. When it appears from the
verified application, and
such other proof as the
court may require, that the
party applying for the
appointment of receiver has
an interest in the property
or fund which is the subject
of the action or proceeding,
and that such property or
fund is in danger of being
lost, removed, or materially
injured unless a receiver be
appointed to administer and
preserve it
b. When it appears in an
action by the mortgagee for
the foreclosure of mortgage
that the property is in
danger of being wasted or
dissipated
or
materially
injured, and that its value is
probably
insufficient
to
discharge
the
mortgage
debt, or that the parties
have so stipulated in the
contract of mortgage
c. After judgment, to preserve
the property during the
pendency of an appeal, or

35

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

to dispose of it according to
the judgment, or to aid
execution when execution
has
been
returned
unsatisfied
or
when
judgment obligor refuses to
apply
his
property
in
satisfaction of the judgment
or otherwise to carry the
judgment into effect
d. Whenever in other cases it
appears
that
the
appointment of a receiver is
the most convenient and
feasible
means
of
preserving,
administering,
or disposing of the property
in litigation
During pendency of appeal, the appellate
court may allow an application for the
appointment of a receiver to be filed in
and decided by the court of origin and the
receiver appointed to be subject to the
control of said court.

REQUIREMENTS:
1. Verified motion in a complaint /
Verified
complaint
at
commencement of action (R59 S1)
2. Bond by applicant in an amount to
be fixed by the court to pay such
person against whom application is
presented to pay such party all
damages he may sustain by reason
of the appointment of such receiver
in case the applicant shall have
procured such appointment without
sufficient cause(R59 S2)
3. Oath and Bond by receiver to
faithfully discharge of his duties in
an action or proceeding and obey
court orders
IF pending appeal,
-

By verified complaint

IF after judgment,
-

By way of motion

NOTE: Receivership as provisional remedy


applies to all civil actions, while
receivership of corporation is an original
action applicable only to corporations

under the
Philippines

Corporation

Code

of

the

Receivership with appointment of receiver:


pwede
Receivership with MTC: pwede, except in
Small Claims

General powers of receiver:


R59 S6
Subject to the control of the court in which
the action or proceeding is pending, a
receiver shall have the power to
1. Bring and defend, in such capacity,
actions in his own name
2. Take and keep possession of the
property in controversy
3. To receive rents
4. To collect debts due to himself, as
receiver or to the fund, property,
estate, person, corporation to
which he is the receiver
5. To compound for and compromise
the same
6. To make transfers
7. To pay outstanding debts
8. To divide the money and other
property that shall remain among
the persons legally entitled to
receive the same
9. To do such acts respecting the
property
as
the
court
may
authorize
However, funds in the hands of a receiver
may be invested only by order of the court
upon the written consent of all the parties
to the action.
No action may be filed by or against a
receiver without leave of the court which
appointed him

Termination of receivership; compensation


of receiver

36

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

R59 S8
Whenever the court, motu proprio or on
motion of either party, shall determine
that the necessity for receiver no longer
exists, it shall, after due notice to all
interested parties and hearing,
1. settle the accounts of the receiver,
2. direct the delivery of the funds and
other property in his possession to
the person adjudged to be entitled
to receive them,
3. and order the discharge of the
receiver from further duty as such
The court shall allow the receiver such
reasonable
compensation
as
the
circumstances of the case warrant, to be
taxed as costs against the defeated party,
or apportioned, as justice requires.

D. REPLEVIN (Rule 60)


-

A provisional remedy for recovery


of personal property / reacquisition
of personal property subject of
litigation

Can be a provisional remedy or a main


action
-

If a main action, then it is an action


for recovery of unlawfully withheld
personal property in the possession
of another

cause
of
detention
thereof
according to the best of his
knowledge, information, and belief
c. That the property has not been
distrained or taken for a tax
assessment or a fine pursuant to
law, or seized under a writ of
execution
or
preliminary
attachment, or otherwise placed
under custodia legis, or if so
seized, that it is exempt from such
seizure or custody
d. The actual market value of the
property
2. Posting of bond by applicant in
double the value of the property
stated in the affidavit mentioned,
for return of the property to
adverse party if such return be
adjudged, and for payment to
adverse party of such sum as he
may recover from the applicant in
the action

Denied, REMEDY:
Counterbond
property

double

the

amount

of

E. SUPPORT PENDENTE LITE (Rule


61)
-

Jurisdiction/Venue:
RTC or MTC (300k-400k OMM MM higher
lower)

Amount of support provisionally


fixed by the court in favour of the
person or persons entitled thereto
during the pendency of an action
for support

IMMEDIATELY EXECUTORY!
REQUIREMENTS: (R60 S2)
1. Verified
Application
(by
affidavit)/complaint before service
of answer
Facts:
a. That applicant is the owner of the
property
claimed,
particularly
describing it, or is entitled to the
possession thereof
b. That the property is wrongfully
detained by adverse party, alleging

Where filed?
FAMILY COURT
Why not in MTC?
Because action for
support
is
incapable
of
pecuniary
estimation
(Exception: Criminal cases falling under
MTC jurisdiction?)
When available?
-

Action for support


Relief sought is
applicant

support

for

37

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Nullity of marriage
Annulment of marriage
Legal separation
Custody of minors in relation to
habeas corpus
Criminal cases:
o Rape
o RA9262

The facts in issue shall be proved in the


same manner as if proved for evidence on
motions.

S4- Order
The court shall determine provisionally

S1- Application

1. the pertinent facts, and

At
-

the commencement of the proper


action or proceeding,
or at any time prior to the
judgment or final order,
o a verified application for
support pendentee lite may
be filed by any party
stating the grounds
for the claim and the
financial conditions
of both parties, and
commenced
by
affidavits,
depositions, or other
authentic documents
in support thereof

shall render such order as justice and


equity may require,
-

If the application is granted,


-

S2- Comment
A copy of the application
supporting documents
-

and

having due regard to the probable


outcome
and
such
other
circumstances as may aid in the
proper resolution of the question
involved.

all

the court shall fix


o the amount of money to be
provisionally paid,
o or such other forms of
support
as
should
be
provided,
taking into account
the necessities of the
applicant and the
resources or means
of the adverse party,
and
terms of payment or
mode for providing
the support.

shall be served upon adverse


party,
o who shall have 5 days to
comment thereon
unless a different
period is fixed by the
court
upon
his
motion.

If the application is denied, the principal


case shall be tried and decided as early as
possible.

The comment shall be verified and shall


be accompanied by affidavits, depositions,
or other authentic documents in support
thereof.

If the adverse party fails to comply with an


order granting support pendente lite, the
court shall, motu proprio or upon motion,

S5- enforcement of order

S3- Hearing
1. After the comment is filed, or
2. after the expiration of the period
for its filing,
a. the application shall be set
for hearing not more than 3
days thereafter

issue an order of execution against


him,
o without prejudice to his
liability for contempt.

When the person ordered to give support


pendente lite refuses or fails to do so,
-

any third person who furnished that


support to the applicant may, after
due notice and hearing in the same
case,

38

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

obtain a writ of execution to


enforce
his
right
of
reimbursement against the
person ordered to provide
such support.

S6- Support in criminal cases


In criminal cases
1. where the civil liability includes
support for the offspring as a
consequence of the crime
2. and civil aspect thereof has not
been
waived,
reserved,
or
instituted prior to its filing,
a. the accused may be ordered
to provide support pendente
lite to the child born to the
offended party allegedly
because of the crime.
The application therefore may be filed
successively by the
-

offending party,
her parents,
grandparents,
or guardian
and the state in the corresponding
criminal case during its pendency,
o in accordance with the
procedure established in
this Rule.

S7- Restitution
When the judgment or final order of the
court finds that the person who has been
providing support pendente lite is not
liable therefor,
-

it shall order the recipient thereof


to return to the former the amounts
already paid with legal interest
from the dates of actual payment,
o without prejudice to the
right of recipient to obtain
reimbursement
in
a
separate action from the
person legally obliged to
give the support.

Should recipient fail to reimburse said


amounts, the
-

person who provided the same


may likewise

seek reimbursement thereof


in a separate action from
the person legally obliged to
give such support.

Failure of action for support pendente lite,


REMEDY:
-

move for motion for execution

DENIED,
-

file petition for indirect contempt,


for disobedience to lawful order of
the court

SPECIAL CIVIL ACTIONS


(discussed in this stage because initiatory
pleadings are filed, by complaint or by
petition, as the case may be)
SCA initiated by
complaint
- Interpleader
(62)
- Foreclosure of
mortgage
(68)
- Forcible entry
/ UD (70)
- Partition (69)
- Expropriation
(67)

SCA initiated by
petition
- declaratory
relief (62)
- review
of
adjudication
of comelec,
coa (64)
- c, m, p (65)
- qw (66)
- contempt
(71)

1. Interpleader (62)
2. Declaratory Relief and other similar
remediesv (63)
3. Review of judgments, final orders,
resolutions of CoA, COMELEC (64)
4. Certiorari, Prohibition, Mandamus
(65)
5. Quo Warranto (66)
6. Expropriation (67)
7. Foreclosure
of
Real
Estate
Mortgage (68)
8. Partition (69)
9. Forcible Entry/Unlawful Detainer
(70)
10. Contempt (71)
Governed by Special Rules, Rules on
ordinary civil actions apply in a suppletory
manner (OR is it the other way? R1 states
governed by rules on ordinary civil
actions,
subject
to
specific
rules
prescribed in a special civil action)
Examples:

39

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

VENUE

Real- R4 S1

MOTION TO DISMISS

Personal- R4 S2

DEMURRER TO EVIDENCE
PARTS OF A PLEADING

S2- Order

INTERPLEADER (Rule 62)

Upon filing of the complaint, the court


shall
-

Initiated by way of complaint

S1- When proper

If the interests of justice so require,

Whenever
-

conflicting claims upon the same


subject matter
o are or may be made against
a person who claims no
interest whatever in the
subject matter or
o an interest in which in whole
or in part is not disputed by
claimants,
he may bring an
action
against
conflicting
litigants
to compel them to
interplead
and
litigate their several
claims
among
themselves

NOTE: Person in possession has no legal


interest

At any time

Intervention
Rule 19
With leave of court
Ancillary to main
action
If
for
plaintiffcomplaint
in
intervention
If for defendantanswer
in
intervention
Before judgment

JURISDICTION:
RTC or MTC 20-50 real 300-400 personal
higher lower
VENUE:

the court may direct in such order


o that the subject matter be
paid or delivered to the
court.

S3- Summons
Summons shall be served upon the
conflicting claimants, together with a copy
of the complaint and order.

S4- Motion to dismiss


Within the time for filing an answer, each
claimant may
-

Interpleader
Rule 61
Without leave of
court
Original / Special
Civil action
Filed by complaint
for interpleader

issue an order requiring the


conflicting claimants to interplead
with one another.

file motion to dismiss on the


ground of impropriety of the
interpleader action or
on other appropriate grounds
specified in Rule 16.

The period to file the answer shall be


tolled and if the motion is denied, the
movant may file his answer within the
remaining period, which shall not be
less than 5 days in any event,
reckoned from the notice of denial.
(See Rule 16 S4)

S5- Answer and other pleadings


Each claimant shall file his answer setting
forth his claim within 15 days from service
of the summons upon him,
-

serving a copy thereof upon each


of the other conflicting claimants,
o who may file their reply
thereto as provided in these
Rules.

40

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

If any claimant fails to plead within the


time therein fixed, the court may, on
motion,
-

declare him in default and


thereafter render judgment barring
him from any claim in respect to
the subject matter.

The parties in an interpleader action may


file counterclaims, cross claims, 3 rd party
complaints
and
responsive
pleading
thereto, as provided in these Rules.

S6- Determination
After the pleadings of the conflicting
claimants have been filed, and pre trial
has been conducted in accordance with
these Rules,
-

the
court
shall
proceed
to
determine their respective rights
and adjudicate their several claims.

another proceeding
contract

to,

annulment

of

quiet title to real property


remove clouds therefrom

or

consolidate ownership

In case of pacto de retro sale or


foreclosure of mortgage, not necessarily
owner agad, hence, file for consolidation
of ownership under this Rule
(EXCLUSIVE)
subject here

hence,

if

not,

then

not

NOTE: DECLARATORY RELIEF is the only


civil action (special vis a vis ordinary) that
can be filed even before breach or
violation thereof
JURISDICTION/VENUE:
Declaratory Relief:
-

RTCincapable
estimation

of

pecuniary

Queting of title:
In case of adverse Resolution,

Appeal pursuant to R40-42

MTC or RTC 20-50 OMM MM lower


higher

Consolidation of ownership:
DECLARATORY RELIEF AND OTHER
SIMILAR REMEDIES (R63)

Interpretation/Construction of:
deed,
will,
contract, or
other written instrument, or

determining validity of:


o
o
o
o
o

statute,
executive order,
regulation,
ordinance, or
any other governmental
regulation

OTHER
SIMILAR
CONTEMPLATED
which
provisions of this Rule:
-

RTCincapable
estimation

of

pecuniary

of

pecuniary

Reformation of contracts:

Objective: (R63 S1)

o
o
o
o

REMEDIES
applies
the

reformation of an instrument

NOTE: INSTRUMENT, not the elements of


the instrumentif such, e subject of

RTCincapable
estimation

Can the SC entertain


declaratory relief?

petition

for

NO. BP129- RTC EO Jur, actions incapable


of pecuniary estimation

Requirements:
S2- Parties
All persons who have or claim any interest
which would
be affected by the
declaration shall be made parties, and
-

no declaration shall, except as


provided in these Rules,

41

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

prejudice the rights of


persons not parties to the
action.

S3- Notice on Sol Gen


In any action which involves validity of
-

statute,
EO, or
regulation, or
any other governmental regulation,
o The Sol Gen shall be notified
by the party assailing the
same and
shall be entitled to
be heard upon such
question

by the Commission itself.


Unless
otherwise provided by this Constitution or
by law, any decision, order, or ruling of
each Commission may be brought to the
SC on certiorari by the aggrieved party
within 30 days from receipt of a copy
thereof.
COVERAGE: (R64 S1)
Judgments, final orders, resolutions of
COMELEC, CoA

S1- Scope
Final orders or judgments of COA and
COMELEC

S4- Local government ordinances


In any action involving the validity of a
local government ordinance,
-

the corresponding prosecutor or


attorney of the LGU involves shall
be similarly notified and entitled to
be heard.

If such ordinance is alleged to be


unconstitutional, the Sol Gen shall also be
notified and entitled to be heard.

In case of adverse resolution


-

APPEAL R41
o (R40 to RTC if Quieting in
MTC)

S2- Mode
SC- petition for certiorari under Rule 65

S3- Time
Within 30 days from notice of judgment
IF M4r denied, filed within remaining
period and not less than any event
reckoned from notice of the denial
NO FRESH PERIOD RULE, only in 40 41 42
43 45

S4- Docket, lawful fees


Pay, + 500 for costs

REVIEW OF JUDGMENTS AND FINAL


ORDERS OR RESOLUTIONS OF THE
COMELEC AND COMMISSION ON
AUDIT (Rule 64 [but applying Rule
65])
Constitutional Basis:
A9A S7 (basis of Rule 64)
Each Commission shall decide by majority
of all its Members in any case or matter
brought before it within 60 days from date
of its submission for decision or resolution.
A case or matter is deemed submitted for
decision or resolution upon the filing of the
last pleading, brief, or memorandum
required by the rules of the Commission or

S5- Form/Contents
1. Verified petition, 18 copies, with
certified true copy of judgment
2. Respondent is Comelec or CoA,
person interested in sustaining
3. Finding of fact supported by
substantial evidence, final and non
reviewable
4. State
specific
material
dates
showing it was filed on time
5. Accompanied by sworn certification
against forum shopping
6. Proof of service of its copy on
commission and adverse party, and
of payment of docket and other
lawful fees

42

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

S6- order to comment


-

Within 10 days from notice of order


or judgment, by respondent, or
else, dismissed

of
award,
judgment,
resolution
With the CA

of judgment or final
order sought to be
reviewed
With the SC

CERTIORARI, PROHIBITION,
MANDAMUS (Rule 65)

Grounds for dismissal


1. Non compliance with form and
contents
2. Non payment of docket and 500 for
costs
3. Filed manifestly for delay
4. Questions are too unsubstantial to
warrant further proceedings

S7- Comments of respondents


-

final

18 copies
No other pleading may be filed
unless required or allowed by court

Constitutional Basis:
A8 S1 P2
Judicial Power includes the duty of the
courts of justice to settle actual
controversies involving rights which are
legally demandable and enforceable, and
to determine whether or not there is grave
abuse of discretion amounting to lack or
excess of jurisdiction on the part of any
branch
or
instrumentality
of
the
government.
A8 S5 P2

S8- Effect of filing


Filing of certiorari will not stay execution of
judgment, FO, resolution sought to be
reviewed, unless SC shall direct otherwise
upon such terms as may be just
Petitioner may apply for TRO or
preliminary injunction to stay execution

Rule 65
Applies to orders of
judicial,
quasi
judicial
court
or
tribunals
60 days from denial
of
motion
for
reconsideration (AM
7-7-12-SC)
Motion
for
reconsideration
is
required
Petition filed before
RTC, CA, SC
Rule 43
Appeal/Petition for
review of decisions
of Quasi Judicial
Bodies
15 days from notice

Rule 64
Applies
to
judgments,
final
orders, resolutions
of
CoA
and
COMELEC
30 days from notice
of judgment or final
order or resolution
sought
to
be
reviewed
NOT
Petition filed before
SC
Rule 64
Petition for review
of judgments and
final
orders
or
resolutions
of
COMELEC and CoA
30 days from notice

Review
Revise
Reverse
Modify
Affirm
o On appeal or certiorari, as
the law or the Rules of Court
may provide, final
judgments and orders of
lower courts in:

6. All cases in which constitutionality


or validity of any
a. treaty,
b. international or executive
agreement
c. law
d. presidential decree
e. proclamation
f. order
g. instruction
h. ordinance
i. regulation
i. is in question
7. all cases involving the legality of
any
a. tax
b. impost
c. assessment
d. toll
e. any penalty imposed in
relation thereto
8. all cases in which the jurisdiction of
any lower court is in issue

43

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

9. all criminal cases in which the


penalty imposed is reclusion
perpetua or higher

wrongful act, in the event that the


same unlawfully neglected in the
performance of ministerial duty or
unlawfully excluded another from
use and enjoyment of a right or
office to which such other is
entitled

10. all cases in which only an error or


question of law is involved

QUALIFICATIONS in ALL 3:
What is the MATERIAL DATES RULE?
As far as Rule 65 is concerned, the
following material dates must be stated in
the verified petition or else, the petition
would be denied:
1. Notice of the order or judgment
2. Date of the filing of the motion for
reconsideration
3. Date of the denial of the motion for
reconsideration

Certiorari
-

Special civil action directed to an


inferior court, tribunal, board or
officer directing judicial or quasi
judicial functions, to annul or
modify proceedings of such court,
tribunal, board or officer in the
event that the same has acted with
grave
abuse
of
discretion
amounting to lack or excess of
jurisdiction
o Seeks to correct errors of
jurisdiction

Prohibition
-

Special civil action directed against


any tribunal, board, officer or
person exercising judicial, quasi
judicial, or ministerial functions, to
desist from further proceedings in
the event that the same acted with
grave
abuse
of
discretion
amounting to lack or excess of
jurisdiction

Mandamus
-

Special civil action directed against


any tribunal, corporation, board,
officer or person, to do the act
required to be done to protect the
rights of petitioner and to pay
damages sustained by petitioner
by reason of the respondents

that there is no plain, speedy, or


adequate remedy in the ordinary
course of law

Certiorari
discretionary

Mandamus
Ministerial

Prohibition
Discretionary
and ministerial
To annul order
To
order To
restrain
performance
performance
60 days from receipt of final judgment or order or
from denial of motion for reconsideration
Against entity Against entity Against
entity
or
person or
person or
person
exercising j or exercising
exercising j, ej,
ej function
ministerial
ministerial
function
function
Without or GAD
Unlawful
Without or GAD
neglect
of
ministerial duty
or
excluded
another from a
right or office
Correct
errors Performance of To restrain or
of jurisdiction
act or desist prevent
from excluding usurpation
of
another from a jurisdiction
right or office

Errors of
Jurisdiction
Court acted with
GAD amounting to
lack or excess of
jurisdiction
Action of the court
Correctible
by
certiorari
Rule 65

Errors of
Judgment
Misapprehension of
law or facts by the
court
Valid proceeding
Correctible
by
appeal
Rules 40-43, 45

General Rule: M4R is required to allow the


court to correct its errors
Exception:
1. where the order is a patent nullity,
as where the court has no
jurisdiction
2. where question raised in the
certiorari proceedings have been

44

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

duly raised and passed upon by the


lower court, or are the same as
those raised and passed upon by
the lower court
3. where there is an urgent necessity
for the resolution of the question
and any further delay would
prejudice the interest of the
government or the petitioner or the
subject of the action is perishable
4. where under the circumstances, a
motion for reconsideration would
be useless
5. where petitioner was deprived of
due process, and there is extreme
urgency for relief
6. where, in a criminal case, relief
from an order of arrest is urgent
and the granting of such relief by
the trial court is improbable
7. where the proceedings in the lower
court are a nullity for lack of due
process
8. where the proceeding were ex
parte or in which the petitioner had
no opportunity to object
9. where the issue raised is one
purely of law or where public
interest is involved

6. pay docket and lawful fees, 500 for


costs
7. serve copy upon adverse party or
parties and the court
8. service and filing to be done
personally, with explanation if not
done personally
General rule:
Certiorari is not a substitute for lost appeal
Except:
-

denial of due process

appeal is not a remedy


o no appeal or no plain,
speedy, adequate remedy

court without jurisdiction

when deprived of substantial rights

Note: in the cases, in event of denial of


petition, and in exercise of original
jurisdiction, remedy is APPEAL
MTC to RTC- Rule 40
RTC to CA- Rule 41 (original), Rule 42
(appellate)
CA to SC- Rule 45

REQUIREMENTS:
1. verified petition in 7 legible copies
2. it should be filed not later than 60
days from notice of judgment,
order or resolution sought to be
assailed or from denial of M4R
3. contain full names and addresses
of petitioners and respondents,
concise statement of matters
involved, factual background of the
case, grounds relied upon for the
relief prayed for
4. accompanied by clearly legible
duplicate originals or certified true
copies of award, judgment, order,
resolution, ruling subject
5. certification
shopping

against

forum

The above-stated is the PRINCIPLE OF


HIERARCHY OF COURTS
-

superior courts would not take


cognizance of a case brought
before it unless the case has been
decided by the lower courts in the
exercise of its jurisdiction

Same principle in certiorari:


MTC to RTC- 60 days
RTC to CA- 60 days
CA to SC- 60 days

65 vs 45 (simplified)
Rule 65
60 days
Motion
reconsideration

for

Rule 45
15 Days
Not

45

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

required
Questions
of
jurisdiction
SC, CA, RTC
Special civil action

preparation to file
certiorari

Questions of law
SC
Mode
appeal/petition
review

of
for

QUO WARRANTO (Rule 66)


-

Rule 65 as amended by Am 7-7-12:

Sec. 4. When and where to file the


petition.
The petition shall be filed not later than
sixty (60) days from notice of the
judgment, order or resolution. In case
a motion for reconsideration or new
trial is timely filed, whether such
motion is required or not, the petition
shall be filed not later than sixty (60)
days counted from the notice of the
denial
of
the
motion.
If the petition relates to an act or an
omission of a municipal trial court or
of a corporation, a board, an officer
or a person, it shall be filed with the
Regional
Trial
Court
exercising
jurisdiction over the territorial area
as defined by the Supreme Court. It
may also be filed with the Court of
Appeals or with the Sandiganbayan,
whether or not the same is in aid of the
courts appellate jurisdiction. If the petition
involves an act or an omission of a
quasi-judicial
agency,
unless
otherwise provided by law or these
rules, the petition shall be filed with and
be cognizable only by the Court of
Appeals.
In election cases involving an act or an
omission of a municipal or a regional trial
court, the petition shall be filed exclusively
with the Commission on Elections, in aid of
its appellate jurisdiction.

including
interlocutory orders

proceeding or writ issued by the


court to determine the right to the
use or exercise of an office,
position or franchise and to oust
the person holding or exercising
such office, position or franchise if
his right is unfounded or if he had
forfeited his right to enjoy the
privilege

2 kinds of quo warranto:


1. usurpation of public office
2. dissolution
corporation

of

de

facto

Rule 66 S1
An action for usurpation of a public office,
position, or franchise may be commenced
by a verified petition brought in the name
of the Republic of the Philippines against:
a. a person who usurps, intrudes into,
or unlawfully holds or exercises a
public office, position, or franchise
b. a public officer who does or suffers
an act which by provision of law
constitutes a ground for the
forfeiture of his office
c. an association which acts as a
corporation within the Phils without
being
legally incorporated
or
without lawful authority to act
*Sol Gen commences action (S2, S3)
Period: (S11)
Within 1 YEAR

NO MORE EXTENSION OF TIME IS GIVEN


TO FILE CERTIORARI!

after cause of ouster or right of


petitioner to hold such office, or
position arose

Within 1 YEAR (action for damages)


M4R based on
Rule 65
Of
interlocutory
order,
as

M4R based on
Rule 37
Of final judgment or
final
order,
not

after
entry
of
judgment
establishing petitioners right to the
office in question

in short...

46

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

within 1 YEAR from usurpation of public


office
REMEDY IF DENIED: Appeal

Jurisdiction: RTC, incapable of pecuniary


estimation (BP129)
Venue: Where the property is located

Jurisdiction and Venue:

Basis: (action involving title to or real


property under R4 S1)

RTC, CA, SC

CANNOT BE FILED WITH SC, because


under EO jur of RTC

If Solicitor General files- RTC, CA, SC


If other person files- R4 S1 R4 S2

Quo Warranto
Election Code
Election Code
COMELEC, RTC. MTC
Omnibus
Election
Code
Not
Can be filed with
MTC
Contest
right
of
elected
public
officer
to
hold
public office
Ineligibility
or
disqualification
of
person elected to
hold the office
Within 10 days after
proclamation
of
candidate
Filed by any voter

Quo Warranto
Rule 66
Rules of Court
RTC, CA, SC
Basis: A8 Consti,
R66
Subject to BP129
Cannot be filed with
MTC
Show title to public
office or exercise
public franchise
Usurpation,
forfeiture,
association

illegal

Within 1 year from


usurpation of office
Filed by government
or person entitled to
the office

NOTE: Expropriation is an instance where


multiple appeals are filed (30 day record
on appeal in case of multiple appeal)
Why? 3 orders issued under Rule 67:
1. order of compensation
2. order of expropriation
3. final order of just compensation

Remedy
of
person
after
expropriation, no payment made:
-

recover property from expropriator


within 5 years after non payment

FORECLOSURE OF MORTGAGE (Rule


68)
(Tan, Handbook on Civil Procedure and
pleadings, pp 142-145)
Foreclosure

Expropriation (Rule 67)


Eminent Domain- right and authority of
the State to acquire private property for
public use upon observance of due
process
and
payment
of
just
compensation
Expropriation- procedure to be observed
in the exercise of the right of eminent
domain

action by which a mortgagee or


pledge or any other lien holder cuts
off the right of debtor whose
property is pledged, because of
default in meeting the obligation

Foreclosure of Mortgage
-

termination of all the rights of the


mortgagor in the property covered
by the mortgage

Constitutional Basis:

Manner of foreclosure of mortgage:

A3 S9

Rule 68 S1

Private property shall not be taken for


public use without payment of just
compensation

Contents of action:
1. date
and
mortgage

due

execution

of

47

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

2. assignments, if any

3. names
and
residences
mortgagor and mortgagee

of

Here, under b, deemed to have


waived his right to proceed against
the property in a foreclosure
proceeding

4. description of mortgaged property


5. statement of date of the note or
other documentary evidence of the
obligation secured by the mortgage
6. amount
thereon

claimed

to

be

unpaid

7. names and residences of all


persons having of claiming interest
in the property subordinate in right
to that of the holder of the
mortgage, all of whom shall be
made defendants in the action

Right of
Redemption
Exists
in
EJ
foreclosure
By
mortgagee
within 1 year from
registration of the
sale in the Office of
the
Registry
of
Deeds

Equity of
Redemption
Exists
in
J
foreclosure
By
mortgagor
during not less than
90 days nor more
than 120 days from
entry of judgment
or foreclosure or
even
after
foreclosure sale but
before
judicial
confirmation of the
same

Nature of Action:
-

QUASI IN REM
Service of summons by publication

J Foreclosure, no right of redemption,


except only if morgagee is a bank

Jurisdiciton/Venue:
PARTITION (Rule 69)

MTC-RTC 20-50 OMM MM lower higher


Where real property or portion thereof is
situated (R4 S1)

(Tan, Handbook on Civil Procedure and


pleadings, pp 148-149)
-

Classification of Foreclosure of Mortgage:


1. JUDICIAL FORECLOSURE
To have the property seized and sold by
the court order to the end that the
proceeds thereof be applied to payment of
plaintiffs claim
2. EJ FORECLOSURE
Possession of property sold may be given
to purchaser by sheriff after the period of
redemption had expired, unless there is a
third person actually holding the property
adversely to the mortgagor

Remedies of Mortgagee in case of default


of mortgagor/waiver of right to foreclose:
a. Judicial or extrajudicial foreclosure
of mortgage
b. Filing of ordinary action to collect
debt

Separation, division, assignment of


a thing held in common among
those to whom it may belong

Classes of partition:
1. Voluntary- division of property by
the act of the parties themselves
2. Compulsory- partition by judicial
proceedings at the instance of one
or more of the co tenants without
regard to the wishes of the other co
tenants
Kinds of Partition
1. Total- all the things are divided
among the participants
2. Partial- when some of the things
are divided, the rest remaining in
community ownership
3. Provisional- when it is temporary
or conditional, until a final or
definite division is made

48

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

4. Definite- when the resulting


division is permanent, final, and
absolute

Real Action + Action in personam- involves


possession of real property, binding upon
the parties

5. Judicial- takes place when court


intervenes
and
approves
the
petition

NOTE: 3 kinds of recovery of real property

6. Extrajudicial- division may be


made by testator himself or by
some person named by deceased
or amicably by interested heirs by
common agreement (Rule 74 S1)
R69 S1
A person having the right to compel
partition of real estate may do so as
provided in this Rule, setting forth in his
complaint the nature and extent of his title
and an adequate description of the real
estate of which partition is demanded and
joining as defendants all other persons
interested in the property
Covers: REAL or PERSONAL PROPERTY
Jurisdiction/Venue:
MTC RTC 20-50 300-400 OMM MM lower
higher
R4 S1 R4 S2

In case of adverse resolution:


MULTIPLE APPEALS- 30 day record on
appeal (R69 S2)
Why? (tingin ko lang)

1. Accion
interdictalsummary
action for recovery of physical
possession of the property where
dispossession has lasted for more
than 1 year; FE or UD
2. Accion publiciana- plenary action
for recovery of real right of
POSSESSION
3. Accion reivindicatoria- action for
recovery of OWNERSHIP
Ejectment- form of action by which
possessory
titles
to
corporeal
hereditariments
may be tried and
possession obtained which lies to regain
possession of real property, with damages
for illegal detention
2 kinds: FE and UD
Forcible Entry
Person in physical
possession of land
was deprived of
possession through
FISTS
Unlawful ab initio
Not require demand
to vacate
Prove
prior
possession
until
deprived
1 y from date of
actual entry on land

Unlawful Detainer
Withholding by a
person
of
possession of land
or building
Legal but becomes
illegal
Pay AND vacate;
jurisdictional
No need to prove
prior
physical
possession
1 year from date of
last demand

Orders under Rule 69:


1. Order of partition
2. Order of accounting

NOTE: Partition is one mode of settlement


of estate of the deceased (relate to R7577)

FORCIBLE ENTRY AND UNLAWFUL


DETAINER (Rule 70 in relation to
Rules on Summary Procedure)
(issue is that of possession)
(Tan, Handbook on Civil Procedure and
pleadings, pp 153-158)

Filed by: R70 S1


Person deprived of possession of land or
building by FISTS, or lessor, vendor,
vendee, other person against whom
possession of any land or building is
unlawfully withheld

Jurisdiction/Venue:
MTC of the place where property or portion
thereof is situated (R4 S1)
Proceedings SUMMARY IN NATURE! (Rules
on Summary Procedure)

49

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Pertinent Provisions of the Rules on


Summary Procedure:
(note the same... applies to all cases
subject to Rules on Summary Procedure,
ESPECIALLY PROHIBITED PLEADINGS AND
MOTIONS)
S3- Pleadings
The only pleadings allowed to be filed are
the:
1.
2.
3.
4.

Complaints
Compulsory counterclaims
Cross claims pleaded in the answer
Answers thereto

VERIFIED!

S4- Duty of the Court


After the court determines that the case
falls under summary procedure, it may,
from an examination of the allegations
therein and such evidence as may be
attached thereto, dismiss the case
outright on any of the grounds apparent
therefrom for the dismissal of a civil
action. If no ground for dismissal is found
it shall forthwith issue summons which
shall state that the summary procedure
under this Rule shall apply.

S5- Answer
Within 10 days from service of summons,
the defendant shall file his answer to the
complaint and serve a copy thereof on the
plaintiff.
Affirmative and negative
defenses not pleaded therein shall be
deemed waived, except for lack of
jurisdiction over the subject matter. Cross
claims and compulsory counterclaims not
asserted in the answer shall be considered
barred. The answer to counterclaims or
cross claims shall be filed and served
within 10 days from service of the answer
in which they are pleaded.

Within 10 DAYS
summons
o Rule 70
o Summ Pro

from

service

of

S6- Effect of Failure to answer


Should the defendant fail to answer the
complaint within the period above
provided, the court, motu proprio or on
motion of the plaintiff, shall render
judgment as may be warranted by the
facts alleged in the complaint and limited
to what is prayed for therein. Provided,
however, that the court may in its
discretion reduce the amount of damages

and AF claimed for being excessive or


otherwise unconscionable. This is without
prejudice to applicability of R15 S4 of the
Rules of Court, if there are 2 or more
defendants.

S7- Preliminary conference; appearance of


parties
Not later than 30 days after the last
answer is filed, a preliminary conference
shall be held. The rules on pre trial in
ordinary cases shall be applicable to the
preliminary conference unless inconsistent
with the provisions of this Rule.
The failure of the plaintiff to appear in the
preliminary conference shall be cause for
dismissal of the complaint. The defendant
who appears in the absence of plaintiff
shall be entitled to judgment on his
counterclaim in accordance with S6
hereof. All cross claims shall be dismissed.
If a sole defendant shall fail to appear, the
plaintiff shall be entitled to judgment in
accordance with S6 hereof. This Rule shall
not apply where one of 2 or more
defendants sued under a common cause
of action who had pleaded a common
defense shall appear at the preliminary
conference.

S8- Record of Preliminary Conference


Within 5 days after the termination of the
preliminary conference, the court shall
issue an order stating the matters taken
up therein, including but not limited to:
a. Whether the parties have arrived at
an amicable settlement, and if so,
the terms thereof
b. The stipulations or admissions
entered into by the parties
c. Whether, on the basis of the
pleadings and the stipulations and
admissions made by the parties,
judgment may be rendered without
the need of further proceedings, in
which effect the judgment shall be
rendered within 30 days from
issuance of the order
d. A clear specification of material
facts which remain controverted
e. Such other matters intended to
expedite the disposition of the case
S9- Submission of affidavits and position
papers

50

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Within 10 days from receipt of the order


mentioned in the next preceding section,
the parties shall submit the affidavits of
their witnesses and other evidence on the
factual issues defined in the order,
together with their position papers setting
forth the law and the facts relied upon by
them.

e. Motion for extension of time to file


pleadings, affidavits, or any other
paper

S10- Rendition of judgment


Within 30 days after receipt of the last
affidavits and position papers, or the
expiration of the period for filing the same,
the court shall render judgment.

h. Motion to declare defendant in


default

However, should the court find it


necessary to clarify certain material facts,
it may, during the said period, issue an
order specifying the matter to be clarified,
and require the parties to submit affidavits
or other evidence on the said matters
within 10 days from receipt of said order.
Judgment shall be rendered within 15 days
after the receipt of the last clarificatory
affidavits, or the expiration of the period
for filing the same.
The court shall not resort to the
clarificatory procedure to gain time for the
rendition of the judgment.

S18- Referral to Lupon


Cases requiring referral to the Lupon
under the provisions of PD1508 where
there is no showing of compliance with
such requirement, shall be dismissed
without prejudice and may be revived only
after such requirement shall have been
complied with.

S19- Prohibited pleadings and motions


The following pleadings, motions, or
petitions shall not be allowed in the cases
covered by this Rule:
a. Motion to dismiss the complaint or
to
quash
the
complaint
or
information except on the ground
of lack of jurisdiction over the
subject matter, or failure to comply
with the preceding section
b. Motion for a bill of particulars
c. Motion for new trial, or for
reconsideration of a judgment, or
for opening of trial
d. Petition for relief from judgment

f.

Memoranda

g. Petition for certiorari, mandamus,


or
prohibition
against
any
interlocutory order issued by the
court

i.

Dilatory motions for postponement

j.

Reply

k. Third party complaints


l.

Interventions

S20- Affidavits
The affidavits required to be submitted
under this Rule shall state only facts of
direct personal knowledge of the affiants
which are admissible in evidence, and
shall show their competence to testify to
the matters stated therein.
A violation of this
subject the party or
submits the same to
and shall be cause
inadmissible affidavit
from the record.

requirement may
the counsel who
disciplinary action,
to expunge the
or portion thereof

S21- Appeal
The judgment or final order shall be
appealable to the appropriate RTC which
shall decide the same in accordance with
S22 of BP129. The decision of the RTC in
civil cases governed by this Rule including
forcible entry and unlawful detainer, shall
be
immediately
executor,
without
prejudice to a further appeal that may be
taken therefrom. S10 of Rule 70 shall be
deemed repealed.

15 DAYS from notice of judgment or


final order, notice of appeal + bond
to RTC
o NO
M4R
(prohibited
pleading)

However, if RTC decision adverse, (in


exercise of appellate jurisdiction), M4R
pwede na
-

MTC Summary Procedure, only up


to MTC level lang
o Once the case was elevated
to RTC, it is no longer

51

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

summary, but is governed


by rules on Ordinary Civil
Actions

2 classifications of contempt:
1. Direct Contempt (R71 S1)
2. Indirect Contempt (R71 S2)

Injunction in FE and UD:

Forcibly Entry / UnlawFul Detainer- YES


R70 S15

DISCUSSION:
1. DIRECT CONTEMPT (S1)

Court may grant preliminary injunction, in


accordance with the provisions of R58
thereof, to prevent defendant from
committing further acts of dispossession
against plaintiff.
A possessor deprived of possession
through Fe or UD may, within 5 days from
filing of complaint, present a motion in the
action for FE UD for issuance of writ of
preliminary
mandatory
injunction
to
restore him in his possession. The court
shall decide the motion within 30 days
from filing thereof

Acts covered:
-

Misbehaviour in presence of or so
near the court as to obstruct or
interrupt proceedings before the
same

Disrespect toward the court

Offensive personalities
people in court

Refusal to be sworn or to answer as


a witness

Refusal to subscribe an affidavit or


deposition when lawfully required
to do so

R70 S20
Upon motion of plaintiff, within 10 days
from perfection of appeal to the RTC, the
latter may issue a writ of preliminary
mandatory injunction to restore plaintiff in
possession if the court is satisfied that
-

defendants appeal is frivolous or


dilatory, or
that the appeal of plaintiff is prima
facie meritorious

A remedy

towards

Punishment:
(RTC/of equivalent or higher rank)
F: not exceeding 2k OR
I: not exceeding 10 days, OR BOTH

(lower court)
CONTEMPT (Rule 71)

F: not exceeding 200

(Tan, Handbook on Civil Procedure and


pleadings, pp 162-166)

I: not exceeding 1 day, OR BOTH

Contempt

Remedy: CERTIORARI or PROHIBITION (R71


S2)

wilful disregard or disobedience to


court, acting in opposition to
authority, justice, dignity

Contempt of Court
-

conduct which tends to bring


authority and administration of law
into disrespect or to interfere with
or prejudice parties litigant or their
witnesses during litigation

2. INDIRECT CONTEMPT (S3)


-

Main / Original action


o Can be filed in RTC or MTC

Actions covered:
a. Misbehaviour of an officer of
a court in the performance

52

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

of his official duties or in his


official transactions

b. Disobedience

of
or
resistance to a lawful writ,
process, order, judgment of
a court, including act of
person who, after being
dispossessed or ejected
from any real property
by
the
judgment
or
process of any court of
competent
jurisdiction,
enters or attempts or
induces another to enter
into or upon such real
property, for the purpose
of executing acts of
ownership or possession,
or
in
any
manner
disturbs
possession
given to the person
adjudged to be entitled
thereof

Note highlighted: case in MTC


where case is pending
If after ejectment, re entered the
property, indirect contempt (relate
to Rule 70)
c. Any abuse of or any
unlawful interference with
the
processes
or
proceedings of the court not
constituting direct contempt
as under S1
d. Improper conduct tending,
directly or indirectly, to
impede, obstruct, degrade
administration of justice

Direct Contempt
In presence of a
judge, motu proprio
or upon motion
Cant initiate
In presence or so
near judge
Rem: certiorari
remedy

Indirect Contempt

Initiate
Not in presence of
judge, disobey court
order
Rem: appeal
Original action

Upon filing of complaint, plaintiff may opt


to file notice of lis pendens with the
register of deeds

Notice of Lis Pendens


buyer beware
Notice to buyer of existence of an
adverse claim
It is not a pleading
There is need to register it with the
register of deeds

Rule 13
Section 14
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 the registry of deeds of the
province in which the property is situated
a notice of the pendency of the action

e. Assuming to be an attorney
or officer of the court and
acting as such without
authority

Said notice shall contain the names of the


parties and the object of the action or
defense, and a description of the property
in that province affected thereby

f.

Only from the time of filing such notice for


record shall

Failure to obey subpoena


duly served

g. The rescue, or attempted


rescue, of a person or
property in the custody of
an officer by virtue of an
order or process of a court
held by him
Remedy: (R71 S11)
Appeal to proper court as in criminal cases

a purchaser,
or encumbrancer
of the property affected thereby,
be deemed to have constructive notice of
the pendency of the action, and
only its pendency against the parties
designated by their real names

53

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

How is it done?
The notice of the lis pendens hereinabove
mentioned
may be cancelled

Personal Service
R13 S6
Service of papers may be made

only upon order of the court,

By delivering personally a copy to


the party or his counsel or
By leaving it in his office with the
clerk or a person having charge
thereof

after proper showing that


the notice is for the purpose of molesting
the adverse party, or
that it is not necessary to protect the
rights of the party who caused it to be
recorded

If no person is found in his office or his


office is not known or he has no office,
then,
By leaving the copy between the
hours of 8 in the morning and 6 in
the evening at the partys or
counsels residence, if known, with
a person of sufficient age and
discretion then residing therein

FILING AND SERVICE of the


pleading
Differentiate: Filing from service
R13 S2

NOTE: NO TENDERING under Rule 13 S6!

Filing is the act of presenting the


pleading or paper to the clerk of
court.
Service is the act of providing a party
with a copy of the pleading or paper
concerned.

What are the papers required to be


filed and served under Rule 13?

Sa summons lang yon, when


defendant refuses to accept the
same
Service by mail
R13 S7
Service by registered mail shall be made
by
depositing the copy in the post
office,
in a sealed envelope
plainly addressed to the party or
his counsel at his office, if known,
otherwise, at his residence, if
known,
with postage fully prepaid and with
instructions to the postmaster to
return the mail to the sender after
10 days if undelivered

(PAMNOJDORS)
Pleading subsequent to the
complaint
Appearance
Written Motion
Notice
Order
Judgment
Demand
Offer of judgment
Resolution
Similar papers

If no registry service is available in the


locality of either in the sender or the
addressee, service may be done by
ordinary mail.

What are the modes of service of


pleading? (R13 S5)
Personal Service (R13 S6)
Service by Registered Mail (R13 S7)
Substituted Service (R 13 S8)

IF defendant refuses both modes of


service, resort to:
Substituted Service
R13 S8

54

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

If service of pleadings, motions, notices,


resolutions, orders, or other papers cannot
be made under the 2 preceding section,
the office and place of residence of the
party or his counsel being unknown,
service may be made by:
Delivering the copy to the clerk of
court, with proof of failure of both
personal service and service by
mail
The service is complete at the time of
such delivery.

Note: Wag ipaghalo ang provisions ng Rule


13 and Rule 14!!!

Effect of non compliance with personal


service?
Note: Service other than personal service

R13 S11
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.

State in detail: Effects


1. A violation of this rule may be
cause to consider the paper as not
filed (R13 S11)
2. The pleading/paper would not be
admissible in court
3. Would not toll the running of the
reglementary period
4. In case of defendant, it will NOT
RESULT in defendant being
declared in default
5. Rather, the pleading produces no
legal effect

When is service deemed completed?

Personal Service (R13 S10)


Personal service is complete upon
actual delivery or by handling a copy
to defendant
Service by mail (R13 S10)
Service by ordinary mail is complete
upon the expiration of 10 days after
mailing, unless the court otherwise
provides.
Service by registered mail is complete
upon actual receipt by the addressee
or after 5 days from the date he
received the first notice of the
postmaster, whichever date is earlier.
Substituted Service (R13 S8)
Substituted service is complete at the
time of delivery of the copy to the
clerk of court, with proof of failure of
both personal service or service by
mail.

What is constructive service of


pleading?
R13 S10
Service by registered mail is complete..
..after 5 days from the date he received
the notice of the postmaster, whichever
date is earlier

FILING- Rule 13 S1- with the office with the


clerk of court
Required in ALL INITIATORY
PLEADINGS
+ PAYMENT OF THE REQUISITE DOCKET
FEES (See Rule 1 Section 5)
Pag kulang, court to order correct
payment
NOTE: Docket fees are suspended
in compulsory counterclaims (SC
Resolution 9-21-04)

IF you cannot pay docket fees,


REMEDY?
File a motion to be declared as
pauper litigant (R3 S21)

55

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

R3 S21- 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 the one who has no money or
property sufficient and available for food,
shelter, and basic necessities for himself
and his family

After filing of the complaint and the


payment of the requisite legal fees,
III.
Summons
Writ or process in the name of the
RP, issued by the Branch clerk of
court informing the defendant of
the filing of the case against him,
to file an answer within the
reglementary period, or else, be
declared in default

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 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,
o unless the court otherwise
provides

Any adverse party


may contest the grant of such authority
at any time before the 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

SERVICE OF SUMMONS

Office of the Clerk


of Court

Branch Clerk of
Court

Office

Person

Receives complaint
and payment of the
docket fees

Serves summons
upon the defending
party

2 kinds of summons:
1. Original Summons- issued by the
branch clerk of court to the
defendants upon the filing of the
complaint and the payment of the
requisite docket fees
2. Alias Summons- issued by the
branch clerk of court upon motion
of the plaintiff in case the
summons are lost, destroyed,
improperly served, or there is
defect in the manner or form of
service
Summons

Subpoena

a writ or a process
issued to a
defending party by
the clerk of court,
delivered by a
sheriff, his deputy,
or proper court
office, or any
suitable person
authorized by the
court issuing the
summons, with the
purpose of
obtaining
jurisdiction over the
person of the

(R21 S1)
A process directed
to a person
requiring him to
attend and to testify
at the hearing or
trial of an action, or
at any investigation
conducted by
competent authority
or for the taking of
his deposition.
(Subpoena ad
testificandum)

56

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

defendant and
giving him notice
that an action has
been commenced
against him

A process directed
to a person
requiring him to
bring with him any
books, documents,
or other things
under his control
(Subpoena duces
tecum)

Purpose is to obtain
jurisdiction over
person of
defendant, and to
give notice to
defendant that an
action has been
commenced against
him, ordering
defendant to
answer the
complaint within
the time fixed by
these Rules, and
unless defendant
answers, plaintiff
will take judgment
by default and may
be granted the
relief applied for
(R14 S2)

Order for a person


to appear and to
testify at a hearing,
action,
investigation, or for
taking of his
deposition OR to
produce books,
documents, or other
things under his
control (R21 S1)

Served on the
defendant

May be served to a
non-party

Does not need


tender of
kilometrage and
other fees

Needs tender of
kilometrage,
attendance fee, and
reasonable cost of
production fee

IN PERSONAM
Service in person
Substituted service
IN REM
Service in person
Substituted Service
Publication
Extraterritorial Service
QUASI IN REM
Service in person
Substituted service
Publication

Can you serve summons by mail?


NO

How to serve summons?


Service in person on defendant
(R14 S6)
The summons shall be served by handing
a copy thereof to the defendant in person.

Original or alias

Ad testificandum or
duces tecum

Upon filing of the


complaint and
payment of
requisite docket
fees

During trial or
investigation

Note: significant to know whether the


action is in personam, in rem, or quasi in
remfor purpose of service of summons

FE and UD- in personam actions

Tendering summons to
defendant (R14 S6)
In case defendant refuses to receive or
sign for it, by tendering it to him, done
through:
1. Leaving copy of the summons to
the defendant who refuses to
receive it
2. The officer serving the summons
shall make an affidavit addressed
to the court stating that the time,
place, manner of service of
summons, and that despite efforts
to try and serve the summons in
person on defendant, the same
refused to receive it, as well as the
manner of non-receipt

Substituted Service of
Summons on defendant (R14
S7)

57

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Requisites;
Impossibility of the personal
service of summons within a
reasonable time
The efforts exerted to locate the
person to be served

2. When defendant does not reside


and is not found in the Philippines,
and the action: (AREAR14 S15)
-

To whom served / how?


By leaving copies of the summons at:
1. Defendants residence with some
person of suitable age and
discretion then residing therein or
2. By leaving the copies at
defendants office or regular place
of business with some competent
person in charge thereof
Through process server or upon motionby service of summons by substituted
service
How is a person deemed of suitable
age and discretion?
1. Of legal age
2. With sufficient knowledge and
comprehension that what he is
receiving on behalf of defendant
are summons notifying defendant
that a suit was brought against the
same, AND PREFERABLY KNOWS
HOW TO SPEAK ENGLISH

Service by publication in a
newspaper of general
circulation
R14 S15
Service by leave of court by publication in
a newspaper of general circulation in such
place and for such time as the court may
order, in which case a copy of the
summons and order of the court shall be
sent by registered mail to the last known
address of the defendant.

Suffices under the following instances:


1. Upon defendant designated as
unknown owner or the like, or
whenever his whereabouts are
unknown and cannot be
ascertained by diligent inquiry (R14
S14)

Affects personal status of the


plaintiff or
Relates to, or the subject of which,
is property within the Philippines in
which defendant has or claims a
lien or interest, actual or
contingent, or
In which the relief demanded
consists, wholly or in part, in
Excluding the defendant from any
interest therein or
The property of the defendant has
been Attached within the
Philippines

3. When defendant ordinarily resides


in the Philippines but who is
temporarily out of it (R14 S16)

Can there be personal service of


summons in in rem actions?
Yes. R14 S15 states that when defendant
does not reside and is not found in the
Philippines, and the action affects the
personal status of the plaintiff or relates
to, or the subject of which, is property
within the Philippines in which defendant
has or claims a lien or interest, actual or
contingent, or in which the relief
demanded consists, wholly or in part, in
excluding defendant from any interest
therein, or the property of defendant has
been attached within the Philippines,
service may, by leave of court, be effected
out of the Philippines by:
1. Personal service as under S6**
2. By publication in a newspaper of
general circulation in such places
and for such time as the court may
order, in which case a copy of the
summons and order of the court
shall be sent by registered mail to
the last known address of
defendant, or
3. In any other manner the court may
deem sufficient

Substituted Service vs Extraterritorial


Service of Summons

58

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Substituted
Service

Extraterritorial
Service

Requisites;

Arises in case
defendant is non
resident, in abroad,
action in rem, by
way of personal
service outside of
Phils, by publication
in a newspaper of
general circulation,
or in any other
manner the court
may deem sufficient

Impossibility of the
personal service of
summons within a
reasonable time
The efforts exerted
to locate the person
to be served
To whom served /
how?
By leaving copies of
the summons at:
Defendants
residence with
some person of
suitable age and
discretion then
residing therein or
By leaving the
copies at
defendants office
or regular place of
business with some
competent person
in charge thereof
Through process
server or upon
motion- by service
of summons by
substituted service

R14 S14
In any action where the defendant is
designated as an unknown order, or the
like, or whenever his whereabouts are
unknown and cannot be ascertained by
diligent inquiry, service may, by leave of
court, be effected upon him by
publication in a newspaper of general
circulation and in such places and for
such time as the court may order.
-

Instance where in personam, yet


publication is allowed (exception to
the general rule)
o Identity is unknown or
whereabouts are unknown

Defective service of summons, remedy:


M2D Rule 16 S1a, that the court has no
jurisdiction over the person of the
defending party

3 options of the court:


1. GRANT M2D- as plaintiff, refile the
case, unless tainted with grave
abuse of discretion
2. DENY M2D
As defendant, following Rule 16 S4, I will
file an answer within the balance of the
period prescribed by Rule 11 to which I am
entitled at the time of serving my motion,
but not less than 5 days in any event,
computed from my receipt of notice of
denial. Then proceed with the trial, and
when the decision is adverse against me, I
will file an appeal assigning as error the
denial of the motion to dismiss. And when
the denial is tainted with grave abuse of
discretion amounting to lack or excess of
jurisdiction on the part of the court, I will
file for certiorari under Rule 65.

3. ISSUANCE OF ALIAS SUMMONS

Can Rule 16 S1a be a ground for Motion to


dismiss under Rules on Summary
Procedure?
YES. General rule, motion to dismiss not
allowed, except #1 instance, lack of
jurisdiction over the person of the
defending party (RULES ON SUMMARY
PROCEDURE)
Reason: the court cannot proceed with the
case without jurisdiction over the person
of the defending party
Exception to exception: SMALL CLAIMS

To whom summons are made?

1. Ordinary defendant

59

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Upon an entity without juridical


personality
R14 S8
When persons associated as an entity
without a 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.
Upon Prisoners

NOTE: the LIST IS EXCLUSIVE!!!!!


Service upon foreign private
juridical entity
R14 S12
When the defendant is a foreign private
juridical entity which has transacted
business in the Philippines, service may be
made on its resident agent designated in
accordance with law for that purpose, or, if
there be no such agent, on the
government official designated by law to
that effect, or on any of its officers or
agents within the Philippines.

Service upon public


corporations

R14 S9

R14 S13

When defendant is a prisoner confined in a


jail or institution, service may be effected
upon him by the officer having the
management of such jail or
institution who is deputized as a
special sheriff for said purpose.

When the defendant is the Republic of the


Philippines, service shall be made 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 or officers as the law or
the court may direct.

Upon Minors and Incompetents


R14 S10
When defendant is a minor, insane, or
otherwise an incompetent, service shall be
made upon him personally or 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 case of a minor,
service shall be made on his father or
mother.

Upon domestic private juridical


entity

Service upon defendant whose


identity or whereabouts are
unknown

R14 S14
In any action where the defendant is
designated as an unknown order, or the
like, or whenever his whereabouts are
unknown and cannot be ascertained by
diligent inquiry, service may, by leave of
court, be effected upon him by
publication in a newspaper of general
circulation and in such places and for
such time as the court may order.

R14 S11
When the defendant is a corporation,
partnership, or association organized
under the laws of the Philippines without a
juridical personality, service may be made
on the President, Managing Partner,
General Manager, Corporate
Secretary, Treasurer, or In House
Counsel

Extraterritorial Service
R14 S15
When the defendant does not reside and
is not found in the Philippines, and the
action affects the personal status of
plaintiff or relates to, or the subject of

60

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

which, is property within the Philippines, in


which the defendant has or claims a lien
or interest, actual or contingent, or in
which the relief demanded consists, wholly
or in party, in excluding defendant from
any interest therein, or the property of the
defendant has been attached within the
Philippines, service may, by leave of court,
be effected out of the Philippines by
personal service as under S6; or by
publication in a newspaper of general
circulation in such places and for
such time as the court may order, in
which case a copy of the summons
and order of the court shall be sent
by registered mail to the last known
address of the defendant, or in any
other manner the court may deem
sufficient. Any order granting such
leave shall specify a reasonable time,
which shall not be less than 60 days
after notice, within which the
defendant must answer.

Upon residents temporarily out


of the Philippines
R14 S16
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.

As far as amendment of the pleading, is


summons required to be served?
YES, in the following instances:
1. Substantial not merely formal
amendment
2. Other parties are impleaded
3. With respect to third party
complaint, serve upon third party
defendant (relate to R6 S11)

4. With respect to fourth party


complaint, serve upon 4th party
defendant (relate to R6 S11)
NOT in:
1. Complaint in intervention- because
third person submitted to
jurisdiction of the court
2. Not in permissive counterclaimbecause defendant aka original
plaintiff is already a party to the
action, jurisdiction over him in
original complaint was already
taken from the start
3. In case of formal not substantial
amendments

May bayad ba summons?


WALA!

If summons cannot be served because non


resident, unknown, or out of the Phils, as
plantiff, what is your remedy?

Pag pinaserve mo sa process server,


meron, but not required (abutan mo na
lang para hindi kawawa, sige ka, baka
hindi i serve)

Convert action in personam to quasi in


rem
A vs B Corporation, action for sum of
money. Amend the complaint, action for
sum of money WITH ATTACHMENT OF
PROPERTY. Hence, summons by
publication can already be made.
Court acquires jurisdiction over the
RES
Because nature of the case has
become quasi in rem

Relate Rule 14 to Rule 57


Order of attachment, writ of
attachment, issued ex parte
To implement, serve summons

Relate Rule 14 to Rule 58


Ex parte issuance of preliminary
injunction
To implement, serve summons

(relate to Rule 10)

61

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Court not to issue injunction unless there


is invalid service of summons
Notice and hearing

EXCEPTION TO SERVICE OF SUMMONS:


Voluntary appearance
1. Filed responsive pleading
2. Submitted to jurisdiction of the
court,
EXCEPT:

Motion for Bill of Particulars (Rule


12)
Motion to amend the pleading (Rule
10)
Motion for Extension of Time to File
Responsive Pleading (Rule 11)
Motion for Summary Judgment
(Rule 35)
Order of Default/Judgment by
Default (Rule 9)

When questioning the jurisdiction


of the court
Rule 14 S20
S20- Voluntary appearance
The defendants voluntary appearance
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.

Can the court dismiss a case motu


proprio for lack of jurisdiction over
the person of the defending party for
defective service of summons?
NO!
Dismissal shall only be by MOTION!
Motion to dismiss
Rule 9 S1 (relate to Rule 16) provides for
the following instances when the court
may dismiss a case motu proprio:
Lack of jurisdiction over the subject
matter
Litis pendencia
Res judicata
Prescription
DOES NOT INCLUDE: lack of jurisdiction
over the person of the defending party
(Wala to!)

After service of summons,


IV.

REFER TO THE FOLLOWING:


Motion to Dismiss (Rule 16)

ONE-AT-A-TIME,
A. MOTION TO DISMISS (Rule 16)

Motion to dismiss
A motion to dismiss in an
application for relief filed by an
original defendant, a defendant in
a permissive counterclaim, cross
claim, 3rd 4th etc party complaint,
complaint in intervention, filed
within the time for but before filing
the answer to the complaint or
pleading asserting a claim
After service of summons, before
filing of a responsive pleading
NOTE: Motion to dismiss is not a pleading!
It is not a responsive pleading! Hence, if
there is motion to dismiss, the complaint
may still be amended as a matter of right
even if there is a motion to dismiss!

Grounds for motion to dismiss:


Rule 16 S1 states that within the time for
but before filing the answer to the
complaint or pleading asserting a claim, a
motion to dismiss may be made on basis
of the following grounds:
a. That the court has no
jurisdiction over the person of
the defending party
Relate to R14
Jurisdiction over defendant may be
acquired by: voluntary appearance or by

62

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

valid service of summons, except if


appearance is to question the jurisdiction
of the court

GRANTED:
Refile
Move for alias summons
DENIED:
File an answer within the balance of the
period prescribed by Rule 11 to which
entitled at the time of serving motion, but
not less than 5 days in any event,
computed from receipt of notice of denial.
Then proceed with the trial, and when the
decision is adverse, file an appeal
assigning as error the denial of the motion
to dismiss. And when the denial is tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part
of the court, file for certiorari under Rule
65.

b. That the court has no


jurisdiction over the subject
matter of the claim

c. That venue is improperly laid


Note: Rule 4
GRANTED:
Refile, except if GAD, then
certiorari Rule 65
DENIED:
File an answer within the balance of the
period prescribed by Rule 11 to which
entitled at the time of serving motion, but
not less than 5 days in any event,
computed from receipt of notice of denial.
Then proceed with the trial, and when the
decision is adverse, file an appeal
assigning as error the denial of the motion
to dismiss. And when the denial is tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part
of the court, file for certiorari under Rule
65.

d. That plaintiff has no legal


capacity to sue

NOTE:
Subject matter (BP129- conferred
by law)
Exclusive original jurisdiction of
courts, if not within, then M2D is
proper
GRANTED:
-

of the court, file for certiorari under Rule


65.

Refile + docket fees OR


Amend complaint to confer
jurisdiction (no need for docket
fees)

DENIED:
File an answer within the balance of the
period prescribed by Rule 11 to which
entitled at the time of serving motion, but
not less than 5 days in any event,
computed from receipt of notice of denial.
Then proceed with the trial, and when the
decision is adverse, file an appeal
assigning as error the denial of the motion
to dismiss. And when the denial is tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part

GRANTED:
Refile
DENIED:
File an answer within the balance of the
period prescribed by Rule 11 to which
entitled at the time of serving motion, but
not less than 5 days in any event,
computed from receipt of notice of denial.
Then proceed with the trial, and when the
decision is adverse, file an appeal
assigning as error the denial of the motion
to dismiss. And when the denial is tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part
of the court, file for certiorari under Rule
65.

e. That there is another action


pending between parties for
the same cause

63

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

aka LITIS PENDENCIA


Elements:

The previous final judgment is a


judgment upon the merits

1. Identity of parties or at least such


parties representing the same
interests in both actions

Jurisdiction over the subject matter


and the parties by the court
rendering it

2. That there is substantial identity in


the cause of action and in the relief
sought, the relief being founded on
the same facts

There must be identity of the


parties, of subject matter, and of
cause of action between the first
and second actions

3. Identity in the two cases would be


such that any judgment that may
be rendered in one, regardless of
which party is successful, would
amount to res judicata in the other
case
Which should be dismissed in case of
litis pendencia? The 1st, 2nd, 3rd, 4th
action?
The later case(s) would be dismissed.

GRANTED:
Appeal
DENIED:
File an answer within the balance of the
period prescribed by Rule 11 to which
entitled at the time of serving motion, but
not less than 5 days in any event,
computed from receipt of notice of denial.
Then proceed with the trial, and when the
decision is adverse, file an appeal
assigning as error the denial of the motion
to dismiss. And when the denial is tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part
of the court, file for certiorari under Rule
65.

Aka PRESCRIPTION

GRANTED:
Appeal
DENIED:
File an answer within the balance of the
period prescribed by Rule 11 to which
entitled at the time of serving motion, but
not less than 5 days in any event,
computed from receipt of notice of denial.
Then proceed with the trial, and when the
decision is adverse, file an appeal
assigning as error the denial of the motion
to dismiss. And when the denial is tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part
of the court, file for certiorari under Rule
65.

g. That the pleading asserting the


claim states no cause of action
Aka FAILURE TO STATE CAUSE OF ACTION
GRANTED:
Refile
Amend the pleading

f.

That the action is barred by


prior judgment or by the
statute of limitations

Aka RES JUDICATA


Elements:
There is previous final judgment or
order

DENIED:
File an answer within the balance of the
period prescribed by Rule 11 to which
entitled at the time of serving motion, but
not less than 5 days in any event,
computed from receipt of notice of denial.
Then proceed with the trial, and when the
decision is adverse, file an appeal
assigning as error the denial of the motion

64

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

to dismiss. And when the denial is tainted


with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part
of the court, file for certiorari under Rule
65.

h. That the claim or demand set


forth in the plaintiffs pleading
has been paid, waived,
abandoned, or otherwise
extinguished
GRANTED:
Appeal
DENIED:
File an answer within the balance of the
period prescribed by Rule 11 to which
entitled at the time of serving motion, but
not less than 5 days in any event,
computed from receipt of notice of denial.
Then proceed with the trial, and when the
decision is adverse, file an appeal
assigning as error the denial of the motion
to dismiss. And when the denial is tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part
of the court, file for certiorari under Rule
65.

i.

That the claim on which the


action is founded is
unenforceable under the
Statute of Frauds

(note: 1403, NCC)


GRANTED:
Appeal
DENIED:
File an answer within the balance of the
period prescribed by Rule 11 to which
entitled at the time of serving motion, but
not less than 5 days in any event,
computed from receipt of notice of denial.
Then proceed with the trial, and when the
decision is adverse, file an appeal
assigning as error the denial of the motion
to dismiss. And when the denial is tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part

of the court, file for certiorari under Rule


65.

j.

That a condition precedent for


filing the claim has not been
complied with

GRANTED:
General Rule: refile plus comply
with condition precedent, EXCEPT:
In case of wilful and deliberate
forum shopping, which operates as
dismissal with prejudice, hence,
In the latter case, Appeal
In case of non exhaustion of
administrative remedies,
Exhaust then refile
DENIED:
File an answer within the balance of the
period prescribed by Rule 11 to which
entitled at the time of serving motion, but
not less than 5 days in any event,
computed from receipt of notice of denial.
Then proceed with the trial, and when the
decision is adverse, file an appeal
assigning as error the denial of the motion
to dismiss. And when the denial is tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part
of the court, file for certiorari under Rule
65.

MOTU PROPRIO DISMISSAL: (see


underlined below)
Rule 9 S1
Defenses and objections not pleaded
either in a motion to dismiss or
in the answer
are deemed waived

However, when it appears from the


pleadings or the evidence on record that

65

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

1. the court has no jurisdiction


over the subject matter,
2. that there is another action
pending between the parties
for the same cause, or
3. that the action is barred by
prior judgment or by statute of
limitations,

the court shall dismiss the claim

required in S13 par a, c, d, f of Rule


44
7. Failure of appellant to take
necessary steps for the correction
or completion of the record within
the time limited by the court in its
order
8. Failure of appellant to appear at
the preliminary conference under
R48 or to comply with orders,
circulars, or directive of the court
without justifiable cause, and
9. The fact that the order or judgment
appealed from is not appealable

NOTE ALSO: Rule 7 S5


Hence, summing up Rule 16,
WITH PREJUDICE- e, f, h, i of Rule 16
WITHOUT PREJUDICE- the rest of Rule 16

Side note: RULES ON MOTION


Note requirements of written motion:
1. Notice of hearing (Due process)- 3
daay notice rule
2. Set hearing 10 days after filing of
the motion

Rule 50 S1- Motion to dismiss appeal


An appeal may be dismissed by the CA on
its own motion or on that of appellee,
on the following grounds:
1. Failure of the record on appeal to
show on its face that the appeal
was taken within the period
prescribed by these Rules
2. Failure to file notice of appeal or
the record on appeal within the
period prescribed by these Rules
3. Failure of appellant to pay the
docket and other lawful fees
prescribed in S5 of R40 and S4 Rule
41
4. Unauthorized alterations,
omissions, or additions in the
approved record on appeal as
provided in S4 of Rule 44
5. Failure of appellant to serve and
file the required number of copies
of his brief or memorandum within
the time provided by these Rules
6. Absence of specific assignment of
errors in the appellants brief, or of
page references to the record as

3. Proof of service (different from


proof of mailing, only as far as
filing)
-

To see whether the adverse party


was able to receive the motion

4. IF by registered mail, accompanied


by proof of service, explanation
why not done via personal service
(R13 S11)
Other party files comment or
objection
5. File reply to comment

IF requisites are not complied with,


1. *the motion shall be treated as a
worthless piece of paper which the
clerk of court has no right to
receive and the court has no
authority to act upon (mere scrap
of paper)
2. It does not interrupt the running of
the prescriptive/reglementary
period for the filing of the requisite
pleading
3. It will be ground for denial of the
motion

66

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

4. The motion shall be considered as


not filed
Execution of the act subject of the
motion, because it would be
deemed as a final order
If act is adversely ruled due to non
compliance with the Rules on Motion, file
M4R within 15 days (Rule 37)

Motion to dismiss
Motion to declare defendant in
default
Motion for summary judgment
Motion for judgment on the
pleadings
Motion for new trial
Motion for reconsideration

LITIGATED
MOTION
Comply with
requisites for
written motion

NON LITIGATED
MOTION
No need to comply
with all the
requirements, but
with need to hear
on the motion

Motion to dismiss complaint upon


plaintiffs motion
Motion to lift order of default
Motion to declare a party in direct
contempt
Motion for demurrer to evidence

If not, would affect


the right of parties
IF not, then not set
for hearing

Motion for consolidation or


severance of case
Motion for trial by commissioner

What is a motion?

Motion to strike out evidence or


testimony off the record

R15 S1
A motion is an application for relief other
than by a pleading

Examples of non-litigated motions:


Motion to reset pre trial

What are the kinds of motions?


Motion ex parte / Non Litigated
Motion
Made without the presence of or
notification to the other party
because the question generally
presented is not debatable
Motion of course
Movant is entitled to the relief or
remedy sought as a matter of
discretion on the part of the court
Litigated Motion
Motion made with notice to the
adverse party to give him an
opportunity to oppose it
Special Motion
A motion addressed to the
discretion of the court

Motion to postpone pre trial


Motion to extend time for filing
pleadings
Motion to set case for pre trial

Motions that need to be verified:


Motion for relief from judgment
Motion to lift order of default
Motion to postpone trial
Motion for new trial on ground of
FAME
All motions for provisional remedies:
Motion for preliminary attachment

Examples of Litigated Motions:

Motion for dissolution of


preliminary injunction

67

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Motion for writ of replevin


Motion in support pendent lite
Motion to postpone for absence of
evidence
Motion to postpone for illness of a
party or counsel

Purpose is to
prepare responsive
pleading

Purpose is to enable
properly to plead
and prepare for trial

Note: the motion is a LITIGATED MOTION


To clarify ambiguities
Done before filing of a responsive pleading
What is a bill of particulars?

Rule 16- relate to Rule 10


Amendment as a matter of right if a
motion to dismiss is filed- PWEDE!
Because motion to dismiss is NOT a
responsive pleading
Motion to dismiss- not a pleading

R12 S1 states that a bill of particulars is a


more definite statement of any matter
which is not averred with sufficient
definiteness or particularity, with the
purpose of aiding in the preparation of a
responsive pleading.

Position paper- not a pleading


Memorandum- not a pleading
Amendment if order granting motion to
dismiss, pwede, for as long as the motion
is final and executory

When do you file bill of particulars?


R12 S1 states that a bill of particulars is
filed before responding to a pleading,
following the reglementary periods
provided for under R11. (If the pleading is
a reply, the motion must be filed within 10
days from service thereof)

OF the 10 grounds,
Motion to dismiss after a
responsive pleading,
PWEDE, raise as affirmative defense, then
set the motion to dismiss for hearing

B. MOTION FOR BILL OF


PARTICULARS (R12)
(Note: Different from motion for bill of
particulars in Criminal Procedure)
Motion for Bill of
Particulars in Civ
Pro

Motion for Bill of


Particulars in
Crim Pro

Rule 12

R116 S9

May be filed before


responding to a
pleading

May be filed before


arraignment

Address any matter


in the pleading not
averred with
sufficient
definiteness or
particularity

Address alleged
defects in the
criminal complaint
or information

Requirements for filing Bill of


Particulars:
(R12 S1 in relation to R15)
1. A written motion by the defending
party before the court for a bill of
particulars
2. If the pleading is a reply, the
motion must be filed within 10
days from service
3. The motion shall point out the
defects complained of, the
paragraphs wherein they are
contained, and the details desired
4. The motion is to be filed before the
filing of responsive pleading
5. In writing
6. Hearing of motion set by applicant
7. Notice of hearing shall be
addressed to all the parties
concerned not later than 10 days
from the filing of the motion

68

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

8. Motion and notice of hearing must


be served at least 3 days before
the date of hearing
9. Proof of service

The motion for bill of particulars is


denied. Remedy?
R12 S5
After service of the Bill of Particulars or of
a more definite pleading, or after notice of
denial of his motion, the moving party
may file his responsive pleading within the
period to which he was entitled at the time
of filing his motion which shall not exceed
5 days in any event

1. Adding or striking out an allegation


or name of any party or
2. Correcting a mistake in the name
of a party or a written or
inadequate allegation or
description in any other respect,
a. So that the actual merits of
the controversy may
speedily be determined,
b. Without regard to
technicalities,
c. And in the most expeditious
and inexpensive manner
IN SHORT:
Amendment is the process of
adding or striking out or correcting
a name or allegation
Amendment as a matter of right

Effect of order of failure to comply to


file Bill of Particulars

To correct alterations in a
PLEADING (not in a motion)

R12 S4
If the order is not obeyed, or in case of
insufficient compliance therewith, the
court may order the striking out of the
pleading or the portions thereof to which
the order was directed, or make such
order as it deems just.
(File a motion to strike out the pleading)

Motion for Bill of Particulars:

Kinds of amendments:
1. Amendment as a matter of
right: (R10 S2)
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.
-

Granted: Clarify, file bill of particulars

Once the pleading is amended, the


old pleading is no more, EXCEPT,
admissions made in the old
pleading

Denied, answer within the plenary period

IS bill of particulars part of a


pleading?
YES!
R12 S6 provides that a bill of particulars
becomes part of the pleading for which it
is intended.

C. MOTION TO AMEND THE


PLEADING (Rule 10)
Amendment, as provided under R10 S1, is
the process of:

2. Amendment by leave of court:


(R10 S3)
Except as provided in the next preceding
section, substantial amendments may be
made only upon leave of court
-

Amendment is substantial
A responsive pleading had already
been served

3. Formal Amendments (R10 S4)


A defect in the designation of the parties
or other clearly clerical or typographical
errors may be summarily corrected by the

69

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

court at any stage of the action, at its


initiative or on motion, provided no
prejudice is caused thereby to the adverse
party.

Amendment with leave of court (after the


filing of a responsive pleading)
DENIED: Remedy?
Certiorari Rule 65 in relation to Rule
41 S1
Order is interlocutory

4. Amendments to conform or to
authorize presentation of
evidence (R10 S5)
When issues not raised in the pleadings
are tried with the express or implied
consent of parties, they shall be treated as
if raised in the pleadings, pleadings may
be amended to conform to the evidence,
and failure to amend does not affect the
result of the trial of these issues
-

With already presentation of


evidence, but as far as allegations
are concerned, there is
discrepancy, so, amendment is
allowed to conform to evidence
o NOTE: meron din to sa
criminal procedure

Relate Rule 10 to Provisional Remedies


If the original complaint or verified
complaint has provisional
remedies, and the original is
superseded by amendment, any
provisional remedy is affected by
amendment
Amendment of complaint, which includes
prayer for writ of attachment, the
provisional remedy shall be DISSOLVED.

Relate Rule 10 to Rule 6


5. Substantial amendments

Amendment of the pleading which would


change the original cause of action
6. Amendment to confer
jurisdiction
Amendment as a matter of right, so far as
no responsive pleading is served

Relate to Rule 2
-

Question: Amendment as a matter of


right, there is second motion to amend
(not once as a matter of right), is the
second motion to amend a matter of right
or a matter of discretion?
(Question unanswered yet)

If there is no responsive pleading yetamendment as a matter of right


Once- matter of discretion

In case of non joinder of causes of


action,
o AMEND the pleading

Relate to Rule 3
-

Related to joinder of parties,


o AMEND the complaint

Related to Rule 14 and Rule 57


-

Amendment as a matter of right

When the answer does not allege


cross claim, counterclaim,
o Remedy: AMENDMENT of
the pleading
Answer omitted counterclaim or
cross claim,
o Remedy is to AMEND the
answer

In personam to quasi in rem,


publication is allowed
Substantial amendment
o Service of summons
required

DENIED: remedy- MANDAMUS

70

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Amendment of complaint to join


another party,
o Need to serve summons

Amendment of the answer? 3PC? 4PC?


Complaint in intervention?
PWEDE!- amendment of the pleadings
naman ang tinutukoy eh

amended complaint
if no new answer is
filed (R11 S3)
Supersedes original
pleading

Supplements
original pleading

With or without
leave of court

With leave of court

Relate to Rule 16

Amended
Pleading

Supplemental
Pleading

Refers to facts
existing at the time
of the
commencement of
the action

Refers to facts
arising after the
filing of the original
pleading

Takes the place of


the original
pleading

Taken together with


the original
pleading

Can be made as
matter of right
when no responsive
pleading has yet
been filed

Always with leave of


court

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

A substantial
pleading does not
require the filing of
a new copy of the
entire pleading

Amendment as a
matter of right is to
be answered before
the filing of the
responsive
pleading, (within 15
days after being
served with a copy
thereof)(R11 S3)

A supplemental
pleading 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 answer to
the supplemental
complaint if no new
or supplemental
answer is filed (R11
S7)

Amendment by
leave of court is to
be answered within
10 days from notice
of the order
admitting the same.
An answer earlier
filed may serve as
the answer to the

The court may either deny the


motion to dismiss, grant the motion
to dismiss, or ORDER THE
AMENDMENT OF THE PLEADING

Is there amendment of the pleading


in summary procedure?
YES
-

As a matter of right
As a matter of discretion
o NO PROHIBITION under the
Rules on Summary
Procedure

D. MOTION FOR EXTENSION OF


TIME TO FILE RESPONSIVE
PLEADING (Rule 11)
Rule 11 S11
Section 11

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

Extend, BASED ON CAUSE

71

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Not a litigated motion


no need for hearing, notice, and
filing

3 day notice rule- further motion 3 days


before hearing
10 days- motion set for hearing at least 10
days

Is bill of particulars allowed in Summary


Procedure?

final judgment on the merits

DENIED:
-

plead
o there is issue, but there is
no genuine issue

Maganda ka? Maganda ka nga

ORDER OF DEFAULT /
JUDGMENT BY DEFAULT (Rule 9)
Order of Default

NO (Prohibited pleading)

Motion to dismiss in Summary Procedure?


NO (prohibited pleading)

Order issued by the


court where
defendant failed to
file answer

EXCEPT:
1. lack of jurisdiction over the person
of the defending party
2. lack of jurisdiction over the person
of the defendant
3. failure to comply with the Barangay
Conciliation Proceedings
EXCEPTION TO EXCEPTION:
Small Claims Cases- motion to dismiss
absolutely hindi pwede

Judgment by
Default
Decision or
judgment by the
court after order of
default and
presentation of
evidence ex parte
by plaintiff

ORDER OF DEFAULT
Rule 9 S3 provides that a defending party
who fails to file an answer to an initiatory
pleading within the time allowed therefor
may be declared in default.

DEFENDING PARTY INCLUDES:


E. SUMMARY JUDGMENT (Rule 35)
Summary judgment
-

judgment rendered by the court


without trial if it clearly appears
that there exists no genuine issue
or controversy as to any material
fact, except as to the amount of
damages

S1 and 2- PLAINTIFF or DEFENDANT Files


Plaintiff- at any time after the pleading
in answer thereto has been served
Defendant- at any time
NOTE: LITIGATED MOTION

In a permissive counterclaimoriginal plaintiff


In a 3PC- 3rd party defendant
In a cross claim- co defendant
Requirements for declaration of
default: (R9 S3)
1. The court must have validly
acquired jurisdiction over the
person of the defendant either by
service of summons or voluntary
appearance
2. Proof of service of summons on the
defendant
3. The defendant fails to answer
within the time allowed therefore

GRANTED:
-

remedy is APPEAL

72

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

4. Written motion by claiming party to


declare defendant in default (NOT
oral motion!)
(state R15 requirements)

Order of default
DENIED,
Motion for reconsideration
DENIED,

Plaintiff failed to file answer, be declared


in default
(R9 in relation to Rule 6)

NATURE OF ORDER OF DEFAULT:


interlocutory (making reference to R41)

Certiorari Rule 65 RTC with TRO (S7 R9


amended by AM 7-7-12)
DENIED,
Motion for reconsideration Rule 37 with
RTC
DENIED,

REMEDY:

Notice of appeal with CA Rule 41 (original


jurisdiction of RTC ang certiorari Rule 65)
apply Neypes, doctrine of hierarchy of
courts

MOTION TO LIFT ORDER OF DEFAULT

DENIED,

Verified, FAME, Affidavit of Merit


(note what it is, and in what
instances required [all FAME])
Granted: File answer
Denied,

CA M4R Rule 52
DENIED,
SC R45 Petition for Review on Certiorari
apply Neypes, Hierarchy of courts
DENIED,

FILE MOTION FOR RECONSIDERATION


-

S4 R65
Interlocutory
o NOT Rule 37 as basis
(because Rule 37 applies
only to Final orders)

SC M4R Rule 52

DOCTRINE OF HIERARCHY OF COURTS


Higher courts will not entertain any
case brought before it unless the
same is decided before the lower
courts

Denied,
CERTIORARI RULE 65 with TRO or
injunction
-

Dahil pag wala, at may order of


default, tuloy tuloy na + judgment
of default

NOTE: umaakyat to hanggang SCOrdinary and Special Civil actions (from


MTC), [not Spec Pro]

MTC
(all special civil actions, original actions in
exercise of original jurisdiction, final
judgment)

Effect of order of default:


-

Lose standing
Not to participate at the trial but
shall be entitled to notices
Entitled to 2 copies of decision,
resolution, substantially amended
pleadings

R9 S3 in relation to Rule 10
-

Order of default issued by court,


there is amendment of the
pleading, order of default is
dissolved

ORDINARY CIVIL ACTION

73

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

R9 in relation to R11
R9 in relation to Modes of Discovery
-

R29
o

Due to refusal to comply


with the modes of
discovery, the refusing
party may be declared in
default

In case of motion to declare defendant in


default, there is one more remedy:
-

File motion to admit answer


o Mawawala ang motion to
declare defendant in default
dahil may answer na eh

Based on presentation of evidence ex


parte

BEFORE JUDGMENT BECOMES FINAL


AND EXECUTORY:
REMEDY:
Motion to set aside judgment or final order
due to FAME
Denied,
Motion for reconsideration
Denied,
CERTIORARI Rule 65 with TRO/injunctionPREFERRED over appeal

Summary Proceedings
Motion to declare defendant in
default is a PROHIBITED PLEADING
As plaintiff in such a case, file MOTION TO
RENDER JUDGMENT
As defendant, dont file motion to admit
answer
-

It is equal to motion for extension


of time to file pleadings
o PROHIBITED PLEADING

ETO DISKARTE MO, ikaw ang defendant


-

Go to office of the clerk of court,


file your answer, at pag ayaw
tanggapin, file it by registered mail
o Pag nag argue ang kalaban,
motion to strike out answer,
WEH!
R1 S6- Liberal
application of the
rules, HENCE, you
can file answer

Summary Procedure
Given 10 days to answer from
receipt of service of summons

JUDGMENT BY DEFAULT
Nature: Final Judgment

Because appeal is not the


adequate, speedy remedy
o Judgment kasi is based on
evidence ex parte- no
evidence to review because
no evidence in the first
place is presented by
defendant

GENERAL RULE: certiorari is not a


substitute for lost appeal;
EXCEPTION: when appeal is not a speedy,
adequate remedy
Denied. Remedy?
File a motion for reconsideration of the
judgment or final resolution within 15 days
from service thereof before the CA, with
proof of service on the adverse party.
Basis: R52 S1

Denied. Remedy?
File a petition for review on certiorari
before the SC raising only questions of law
which must be distinctly set forth, within
15 days from notice of the denial of
petitioners motion for reconsideration
filed in due time after notice of the
judgment.
Basis: R45 S2 and R45 S1-- CA
judgment, final order, or resolution
can be elevated to the SC raising
only questions of law

74

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Reply
Denied. Remedy?

Answer to amended complaint

File a motion for reconsideration of the


judgment or final resolution within 15 days
from service thereof before the SC, with
proof of service on the adverse party.

Answer to amended counterclaim


Answer to amended cross claim

Basis: R52 S1

Answer to amended 3rd 4th etc party


complaint
Answer to amended complaint in
intervention

AFTER FINALITY OF JUDGMENT:


Any of the following remedies:

Answer to supplemental complaint


Rejoinder

1. File petition for relief from


judgment, order, or other
proceeding on the ground of entry
of such judgment or final order, or
any other proceeding is thereafter
taken against a party in a court
through FAME (Rule 38 S1)
2. File petition for annulment of
judgment or final order or
resolution on the ground of
extrinsic fraud (R47 S1 and 2)
3. File petition for certiorari (Rule 65)
4. Collateral Attack
V.

FILING OF ANSWER

Answer- the pleading setting forth the


defending partys defenses
(Bears the same parts of a pleading)
WITHIN WHEN?
What are the responsive pleadings?
Rule 6 of the Rules of Court in relation to
Rule 11 provides for the following
responsive pleadings:
Answer to the original complaint

Answer to counter counterclaim


Answer to counter cross claim
Answer to amended counter
counterclaim
Answer to amended counter cross
claim

Discuss the periods to answer to


responsive pleadings under Rule 11
of the Rules of Court:
1. Answer to the original
complaint
R13 S1
Defendant shall file answer to the
complaint within 15 days after service
of summons, unless a different period is
fixed by the court
R13 S2
Where the defendant is a foreign private
juridical entity and service of summons is
made:
-

to a resident agent, answer shall be


filed within 15 days from
service of summons to him

when it has no resident agent but


has an agent or officer in the
Philippines, answer shall be filed
within 15 days after service of
summons to said agent or
officer

Compulsory counterclaim
Answer to the permissive
counterclaim
Answer to cross claim
Answer to 3rd 4th etc party
complaint
Answer to complaint in intervention

75

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

if it has no resident agent nor an


agent or officer, and summons is
made on the proper government
office designated by law to receive
the same (SEC), which will then
send a copy thereof by registered
mail within 10 days to the home
office of the foreign private
corporation, answer shall be filed
within 30 days after receipt of
summons by the home office of
the foreign private entity

R14 S15
In case of summons by publication,
answer shall be filed within the time
specified in the order granting leave to
serve summons by publication which shall
not be less than 60 days after notice,
within which the defendant must
answer.
In case of a non resident defendant in
whom extraterritorial service of summons
is made, the period to answer should be
at least 60 days.

2. Compulsory counterclaim
(note above periods?)

A cross claim must be answered within


10 days from service

5. Answer to 3rd 4th etc party


complaint
R11 S5
Time to answer a 3rd 4th etc party
complaint shall be governed by the same
rule as the answer to the complaint
(hence, follow R11 S1, 2 plus
amendments)

6. Answer to complaint in
intervention
R19 S4
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

7. Reply
R11 S6
A reply may be filed within 10 days from
service of the pleading responded to

8. Answer to amended complaint


R11 S3
Where plaintiff files amended complaint as
a matter of right, the defendant shall
answer the same within 15 days after
being served with a copy thereof

3. Answer to permissive
counterclaim

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

R11 S4
A permissive counterclaim must be
answered within 10 days from service

4. Answer to cross claim


R11 S4

9. Amended CC, Amended 34etc


PC, Amended CII
R11 S3 (note the period) shall apply to the
answer to an amended counter claim,
amended cross claim, amended 3rd 4th etc
party complaint, amended complaint in
intervention

76

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

10. Answer to supplemental complaint

IF cross claim against cross claim, then


counter cross claim

R11 S7
A supplemental complaint may be
answered within 10 days of the order
admitting the same, unless a different
period is fixed by the court. The answer to
the complaint shall serve as answer to the
supplemental complaint if no new or
supplemental answer is filed.

Counterclaim
Any claim which a
defending party
may have against
the opposing party

11. Rejoinder

Cross Claim
Any claim by one
party against a co
party arising out of
the transaction or
occurrence that is
the subject matter
either of the original
action or of a
counterclaim
therein

(?)

Compulsory
Counterclaim

Permissive
Counterclaim

Arises out of or is
necessarily
connected with the
transaction or
occurrence that is
the subject matter
of the opposing
partys claim

Does not arise out


of nor is necessarily
connected with the
subject matter of
the opposing
partys claim

Does not require for


its adjudication the
presence of third
parties over whom
the court cannot
acquire jurisdiction

It may require for its


adjudication the
presence of third
parties over which
the court cannot
acquire jurisdiction

Answer within 10 days from service

Barred if not set up


in the action

Not barred even if


not set up in the
action

17-18.

Need not be
answered, not result
in default

Must be answered
or else defendant
can be declared in
default

Not an initiatory
pleading

Initiatory pleading

Docket fees are


suspended

With docket fees

R11 S4 (?)

R11 S3 (?)note the periods

Answer may raise counterclaim or cross


claim
Answer in third party complaint- Can you
raise Counterclaim or cross claim?
YES!
But, if counterclaim against counterclaim,
counter counterclaim

Omitted counterclaim or cross claim


REMEDY: amend the answer

77

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Motion to dismiss with counterclaim

If permissive counterclaim, PWEDE


Kasi, independent sa main action

Equivalent to motion to dismiss


o During hearing, defending
party to present evidence
first
INVERTED TRIAL

Counterclaim with respect to Rule 17


Pwede, proceed after service of
answer (Rule 17 S1 and 2)

Affirmative defense is granted, case is


dismissed. Remedy?
APPEAL (Because trial is on the merits)

Counterclaim with respect to Rule 18


Plaintiff failed to appear in pre trial,
case is dismissed with prejudice,
without prejudice to counterclaim

DEFENSES and DENIALS


What are the types of defenses?

With respect too negative defenses, note


SPECIFIC DENIALS

What is a negative pregnant?


-

1. Negative defense

General denials are deemed


admissions

R6 S5
Negative defense is the specific denial of
the material fact or facts alleged in the
pleading of the claimant essential to his
cause or causes of action.

Plaintiffs remedy in such a case?


-

JUDGMENT ON THE PLEADINGS


(Rule 34)

2. Affirmative defense
Kinds of Denials:

R6 S5
An affirmative defense is an allegation of
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:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.

Fraud
Statute of limitations
Release
Payment
Illegality
Statute of frauds
Estoppel
Former recovery
Discharge in bankruptcy
Any other matter by way of
confession and avoidance

Ground for motion to dismiss (if M2D not


filed or M2D denied), may be pleaded as
an affirmative defense in the answer
Motion to set affirmative defense for
hearing,

1. Specific Absolute Denial


-

By specifically denying the


averment and whenever
practicable, setting forth the
substance of the matters relied
upon for such denial
With support dapat

Specifically deny par 2 __ for being untrue,


the truth of the matter is that...
2. Partial specific denial
-

Part admission and part denial


With support dapat

3. Disavowal of knowledge
-

By an allegation of lack of
knowledge or information sufficient
to form a belief as to the truth or

78

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

falsity of the averment in the


opposing partys pleading

In good faith, or else, deemed an


admission

Production or inspection of
documents or things under (Rule
27)
Physical and mental examination of
persons under (Rule 28)

Specific denial in par __ __ __ for lack of


knowledge to truth or belief of the same
Discussing each:
Specific not necessarily Specific Denial
Answer- no need to verify
EXCEPT:
1. Actionable Document
-

Document which creates rights,


which serves as basis for filing of
the complaint

2. Usury in a complaint
3. Summary procedure
4. Answer with permissive
counterclaim

Not denied under oath an actionable


document such as deed of sale or
mortgage,
Failure to verify = deemed
admitted
HENCE, judgment on the pleadings
Except:
1. Fraud/forgery
2. Not a party to the actionable
document

1. Depositions pending action


(R23)
Deposition- a written testimony of a
witness given in the course of a judicial
proceeding in advance of the trial or
hearing upon oral examination or in
response to written interrogatories and
where an opportunity is given for cross
examination
Aka depositions de bene esse
May be taken with leave of court when:
1. After jurisdiction has been obtained
over any defendant or over the
property which is the subject of the
action but before an answer has
been filed
2. Deposition of a person confined in
prison
May be taken without leave of court:
1. After answer and deponent is not
confined in prison
Scope of examinations:
1. Matter which is relevant to the
subject of the pending action
2. Not privileged
3. Not restricted by a protective order
2. Depositions before action or
pending appeal (Rule 24)

After jurisdiction is acquired by court,


parties may resort to:
VI.

MODES OF DISCOVERY

Aka perpetuam rei memoriam


-

Rules 23-28
-

Depositions pending action (under


R23)
Depositions before action or
pending appeal (R24)
Interrogatories to parties under
R25
Admission by adverse party (R26)

Objective is to perpetuate
testimony of a witness for future
use
o Taken conditionally, to be
used at the trial only in case
deponent is not available
Do not prove existence of any right
and the testimony perpetuated is
not in itself conclusive proof, either
of the existence of any right nor
even of the facts to which they
relate, as it can be controverted at
the trial in the same manner as

79

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

though no perpetuation of
testimony was ever had
BUT, in the absence of any
objection to its taking, and even if
the deponent did not testify at the
hearing, the perpetuated testimony
constitutes prima facie proof of
facts referred to in the deposition

identified, or else, the petition will


not prosper
This mode of discovery does not authorize
the opposing party or clerk or other
functionaries of the court to distrain the
articles or deprive the person who
produced the same of their possession,
even temporarily

3. Interrogatories to parties (R25)


-

Purpose is to elicit facts from any


adverse party
Answers may also be used as
admissions of the adverse party
Written interrogatories and the
answers thereto must be both filed
and served, hence, the answers
may constitute as judicial
admissions

6. Physical and Mental


Examination of Persons under
Rule 28
-

This mode of discovery is available


in an action in which the mental or
physical condition of a party is in
controversy, usually arising in
controversy in proceedings for
guardianship over an imbecile or
insane person, while the physical
condition of the party is generally
involved in physical injuries cases

Since the results of the


examination are intended to be
made public, the same are not
covered by physician-patient
privilege

4. Admission by Adverse Party


under Rule 26
-

Purpose is to expedite trial and


relieve parties of the costs of
proving facts which will not be
disputed on trial and the truth of
which can be ascertained by
reasonable inquiry
An admission made is for the
purpose of the pending action only
and cannot be used in other
proceedings

5. Production or inspection of
documents or things under
Rule 27
-

Applies only to a pending action


and the documents or things
subject of the motion must only be
those within the possession,
control, or custody of a party

The documents to be produced must


have the following requisites:
1. Should not be privileged
2. Should constitute or contain
evidence material to any matter
involved in the action and which
are in the partys possession,
custody, or control
3. In a petition for production of
papers and documents, they must
be sufficiently described and

Use of depositions:
1. Impeach adverse partys witness
(relate to evidence)
2. Residing 100 km away, sick or
infirm
R23 R24- Relate to R134 (Deposition)

Interrogatories/Admission by adverse
party
1. File answer or comment, or else,
the facts are deemed admitted, no
issue, hence, judgment on the
pleadings

Production/Inspection of documents or
things
For photographing, copying,
inspecting
Production or

Subpoena

80

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Another remedy which may be availed of:

Inspection of
Documents or
Things

MOTION TO DISMISS BY
PLAINTIFF (Rule 17)

Mode of discovery

Process

By motion

By request

Production or
Inspection of
Documents or
Things

Original of
Evidence in
Custody of
Adverse Party

Mode of discovery

Exception to the
best evidence rule

By motion

By notice

What are the grounds for dismissal


under Rule 17?
1. Dismissal upon notice by
plaintiff (R17 S1)
-

At any time before service of the


answer or of a motion for summary
judgment

Before filing responsive pleading or


motion for summary judgment
2. Dismissal upon motion by
plaintiff (R17 S2)

If there is no
original document,
because such is in
the presence of
adverse party, the
requesting party
can ask for
production of the
original by way of
notice
Without prior
knowledge as to
contents

With prior
knowledge of
contents of the
document, because
the requesting party
has the secondary
evidence

Mental and Physical examination of


Persons vs Hospitalization of Insane
Persons
Hospitalization of
Insane Persons

Physical and
Mental
examination of
persons

Governed by Rule
101

Governed by Rule
28

Special proceeding

Mode of discovery

File a petition

File a motion

Filed by Regional
Director of DOH

Any party may avail


of

Upon approval of the court and


Upon such terms and conditions as
the court deems proper
With answer, by way of motion
without prejudice to counterclaim
May be filed independently or
separately

3. Dismissal due to fault of


plaintiff, when for justifiable
cause,
Plaintiff fails to appear on the date
of the presentation of his evidence
in chief on the complaint
Plaintiff fails to prosecute his action
for an unreasonable length of time
Plaintiff fails to comply with these
Rules or any order of the court

What is the 2 dismissal rule? What


are its elements?
(R17 S1) -..the notice of dismissal by
plaintiff 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

Elements of 2 dismissal rule: (R17 S1)

81

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

1. First complaint filed by plaintiff


before court of competent
jurisdiction
2. At any time before service of
answer or of motion for summary
judgment, plaintiff filed notice of
dismissal of the first complaint,
which the court granted (effect
without prejudice)
3. Second complaint filed by plaintiff
involving an action based on or
including the same claim before
court of competent jurisdiction
4. At any time before service of
answer or of motion for summary
judgment, plaintiff filed notice of
dismissal of the second complaint
based on or including the same
claim as the first complaint
Effect of 2 dismissal rule (R17 S1):

(S3), due to fault of plaintiff


The dismissal shall have the effect
of an adjudication upon the merits
unless otherwise declared by the
court

What are your remedies, as plaintiff,


in such cases?
S1- dismissal upon notice by plaintiff
refile the case (unless the 2dismissal rule applies [?])
or if so declared with prejudice,
appeal the dismissal

S2- dismissal upon motion of plaintiff

The second notice of dismissal shall


operate as an adjudication upon the
merits.

Refile the case


If the court declares that the
dismissal is with prejudice, appeal
the dismissal

Exceptions to 2 Dismissal Rule:

1. 1st action is not related to the

S3- dismissal due to fault of plaintiff

second action

Appeal the dismissal

2. Court dismissing the second action


is a court not of competent
jurisdiction

Nature of Dismissal of actions under


Rule 17:

If the court declares that the


dismissal is without prejudice, refile
the case

Another:
JUDGMENT ON THE PLEADINGS
(Rule 34)

(S1), upon notice by plaintiff


Unless otherwise stated in the
notice, the dismissal is without
prejudice,
(*2 dismissal rule) ..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
(S2), upon motion of plaintiff
The dismissal shall be without
prejudice, unless otherwise
specified in the order

S1
Where the answer
-

fails to tender an issue or


otherwise admits the material
allegations of the adverse partys
pleading,

the court may, on motion of that party,


direct judgment on such pleading
However, in an action for declaration of
-

nullity or
annulment of marriage or
for legal separation,

82

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

the material facts alleged in the complaint


shall always be proved

of defense in the answer and thereby join


or make issue as to such new matters.

Exception that JoP be on motion:

If a party does not file such reply, all the


new matters alleged in the answer are
deemed controverted.

if at pre trial court finds that


judgment on the pleadings is
proper, it can render such
judgment motu proprio

R11- may be filed within 10 days from


service of the pleading responded to

VIII.
Allegations not deemed admitted by filing
of judgment on the pleadings:
-

Second pleading on the party on


the part of defendant being his
answer to the plaintiffs replication
Another form of responsive
pleading

irrelevant allegations
immaterial allegations
allegations of damages in the
complaint
IX.

Judgment on the
Pleadings

Summary
Judgment

3 day notice rule

10 day notice rule

Filed by plaintiff

Filed by defendant

Based solely on the


pleadings

Based on pleadings,
depositions,
admissions,
affidavits

Answer fails to
tender an issue or
there is an
admission of
material allegations

No genuine issue
between the parties

On the merits

Interlocutory or on
the merits

There is answer
filed

If filed by plaintiff,
filed at any time
before answer is
served

PRE TRIAL (Rule 18)

Rule 18 S1 COMPLETE:
AFTER the LAST PLEADING ASSERTING
A CLAIM has been served and filed, or
AFTER the EXPIRATION OF THE TIME FOR
FILING THE LAST PLEADING ASSERTING A
CLAIM, a pre trial is to be conducted upon
motion ex parte by plaintiff that the case
be set for pre trial

Pre Trial Conference- yes

Answer

If filed by
defendant, may be
filed at any time
even before answer

VII.

REJOINDER

REPLY (R6 S10)

A pleading, the office or function of which


is to deny or allege facts in denial or
avoidance of new matters alleged by way

Answer to permissive counterclaim


Answer to cross claim
Answer to third party complaint
Answer to complaint in intervention
Reply to answer
Reply to answer to permissive
counterclaim
Reply to answer to cross claim
Reply to answer to third party
complaint
Reply to answer to complaint in
intervention
Rejoinder

83

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

By MOTION

penalties

If the motion is not filed, is the case


dismissed for failure to prosecute?
-

Techinically, yes, but ff R1 S6


(liberal construction,
o It is not dismissed

Hence, if plaintiff failed to file motion ex


parte that the case be set for pre trial, the
clerk of court shall issue notice of pre trial
conference

Pre Trial in
Criminal Cases

Pre Trial in Civil


Cases

Mandatory requirement
After arraignment,
within 30 days from
the date the court
acquires jurisdiction
over the accused

After the last


pleading asserting a
claim has been
served and filed

Rule 118

Rule 18

No pre trial brief

Pre trial brief is


required to be filed
and served

Counsel of accused
and prosecutor are
required to appear

Parties and counsel


are required to
appear

Non appearance
may be excused
only if valid cause is
shown, or
representative shall
appear in behalf
duly authorized in
writing to enter into
amicable
settlement, submit
to ADR, enter into
stipulations of facts
and of document
Failure of counsel of
accused or
prosecutor to
appear, and without
acceptable excuse
for lack of
cooperation, court
may impose proper
sanctions or

Failure of plaintiff to
appear, dismissal of
the case with
prejudice, unless
otherwise ordered
by the court

Presence of private
offended party is
not required (as
only required to
appear at
arraignment)

Failure of defendant
to appear, plaintiff
to present evidence
ex parte

Pr trial agreement
is in writing, signed
by accused and
counsel, or else,
cannot be used
against accused

Signed by parties
and counsel (?)

Considerations in
pre trial conference:

Considerations in
pre trial:

Plea
bargaining
Stipulation
of facts
Marking of
identification
of evidence
of the
parties
Waiver of
objections to
admissibility
of evidence
Modification
of order of
trial if
accused
admits the
charge but
interposes a
lawful
defense
Such
matters as
will promote
a fair and
expeditious
trial of the
criminal and
civil aspects
of the case

Possibility of
amicable
settlement
or
submission
to
alternative
modes of
dispute
resolution
Simplificatio
n of the
issues
Necessity or
desirability
of
amendments
to the
pleadings
Possibility of
obtaining
stipulations
or
admissions
of facts and
of
documents
to avoid
unnecessary
proof
Limitation on
the number

84

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

of witnesses

prosecutor

Advisability
of
preliminary
conference
of issues to
commissione
r
Propriety of
rendering
judgment on
the
pleadings,
summary
judgment,
dismissing
the action
should a
valid ground
therefor be
found to
exist
Advisability
or necessity
of
suspending
the
proceedings
Such other
matters as
may aid in
the prompt
disposition of
the action

(simplified)
Pre Trial In
Criminal

Pre Trial in Civil

After arraignment

After last pleading


asserting a claim
has been served
and filed

No pre trial brief

With pre trial brief

Order of pre trial


signed by accused
and counsel so
admissions are
binding
Failure to appear,
sanctions against
counsel and

Failure to appear by
plaintiff, dismissal
of case with

prejudice

Failure to appear by
defendant, plaintiff
to present evidence
ex parte

What are the purposes of pre-trial?


(Rule 18 S2)
The court shall consider:
a. The possibility of an amicable
settlement or of a submission to
alternative modes of dispute
resolution
b. The simplification of the issues
c. The necessity or desirability of
amendments to the pleadings
d. The possibility of obtaining
stipulations of admissions of facts
and of documents to avoid
necessary proof
e. The limitation of the number of
witnesses
f.

The advisability of a preliminary


conference of issues to a
commissioner

g. The propriety of rendering


judgment on the pleadings or
summary judgment or of
dismissing the action should a valid
ground therefore the found to exist
h. The advisability or necessity of
suspending the pleadings
i.

Such other matters as may aid in


the prompt disposition of the action

S6- Pre trial brief


The parties shall file with the court and
serve on the adverse party, in such
manner as shall ensure their receipt
thereof at least 3 days before the date of
the pre trial, their respective pre trial
briefs which shall contain, among others:

85

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

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 stipulated 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 substance of
their respective testimonies

Failure to file the pre trial brief shall have


the same effect as failure to appear at the
pre trial.

PRE TRIAL BRIEF


Required to be filed at least 3 days
before the Pre Trial Conference

If party a NATURAL PERSONrepresentative is armed with SPECIAL


POWER OF ATTORNEY
If party is a JURIDICAL PERSON
(corporations or partnerships)representative is armed with BOARD
RESOLUTION (Board resolution is binding
upon the entire corporation, because the
Board of Directors [in case of stock
corporations] or the Board of Trustees [in
case of non stock corporations] are the
ones who make the decisions of the
corporation through Board Resolution-note that Board Resolution prevails over
SPA)

Effects of failure to appear at the pre


trial:
Plaintiff fails to appear
R18 S5
The failure of plaintiff to appear at the pre
trial conference when so required shall be
cause for the dismissal of the action. The
dismissal shall be with prejudice, unless
otherwise ordered by the court.

Ensure na really good, for filing


memoranda
(all remedies, may bayad, bawat pleading)
pagkakitaan

Failure to file at pre trial brief = failure to


appear at pre trial, same effect

Requisites for appearance at the pre


trial:
(R18 S4)
1. Duty of the parties and their
counsel to appear at the pre trial
2. The non-appearance of a party
may be excused only if a valid
cause is shown therefor or IF A
REPRENTATIVE SHALL APPEAR IN
HIS BEHALF FULLY AUTHORIZED IN
WRITING

Defendant fails to appear


R18 S5
The failure of defendant to appear at the
pre trial conference shall be cause to allow
the plaintiff to present his evidence ex
parte and the court to render judgment on
the basis thereof.

Remedies in case of failure to appear


by plaintiff / defendant:
Plaintiff fails to appear
Plaintiff can file an appeal, unless
the dismissal is ruled to be without
prejudice, which in such a case,
defendant would be avail of the
remedy of refiling the case or filing
a petition for certiorari under Rule
65

86

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Defendant fails to appear

Hence, if judge delegated to


clerk of court who is not a
lawyer, BAWAL

NOTE: Defendant WILL NOT BE DECLARED


IN DEFAULT! Likewise, there is no such
thing under the 1997 Rules on Civil
Procedure AS IN DEFAULT (sa luma to)

Can clerk of court charge Commissioners


Fee?

When defendant fails to appear, 4


SCENARIOS ARE CONTEMPLATED:

BAWAL accdg sa Manual of Clerk of Court


(ugat ng corruption)

Issuance of order allowing ex parte


presentation of evidence/before
presentation of evidence
Order allowing ex parte
presentation of evidence was
issued, plaintiff presents ex parte
evidence
Before judgment becomes final and
executory
After judgment becomes final and
executory

ORDER ALLOWING PLAINTIFFS


PRESENTATION OF EVIDENCE
EX PARTE
REMEDIES: The order is interlocutory,
hence,

The only time na pwede is when he


is not an employee of a court
REMEDIES:
File a motion for reconsideration +
Set aside the Evidence Ex parte
-

If the motion for reconsideration + motion


to set aside is denied, file a petition for
certiorari under Rule 65
R41 (1)- the order allowing ex parte
presentation of evidence is an
interlocutory order, no appeal may
be taken from it, hence, aggrieved
party may file the appropriate
special civil action under Rule 65,
which includes certiorari

File motion for reconsideration,


based on R65 S4 and R41 S1
R65 (4)- ..whether such m4r is
required or not..
R41 (1)- the order allowing ex parte
presentation of evidence is an
interlocutory order, hence, no
appeal may be taken from it

If M4R denied, file petition for


certiorari under Rule 65
-

R41 (1)- the order allowing ex parte


presentation of evidence is an
interlocutory order, no appeal may
be taken from it, hence, aggrieved
party may file the appropriate
special civil action under Rule 65,
which includes certiorari

on the ground that the order is


contrary to law [R37]? OR,
that, the order allowing ex parte
presentation of evidence is an
interlocutory order)
if you fail this, the evidence shall
form part of the records of the case
kawawa ka cge

Before judgment becomes final


and executory
REMEDIES:
-

Appeal the judgment (Rule 41)


or

File motion for reconsideration


(Rule 37) or

Ground: that the evidence is insufficient to


justify the decision or final order
PRESENTATION OF EVIDENCE
EX PARTE
Conducted by Court of CLERK OF COURT
-

Clerk of court, a LAWYER

File a motion for new trial (Rule


37)

Ground: FAME which ordinary prudence


could not have guarded against and by

87

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

reason of which such aggrieved party has


been impaired in his right

After judgment becomes final


and executory
REMEDIES:
-

File Relief from judgment,


order, or other proceedings
under Rule 38 or
o GROUND: any proceeding is
thereafter taken against the
party in any court through
FAME
File for annulment of judgment,
final order, or resolution under
Rule 47 or
o GROUND: extrinsic fraud
File petition for certiorari under
Rule 65 or
o GROUND: GAD amounting
to lack or excess of
jurisdiction on the part of
the tribunal exercising
judicial functions, and there
is no appeal nor any plain,
speedy and adequate
remedy in the ordinary
course of law
Make a collateral attack on the
judgment

Pre Trial Order


-

Order issued by the court stating


what transpired during the pre trial
conference
o Can be amended
accordingly
o By filing motion to amend or
correct the pre trial order,
within 5 days after receipt
of the pre trial order
o NO NEED for counsel to sign
the pre trial order

Pre Trial conference- relates to judicial


admissions under Rule 129
Adverse party admits your
proposals/stipulations
-

Deemed admitted

Cause of action admitted by defendant,


-

Rule 18 in relation to Rule 34

JUDGMENT ON THE
PLEADINGS
Conclusive on part of admitter, for
purposes of substantial justice

Pre Trial
-

May be delegated to clerk of court


who is a lawyer
After PRE TRIAL,

X.

TRIAL

The best part of law practice

(Rule 30 in relation to Rule 132 S4, 5, 6, 7,


8)
A proceeding where parties present
evidence and ends in oral
argument
With respect to examination of witnesses
Pre trial brief (see above) presented in
trial

All witnesses in pre trial brief to be


presented
Before witness is presented, offer of
testimony, in accordance with purpose in
pre trial brief

1. PROPONENTS / PLAINTIFFS
TESTIMONIES AND EVIDENCE IN
CHIEF as well as that of
witnesses
With respect to Rule 7 (parts of a pleading)
stating the cause of action in the body of
the pleading
Ultimate facts to be proven during the trial
of the case
ORDER:
Direct Examination
-

Transform allegations of the


complaint in the body of the
pleading
Cause of action
Direct testimony

88

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Show sinumpaang salaysay

HOW, WHEN, WHERE, WHAT, WHY

CONSIDER violations and exceptions:


Leading Questions
-

Avoid except in preliminary matters


Propound answers which proponent
desires

Re Direct Examination
Re establish what was destroyed
during the cross examination

NOTE EXCEPTIONS: hostile witnesses,


minors, adverse party, preliminaries
Is your name Ms X? Leading

Re Cross Examination

Is your age 27? Leading

Misleading questions

Destroy what was re established in


the re direct examination
NOTE: Identify all witnesses
Offer of
Testimony

Cross Examination

To refresh
memory of
the witness
Ididiscuss din
to isa isa sa
memorandum

Made at the time


the witness is
presented on the
witness stand

Offer of Evidence
After termination of
presentation of
evidence of
prosecution

Requires knowledge of:


-

Facts
Evidence
Defenses

Leading

Evidence in chief

questions are allowed

Evidence supporting allegations in


the complaint

Totoo bang ikaw ay maganda? Leading


Obtain affirmative answers- GOOD
Line of questioning:

After presentation of all witnesses,


Offer of evidence

Is it not a fact you are 1 of... YES


Executed sometime, etc... YES
NOTE: Lead mo papunta sayo
-

Test credibility of witness, test


credibility of testimony
Not from the mouth of credible
witness, but from credible
testimony
o WHY? Asa TSN- pag may
mali, ipa correct
TSN is best evidence
of what transpired
during trial
To impleach
testimony of
witness

Then,
Comment or objection
-

Secondary
Not identical

Then,
Order of admission/Exclusion of
evidence
Admitted; Exh A, Exh B
Excluded: Exh C, etc

89

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

TENDER OF EXCLUDED
EVIDENCE
Considered by CA in appeal

If with leave of
court, accused
could present
evidence if
demurrer is denied

After PLAINTIFF RESTS ITS CASE,


(defendant may file) DEMURRER
TO EVIDENCE (Rule 33)

If without leave of
court, accused
could not present
evidence if
demurrer is denied

D2E vs M2D (simplified)


D2E

M2D

Rule 33

Rule 16

After plaintiff rests


its case

Before filing of
responsive pleading

That plaintiff has


shown no right of
relief

10 grounds

If granted, case
dismissed

If granted, case
dismissed, remedy
depends:

If granted but on
appeal order of
dismissal is
reversed, defendant
is deemed to have
waived the right to
present evidence

With prejudiceappeal

NOTE: in summary proceedings, no trial,


no demurrer to evidence
In Criminal Cases,
There is demurrer to evidence in Summary
Procedure
Constitutional Right to Due process

Demurrer to
evidence in Civil
Procedure

Demurrer to
evidence in
Criminal
Procedure

Rule 33

Rule 119 S23

No leave of court
required

With or without
leave of court

If court finds that


prosecutions
evidence is
insufficient,
demurrer granted,
accused is acquitted

Judgment of
acquittal not
appealable, hence,
DJ sets in
Judgment of
dismissal is
appealable

Without prejudicerefile

Both by way of motion

If court finds that


evidence is
insufficient (plaintiff
has shown no right
to relief), complaint
dismissed as
demurrer is granted

Judgment of
acquittal is not
appealable; DJ sets
in

If demurrer is
granted but on
appeal, order of
dismissal is
reversed, defendant
is deemed to have
waived the right to
present evidence

(NO res judicata in


dismissal due to
demurrer)
Plaintiff files motion
to deny motion due
to demurrer to
evidence

Court may motu


proprio deny motion

If court denies
demurrer,
defendant will
present evidence

If court denies
demurrer,

With LoC- accused


may present
evidence

90

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

W/O LoC- accused


can no longer
present evidence
and submits case
for decision based
on prosecutions
evidence

Note: No more D2E- Rule 33- after


PLAINTIFF rests its case...

3. REBUTTAL EVIDENCE
Purpose is to rebut defendants
evidence in chief
Order: (same as previously stated)

(simplified version)
4. SUR REBUTTAL EVIDENCE
D2E Civil
Rule 33

Rule 119 S23

With or without
leave of court

With LoC- if denied,


accused presents
evidence

If granted, but on
appeal is reversed,
defendant loses the
right to present
evidence, case
submitted for
decision

Purpose is to rebut the rebuttal

D2E Criminal

Order: (Same as previously stated)

5. MEMORANDUM
Narration of facts of the case,
issues, no cause of action, no
defenses, but only contain
discussions

Without LoC- if
denied, defendant
cannot present
evidence

After trial,
XI.

Declares rights/reliefs of parties


Final consideration and
determination of a court of
competent jurisdiction upon the
matters submitted to it in an action
or proceeding

After plaintiff rests its case, no D2E or D2E


denied no appeal,
2. DEFENDANTS EVIDENCE IN
CHIEF
Prove allegations in the body of the
answer (R7 S1)
Order:
Direct Examination
Cross Examination
Re Direct Examination

S1- Rendition of judgments and final


orders:
A judgment or final order determines the
merits of a case, shall be
-

Re Cross Examination
Formal offer of evidence
Comment

JUDGMENT (Rule 36)

in writing,
personally and directly prepared by
the judge,
stating clearly and distinctly the
facts and the law on which it is
based,
must contain a dispositive part,
signed by him, and
filed with the clerk of court

Objection
Offer

CONSTITUTIONAL BASIS:

Tender of excluded evidence

A8 S14(basis for Rule 36)

DEFENDANT RESTS ITS CASE

91

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

No decision shall be rendered by any court


without expressing therein clearly and
distinctly the facts and the law on which it
is based.
No petition for review or motion for
reconsideration of a decision of the court
shall be refused due course or denied
without starting the legal basis therefor.

2 kinds of judgment by confession:


Judgment by Cognovit
actionem
Defendant after service instead of
entering a plea, acknowledged and
confessed that plaintiffs cause of
action was just and rightful

Kinds of Judgments:

JUDGMENT UPON A
COMPROMISE

Judgment by Confession Relicta


Verificatione

Judgment rendered by the court on


the basis of compromise
agreement entered into by the
parties
Immediately executory upon
signing of compromise agreement
in absence of motion to set aside
on the ground of FAME
Has effect of res judicata
Compromise agreement May be
submitted to by parties at any
stage of a case, even after F and E,
even without court approval

After pleading and before trial,


defendant both confesses the
plaintiffs cause of action and
withdrew or abandoned his plea or
other allegations, whereupon
judgment was entered against him
without proceeding to trial

(A2028-2046, NCC)

Remedies to judgment by consent,


confession, compromise:
File motion to set aside
If denied, file petition for certiorari
under Rule 65 (R41 S1)

Court could render judgment upon a


compromise, and, in case of breach of any
of the conditions, the party may ask the
court for execution of judgment.

JUDGMENT UPON CONFESSION


Judgment rendered by court when
a party expressly agrees to the
other partys claim or
acknowledges validity of the claim
against him

Judgment upon
compromise

Judgment by
confession

Provisions and
terms are settled
and agreed upon by
the parties to the
action and which is
entered by the
consent of the court

An affirmative and
voluntary act of
defendant himself.
The court exercises
a certain amount of
supervision over the
entry of judgment

JUDGMENT UPON THE MERITS


Judgment that is rendered after
consideration of the evidence
submitted by the parties during the
trial of the case

CLARIFICATORY JUDGMENT
Judgment rendered to clarify an
ambiguous judgment or one
difficult to comply with

JUDGMENT NON PRO TUNC


Now for then
Judgment intended to enter into
the record the acts which had
already been done, but which do
not appear in the records

92

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

JUDGMENT SIN PERJUICIO


Without prejudice
Refers to dismissal of a case
without prejudice to its being
refiled

SEPARATE JUDGMENT
R36 S5
Judgment rendered disposing of a
claim among several others
presented in a case after a
determination of issues material to
a particular claim and all
counterclaims arising out of the
transaction or occurrence which is
the subject matter of said claim

JUDGMENT BY DEFAULT (R9 S3)


Judgment rendered by the court
following an order of default,
granting the claiming party the
relief prayed for on the basis of his
evidence presented ex parte by
plaintiff

SPECIAL JUDGMENT
R39 S11

JUDGMENT ON THE PLEADINGS


(R34)

Judgment requiring performance of


an act other than execution of
judgments for money execution of
judgments for a specific act,
a certified copy of the judgment
shall be attached to the writ of
execution and shall be served by
the officer upon the party against
whom the same is rendered, or
upon any other person required
thereby, or by law, to obey the
same, and such party or person
can be held liable for contempt for
disobedience of such special
judgment

Judgment rendered by the court upon


motion by plaintiff where the answer of
defendant
fails to tender an issue or
otherwise admits the material
allegations of the adverse partys
pleading

SUMMARY JUDGMENT (R35)


Judgment rendered by the court if
the pleadings, supporting
affidavits, depositions and
admissions of plaintiff or defendant
show that:

JUDGMENT FOR SPECIFIC ACTS


R39 S10

except as to the amount of


damages, there is no genuine
issue as to any material fact
and that the moving party is
entitled to judgment as a
matter of law

Judgment of a court directing a


party to execute a conveyance of
land or personal property or to
deliver deeds or other documents,
or to perform any other specific act
in connection therewith

SEVERAL JUDGMENT

JUDGMENT ON DEMURRER TO
EVIDENCE

R36 S4
Judgment rendered by the court
where in an action against several
defendants, the court renders
judgment against one or more of
them, leaving the action to proceed
against the others

R33
judgment rendered by court
dismissing case upon motion of
defendant, made after plaintiff
rested his case, on the ground that
upon the facts presented by
plaintiff and the law on the matter,

93

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

plaintiff has not shown any right to


relief
CONDITIONAL JUDGMENT

Law of the Case

Judgment wherein effectivity of


such depends upon occurrence or
non occurrence of an event

FINAL JUDGMENT
Judgment which disposes of the
whole subject matter or terminates
the particular proceedings or
action, leaving nothing to be done
by the court but to enforce in
execution what has been
determined

If after judgment is promulgated, the


judgment is ambiguous and difficult to
comply,
MOTION FOR CLARIFICATORY
JUDGMENT

XII.

AMENDED JUDGMENT

REMEDIES BEFORE
JUDGMENT BECOMES FINAL
AND EXECUTORY:

Motion for reconsideration (Rule


37)

Aka clarified judgment; it is an


entirely new judgment, which
supersedes an original judgment
rendered by the court

Motion for New Trial (Rule 37)


Reopening of Trial (Rule 119)
Appeal (Rules 40-43, 45)

SUPPLEMENTAL JUDGMENT
Judgment of the court which serves
to bolster or add to the original
judgment, and does not take place
nor extinguish the original
judgment

Conclusiveness of judgment

1. Motion for Reconsideration


(Rule 37)
R37 S1
Within the period for taking an appeal, a
motion for reconsideration may move for
reconsideration on the grounds that:
a. Damages awarded are excessive
b. Evidence is insufficient to justify
the decision or final order

Res Judicata (note above)

Stare Decisis

Obiter Dictum

c. That the decision or order is


contrary to law
NOTE: M4R here is directed against
judgment or final order, not an
interlocutory order which preceded
petition for certiorari (R41 S1 in relation to
R65 yon)
NOTE: Interlocutory orders are non
appealable (AM 7-7-12-SC)
Under Summary Procedure, BAWAL ang
M4R and MNT R37 (General Rule)

94

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

Exception: If against interlocutory order

30 days from denial of M4R/MNT

2. Motion for New Trial (Rule 37)


-

Motion to Rehear a case already


decided by court but before
judgment thereon becomes final
and executory,

filed within the period for taking an


appeal, to set aside the judgment or
final order order and grant a new trial
based on the ff grounds materially
affecting substantial rights of a party:
(R37 S1)

MTC decisions
MTC

RTC
Notice
/
Record
on
Appeal
under
R40

Petition
for
Review
under
Rule 42

M4R
Under
Rule 52

CA

(from
RTC
decisions
in
exercise
of
appellate
jurisdicti
on)

1. FAME which ordinary prudence


could not have guarded against
and by reason of which such
aggrieved party has probably been
impaired in his right or

M4R
Under
Rule 37

Petitio
n4
review
on
certior
ari
under

SC

SC
M4R
Rule
52

2. Newly discovered evidence which


he could not, with reasonable
diligence, have discovered and
produced at the trial and which if
presented would probably alter the
result

3. Reopening of Trial (civil in


relation to criminal procedureR119 S24)
Reopening of the proceedings to avoid
miscarriage of justice
Civil- for reasons of EQUITY
For criminal cases- for reason of admission
of additional evidence

4. APPEAL (Rules 40-43, 45)


-

from the judgment, order of denial,


assignment of errors
o FINAL ORDER- decision or
the denial of M4R or MNT

RTC decisions in exercise of original


jurisdiction
RTC

15 days- ordinary appeal


30 days- record on appeal (Spec Pro,
Multiple Appeals- Expropriation, Partition)
Neypes vs CA
Fresh Period to Appeal:
15 days from denial of M4R/MNT

M4R
Under
Rule 37

Notice
or
Record
on
appeal
under
Rule
41

CA

M4R
Under
Rule 52
Petitio
n4
review
on
certior
ari
under

SC
SC
M4R
Rule
52

95

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

2. When inference is manifestly


absurd, mistaken, or impossible
3. When judgment is premised on a
misrepresentation of facts
4. When there is GAD in appreciation
of facts
5. When findings of fact are
conflicting
6. When CA in making its findings
went beyond the issues of the case
and the same is contrary to both
the admissions of appellants and
appellees
7. When findings of fact of CA are at
variance with those of the trial
court, the SC has to review the
evidence in order to arrive at the
correct findings based on record

Notice/Record on Appeal
In case of Record on Appeal, appellants
Brief 45 days to file record on appeal

8. When findings of fact are


conclusions without citation of
specific evidence on which they are
based

Rule 40

Rule 41

Rule 42

Rule
43

Rule 45

Memorand
um of
appeal

Appellan
ts Brief

Petition
for
Review

Petition
For
Review

Petition for
Review on
Certiorari

9. When facts set forth in the petition


as well as in the petitioners main
and reply briefs are not disputed by
respondents

Notice or
Record on
appeal

Notice
or
record
on
appeal

Petition
for
Review

Petition
for
Review
(Appeal
?)

Petition for
Review on
Certiorari

Of MTC
decisions

Of RTC
Decision
s
original
jurisdicti
on

Of RTC
decision
s
appellat
e
jurisdicti
on

Of
quasi
judicial
bodies

Of CA,
Sandiganba
yan, CTA,
RTC
decisions

Questions
of fact law
or both

Questio
ns of
fact law
or both

Questio
ns of
fact law,
or both

Questio
ns of
fact law
or both

Questions
of law

To RTC

To CA

To CA

To CA

To SC

General Rule:
Finding of fact of CA are final and
conclusive and cannot be reviewed on
appeal to SC:
EXCEPTIONS:
1. When finding is grounded entirely
on speculations, surmise,
conjecture

10. when findings of fact of the CA is


premised on supposed evidence
and is contradicted by evidence on
record
11. when certain material facts and
circumstances which have been
overlooked by the trial court which,
if taken into account, would alter
the result of the case in that they
would entitle accused to acquittal
REMEDIES AFTER JUDGMENT
BECOMES FINAL AND EXECUTORY:
1. Petition for relief from
Judgment (Rule 38)
S1- Petition for relief from judgment,
orders, other proceedings
When a judgment or final order is entered,
or 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

96

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

OTHER PROCEEDING INCLUDES:


o Order or writ of execution
o Order dismissing appeal

1. Extrinsic or collateral fraud


2. Lack of jurisdiction over subject
matter and over the person

S2- Petition for relief from denial of appeal


When judgment or final order is rendered
by court in any case, and 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 and praying
that the appeal be given due course.

3. Certiorari under Rule 65

4. Collateral Attack

Filed within 60 days from knowledge of


judgment and within 6 months from entry
of judgment
EXECUTION OF JUDGMENT
-

Relate to appeal
o Failure to appeal due to
FAME

Nothing left for the court but to


enforce its decision

Execution
2. Petition
for
Annulment
judgment (Rule 47)

of

RTC exclusive original jurisdiction to CA

MTC exclusive original jurisdiction to RTC


Ground: extrinsic fraud

remedy afforded by law for the


enforcement of a judgment
object is to obtain satisfaction of
the judgment on which the writ is
issued

BY MOTION- 5 years
AFTER 5 years

Annulment of judgment
-

Remedy in law independent of the


case where the judgment sought to
be annulled was rendered and may
be availed of though the judgment
has been executed

Important condition:
-

Petitioner failed to move for MNT,


appeal from, file petition for relief
against, or take other appropriate
remedies
assailing
questioned
judgment
or
final
order
or
resolution
through
no
fault
attributable to him

S2- Grounds

Revival of
MOTION

Judgment-

10

YEARS,

by

Execution as a matter of right (R39 S1)


Execution shall issue as a matter of right,
on motion,
1. upon judgment or order that
disposes
of
the
action
or
proceeding
a. upon expiration of period to
appeal therfrom if no appeal
has been duly perfected
NOTE: (rules on motion)
-

ministerial on the part of the court

IF DENIED, mandamus or appeal is the


proper remedy
Nature of writ of execution:

97

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

R39 S8
The writ of execution is issued in the name
of RP and shall state:
e. Name
of
court
granted the motion
f.

which

7. Controversy was never submitted


to the court
Rule: Dispositive portion of decision is the
part that becomes subject of execution
Except:

Case number

g. Dispositive portion of the


judgment or order subject of
the execution
h. Shall require the sheriff or
other proper officer to
whom it is directed to
enforce the writ according
to its terms

Rule: Matter of right on part of winning


party (execution), and court cannot refuse
Except:
1. When judgment turns out to be
incomplete or conditional
2. Judgment is novated by parties
3. Equitable grounds like change in
situation of the parties which
makes execution inequitable
4. Execution is enjoined
5. Judgment has become dormant
6. Execution is unjust or impossible

When proper to Quash Writ of Execution:


1. Change in situation of parties
renders execution inequitable
2. Issued against the wrong party

1. When there is ambiguity in the


dispositive portion
2. Where extensive and explicit
discussion and settlement of the
issue is found in the body of the
decision
S2- Discretionary Execution
Discretionary
Execution
May issue before
lapse of period to
appeal, and even
during appeal
Discretionary upon
the court; there is
inquiry on whether
there
is
good
reason
for
execution

Execution as a
matter of right
Period to appeal has
already lapsed, no
appeal is perfected
Ministerial duty of
the court provided
there
are
no
supervening events

S2- Discretionary execution


a. Execution of a judgment or a final
order pending appeal
On motion of the prevailing party with
notice to the adverse party filed in the trial
court
-

while it has jurisdiction over the


case and
is in possession of either the
original record or the record on
appeal, as the case may be,
o at the time of the filing of
such motion, said court
may, in its discretion,
order execution of a
judgment or final
order even before
the expiration of the
period to appeal

3. Issued without authority


4. Improvidently issued
5. Defective in substance
6. Judgment is already satisfied

After the trial court has lost jurisdiction,


the motion for execution pending appeal
may be filed in the appellate court.
Discretionary execution may only issue
upon good reasons to be stated in a
special order after due hearing.

98

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

b. Execution of several, separate, or


partial judgments
A several, separate, or partial judgment
may be executed under the same terms
and conditions as execution of a judgment
or final order pending appeal.

4. Support
5. Other judgments declared to be
immediately
executory
unless
otherwise ordered by trial court

S6- Execution by motion or independent


action
Modes of enforcement:
Grounds:
1. Insolvency of judgment debtor
2. Wastage of asset by judgment
debtor

Court may, in its discretion, order an


execution before expiration of the time
within which to appeal, provided,
1. There is motion for execution filed
by winning party
2. There is notice of said motion to
the adverse party
3. There are good reasons stated in a
special order after due hearing
Supersedeas Bond
-

Bond filed by petitioner and


approved by court before the
judgment
becomes
final
and
executor and conditioned upon
performance of the judgment
appealed from, in case it be
affirmed wholly or in part

Remedy in case of execution as matter of


discretion,
-

CERTIORARI
o Interlocutory,
without
prejudice to the outcome of
appeal

1. By motion within 5 years from date


of entry
2. By independent action for revival of
judgment after 5 years from entry
and before it is barred by statute of
limitations which is 10 years from
entry under 1144, NCC
Revival of judgment
S6
Independent action
Assumes there is no
execution
within
first 5 years
Party who files the
action
is
the
judgment
creditor
himself,
or
his
assignee,
or
his
successor
in
intereest
Filed due to lapse of
5 year period

Revival of judgment
S34
Carried out through
filing of a motion in
court
Assumes
that
judgment
is
executed within first
5 years
Party who files such
motion is not the
original
judgment
creditor but he is
the highest bidder
in the public auction
Filed
because
movant is deprived
of
property
purchased

S6 N/A to:
1. Judgments for support
2. Contempt orders in unauthorized
re-entry on land by ejected
defendant
3. Issuance of writs of possession and
4. Special proceedings and land
registration cases

S4- Judgments not stayed by appeal


(Exception to general rule)
In the following cases:
1. Injunction
2. Receivership
3. Accounting

S9- Award of judgments of money, how


enforced
1. Immediate payment on demand
2. Satisfaction by levy
3. Garnishment of debts and credits

99

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

4. Necessary clothing and articles for


ordinary personal use, including
jewelry

Levy
-

Act by which officer sets apart or


appropriates part of whole property
of judgment debtor for purposes of
execution sale

Garnishment
-

Act of appropriation by the court


when property of debtor is in the
hands of a third person

Attachment
Refers to corporate
property
in
possession
of
judgment debtor

Garnishment
Refers to money,
stocks,
credits,
other
incorporeal
property
which
belong to judgment
debtor but is in the
possession or under
control of a third
person

S10- Execution of judgments for specific


act
1. Conveyance, delivery of deeds,
other specific acts vesting title
2. Sale of real or personal property
3. Delivery or restitution of real
property
4. Removal of improvements on
property subject of execution
5. Delivery of personal property

S13- Property Exempt from Execution:


1. Judgment obligors family home as
provided by law, or the homestead
in which he resides, and the land
necessarily used in connection
therewith
2. Ordinary tools and implements
personally used by him in his trade,
employment, or livelihood
3. 3 horses, 3 cows, 3 carabaos, other
beasts of burden such as judgment
obligor may select necessarily used
by him in his ordinary occupation

5. Household furniture and utensils


necessary for housekeeping, and
used for that purpose by the
judgment obligor and his family,
such as the judgment obligor may
select, of a value not exceeding
100k pesos
6. Provisions for individual or family
use sufficient for 4 months
7. Professional
libraries
and
equipment of judges, lawyers,
physicians, pharmacists, dentists,
engineers, surveyors, clergymen,
teachers, other professionals, not
exceeding 300k pesos in value
8. One fishing boat and accessories
not exceeding total value of 100k
pesos owned by a fisherman and
by the lawful use of which he earns
his livelihood
9. So much of the salaries, wages, or
earnings of the judgment obligor
for his personal services within the
4 months preceding the levy as are
necessary for support of his family
10. Lettered gravestones
11. Monies,
benefits,
privileges,
annuities accruing or in any
manner growing out of any life
insurance
12. Right to receive legal support, or
money or property obtained as
such support, or any pension or
gratuity from government
13. Persons specially exempted by law
BUT not article or species of articles of
property mentioned in this section shall be
exempt from execution issued upon a
judgment recovered for its price or upon a
judgment of foreclosure of a mortgage
thereon.

S16- Proceedings where property claimed


by third person
Remedies of 3rd party claimant:

100

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

1. Summary hearing before court of


competent jurisdiction

wherein the judgment or final order


is entered

2. Terceria or third party claim filed


with sheriff

2. If he redeems upon a mortgage or


other lien, a memorandum of the
record thereof, certified by RD, or

3. Action for damages on the bond


posted by judgment creditors
4. Independent reivindicatory action
Terceria
-

A person claiming property levied


upon may execute affidavit of title
or right of possession over the
property
o Such affidavit must state
the grounds of such right or
title
o The affidavit shall be served
upon officer making a levy
and a copy thereof must
also be served upon the
judgment oblige

Note: Cumulative remedies

Ordinary sale on
execution
Need
not
be
confirmed by court

Right of redemption
exists

Title is acquired
after expiration of
redemption period
when final deed of
conveyance
is
executed

Sale in judicial
foreclosure of
mortgage
Must be confirmed
by court in order to
divest rights in the
property
of
the
parties and to vest
the rights in the
purchaser
No
right
of
redemption except
when mortgagee is
a bank or a banking
institution
Title
is
acquired
upon confirmation
and registration of
the foreclosure sale

S30- Proof required of redemption


Redemptioner must produce to officer, or
person from whom he seeks to redeem,
and serve with his notice to the officer:
1. A copy of the judgment or final
order certified by the clerk of court

3. An original or certified copy of any


assignment necessary to establish
his claim, or
4. An affidavit executed by him or his
agent showing the amount then
actually due on the lien
S32- Rents, Earnings, Income of property
pending redemption
Rights of judgment debtor:
1. Remain in possession of property
2. Cannot be ejected
3. Use the property in the same
manner it was previously used
4. Make necessary repairs to buildings
thereon while he occupies the
property
5. Use it in the ordinary course of
business
6. Collect rents, earnings, and income
derived from the property until
expiration
of
the
period
of
redemption

S35- Remedies of judgment creditor in aid


of execution
1. If execution is returned unsatisfied,
he may cause examination of
judgment debtor as to his property
and income
2. He may cause examination of
debtor of the judgment debtor as
to any debt owed by him or to any
property of the judgment debtor in
his possession
3. If after examination, the court finds
property of the judgment debtor,
either in his own hands or that of
any person, the court may order
the property applied to the
satisfaction of the judgment

101

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

A party or other person may be compelled,


by order or subpoena, to attend before the
court or commissioner to testify as
provided by S36 and S37

Decisions of court must be immutable at


some definite period of time

Conclusiveness of judgment
-

4. If court finds the earnings of the


judgment debtor are more than
sufficient for his familys needs, it
may order payment in instalments
5. Court may appoint a receiver for
the property of the judgment
debtor not exempt from execution
or forbid a transfer or disposition or
interference with such property
6. If court finds that the judgment
debtor
has
an
ascertainable
interest in real property either as
mortgagor,
mortgagee
or
otherwise, and his interest can be
ascertained without controversy,
the court may order the sale of
such interest
7. If the person alleged to have the
property of the judgment debtor or
be indebted to him, claims an
adverse interest in the property or
denies the debt, the court may
authorize judgment creditor to
institute an action to recover the
property, forbid is transfer and may
punish disobedience for contempt

Bar by former
judgment
Identity of parties,
subject
matter,
causes of action
First
judgment
constitutes absolute
bar to all matters
directly
adjudged
and
those
that
might have been
adjudged
Has the effect of
preclusion of claims

Conclusiveness of
judgment
Identity of parties
and subject matter
First judgment is
conclusive only as
to matters directly
adjudged
and
actually litigated in
the
first
action.
Second action can
be prosecuted
Has the effect of
preclusion only to
issues

Law of the case


-

S47- Effect of judgment or final order


Res judicata
-

Issues
actually
and
directly
resolved in a former suit cannot
again be raised in any future case
between the same parties involving
a different cause of action

Bar by former judgment/direct


estoppel by judgment

Refers to the legal conclusions


announced on a first appeal,
whether on the general law or the
law as applied to the concrete
facts, not only prescribe the duty
and limit the power of the trial
court to conduct obedience and
conformity
thereto,
but
they
become and remain the law of the
case in all other steps, whether in
the lower court or in the appellate
court on a subsequent appeal

Conclusiveness of judgment
-

Estoppel by verdict, estoppel by


record, collateral estoppel by
judgment or preclusion of issues or
rule of auter accion pendent,
covers par c

S48- Effect of foreign judgment or final


orders
Public policy principle
-

Public Policy Principle


-

Inalterability of final and executory


judgment

Judgment by a court is enforceable


only within its territorial jurisdiction

Effect of foreign judgments


-

Provided that
jurisdiction

the

tribunal

has

102

Remedial Law Review Notes under Atty Ferdinand Tan


CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez

1. In case of judgment against a


specific thing,
a. Judgment is conclusive upon
title to the thing
2. In case of judgment against a
person,
a. Judgment is presumptive
evidence of a right as
between the parties and
their successors in interest
by a subsequent title

3. Collusion
4. Fraud
5. Clear mistake of law or fact

LAST NOTES ON CIVIL PROCEDURE


Note latest Rules on ADR (2009) in relation
to Rule 18

2 ways of giving effect to a foreign


judgment:
1. Ordinary action to enforce the
foreign judgment may be filed in
court or
2. It may be pleaded in an answer or
motion to dismiss
In both instances, judgment
repelled by evidence of:
1.
2.
3.
4.

may

be

Want of jurisdiction
Want of notice
Collusion
Fraud

Effect of foreign judgment:


R39 S8
The effect of a foreign judgment or final
order of a tribunal of a foreign country,
having jurisdiction to render judgment or
final order is as follows:
a. In case of a judgment or final order
upon a specific thing, the judgment
or final order is conclusive upon the
title to the thing and
b. In case of a judgment or final order
against a person, the judgment or
final order is presumptive evidence
of a right as between the parties
and their successors in interest by
a subsequent title
In either case, a judgment or final order
may be repelled by evidence of:
1. Want of jurisdiction
2. Want of notice to a party

103