SAN BEDA UNIVERSITY COLLEGE OF LAW Centralized Bar Operations: Mercantile Law Cotati r- 1 Uy ttt te A Legal and Judicial Ethics Volume 2 rayREMEDIAL LAW RAYMOND F. RAMOS Subject Chair KAREN JOY D. TECSON Assistant Subject Chair ROMAINE D. NUYDA Subject Electronic Data Processing SUBJECT HEADS Civil Procedure Criminal Procedure Evidence Special Civil Actions » Special Proceedings JASMIN N. APOSTOLES MARLO P. DIMACULANGAN VIKTOR KEVIN S. RUBIO ALYSSA CHRISTINE C. DELA CRUZ JOSHUA V. CONSTANTINO VINCE NOEL L. LUPANGO. . SUBJECT MEMBERS RUIZA V. TOLENTINO VICTOR I. ALMAZAR MA. LALAINE T. BALOLOY KIMBERLY ANN I. HONRALES GIANCARLO LORENZO S. GEMPIS GELAINE P. MARANAN PETER PAUL P. CAGURANGAN NEIL KIRBY L. ADA FLORENCIO F. STA. ANA IIT MATT LORENZ D. QUIAMBAO JENNIFER FAITH A. MONDIGO PATRICIA BENILDA S. RAMOS MARY JOIE S. TECSON ANNE KATHLEEN S. VICHO IRIS L. MENDIOLA ADVISER Atty. FRANCESCA LOURDES M. SENGAPA Eaook REMEDIAL LAW 1. GENERAL PRINCIPLES Q: What is Remedial Law? ANS: Remedial law prescribes the method of enfcrcing rights or obtains redress for their invasion (People v. Moner, G.R. No. 202296, March 5, 2018). A. SUBSTANTIVE LAW VS. REMEDIAL LAW Q: What are the differences between Substantive Law and Remedial Law? ANS: The following are the differences: (| ais Law ee eion Substantive law is that fat ofthe law which creates, defines and regulates rights, or which regulates. the rights and duties whicl give tise to @ cause of action (0) Substantive lav creates vested rights. Isha Rule takes away a vested right, it's not procedural. if the Rule creates a right such as the right to appeal, it may be classified as a substantive matter; but if it operates as a means of implementing an existing right then the rule deals merely” with ‘procedure (Fabian v. Desierto, G,R. “No. 129742, September 16, 1998). Substantive law is prospective in application (Spouses Tirona v. Alejo, G.R. No. 129313, October 10, 2001). at) Substantive law originates from the legislature. They are not embraced by the rule- making power of the Supreme Court (Primicias v. Ocampo, G.R. No. L- 6120, June 30, 1953). Cec) VAD) i ECU Remedial law prescribes the raalhd of enforcing rights or obtaining redress for their invasion (Id). Monee No vested rights may attach or arise from remedial law (Calacal2 v.!Republic, G.R. No, 154415, July 28, 2005). eke oie Remedial law is construed to be applicable to actions pending and undetermined at the time of their passage, and are deemed retroactive in that sense and to that extent (Calacala v. Republic, supra), except if it impairs vested right. ire | Remedial law does not originate from the legislature, but has the force and effect of law (Alvero v. De La Rosa, G.R. No. L- 286, March 29, 1946) if not in conflict with ‘substantive law. The Supreme Court is expressly | empowered to promulgate procedural | _tules (CONST., Art. Vill, Sec. 5, Par. 5) 418 VOL 2. 2019Py aera ff sos B. RULE-MAKING POWER OF THE SUPREME COURT Q: State the Rule-making power of the Supreme Court. ANS: The Supreme Court has the constitutional power to promulgaie rules concerning the protection and enforcement of constitutional rights, pleeding, practice, and procedure in all courts, the admission to the practice of law,.the Integrated Bar, and legal assistance to the underprivileged (CONST., Art. VIII, Sec. 5, Par. (5)). Q: Does the Supreme Court have the Power to Disapprove Rules of Procedure of Special Courts and Quasi-Judicial bodies? ANS: Yes. Rules of procedure of special courts and quasi-judicial bodies shall retain effective unless disapproved by the Supreme Court (CONST,, Art. VII, Sev.5, Par. (5)). Limitations in the Rule Making Power of the Supreme Court Q: Give the limitations on the Rule-making power of the Supreme Court. ANS: The following limitations are imposed by the Constitution on the Rule-making power of the Supreme Court: (SUN) 1. The Rules shall provide a Simplified and inexpensive procedure for the speedy disposition of cases; 2. The Rules shall be Uniform for éouirts of the same grade; and 3. The Rules shall Not: (DIM) a. c. Modify substantive rights (CONST., Art vil Sec. 5, Par. (5)). Power of the Supreme Court to. 1d Procedural Rule: Q: Does the Supreme Court have the sole power to amend procedural Rules? ANS: Yes. The: Supreme: Court has theisole prerogative to amend, repeal, or even establish new Rules for a more simplified. and inexpensive process, and the speedy disposition of cases (Neypes v. CA, G.R. No; 141524, September'14, 2005). Q: Does the Supreme Court have the power suspend procedural Rules? ANS: Yes. The courts have the power to relax’ér Suspend technical or procedural Rules or to except a case from their operation When! compélling’teasons so warrant or when the purpose of justice requires it. What constitutes good and sufficient cause is discretionary upon the ‘courts (Heirs of Villagracia v. Equitable Banking Corporation, G.R. No. 136972, March 28, 2008). C. PRINCIPLE OF JUDICIAL HIERARCHY Q: Discuss the Principle of Judicial Hierarchy (Hierarchy of Courts}. ANS: Where courts have concurrent jurisdiction over a subject matter, a case must be filed first before the lowest court possible having the appropriate jurisdiction, except if one can advance a special reason which would allow the party a direct resort to a higher court (1 RIANO, Civil Procedure: The Bar Lecture Series (2016), p 43 [hereinafter RIANO, Civil Proceduro}) Q: What is the rationale for the Principle of Judicial Hierarchy? ANS: The rationale is two-fold: (a) it would be an imposition upon the limited time of the court; and (b) it would inevitably result in a delay, intended or otherwise, in the adjudication of cases, which in some instances, had to be remanded or referred to the lower court as the proper forum under the rules of procedure, o; as belter equipped to resolve the issues because the Supreme Court is not a trier of facts (People v. Azarraga, G.R. Nos, 187117 and 187127, October 12, 2011).VOL 2. 2019 Ieee Q: Is the Principle of Judicial Hierarchy absolute? ANS: No. Ih several cases, the court has allowed direct invocation of the Supreme Court's original jurisdiction on the following grounds: (C-SWINE) 1, When there are genuine issues of Constitutionality that must be addressed at the most immediate time (The Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21, 2018); When there are Special and important reasons clearly stated in the petition; When dictated by public Welfare and the advancement of public policy; When demanded by the broader Interest of justice; When the challenged orders were patent Nullities; or When analogous Exceptional and compelling circumstances called for and justified the immediate and direct handling of the case (Republic v. Caguioa, G.R. No. 174385] February 20, 2013). Paren D. DOCTRINE OF NON-INTERFERENCE/JUDICIAL STABILITY Q: What Is the Doctrine-of Non-Interference?” ANS: Courts of co-equal and coordinate jurisdiction may not interfere with or pass upon each other's orders or processes (Lapu-Lapu Development and Housing Corp. v. Group Management Corp., G.R. No. 141407, September 09, 2002). It also bars a court from reviewing or interfering, with the judgment of a co-equal court over which it has no appellate jurisdiction or power of review (Villamor v. Salas, G.R. No. L-101041, November 13, 1991). Q: Does the Doctrine of Non-Interference apply to administrative bodies? ANS: Yes. Settled. is the rule that where the law provides ‘for an appeal from the decisions of ariministrative bodies to the Supreme Court or the-Court of Appeals, it ‘means that such bodies are co-equal with the Regional Trial Courts in terms of rank epd stature, and logically,, beyond the control of the latter. Hence, the trial court cannot interfere with the decision of such administrative bodies (Philippine Sinter Corp. v. Cagayan Electric Power & Light Co., Inc., G.R. No. 127371, April 25, 2002). - .. IRJURISDICTION 7 Q: Define Jurisdiction. ANS: Jurisdiction is the power and. authority'of the court to hear, try, and decide a case (Barangay Mayamot, Antipolo City v. Antipolo City, G.R. No. 187349, August 17, 2016), as well as to enforce or execute its judgments or final orders (Echegaray v. Secretary of Justice, G.R. No. 132601, January 19, 1999). Q: Is jurisdiction substantive or procedural? ANS: Both. Jurisdiction over the subject matter is substantive as it is conferred by the Constitution or by law; while jurisdiction over the person is acquired by his voluntary submission to the authority of the court or through the exercise of its coercive processes and is therefore, procedural. Jurisdiction over the res is obtained by actual or constructive seizure placing the property under the orders cf the court (Zamora v. CA, G.R. No. 78206, March 19, 1990), and is aiso procedural. reVOL 2. 2019 A. CLASSIFICATION OF JURISDICTION Original vs Appellate fi Q: What are the differences between Original and Appellate jurisdiction? ANS: The following are the differences between Origirtal and Appellate jurisdiction: Cain Original jurisdiction is the power of the court to take judicial cognizance of a case instituted for judicial action for the first time under the _ conditions prescribed by law (1 TAN, Civil Procedure: A Guide for the Bench and the Bar (2017), p.3 [hereinafter TAN? Civil Procedure}. Appellate jurisdiction is the 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 A court is one with original jurisdiction; when actions or\‘proceedings are) originally filed with it (1,RIANO, supra at 4 some lower courts (1 TAN, supra at 4). Perret uke ee eee A court is one with appellate jurisdiction when it has the power of review over the decisions or orders of a lower court (1 RIANO, supra at 47). As to Nature’ General jurisdiction isthe power of the court 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 (7 TAN, supra at 3). Courts of general jurisdiction are those with competence to decide on their own jurisdiction and take cognizance of all cases, civil and criminal, of a particular nature (1 RIANO, supra at 47). 421 Special or limited jurisdiction is one which restricts the court's jurisdiction only to particular cases. and subject to such limitations as may be provided by the governing law. It is c.afined to particular causes, or which can be exercised only under the limitations and circustances prescribed by the statute (1 TAN, supra at 3). Courts of special (limited) jurisdiction are those which have jurisdiction only for a particular purpose or are clothed with special powers for the performance of specified duties beyond which they have no authority of any kind (1 RIANO, supra at 47).: BEDAN RED BOOK VOL 2. Courts which have the competence to exercise jurisdiction over cases not falling within the jurisdiction of any court, tribunal, person, or body exercising judicial or quasi-judicial functions (B.P. Big. 129, Secs. 19 & 20). Exclusive vs Concurrent Q: What are the differences between Exclusive and Concurrent jurisdiction? ANS: The following are the differences between Exclusive and Concurrent jurisdiction: eT cg Exclusive jurisdiction is the power to adjudicate a case or proceeding to the exclusion of all other courts at that stage (7 TAN, supra at 3). The following are examples of courts having exclusive original jurisdiction: 1. MTC having “exclusive original jurisdiction over cases of forcible entry and unlawful detainer (B.P. Big. 129, Sec. 33, Par. (2)); 2. RTC having exclusive _ original jurisdiction over all civil actions in which the subject matter of litigation is incapable of pecuniary estimation (BP. Big. 129, Sec. 19, Par. (1)); 3.CA having exclusive original jurisdiction over actions for annulment of judgments of the RTC (B.P. Big. 129, Sec. 9, Par. (2)). Note: Exclusive original jurisdiction precludes the idea of co-existence and | refers to jurisdiction possessed to the exclusion of others (Cubero v. Laguna West Multi-Purpose Cooperatives, Inc. G.R. No. 166833, November 30, 2006). 422 | 2.s8¢ 3.SC Concurrent jurisdiction is the power conferred upon different courts, whether of the same or different ranks, to take cognizance at the same slage of the same case in the same or different judicial territories (7 TAN, supra at 4). Where there is: concurrent jurisdiction, the court first taking cognizance of the case assumes jurisdiction to the exclusion of the other courts (7 RIANO, supra at 49). RA eNOS ee eid The following are examples of courts having concurrent original jurisdiction: 1.SC having . concurrent — original jurisdiction with RTC in cases affecting ambassadors, other public ministers, and consuls (CONST., ART. Vill, Sec. 5; B.P. Big. 129, Sec. Sec. 21, Par. (2)) having c-neurrent original jurisdiction with the CA in petitions for certiorari, prohibition, and mandamus against the RTCs (CONST., ART. Vill, Sec. 5; BP. Bl, 129, Sec. 9, Par. (1); having concurrent original jurisdiction with the CA and the RTC in petitions for certiorari, prohibition and mandamus against lower courts and bodies in petitions for quo warranto. and habeas _corpus (CONST., ART. Vill, Sec. 5; B.P. Big. 129, Secs. 9, Par. (1) & 21, Par. (1)BEDAN- RED BOOK B. DOCTRINES OF HIERARCHY OF COURTS AND CONTINUITY OF JURISDICTION Doctrine of Hierarchy of Courts Q: What is the Doctrine of Hierarchy of Courts? ANS: The court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of primary jurisdiction (1 TAN, supra at 37). Doctrine of Adherence of Jurisdiction Q: What does the Doctrine of Adherence of Jurisdiction (Continuity of Jurisdiction) mean? ANS: The doctrine provides that once a court has acquired jurisdiction, such jurisdiction cannot be ousted by subsequent events, although they be of a character which would have prevented jurisdiction from attaching in the first instance. Once iurisdiction has been acquired, it continues until the court finally disposes of ne case (Barrameda v. Rural Bank of Canaman, Inc., G.R. No. 176260, November 24, 2010). C JURISDICTION OF VARIOUS PHILIPPINE COURTS Q: Give an outline of the jurisdiction of courts in civil cases. ANS: The following are the jurisdiction of ccurts in civil cases: Boke a cts E z Petitions for certiorari, prohibition, or mandamus against: Court of Appeals (Judiciary Act of 1948, Sec. 17); Commission un Elections (CONST. Art. IX, Sec. 7); Commission on Audit (CONST. Art.iX, Sec. 7); Sandiganbayan (P.D. No. 1606, as amended); and Court of Tax Appeals (R.A. No. 9282, ctherwise known as The Law Creating the Court of Tex Appeals). nets Beater) PPene Disciplinary proceedings. against members of the Bar and court personnel (CONST. Art. Vill, Sec. 6; RULES OF COURT, Ruie 56). With the RTC: Cases affecting ambassadors, other public ministers, and consuls (B.P. Big. 129, otherwise known as The Judiciary Reorganization Act of 1980, Sec. 21, Par. (2); CONST., Art. Vill, Sec. 5, Par. (1)). COCANIME withthe ca: RULES 1. Petitions for certiorari, prohibition, or mandamus against: provide for a.RTC (BP. Big. 129, Sec. 21, Par. (1)): oes b.Civil Service Commission (R.A. No. 7902, otherwise known pe as An Act Expanding the Jurisdiction’ of the Court of unre Rees mr c.Central Board of Assessment Appeals (P.D. No. 464, Bn otherwise known as the Real Property Tax Code); UUs d.National Labor Relations Commission (St. Mertin Funeral Ra ea Homes v. NLRC, G.R. No. 130866, September 16, 1998); rr and Cg e.Other quasi-judicial agencies (Heirs of Hinog v. Melicor, of Courts. G.R. No. 140954, April 12, 2005): and 2. Petitions for Writ of Kalikasan (A.M. No. 09-6-8-SC, Rule 7, Sec. », Concurrent 423VOL 2. 2019 BEDAN RED BOOK With the RTC & CA: 1. Petitions for Habeas Corpus (B.P. 129, Sec. 9, Par. (1), & Sec. 21, Par. (1); CONST., Art. Vill, Sec. 5, Par. (1)); 2. Petitions for Quo Warranto (B.P. 129, Sec. 9, Par. 11), & See. 21, Par. (1); CONST., Art. Vill, Sec. 5, Par. (1)); 3. Petitions for certiorari, prohibition, or mandamus against inferior courts and other bodies (B.P. 129, Sec. 9, Par. (1), & Sec. 21, Par. (1); CONST., Art. VIll, Sec. 5, Par. (1)); and 4. Petitions for continuing mandamus (A.M. No. 09-6-8-SC, Rule 8, Sec. 1). With the RTC, CA, & Sandiganbayan: 1. Petitions for Writ of Amparo(A.M. No. 07-9-12-SC, Sec. 3); and 2. Petitions for Writ of Habeas data (A.M. No. 08-1-16-SC, Sec. 3). By way of appeal by certiorari under Rule 45, a 1. Court of Appeals; 2, Sandiganbayan; 3. RTC on pure questions of law; 4. In cases involving the constitutionality or validity of a law or treaty, international agreement or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation, legality of a tax, impost, assessment, toll or penalty, jurisdiction of a lower court (CONST. Art. Vill, Sec. 5); and . Court of Tax Appeals & 1 Banc(RiA. No, 9282, Sec. 19). gainst the: CivilCases | « e Cetntedete SCTE Actions for annulment of judgments of the RTC (B.P. Big. 129, Sec. Meine 9;Par. (2)) With the SC: 1. Petitions for certiorari, prohibition, or mandamus against: a. RTC (B.P. Big. 129, Sec. 21, Par. (1)); b. Civil Service Commission (R.A, No. 7902); c. Central Board of Assessment Appeals (P.D. No. 464); d. National Labor Relations Commission (St. Martin Funeral Homes v. NLRC, G.R. No. 130866, September 16, 1998); and e. Other quasi-judicial agencies (Heirs of Hinog v. Melicor, GR. No. 140954, April +2, 2005). 2. Petitions for Writ of Kalikasan (A.M. 09-6-8-SC, Rule 7, Sec. 3). Witi the SC & RTC: 1. Petitions for Habeas Corpus (BP. 129, Sec. 9, Par. (1), & Sec. 21, Par. (1); CONST., Art. VIll, Sec. 5, Par. (1)): 2. Petitions for Quo Warranto (B.P. 129, Sec. 9, Par. (1), & Sec. 21, Par. (1); CONST., Art. VIll, Sec. 5, Par. (1)); 3. Petitions for certiorari, prohibition, or mandamus against inferior courts and other bodies (B.P. Big. 129, Sec. 9, Par. 1&Sec. 21, Par. (1); CONST, Art. Vill, Sec. 5, Par. (1)); and Clirenicurs 424TSN INT bec erin 4. Petitions for continuing mandamus (A.M. No. 09-6-8-SC, Rule 8, Sec. 2) With the RTC, SC, & Sandiganbayan: 1, Petitions for Writ of Amparo (A.M. 07-9-12-SC, Sec. 3); and 2. Petitions for Writ of Habeas Data (A.M 08-1-16-SC, Sec. 3). 1. By way of ordinary appeal from the RTC and Family Couris (RULES OF COURT. Rule 41, Sec. 2, Par. (a)) & R.A. No. 8369, otherwise known as the Family Courts Act of 1997), Sec. 14}; 2. By way of petition for review from the RTC rendered in the exercise of its appellate jurisdiction (RULES OF COURT, Rule 42); 3, By way of petition for review from the decisions, resolutions, orders, or awards of the: a. Civil Service Commission; b. Office of the Ombudsman in administrative disciplinary cases; and c. Other bodies menticned in Rule 43 (RULES OF COURT, Rule 43). 4, By way of ordinary appeal over decisions of MTCs in cadastral or land registration cases pursuant to its delegated jurisdiction (B.P. 129, Sec. 34, as amended by R.A. No. 7691). Cases involving violations of: 1. E.0. No. 1 (Creating the PCGG); 2.£.0. No. 2 (illegal Acquisition and Misappropriations of Ferdinand Marcos, Imelda Marcos their close relatives, subordinates, business»-associales, dummies, agents or nominees); 3 3.£.0. No. 14 (Cases involving the ill-gotten wealth of the immediately mentioned persons); and 4. E.0. No. 14-A (amendments to E.O. No. 14) (R.A. No. 10660, otherwise known as An Act Strengthening Further the Functional and Structural Organization of the Sandiganbayan, Sec. 2). With the SC: 1. Petitions for certiorari, prohibition, and mandamus whether or not in aid of its appellate jurisdiction (A.M. No. 07-7-12-SC); and 2. Petitions for Habeas Corpus, injunction, and other ancillary writs in aid of its appeliate jurisdiction, including Quo Warranto arising in cases falling under E.0. Nos. 1, 2, 14, and 14-A With the SC. CA & RTC: 1. Petitions for Writ of Amparo (A.M. No. 07-9-12-SC, otherwise known as The Rule on Writ of Amparo, Sec. 3): and | 2. Petitions for Writ of Habeas Data (A.M. No. 08-1-16-SC, otherwise known as The Rule on Writ of Habeas Data, Sec. 3). 425VOL 2. 2019 BEDAN RED BOOK Peery Regiorial Trial Courts Municipal Trial Courts If the gross value, claim, or | If the gross value, claim or demand exceeds P300,000 | demand does not exceed (outside Metro Manila), or | P300,000.00 (outside Metro exceeds P400,000 += (Metro | Manila), or does not exceed Manila): 400,000 (Metro Manila): 1. Actions involving personal property depending on the value of the property; 2, Admizalty and maritime cases depending on the amount of demand or claim; 3 Probate proceedings (testate or intestate) depending on the gross value of the estate; and 4, Demand for money depending on the amount (B.P. Blg.129, Sec. 19, Par. (3), (4), & (8),.& Sec. 33, Par. (1) as amended by R.A. No. 7691). Note: Exclusive'of Damages of whatever kind, Interest, Attorney's fees, Litigation Expenses, and. Costs (DIALEC), the amount of which must be specifically alleged; but shall. be included in the determination of the filing fees (B.P. Big. 129, Sec. 33, Par. (1), as amended). Note: The exclusion of the term “damages of\ whatever kind’ applies to cases where the damages are merely incidental to or a consequence of the main cause of action. However,,in cases where the! claim for damages is the main cause of action, or one of the Fete causes of action. the amount of such claim shall be considered in CeRPINEME determining the jurisdiction of the court (Administrative Circular 09- 94, June 14, 1994). If the assessed value or | If the’assessed value or interest interest inthe real property | in. the real. property does not exceeds P20,000 (outside | exceed P20,000 (outside Metro Metro. Manila), or exceeds | Manila), or does not exceed 50,000 (Metro Manila): 50,000 (Metro Manila): 5. Actions involving title to or possession of real property, or any interest therein depending on the assessed value (B.P. Big. 129, £76. 19, Par. (2) & Sec.33, Par. (3)) 6. Actions the subject matter | 6. Inclusion and exclusion of of which is incapable of voters (B.P. 881, Sec.138); pecuniary estimation; 7. Those covered by the Rules Note: Where the basic issue | “on Summary Procedure 's something other than the | (FEUD) ' right to recover a sum of a. Forcible Entry; and | money or the money claim is b. Unlawful Detainer purely incidental to, or a ‘(1991 Revised Rules on consequence of, the principal ‘Summary Procedure, relief, the action is incapable Sec. 1, Par. (a); B.P. Big. of — pecuniary —_ estimation 129, Sec. 33, Par. (2). (Russel v. Vesti, G.R. No. 119347, March 17, 1999)RED BOOK Note: All actions which are incapable of __pecuniary estimation is cognizable by the RTC except the annulment of judgments of the RTC, which is cognizable by the CA (B.P. Big. 129). 7. Cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions (general jurisdiction of RTC); 8. Under Section 5.2 of the Securities and Regulations Code to hear and decide: a. Cases involving devices or schemes employed by or any acts of the board of directors, business associates, its officers or partnership, amotnting to fraud and misrepresentation; b. Intra-corporate controversies: = c: Controversies in the elections D or appointments "lof directors, trustees; officers, or managers of corporations, partnerships, or associations; d. Petitions of corporations, partnerships or associations to be declared in the state of Note: Irrespective of the amount of damages or unpaid rentals sought to be recovered (1991 Revised Rules on Summary Procedure, Sec. 1, Par. (a)); Note: Where attorney's fees are awarded, the same shall not exceed P20,000 (1991 Revised Rules on Summary Procedure, Sec. 1, Par. (a); Note: May resolve issue of ownership to determine only the issue of possession (BIg. 129, Sec. 33, Per. (2)). 8. Other civil cases, except probate proceedings, where the ,total amount of the »plaintif’s claim does not exceed P100,000 or does not exceed) P200,000 in Metro Manila, ‘exclusive of interests and costs (1997 Revised Rules, on Summary Procedure, as. amended by AM. Nox _ 02-11-09-SC, effective Noveiriber 25, 2002). 9. Cases falling under the 2016 Revised Rules of Procedure For Small Claims Cases: Note: Applicable in all actions that are purely civil in nature where the claim or relief prayed for is solely for payment of sum of money. The claim may be: a. For money owed under: i. Contract of Lease; ii. Contract of Loan; suspension oF fi Conte Seren (Securities Regulations iv, Contract of Sale Code, Sec. 5.2 and iv, Contract of Mortgage. PD. No 902A. Sec, | »-For liquidated — damages 5). arising from contracts; c. The enforcement of a barangay amicable settiement involving a money claim (A.M. No. 08-8-7-SC, February 1, | 2016). 4273 RED BOOK SC may designate certain branches of RTC to handle exclusively criminal cases, juvenile and domestic relations cases, _ agrarian cases, urban land reform cases which do not fall under the jurisdiction of any quasi- judicial bodies and agencies, and other special cases as the SC may determine in the interest of speedy and efficient administration of justice (B.P. Big. 129, Sec. 23). Ce Petition for Habeas Corpus or application for bail in criminal cases in the absence of all RTC judges in the province or city (BP. Big. 129, Sec. 35). With the SC: Actions affecting ambassadors, public ministers;and-consu!s. With.the’Sc’& CA: : ns for Habeas Corpus; Petitions for Quo Warranto; . Petitions for certiorari, prohibition, or mandamus against inferior courts and other bodies; and Petitions for continuing mandamus. With the Sandiganbayan: 1. Petitions for Writ of- Amparo; and 2. Petitions for Writ of Habeas Data CA 8 the Insurance Commissioner: Single claim not exceeding P5,000,000 (R.A. No. 10607, otherwise known as An Act Strengthening The Insurance industry, Sec. 439) All cases decided by the MeTCs, MTCs and MCTCs in their respective territorial jurisdiction except decisions of lower courts in the exercise of delegated jurisdiction. cy ee 428EDAN RED BOOK - May be assigned by the SC to hear cadastral or land registration cases where: 1. There is no controversy or opposition over the land; or 2. In case of contested lands, the value does not exceed 400,000 (B.P. Big. 129, Sec. 34, as amended by R.A. No. 7691). eu aoa Family Courts have exclusive original jurisdiction to hear and decide the following civil cases? 1. Petitions for guardianship, custody of children, habeas corpus involving children; Note: The SC and the CA have not been deprived of their original jurisdiction of such petitions (Thornton v. Thornton, G.R. No. 154598, August.16, 2004). Petitions for adoption of children and the revocation thereof; Complaints for annulment, and declaration of nullity of marriage and matters relating to marital status*and property relations of husband and wife opthose living together under different status or agreement, and petitions for dissolution of conjugal partnership of gains;_ foie Petitions for support and/or acknowledgment; Summary judicial proceedings underthe Family,Code; and Petition for declaration of statls*of children as abandoned, dependent, or neglected; petitions for voluntary or involuntary (Senne commitment of children and matters refating to the suspension, Saeed termination, or restoration ofiparental authority and other cases ets cognizable under P.D. No: 603, E,0..No. 56 series of 1996, and other related laws (R.A. No. 8369, Sec. 5, Pars. (b), (c), (A), (e), (9, & (9). Note: Under the Family Code, the family home is deemed constituted; hence, no need for its constitution. en Oop Special Provisional Remedies: 1. In cases of violence among the family members living in the same domicile or household, the Family Court may issue a restraining order against the accused or defendant upon verified application by the complainant or the victim for relief from abuse; and 2. The court may order the temporary custody of children in all civil actions for their custody, support pendente lite, including deduction from the salary, and use of conjugal home and other properties in all civil actions for support (R.A. No. 8369, Sec. 7). Note: In areas where there are mo Family Courts, the abovementioned cases shall be adjudicated by the RTC. 426Exclusive Pent) -All cases All petitions for ae uc) involving custody, guardianship, legitimacy, paternity, and filiation arising under the Code of Muslim Personal Laws; All cases involving disposition, distribution, and settlement of estate of deceased Muslims, probate of wills, issuance of letters of administration or appointment of administrators or executors regardless of the nature or aggregate value of the property; . Petitions for the declaration of absence and_.death .for_ the cancellation or correction of entries in the Muslim Registries mentioned in Title VI, Book Two of the Code of Mustim Personal La All actions~ arising fromthe customary contracts in which the parties are Muslims, if they have not specified which law shall gover their relations; and mandamus, prohibition, injunction, —certiurari, habeas corpus, and all other auxiliary writs and processes in aid of its appellate jurisdiction (P.D. No. 1083, otherwise known as the Code.of Muslim Personal Laws of the Philippines, Sec, 143, Par. (1)). VOL 2. Vf 2019 Shari’a Circuit Courts 1. Offenses defined and punished under P.D. No. 1083; 2.All civil actions and proceedings between parties who are Muslims or have been named in accordance with P.D. No. 1083, relating to: a. Marriage; b. Divorce; c. Betrothal or breach of contract to marry; d.Customary dower (mahr), e. Disposition and distribution of upon f. Maintenance and support and consolatory gifts (mut’a); g.Restitution 0 marital rights; and 3:Disputes relative to communal _ properties (P.D. No. 1083, Art. 188). - Petitions by Muslim for the constitution of a family home, change of name and commitment of an insane person to an asylum; - All other personal and legal actions not mentioned in paragraph 1 (d), Section 143 of P.D. No. 1083, (no. 4 of above) wherein the parties involved are Muslims except those for foruibie entry and unlawful detainer, which snail fall under the exclusive jurisdiction of the Municipal Circuit Court; and All special civii_ actions for interpleader or declaratory relief | wherein the parties are Muslims or the property involved belongs exclusively to Muslims (P.D. No. 1083, Art. 143, Par. (2)). 430BEDAN RED BOOK The Shari'a District Courts shall have appellate jurisdiction over all cases tried in the Shari'a Circuit Courts within their territorial jurisdiction. VOL 2. : Ah 2019 The Shari'a District Court shall decide every case appealed to it on the basis. of the evidence and records transmitted as well as — such mj memoranda, briefs or oral arguments (XTC as the parties may submit (P.D. No. 1083, Art. 144) Note: The decisions of the Shari'a District Courts whether on appeal from the Shari'a Circuit Court or not shall be finel. Nothing in P.D. No. 1083 shall affect the, original and appellate jurisdiction of the SC as provided in the Constitution (P.D. No. 1083, Art. 145). Q: What is the Totality of Claims Principle? ANS: The Totality Rule states that, where there are several claims or causes of action between the same or different parties, embodied in the same complaint, the amount of the demand shall be the fotalitof the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions (B.P. Big. 129, Sec. 33, Par. (1)). Q: When is the Totality of Claims Principle? ANS: The Totality Rule is applicable in the following cases: 1. In actions where the jurisdiction ofthe court is dependent on the amount involved, the test of jurisdiction shall be the’ aggregate sum of all the money demands, exclusive only of interest and costs, irrespective of whether or not the separate claims are owned by or due to different parties. If any demand is for damages in a civil action, the amount thereof must be specifically alleged; or 2. Cases where there are two or more plaintiffs having separate causes of action against two or more defendants joined in a complaint (Flores v. Mallare- Philipps, G.R. No. 1-66620, September 24, 1986) Note: The Totality Rule applies under the condition that the causes of action in favor of the two or more plaintiffs or against the two or more defendants should arise out of the ‘same transaction or series of transactions aid there should be a common question of law or fact (Id). D. ASPECTS OF JURISDICTION Jur Q: What does jurisdiction over the parties mean? ANS: Jurisdiction over the parties is the legal power of the court to render personal judgment against a party to an action or proceeding (Black's Law Dictionary, 5” ed., 767). or the power of a court to render a personal judgment or to subject the parties in a particular ection to the judgment and other rulings rendered in the action (Villagracia v. Fifth Shari'a Court, G.R. No, 188832, April 23. 2014) n over the PartiesBE RED BOOK Q: How does the court acquire jurisdiction over the plaintiff? ANS: Jurisdiction over the plaintiff is acquired by the filing of the complaint, petition, or other initiatory pleading before the court by the plaintiff or petitioner (1 TAN, supra at 93). By the mere filing of the complaint, the plaintiff, in a civil action, voluntarily submits himself to the jurisdiction of the court (Guy v. Gacott, G.R. No. 206147, January 13, 2016). Q: How dees the court acquire jurisdiction over the defendant? ANS: Jurisdiction over the defendant is obtained either: 1. By service of summons; or 2. Byhis voluntary appearance in court(RULES OF COURT, Rule 14, Sec. 20). Q: What is the effect of the defendant's voluntary appearance in court? ANS: The defendant's voluntary appearance in.the action shall be equivalent to service of summons. It is a waiver of the necessity of’ formal notice. An appearance in whatever form, without explicitly Objecting to the'jurisdiction of the court over the person, is a submission to the jurisciction of the-court.over thé person (1 TAN, supra at 93). Examples are: 1. By filing an answer; or 2. By filing-a motion to dismiss, except when the defendant also raises the issue of lack of jufisdiction over his person (RULES OF COURT. Rule 14, Sec. 20). Q: In what instances will the filing of a pleading seeking affirmative relief NOT constitute a submission of one’s person to the jurisdiction of the court? ANS: In the ¢ase-of pleadings whose prayer is precisely for-the avoidance of the jurisdiction of the court, which only leads to a special appearance. These pleadings 1. In civil cases,,motions to. dismiss on the ground of lack of jurisdiction over the person\ of the defendant, whether or“not other grounds for dismissal are included; 2. In criminal cases,.motions to quash a. complaint on the ground of lack of jurisdiction over the person of the accused; and 3._ Motions to quash a warrant of arrest. Note: The first two are consequences of the faot that failure to file them would constitute a waiver of the defense of lack of jurisdiction over the person. The third is a consequence of the fact that it is the very legality of the court process forcing the submission of the person of the accused that is the very issue in a motion to quash a warrant of arrest (Miranda v. Tuliao, G.R. No. 158763, March 3:, 2006) Jurisdiction over the Subject Matter fatter Meaning of Jurisdiction over the Subject Q: Define jurisdiction over the subject matter. ANS: Jurisdiction over tie subject matter is the power to hear and determine cases of the genera! class to which the proceedings in question belong and is conferred by the sovereign authority which organizes the court and defines its powers (Mitsubishi Motors v. Bureau of Customs, G.R. No. 269830, June 17, 2015).- BEDAN RED BOOK Error of Jurisdiction as Distinguished from Error in Judgment Q: Distinguish between error of jurisdiction and error of judgment. ANS: The following are the distinctions: (ERR) VOL 2. iff 2079 ete een BOSS oe te reat 2 A It occurs when the court exercises Jurisdiction not conferred upon it by law. It may also occur when the court although ‘with jurisdiction, acts in excess of its jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction (People iv. Sandiganbayan, G.R. No. 173396, September 22, 2010). It presupposes that the court is vested with jurisdiction but in the process of exercising that jurisdiction it committed mistakes in the appreciation of facts and the evidence leading to an erroneous judgment (1 RIANO, Civil Procedure, supra at 58). COST uae z he judgment cannot be considered a lily; and therefore, cannot be collaterally impeached. Such is binding on the parties unless reversed or annulled (1 | RIANO, Civil Procedure, supra at 59). Renders a judgment void or at least voidable (Jaro v. CA, G.R. No, 127536, February 19, 2002). Reviewable only by the extraordinary writ of certiorari. (Cabrera v. Lapid, GR. No. 129098, December 6, 2006). ANS: Jurisdiction over’ the subject matter is~ conferred by the Constitution or by law. Nothing can change the jurisdiction of the court over the subject matter. That power is a matter of legislative enactment which none but the legislature may change (Zamora v. CA, G.R. No. 78206, March 19, 1990). tis NOT conferred by: (UCC-PEAS) 1. Court's Unilateral assumption of jurisdiction (Tolentino v. Social Security Commission, G.R. No. L-28870, September 6, 1985): 2. Contract (Figueroa v. People, G.R. No. 147406, July 14, 2008); 3. Compromise (Olongapo City v. Subic Water and Sewerage Co., Inc., G.R. No. 171626, August 6, 2014); 4. Agreement of the Parties (Metromedia Times Corporation v. Pastorin, G.R. No. 154295, July 29, 2005); 5. Erroneous belief of the cout that it exists (Id.); 6. Acquiescence of the court (Republic v. Estipular, G.R. No. 136588, July 20, 2000); or 7. Silence, waiver, or failure to object (People v. Garfin, G.R. No. 153176, March 29, 2004). ih‘é EDAN RED BOOK Q: How is jurisdiction determined? ANS: Jurisdiction over the subject matter is determined by the allegations of the complaint and the character of the relief sought (Heirs of Bautista v. Lindo, G.R. No. 208232, March 10, 2014). Once vested, jurisdiction remains regardless whether or not the plaintiff is entitled to recover all or some of the claims asserted therein (Go v. Distinction Properties, G.R. No. 194024, April 25, 2012). itis NOT determined by: 1. The defenses in the answer or motion to dismiss; Exception: If. after hearing, tenancy is shown to exist, it shall dismiss the case for lack of jurisdiction since the Department of Agrarian Reform Adjudication Board (DARAB) has exclusive jurisdiction to adjudicate agrarian disputes pursuant to R.A. No. 6657 (Velasquez v. Spouses Cruz, G.R. No. 191479, September 21, 2015). ‘The amount ultimately substantiated and awarded by the trial court; By the evidence in the trial; Consent or agreement of the parties; or By estoppel (Tolentino v. CA,.G.R.-No, 123445, October 6, 1997). Objections to Jurisdiction over the Subject Matter, : May the court, motu proprio; ‘dismis$"the case if it finds that it has no jurisdiction over the subject matter? ANS: Yes. The court may dismiss the case on its own jnitiative when it appears from the pleadings or the evidence on record that it has no jurisdiction over the subject matter (RULES OF COURT, Rule 9, Sec. 1). oe eo Q: When may a party raise the issue of jurisdiction over the subject matter? ANS: A party ‘may object to \the jurisdiction of the court as @ ground in a motion to dismiss (RULES: OF COURT, Rule 16, Sec, 1, Par. (b)) or as an affirmative defense in the answer (RULES OF COURT, Rule 16, Sec. 6). It’ may be raised at any time during the proceedings, even'for the first time on appeal, since jurisdictional issues cannot be waived (Boston Equity Resources v-CA, G.R. No, 173946, June 19, 2013). Effect of Estoppel on Objections to Jurisdiction hat is the effect of estoppel on objections to jurisdictions? ANS: While it is true that jurisdiction over the subject matter may be raised at any stage of the proceedings since itis conferred by law, itis nevertheless, settled that a party may be barred from raising it on. the ground of estoppel (La’o v. Republic, G.R. No. 160719. January 23, 2006). Note: The active participation of a party in a case is tantamount to recognition of that court's jurisdiction and will bar a party from impugning the court's jurisdiction. This only applies to exceptional circumstances (Concepcion v. Regalado, G.R. No. 167988, February 6, 2007). Q: What is the doctrine of estoppel by laches? ANS: In the case of Tijam v. Sibonghanoy (G.R. No. L-21450. April 15, 1968), the Supreme Court barred a belated objection to jurisdiction that was raised only when an adverse decision was rendered by the lower court against it. It raised the issue only after almost 15 years and after seeking affirmative relief from the court and actively participating in all stages of the proceedings. The doctrine, as declared by the Supreme Court, is based upon grounds of public policy x xx and is principally a question of the inequity or unfaimess of permitting a right or claim to be enforced or asserted (1 RIANO, supra at 74). 434VOL 2. 2019 Q: Is the doctrine of estoppel by laches the general rule? ANS: No. The general rule should be, as it has always been, that the issue of jurisdiction may be raised at any stage of the proceedings, even on appeal, and is not lost by waiver or by estoppel. Estoppel by laches, to bar a litigant from asserting the court's absence or lack of jurisdiction, only supervenes in exceptional cases similar to the factual milieu of the Tijam case (Figueroa v. People, G.R. No. 147406, July 14, 2008). uri over the Issue: Q: What does jurisdiction over the issues mean? ANS: This is the power of the court to try and decide the issues raised in the pleadings of the parties (Bernabe v. Vergara, G.R. No, L-48652, September 16, 1942). Q: How is jurisdiction over the issues conferred and determined? ANS: Jurisdiction over the issue is determined and conferred: 1. By the pleadings filed in the case by the parties (Lazo v. Republic Surety & Ins. Co., Inc., G.R. No. L-27365, January 30, 1979); or 2. By stipulations of parties as when in pre-trial, the parties can enter into stipulation of facts and documents or enter into an agreement simplifying the issues of the case (RULES OF COURT, Rule 18, Sec. 2); or 3. By waiver or failure to object to thé presentation Of evidence on a matter not raised in the pleadings (RULES OF COURT, Rule 10, Sec. 5). Jurisdiction over the Res or the Property in Litigation Q: Whats jurisdiction over the res? ; \ ANS: Jurisdiction over the res refers to ‘the court's jurisdiction over the thing or the property under litigation. (1 RIANO, supra_at 87). This is acquired by the actual or constructive seizure by the court of the thing in question, thus placing,itin custodia legis (De Joya v. Marquez, G.R. No. 162416, January 31, 2006): Q: How is jurisdiction over the res acquired? ANS: Jurisdiction over the res is acquired either 1. By the actual or constructive seizure ofthe property under iegal process, whereby it is brought into actua! custody of the law (e.g. attachment); or 2. As a result of the institution of legal proceedings, in which the power of the court is recognized and made effective (e.g. suits involving the status of parties or property of a non-resident defendant) (Biaco v. PH Countryside Rural Bank, G.R No, 161417, February 08, 2007). E. JURISDICTION VS. EXERCISE OF JURISDICTION Q: Distinguish jurisdiction from the exercise of jurisdiction. ANS: Jurisdiction is the authority to hear and determine a case. It does not depend either upon the regularity of the exercise of that power or upon the rightfulness of the decisions made. The authority to decide a case at all, and not the decision rendered therein, is what makes up jurisdiction. Where there is jurisdiction, the decision of all questions arising in the case is but an exercise of jurisdiction (Estate of Yujuico v. Republic, G.R. No. 168661, October 26, 2007). iss a aH = am TsBEDAN RED BOOK F. JURISDICTION VS. VENUE VOL 2. fr 2019 Q: What is Venue? ANS: Venue is the defined as the place where the case is to be instituted, heard, and tried. It is procedural in nature, waivable for failure to make a timely objection, either in a motion to dismiss, or raise it in the answer as an affirmative defense and can be ‘subject to the stipulation of the parties (7 TAN, supra at 104). Q: Distinguish venue from jurisdiction. ANS: The following are the distinctions between venue and jurisdiction: Procedural Venue is the place where the cause of action is instituted, heard or tried. Jurisdiction is the power of the court to hear and decide a case. Itis not a ground, except in summary It_may be, a ground for motu proprio Procedure. dismissal. GOON uc as sae ced Venue may be'changed by the written Jurisdiction ‘cannot be the subject of the agreement of the parties. agreement of the parties. ORM UC una a CaN EC Kelsi It may be waived, Itis conferred by law and cannot be ‘waived. Le (1 TAN, supra at 108). 436VOL 2. 2019 = 15BY 3419121012) 6 G. JURISDICTION OVER CASES COVERED BY BARANGAY CONCILIATION, SMALL CLAIMS CASES, AND CASES: COVERED BY SUMMARY PROCEDURE Q: What cases are covered by the Rules on Small Claims, Summary Procedure, and Barangay Conciliation? ANS: The following are the cases covered: Ete ues ree (Coe aaa Cue eo kee coed Crs oer (AIM, No. 08-8-7-SC) Erte AUC) (Local Government Codg r of 1991, Sec. 408) Cases for the | 4. All cases of forcible | All disputes involving parties payment of money entry and unlawful | who actually reside in the where the value of Getainer irrespective | same city or municipality may the claim does not of the amount of | be the subject of the exceed P200,000, damages or unpaid | proceedings for amicable exclusive of interest rentals sought to be | settlement in the barangay and costs, and in recovered, | Where | except: which the claims are attomey's fees..are | 1. Where one party is the purely civil in nature awarded, the same government, or any Where the claim or shall not exceed Subdivision or relief prayed for by 20,000; and instrumentality thereof; the plaintiff is solely | 2. All other civil cases, | 2. Where one parly is a for payment or except probate public officer. «or reimbursement of proceedings, where employee, and — the sum of money” the total amount of | / dispute. relates to the plaintiff's claim does performance of his officia! The claim or demand not exceed P100,000 function: may bi or P200,000'In Metro | 3. Offenses punishable by 1. For money owed Manila, exclusive of imprisonment exceeding under any of the interests and costs 1 year or a fine exceeding following: (1991 Revised Rules 5,000.00; a. Contract of on Summary |~4. Offenses where there is lease; Procedure, as no private offended party; b. Contract of amended by A.M. No. | 5.Where the _ dispute loan; 02-11-09-SC, involves real properties c. Contract of effective November located in different cities services; 25, 2002). or municipalities unless d. Contract of the parties thereto agree sale; or to submit their differences e. Contract of to amicable settlement by mortgage. an appropriate Lupon; 2. For liquidated 6. Disputes involving parties damages arising who actually reside in | from contracts; barangays of different | 3. The enforcement cities or municipalities of a barangay except where — such amicable barangay units adjoin settlement or an each other and the arbitration award parties thereto agree to involving a money submit their differences to claim covered by amicable settlement by | this Rule pursuant an appropriate Lupon: | to Sec. 417 of the_ _ __and |VOL Wf 3 Local Government Code (A.M. No. 08-8-7-SC, The 2016 ~—- Revised Rules of Procedure for Small Claims Cases). Note: The amendment increasing the threshold amount to F300,000 was enacted on July 10, 2018 and thus not part_of the bar coverage. 1. Violations- of traffic laws, Rules and regulations; 2. Violations of the rental law; 3. Violations of municipal or city ordinances; 4. Violations of B.P. Big. 22 (AM. No. 00-11- 01-SC, April 15, 2003). 5. All other criminal cases where the penalty is imprisonment not. exceeding 6 months andior a fine of P 1,000 irrespective of other penalties or civil liabilities arising 438 7. Such other classes of disputes which the. President may determine in the interest of justice or upon the recommendation of the Secretary of Justice. The court in which —non- criminal cases not falling within the authority of the lupon under this Code are filed may, at any time before trial, motu proprio tefer the case to the lupon concemed for amicable settlement (KatarungangPambarang ay Rules, Rule VI, Sec. 1; RA. No. 7160, otherwise known as the Local Government Code of 1991, Sec. 408). Note:The court in which a non-criminal: case is filed may motu proprio refer the case, at any time before trial, to the) Luponi concerned for amicable settlement, the foregoing Rules notwithstanding and even if the case does not fall within thé authority of the Lupon (LOCAL’ GOVERNMENT CODE, Sec. 408). Cire ] When punishable by imprisonment of not more than 1 year or fine of not more than P5,000 (LOCAL GOVERNMENT CODE, Sec. 408).E1120. therefrom; and VOL 2. Vf: 2019 6. Offenses involving damage to property through criminal negligence where the imposable fine is not exceeding _ P10,000 (Revised Rule on Summary Procedure, Sec 1, Par. (b)). MI. CIVIL PROCEDURE A. GENERAL PROVISIONS (RULE 1) Meaning of Ordinary Civil Actions Q: What is an ordinary civil action? ANS: It is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong (RULES OF COURT, Rule 1, Sec. 3, par. a). Meaning of Speciol Civil Actions Q: What is a special civil action? ANS: Special civil actions refer to actions which, while’ governed by the rules for ordinary civil actions, are subject to specific Rules prescribed for under Rules 62 to 71 of the ROG (RULES OF COURT, Rule 1, Sec. 3, par. a). ry Meaning of Criminal Actions Q: Define criminal action. ANS: It is an action by which the State prosecutes a person for an act or omission punishable by law (RULES OF COURT, Rule.1, Sec. 3, par. b). Givil Actions versus Special Proceedings Q: What is a special proceeding? (SRP) ANS: A special proceeding is a remedy by which a party seeks to establish a Status, a Right or a Particular fact (RULES OF COURT, Rule 1, Sec. 3, par. ¢). Q: How do we distinguish ordinary civil actions from special proceedings? ANS: The distinctions between an ordinary civil action and a special preceeding are the following: Bri iireeacicn Pineau) ces ee Generally adversarial in nature. Thee | Generally, there is no definite adverse are definite parties — plaintiff vs. | party because it is directed against the defendant whole world. Special Proceedings are either in rem or quasi in rem. On Lee To protect or enforce a right or | To establish a status, a right, or a prevent or redress a wrong (RULES | particular fact (SRP) (RULES OF OF COURT, Rule 1, Sec. 3, par. A). _| COURT, Rule 1, Sec. 3, par. c). 439Fe NGL ay 33 CS rea Icy It is governed by Rules for ordinary | It is governed by special Rules civil actions (RULES OF COURT, | supplemented by Rules for ordinary civil Rule 1, Sec. 3, par. a). actions (RULES OF COURT, Rule 72, ee It is heard by courts of general | Itis heard by courts of limited jurisdiction. jurisdiction BOR acs Initiated by a pleading and parties | Initiated by means of a petition and respond through an answer after | parties respond by means of an being served with summons. opposition after notice and publication are made, Baylies anda Cet Ae Parties are generally. allowed. to-file |” Rules.on pleadings generally not answer, counterclaim, cross-claim, | applicable. and third-party complaint. The period to appeal is only 15 days | The period to appeal.is.30 days and aside and notice of appeal suffices, from a notice of appeal, a record on appeal is‘required. CRO Teeae tron It_is based on. a cause of ’action™| If is not based’on a cause of action except (RULES OF COURT, Rule 2, Sec. 1). habeas corpus. | (DE LEON & WILWAYCO, aay | Proceedings Essentials for Bench and Bar, (2015), 2). Personal Actions and Real Actions Q: What are the differences between a real action and a personal action? ANS: The distinctions between a real action and a personal action are the following (NV) Sse) eal Ce ees : | It is an action affecting title to or possession | All other actions are personal | Of real property, or interest therein (RULES | actions (RULES OF COURT, Rule | OF COURT, Rule 4, Sec. 1) 4, Sec. 2) Wc ee Itis a local action (1 RIANO, supra at 198). Itis a transitory action (Id.). | 440BEDAN RED BOOK 2015 Local and Transitory Actions : What is a local action? ANS: This is an action brought in the place where the subject property or a part thereof is located, in the absence of agreement to the contrary, e.g. action for recovery of real property (BPI v. Hontanosas, Jr., G.R. No. 157163, June 25, 2014). Q: What is a transitory action? ANS: A transitory action is one which depends upon the residence of the plaintiff or the defendant regardless of where the cause of action arose subject to Section 4 of Rule 4, e.g. action to recover a sum of money (Id.) Q: What is the test in determining whether an action is a real action or a personal action? ANS: A real action is one in which the plaintiff seeks the recovery of real property; or, as indicated in what is now Section 1, Rule 4 of the Rules of Court, a real action is an action affecting title to or recovery of possession of real property (Ruby Shelter Builders and Realty Corporation v. Formaran, G.R. No. 175914, February 10, 2009). Where the action does not involve recovery of real property, the action is a personal one (Spouses Saraza v. Francisco, G.R. No. 198718, November 27, 2013). Actions in Rem, in Persenam, and Quasi in Rem . Q: Distinguish between actions in rom, in personam, and quasi in rem. ANS: The distinctions are the following: (DEP-ED) Ps Re) Cea ieee Mek ec) Directed” against particular Directed against the thing ~ t persons. itself. Directed against particular persons. eM esi Gl Cs Judgment is binding only upon parties who joined the action (Ocampo v. Domalanta, G.R. No. L- 21011, August 30, 1967). Judgment is binding upon the whole world. Judgment is binding only upon parties impleaded or their successors in interest. Perens keke A proceeding which deals with the status, ownership, or liability of a particular | property but which are intended to operate on these questions only as between the _ particular parties to the proceedings and not to ascertain or cut- off the rights or interests of all possible claimants An action to impose a | A proceeding —to responsibility or liability | determine the state or upon a person directly. | condition of a thing. 441N RED BOOK Ber Action for specific | Probate proceeding; | Action for partition; action performance; action for | cadastral proceeding. to. foreclose real estate breach of contract. mortgage. COO eeu kk ae cc So Cacents Jurisdiction over the | Jurisdiction over the person of the defendant is not person of __the | required as long as jurisdiction over the res is acquired defendant is required, (Domagas v. Jensen, G.R. No. 158407, January 17, 2008). Q: Can an action in personam be converted into an action in rem or quasi in rem? ANS: Under the old rule, an action in personam may be converted in an action in rem or quasi in rem through preliminary. attachment by attaching the property of the defendant. However, under the new rule, it is not necessary for an action in personam to be converted to an action jn rem or quasi in rem, via a writ of-preliminary attachment, in order to acquire jurisdiction over the’person of the defendant. Petitioner may now serve ‘summons through publication where the defendant is designated as an unknown owner, or the like. of whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry to enable the court to acquire jurisdiction over the person of the defendant, regardless /of the nature of the action (Santos v. PNOC Exploration Corporation, G.R-No. 170943, September 23, 2008) Q: Can there be an action inyrem which is a personal action?,__ ANS: Yes. The probate of a'will wherein the estate consists only of personal properties is an action in rem which is at the same time a personal action. The probate of the will is a proceeding in rem (Guevara v. Guevara, G.R. No. 48840, December 29, 1943). It is also a personal action because it does not involve title to or possession of real property (Spouses Saraza v. Frantisco, supra): j Q: Can there be an'action in'personam which is a real action? ANS: Yes. An action for declaration-of nullity of title and recovery of ownership of real property, or reconveyance, is 4 real action butit is an action in personam, for it binds a Particular individual only although it concerns the right to a tangible property. Any judgment therein is binding only upon the parties properly impleaded (Murioz v. Yabut, GR. No. 142676, June 6, 2011). : What are independent civil actions? ANS: Independent civil actions are those provided in Articles 32, 33, 34, and 2176 of the Civil Code. They may proceed independently of the criminal action and shall require only a preponderance of evidence (RULES OF COURT, Rule 111, Sec. 3) Commencement of Acti Q: How is an ordinary civil action commenced? ANS: It is commenced by the filing of the original complaint in court. If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court (RULES OF COURT, Rule 1, Sec. 5). 442ayaa 325 Q: How is a small claims action commenced? ANS: A small claims action is commenced by: 1. Filing with the court an accomplished and verified Statement of Claim (Form 1- SCC) in duplicate; 2. Accompanied by a Certification Against Forum Shopping, Splitting a Single Cause of Action, and Multiplicity of Suits (Form 1-A-SCC); and 3. Two (2) duly certified photocopies of the actionable document/s subject of the claim, as well as the affidavits of witnesses and other evidence to support the claim. Note: No evidence shall be allowed during the hearing which was not attached to or submitted together with the Statement of Claim, unless good cause is shown for the admission of additional evidence. The plaintiff must state in the Statement of Claim if he/she/it is engaged in the business of lending, banking and similar activities, and the number of smal! claims cases filed within the calendar year regardless of judicial station. No formal pleading, other than the Statement of Claim/s described in this Rule, i is necessary to initiate a small claims action (A.M. No, 08-08-7-SC, Sec. 6). 2) ot] 8. CAUSE CF ACTION (RULE Meoning of Cause of Action Q: What is a cause of action? ANS: It is the act or omission by which a party violates the right§ of another (RULES OF fy COURT, Rule 2, Sec. 2). Right of Action versus Cause of Action } Q: Define right of action.and give its elements. ANS: Right of action is the right to commence and Pigseant relief sought. Its elements.are: (CCP) 2 1. Existence of a Cause of action; » 2. Performance of all Conditions precedent to the bringing of the actior 3. Right to bring and’ maintain the»astiér®must be in the Person (Tumer v. Lorenzo Shipping, G.R, No. 157479; Noyember 24, 2010). Failure to State a Cause of Action Q: Explain the concept and effect of failure to state a cause of action. ANS: If the elements of a cause of action are not extant, the complaint becomes vulnerable to a motion to dismiss on the ground of failure to state a cause of action. A defendant who moves to dismiss the complaint on the ground of faiiure to state a cause of action hypothetically admits all the averments thereof. The hypothetical admission extends to the relevant and material facts well pleaded in the complaint and inferences fairly deducible therefrom (Ceroferr Reaity Corp. v. CA, G.R. Ne. 139539, February 5, 2002) Q: Does a dismissal based on a failure to state a cause of action bar the subsequent re-filing of the complaint? ANS: No. Dismissal of a complaint for failure to state a cause of action is one without prejudice. It does not bar the subsequent re-filing of the complaint (RULES OF COURT, Rule 16, Sec. 5) 443, do Tay [tey) UA =ATL W/ Q: State the distinctions between “failure to state a cause of action” and “lack of cause of action.” ANS: The distinctions are the following: (DARE) Lack of Cause of Action eee) It can be determined only from the | jt can be resolved only on the basis of the allegations in the initiatory pleading | evidence he has presented in ‘support of and not from evidentiary or other | his claim. matters aliunde. Cyn There is failure to state a cause of | There is a lack of cause of action where action where the complaint does not | the evidence does not sustain the cause allege a sufficient cause of action. of action alleged. Pina The ground of failure.to-state 4 Cause-|--The ground of-lack of cause of action is of action is raised’in & motién to | raised-in.a-demurter to evidence under dismiss under ,Rule~ 16” before~a™|~Rule-33_aner the plaintiff has rested his responsive pleading is filed. / . 3 Se eee moe ae It does not concern itself with the truth | It arises precisely because the judge has and falsity of the allegatigns in the | determined the truth and falsity of the pleading | let \ allegations.and has"found the evidence “| wenating, } (Domondon v. Lopéz, A.M. No. RTJ-02-1696, June 20, 2002)./, Test of the Sufficiency of Couse of Action g ff Q: What is the testof suffidiency-of ajcomplaint? _ ANS: The test of sufficiency of the.facts found in. a-compiaint as constituting a cause of action is whether or not admitting the facts” alleged, the*court can render a valid judgment upon the same imaccordance With the prayer thereof (Misamis Occidental If Cooperative Inc v. David, G.R. No--129928, August-25, 2005). Splitting a Single Cause of Action and its Effect Q: What is meant by splitting of causes of action? ANS: Splitting a single cause of action is the act of instituting two or more suits for the same cause of action (RULES OF COURT, Rule 2, Sec. 4). It is the act of dividing a single cause of action, claim, or demand into two or more parts, and bringing suit for one of such parts only, intending to reserve the rest for another separate action (REGALADO, Remedial Law Compendium (2010), p. 76) [hereinafter REGALADO, Remedial Lavy. Q: What is the effect of splitting a single cause of action? ANS: If two or more suits are instituted for a single cause of action, the filing of one (litis pendentia or forum shopping) or a judgment upon the merits in one (res judicata) shall be a ground for the dismissal of the others (RULES OF COURT, Rule 2, Sec. 4). As to which action is to be dismissed on the ground of /itis pendentia, such determination would lie within the discretion of the court and based on the prevailing circumstances of the case (1 RIANO, supra at 187). 444BEDAN RED BOOK Note: Litis pendencia and forum shopping have similar elements, so it is best for the counsel fo move for the dismissal based on forum shopping under Section 5, Rule 7 and show that the party or his counsel willfully and deliberately resorted to forum shopping because the effect is a dismissal with prejudice in addition to the sanction for a direct contempt as well as a cause for administrative sanctions. Q: What is joinder of causes of action? ANS: A joinder of causes of action is the uni action in a complaint. The question of the joinder of causes of action involves in Particular cases a preliminary inquiry as to whether two or more causes of action are alleged (Decena v. Piquero, G.R. No. 155736, March 31, 2005). 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 (RULES OF COURT, Rule 2, Sec. 5). 19 of two or more demands or right of Q: State the tests involved in a joinder of causes of action. ANS: In declaring whether more than one cause of action is alleged, the main thrust is whether more than one primary right or Subject of controversy is present. Other tests are: (BOSS) 1. Whether recovery on one ground:would Bar recovery on the other; 2. Whether more than One distinct! primary. right orsubject of controversy is alleged for enforcement or adjudication; = Whether the same evidence would Support the other different counts; or Whether Separate actions could be maintained for separate rele (I) ae Q: Are there any limitations to the joinder of causes of actions? ANS: The ioinder of causes’of action is allowed, subject to the\ following conditions: (ConA The party joining the causes of action shall. Comply'with the. Rules on joinder of parties; 2. The joinder shall Not include special civil actionsor actions governed by special Rules; ® 3. Where the causes of action are.between the same parties but pertain to Different venues or jurisdictions, the joinder: may be allowed in the Regional Trial Court provided one.of the causes of-action falls within the jurisdiction of said court and the venue lies therein; and 4, Where the claims in all the causes of action are principally for recovery of money, the Aggregate amount claimed shall be the test of jurisdiction (RULES OF COURT, Rule 2, Sec. 5). Q: When is there a misjoinder of causes of action? ANS: There is a misjoinder of causes of action when two or more causes of action were joined in one complaint when they should not be so joined. When there is a misjoinder of causes of action, the erroneously joined cause of action may be severed and proceeded with separately upon motion by a party or upon the court's initiative (Perez v. Hermano, G.R. No. 147417, July 8, 2005). It is not a ground for the dismissal of the action (RULES OF COURT, Rule 2, Sec. 6). Q: Can there be a valid judgment in case of misjoined causes of action? ANS: Yes. Misjoinder of causes of action is not a ground for dismissal. Indeed, the courts have the power to order the severance of the misjoined cause of action to be proceeded with separately. However, if there is no objection to the improper joinder or the court did not motu proprio direct a severance, then there exists no bar in the simultaneous adjudication of all the erroneously joined causes of action (Ada v. Baylon, GR No. 182435, August 13, 2012) 445EDAN RED BOOK Jie Note: The foregoing Rule only applies if the court trying the case has jurisdiction over all Of the causes of action therein notwithstanding the misjoinder of the same. If the court trying the case has no jurisdiction over a misjoined cause of action, then such misjoined cause of action has to be severed from the other causes of action, and if not so severed, any adjudication rendered by the court with respect to the same would be a nulity (Id.). C PARTIES TO CIVIL ACTIONS (RULE 3) Real Parties in Interest; Indispensable Parties; Representatives as Parties; Necessary Parties; Indigent Parties; Alternative Defendants Q: Who is a real party in interest? ANS: A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by the iaw or Rules, every action musi te prosecuted or defended in the name of the real party in interest (RULES OF COURT, Rule 3, Sec. 2). Note: To be a real party-in-interest. the. interest must be ‘real’, which is a present substantial interest as distinguished from a mere. contingency, or a future, contingent. subordinate, or consequential interest (Rayo v. Metrobank,.G.R. No. 165142, December 10, 2007) Q: Who is an indispensable party? ANS: An indispensable. party is a real_party-in-interest. without whom no final determination can be had of an action (RULES OF COURT, Rule 3, Sec. 7). The joinder of party becomes compulsory when the one involved is an indispensable party (Crisologo v. JEWN Agro-Industrial Corporation, G.R. No. 196894, March 3, 2014). Q: What is the effect of not impleading the indispensable party? ANS: The Rule is settled that the non-joinder of indispensable parties is not a ground for the dismissal of. an» action. The remedy is to implead the non-party claimed to be indispensable. Parties may be added by order of the court on motion of the party or on its own initiative at any stage of the’action and/or at such times as are just. If petitioner refuses to implead an indispensable pany despite the order of the.court, the latter may dismiss the complaint/petition for the plaintiffs/petitioner’s failure to comply therewith (Divinagracia v. Parilla, G.R. No. 196750, March 12, 2015) Q: Who can be representatives of parties? ANS: A representative may be a trustee of an express trust, a guardian, an executor or administrator or @ party authorized by law or the Rules of Court (RULES OF COURT, Rule 3, Sec. 3). Q: Are representatives allowed as parties? ANS: Yes. Where the action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal (RULES OF COURT Rule 3, Sec. 3) Q: Who are necessary parties? ANS: A necessaly party is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded or for a complete determination or settlement of the claim subject of the action (RULES OF COURT, Rule 3, Sec. 8). 446BEDAN RED BOOK: VOL 2. 2019 Q: What is the effect of the non-inclusion of a necessary party? ANS: The non-inclusion of a necessary party does not prevent the court from Proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party (RULES OF COURT, Rule 3, Sec. 9). Q: Who are indigent parties? ANS: An indigent party is one who has no money or property sufficient and available for food, shelter, and basic necessities for himself and his family. Upon ex parte application and hearing, a party may be authorized by the court to litigate his action, claim or defense as an indigent. Such party will be exempted from the payment of docket fees and of transcript of stenographic notes. However, the amount of the decket and other lawful fees shall be a tien on the judgment rendered in the case favorable to the indigent; it will not be a lien when the court provides otherwise (RULES OF COURT, Rule 3, Sec. 21). Q: May the plaintiff implead several defendants and have inconsistent claims against each of them? ANS: Yes. Where the plaintiff is uncertain agairst who of several persons he is entitled to relief, he may join any or all of them as defendants in the altern: , although a right to relief against one may be inconsistent with a right to relief against the other (RULES OF COURT, Rule 3, Sec. 13). Compulsory and Permissive Joinder of Parties _ Q: When is permissive joinder of parties allowed? ANS: Parties can be joined in a single complaint orimay, themselves maintain or be sued in seyarate suits. Normally, joinder of parties is permissive provided that the following requisites concur: (CAP) ] 1. There is a question of law or fact Common to all plaintiffs or defendants; 2. The right to relief Arises from the same transaction or series of transactions; and = 3. The joinder is not Proscribed by the provisions of the Rules on jurisdiction and venue (RULES OF COURT, Rule 3, Sec. 6). Q: When is joinder of parties compulsory? ANS: Joinder of a party becomes compulsory when the one involved is an indispensable party. Where an indispensable party is not a party to an action, the court shall order that he be joined as a party to the action (RULES OF COURT, Rule 3, Sec. 7). Misjoinder and Non-Joinder of P Q: When is there a misjoinder of parties? ANS: A party is misjoined when he is made a party to the action although he should not be impleaded (1 RIANO, Civil Procedure, supra at 230). Q: Define non-joinder of parties. ANS: It means the failure to bring a person who is a necessary party or in this case an indispensable party into a lawsuit (Heirs of Mesina V Heirs of Fian, Sr. G.R. No. 201816, April 8, 2013). 147@ DAN RED BOOK ee Q: Is the misjoinder or non-joinder of parties a ground for dismissal? ANS: The misjoinder or non-joinder of a party is not per se a ground for the dismissal of the action (RULES OF COURT, Rule 3, Sec. 11). However, when the court orders the adding or dropping of a party and such is not obeyed, the ground for dismissal will be the failure to comply with the court's order (RULES OF COURT, Rule 17, Sec. 3). Gass Suits Q: What is a class suit? ANS: A class suit is an action where the subject matter of the controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties and a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all (RULES OF COURT, Rule 3, Sec. 12). Q: What are the requisites of a class suit? ANS: The following are the requisites ofa Class suit; (CIS) 1. The subject mater-of controversy is\one of Common or general interest to many persons; / 2, The parties affected are so-nUiiéroUs that it is Impracticable to bring them all tocourt; and Yo 3. The parties. bringing the’class suit are Sufficiently numerous or representative of the (Class “and can fully protect the interests*of all\ concerned (Juana Complex | Homeowners Association, inc. V, Fil-Estate-Land, Inc. G.R. No. 152242, Mprdh 8, 2012) Suit inst Eat without Juridical Personalit +4 Q: [scuss the Rules regarding suits against entities without juridical personality. ANS: Persons associated in. an. entity without juridical personality may be sued under the name by which théy are Generally or commonly. known, but they cannot sue under such name. In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed (RULES OF COURT, Rule 3, Sec. 15). Effect of Death of Party Litigant Q: What is the effect of the death of a party litigant to the complaint? ANS: Where the claim is notextinguished'by the death of the litigant: (IS-ExecAd-G) 4. The counsel shall Inform the court of such fact within 30 days from such death and to give the name and address of the legal representative; 2. Heirs may be Substituted for the deceased, or 3. If no legal representative is named, the court will order the opposing party to procure the appointment of an Executor or Administrator for the estate of the deceased; and 4, In case of minor heirs, the court may appoint a Guardian ad litem for them (RULES OF COURT, Rule 3, Sec. 16). Q: What are the Rules when the action survives the death of the party? ANS: It depenas if the action involves a contractual money claim or not A. Ifitis a contractual money claim: 1. If the plaintiff dies - the case will continue and the heirs or legal representatives will proceed as substitutes; or 2. Ifthe defendant dies: ‘a. Before entry of final judgment - the case shall not be dismissed but shall be allowed to continue until entry of final judgment (RULES OF COURT, RULE 3, Sec. 20), 448,EDAN RED BOOK b. After entry of final judgment but before execution - all claims against the decedent, whether due, not due, or contingent, must be filed within the time limited in the notice es a claim against the estate (RULES OF COURT, RULE 86, Sec. 5). The plaintiff cannot move for execution under Rule 39; or c. After levy or execution but before auction sale ~ the property actually levied may be sold for the satisfaction of the judgment obligation (RULES OF COURT, RULE 39, Sec. 7, par. c). B. It it involves a non-contractual money claim or claims which are mentioned in Section 7, Rule 86 and Section 1, Rule 87, there must be substitution (1 RIANO, supra at 238). Q: What is the remedy if one of the co-plaintiff is unwilling to join the case? ANS: If the consent of any party who should be joined as plaintiff cannot be obtained, he may be made a defendant and the reason thereof shall be stated in the complaint (RULES OF COURT, Rule 3, Sec. 10). D. VENUE (RULE 4) Venue of Reol Actions Q: What is the venue of real actions? : ANS: Where the action is real, the venue is loc the real property involved, or any portion thereot 4, Sec. 1). hence, the venue is the place where is situated (RULES OF COURT, Rule Venue of Personal Actions a Q: What is the venue of personal actions? \ ANS: If the action is personal, the venue ‘is transitory; hence, it is the residence of the plaintiff or any of the principal plaintifs, of the residence of théidafendant or any of the principal defendants, at the election of the plainlff (RULES OF COURT, Rule 4, Sec. 2). Venue of Actions against Non-Residents Q: Discuss the Rules on venue of actions against non-residents. ANS: If the action is personal andthe defendant’is 2 non-resident, the venue is the residence of the plaintiff or where the non-resident defendant may be found, at the election of the plaintiff (RULES OF COURT, Rule 4, Sec. 2) When the action is real, and the defendant is a non-resident not found in the Philippines and the action affects the personal status of the plaintiff or any property of the defendant in the Philippines, the venue shall be the residence of the plaintiff or where the property or any portion thereof is situated (RULES OF COURT, Rule 4, Sec. 3). When the Rules on Venue donot Apply Q: When are the Rules on venue not ap) ANS: The Rules on venue shail not apply where: 1. The Rules or substantive law provides othenwise, e.g., an action for damages arising from libel; and the power of the Supreme Court to order a change of venue to avoid miscarriage of justice (CONST., Art. Vill, Sec. 5, par. 4); 2. The parties have validly agreed in writing before the filing of the action on the exclusive venue thereof (RULES OF COURT, Rule 4, Sec 4) 449 REMEDIAL LAW rfaria 2 Effects of Stipulation on Venue Q: Can the parties agree upon a specific venue? ANS: Yes. The parties may validly agree upon a specific venue which could be in a place where neither of them resides, provided the following requisites are met: (WEB) 1. The agreement must be in Writing; 2. There must be Exciusivity as to the selection of the venue; and 3. It must be made Before the filing of the action (RULES OF COURT, Rule 4, Sec.4). £& PLEADINGS Q: What are pleadings? ANS: Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment (RULES OF COURT, Rule 6, Sec. 1). Kinds of Pleadings (Rule 6) Q: What are pleadings allowed by the Rules of Courtin’an ordinary c ANS: The following are the pleadings allowed by the Rules of Court: Complaint; Answer, Counterclaim; Cross-claim; Third (fourth, etc.) party complaint; Complaint-in-intervention; and Reply (RULES OF COURT, Rule 6, Sec. 2) NP AEENS Complaint , Q: What is an initiatory pleading? ANS: It is an incipient application of a party asserting a claim for relief (Cruz-Agana v. Santiago-Lagman, G.R. No. 139018, April 11, 2005) Q: What is 2 complaint? ANS: A complaint is an initiatory pleading alleging the plaintiff's cause or causes of action. The names and residences’ of the plaintiff and defendant must be stated in the complaint (RULES OF COURT, Rule 6, Sec. 3). It should’contain a concise statement of the ultimate facts constituting the plaintiff's cause of action. The jurisdiction of the court and the nature of the action are determined by the averments in the complaint (Fort Bonifacio Development Corporation v. Domingo, G.R. No. 180765, February 27, 2009). Answer Q: What is an answer? ANS: An answer is a responsive pleading in which a defending party sets forth his defenses (RULES OF COURT, Rule 6, Sec. 4). Q: What types of defenses may be set up by the defendant? ANS: The defendant may set up two kinds of defenses: negative and affirmative defenses (RULES OF COURT, Rule 6, Sec. 5). Negative Defenses Q: What is a negative defense? ANS: A negative defense is the specific denial of the material fact or facts alleged in the pleading o/ the claimant essential to his cause or causes of action (RULES OF COURT, Rule 6, Sec. 5, par. (a)) 450 ohDAN RED BOOK Negative Pregnant Q: What is a negative pregnant? ANS: It is said to be a denial pregnant with an admission of the substantial facts in the pleading responded to. It is not a specific denial, and is actually an admission. This arises when the pleader merely repeats the allegations in a negative form (1 REGALADO, Remedial Law supra at 181). Where a fact is alleged with some qualifying or modifying language, and the denial is conjunctive, a ‘negative pregnant’ exists, and only the qualification or modification is denied, while the fact itself is admitted (Venzon v. Rural Bank of Buenavista, G.R. No. 178031, August 28, 2013). Affirmative Defenses Q: What is an affirmative defense? ANS: Itis an allegation of a new matter which, while hypcthetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. The affirmative defenses include, fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of contession and avoidance (RULES OF COURT, Rule 6, Sec. 5, par. b). Counterclaims Q: What are counterclaims? . ANS: Counterclaims refer to claims which a defending party may have against an opposing party (RULES OF COURT; Rule 6, Sec. 6). It partakes of a complaint by the defendant against the plaintiff (1 RIANO, supra at 314). \ Compulsory Counterclaim & ; | Q: What is a compulsory counterclaim’ ANS: A compulsory counterclaim is a claim which (CoCo-Not-JEx) < 1. Itis Cognizable by the regular courts of justice; 2. It arises out of, or is Connected with the transaction or occurrence constituting the subject matter of the opposing party's claim; 3. It does Not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction; 4, It must be within the Jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount (RULES OF COURT, Rule 6, Sec. 7); and 5. It is already in Existence at the time that the defending party files vis answer (RULES OF COURT, Rule 11, Sec. 8). fies: the following requisite: Q: Why is the filing of a compulsory counterclaim important? ANS: The failure of the defendant to set up a compulsory counterclaim shall bar its institution (RULES OF COURT, Rule 9, Sec. 2), however. 1. If the counterclaim matured or was acquired after the defendant had served his answer, it may be pleaded by filing a supplemental answer or pleading before judgment, with leave of court (RULES OF COURT, Rule 10, Sec. 6; Rule 11, Sec. 9); and 2. When a pleader fails to set-up a counterclaim through oversight, inadvertence, excusable negligence, or when justice requires, he may, by leave of court, set- up the counterclaim by amendment of the pleadings before judgment (RULES OF COURT, Rule 11, Sec. 10). 451 eee REMEDIAVOL 2. Vf 2079 Q: What is a permissive counterclaim? ANS: A counterclaim is permissive if it does not arise out of or is not necessarily connected with the subject matter of the opposing party's claim. A permissive counterclaim is essentially an independent claim that may be filed separately in another case (Alba v. Malapajo, G.R. No. 198752, January 13, 2016). Q: What are the criteria in determining whether a counterclaim is compulsory or permissive? ANS: The criteria are as follows: RILE 1. Would Res judicata bar a subsequent suit on defendants ‘claim, absent the compulsory counterclaim Rule? 2. Are Issues of fact and law raised by the claim and by the counterclaim largely the same? 3. _ Is there any Logical relation between the claim and the counterclaim? 4. Will substantially the same. Evidence support or refute plaintiff's claim as well as defendant's counterclaim? (Id.). Ifthe answer to all is yes, then the counterclaim is compulsory. Q: What are the distinctions between permissive cou counterclaim? ANS: The following ‘are the ‘distinctions between a permissive ‘counterclaim and a compulsory counterclaim: (BASIC) terclaim and compulsory Compulsory Counterclaim ~ Se eet Sees One which does not arisé out of nor | One which arises out of or is necessarily is it necessarily connected with the | connected with © the~ transaction or ‘subject matter of the:opposing party's | occurrence that is the-subject matter of claim. the opposing party's claim * As to necessity of Answer A permissive counterclaimmust be | A compulsory counterclaim that merely answered by the party against whom it | reiterates ‘spécial’ defenses are deemed is interposed. Otherwise, he may be») controverted even without a reply. In such declared in default as~to the | a case, failure to answer may not be a counterclaim. cause for a declaration of default. It shall_be accompanied by a | It does not need for such certification. certification against forum shopping, and whenever required by law, also a certificate to file action issued by the Lupong Tagapamayapa, MS Me ana ee Initiatory pleadin: Not an initiatory pieading ry pl 9 Pah TT ET kus Cae LF A permissive counterclaim may be set | A compulsory counterclaim shall be up as an independent action and will | contained in the answer because a not be barred if rot contained in the | compulsory counterclaim not set up shall answer to the complaint. be barred. (Lafarge Cement Philippines, inc. v. Continental Cement Corporation, supra). 452VOL 2. 2019 BEDAN RED BOOK Note: Payment of docket fees for compulsory counterclaims remains to be suspended. The ruling in Korea Technologies Co., Ltd. v. Lerma, G.R. No. 143581, January 7, 2008 with respect to the requirement of payment of docket fees for compulsory counterclaims has been deleted in a revised issuance (Office of the Court Administrator Circular 96- 2009, August 13, 2009). On Counterclai n The Compkk What is the effect on the counterclaim when the complaint is dismissed? ANS: The dismissal of the complaint where the defendant has previously filed an answer and a counterclaim, whether compulsory or permissive, shall allow the latter to prosecute the counterclaim whether in the same or a separate action notwithstanding such dismissal: 1. If no motion to dismiss has been filed, any cf the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. If during the hearing on the affirmative defenses, the- court decides to dismiss the complaint, the counterclaim pleaded in the answer, compulsory or permissive, is not dismissed (RULES OF COURT, Rule 16, Sec. 6, par. 2). 2. Where the plaintiff himself files a motion to dismiss his own complaint after the defendant has filed an answer with counterclaim, the dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within 15 days from notice of the motion, he manifests his preference to have his counterclaim resolved jn the same action (RULES OF COURT, Rule'17, Sec. 2). > i 3. Where the complaint is dismissed due to the plajntif’s fault and ata time when a counterciaim has already been'set up, the dismissal is also without prejudice to the right of the defendant to prosecute his Counterclaim in the same or separate action (RULES OF COURT, Rule 17, Se0=3)2" t Is Dismi Cross-Claims Q: What is a cross-claim? ANS: A cross ciaim refers to any ciaim by oné parly against a co-party arising out of the transaction or occurrence that is the subject matter of éither the original action or of a counterclaim therein. A cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant (RULES OF COURT, Rule 6, Sec. 8). A cross-claim may be filed against the original cross-claimant (RULES OF COURT, Rule 6, Sec. 9). Third (Fourth, Etc.) Party Complaints Q: What is a third (fourth, etc.) party complaint? ANS: It refers to a complaint independent of the plaintiff's complaint where the defendant may, with leave of court, file against a person not a party to the action for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim (RULES OF COURT, Rule 6, Sec. 11). Complaint-in-Intervention Q: What is a complaint-in-intervention? ANS: A complaint-in-intervention refers to a pleading filed by a third person who is not a party to the action but having an interest in the matter of the litigation and asserting a claim against either or all of the original parties to the action. Such party may, with leave of court, become a party to the pending action (RULES OF COURT, Rule 19, Sec. 1). 453 REMEDIAL LAW. | | | 4 a ol 1 | / | // s: Reply Q: Whatis a reply? ANS: A reply is the responsive pleading to an answer. Its function is to deny or allege facts in denial or avoidance of new matters alleged by way of defense in the answer, thereby joining or making issue as to such new matters (RULES OF COURT, Rule 6, Sec. 10). Q: Is the plaintiff required to file a reply? ANS: The general rule is that the filing of a reply is not mandatory and will not have an adverse effect since all the new matters alleged in the answer will be deemed controverted or denied (RULES OF COURT, Rule 6, Sec. 10). However,-when the defense in the answer is based upon a written instrument or document, said instrument is considered an actionable document (RULES OF COURT, Rule 8, Sec. 7). Hence, the plaintiff has to file a reply under oath if he desires to deny specifically the genuineness and due execution of the actionable document, and avoid an admission of such matters (1 RIANO, supra at 336). Pleadings under The 2016 Revised Rules of Procedure for Small Ciaims Q: What pleadings afe allowed in smaii claims cases? ANS: The pleadings allowed in small-claims cases are the: (SRC) 1. Statement of Claim (A.M. No, 08-8-7-SC, Sec. 5); 2. Response (A:M. Nc. 08-8-7-SC, Sec. 11); and 3. Counter-claim in the response (A.M. No. 08-8-7-SC, ‘Sec. 13). Note: The Rule of Procedure for Small Claims Cases provides that. the defendant may also elect to file’ a counterclaim against the plaintiff that does not arise out of the same transaction or occurrence, provided that the amount and nature’thereoi are within the coverage of aforesaid Rule and the prescritvzd docket tees and other legal fees are Paid. Thus, permissive counterclaim is allowed subject to the limitation stated (Id). Q: What are the prohibited pleadings and motions under the Revised Rule of Procedure for Small Claims Cases? ANS: The following, pleadings, motions, or petitions shall not be“allowed in the cases covered by this Rule: (DiB-New-REM-CMP-DeDi-RIT) 1. Motion to Dismiss the Statement of Claim/s; 2. Motion for a Bill of particulars; 3. Motion for New trial, or for reconsideration of a judgment, or for reopeniag of trial 4, Petition for Relief from judgment; 5. Motion for Extension of time to file pleadings, affidavits, or any other paper; 6 T Memoranda; Petition for Certiorari, Mandamus, or Prohibition against any interlocutory order issued by the court; 8. Motion to Declare the defendant in default; 9. Dilatory mations for postponement; 10. Reply and rejoinder; 11. Third-party complaints; and 12. Interventions (A.M. No. 08-08-7-SC, Sec. 16). 454EDAN RED BOOK Pleadings under the 1991 Revised Rule on Summary Procedure Q: What pleadings are allowed in cases governed by the Rules on Summary Procedure? ANS: The only pleadings allowed under this Rule, which must all be verified, are: Complaint, Compulsory counterclaims pleaded in the answer; and Cross claims pleaded in the answer and the answers thereto (Revised Rules on Summary Procedure, Sec. 3, par. (a)). Q: What are the prohibited pleadings and motions under the rule on Summary Procedure? (DiBiN-REM-CeD-PReTl) ANS: The following pleadings, motions or petitions shall not be allowed in the cases covered by this Rule: 1. 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; 2. Motion for a Bill of particulars; 3. Motion for New trial, or for reconsideration of a judgment, or for reopening of trial; 4, Petition for Relief from judgment; 5. Motion for Extension of time to file pleadings, affidavits or any other paper; 6. Memoranda; 7. Petition for ertiorari, mandamus, or prohibition against any interlocutory order issued by the court; 8. Motion to Declare the defendant in default; 9. Dilatory motions for Postponement; 10. Reply; 11. Third party complaints; 12. Interventions (Revised Rules on Summary Procedure, Sec, 19). Parts of a Pleading (Rule 7) Caption Q: What is a caption? ANS: The caption is the part of the pleading which contains the name of the court, the title of the action which indicates the names of the parties, and the docket number, if assigned (RULES OF COURT, Rule 7, Sec. 1) Verification and Certification again=t Forum Shopping Q: When is verification required? ANS: As a general rule, a pleading need not be under oath or verified or accompanied by an affidavit, unless itis required by a law or by a Rule (RULES OF COURT, Rule 7, Sec. 4). A pleading required to be verified but lacks the proper verification shall be treated as an unsigned pleading, as if not filed in court. Hence, it produces no legal effect (RULES OF COURT, Rule 7. Sec. 3). A pleading is verified by an affidavit which declares that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records (RULES OF COURT, Rule 7, Sec. 4). Note: The court may, however, order the correction of the pleading, if the attending circumstances are such that a strict compliance may be dispensed with in the interest of justice since verification is only a formal and not a jurisdictional requirement (1 REGALADO, Remedial Law supra at 163) 455 REMEDIAL LAW £VOL 2. 2019 "= BEDAN RED BOOK Q: What is a certification against forum shopping? ANS: The certification against forum shopping is a mandatory requirement in filing an initiatory pleading and is executed by the plaintiff or the principal party and not by his counsel (Eagle Star Security Services, Inc. v. Mirando, G.R. No. 179512, July 30 2009) The plaintiff or the principal party shall certify under oath: (COL) 1. That the party has not Commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, that to the best of his knowledge no such other action or claim is pending; 2, That if there is such Other pending action or claim, a complete statement of the present status thereof; and 3. That if he should therefore 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 where his aforesaid complaint or initiatory pleading has been filed (RULES OF COURT, Rule 7, Sec. 5). Q: What is forum shopping? ANS: Forum shopping is the act by a party of repetitively availing of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts or circumstances, and all raising substantially the same issues either pending or already resolved adversely by some other court (Tomas v. Criminal Investigation and.Detection Group, G.R. No. 298090, November 9, 2016). : Q: What is the test to determine the presence of forum shopping? ANS: In determining the presence of forum shopping, the test should be whether in the two or more cases pending there is: (PRR) 1. Identity of Parties; } 2. Identity of Rights asserted and reliet prayed for; and 3. Identity of two preceding particulars is such’ that any judgment rendered in the pending case, regardless of which party is successful, would amount to Res judicata in the\other case’(Grace Park Intemational Corporation v. EastWest Banking Corporation, G.R. No 210606, July 27, 2076 ). Q: What is the effect of non-compliance with the rule on forum shopping? ANS: The failure to comply with the required certification’ is not curable by mere amendment and shall be a.cause for dismissal of the action without prejudice, unless otherwise provided, upon motion after hearing (RULES OF COURT, Rule 7, Sec. 5). Q: Can the dismissal on the ground of non-compliance with the rule on forum shopping be done by the court motu proprio? ANS: No. The Rule requires that the dismissal be upon motion and after hearing (RULES OF COURT, Rule 7, Sec. 5). Q: What is the effect of the submission of a false certification or non-compliance with any of the undertakings in the certificate of non-forum shopping? ANS: It will constitute an indirect contempt of court, without prejudice io corresponding administrative and criminal actions (RULES OF COURT, Rule 7, Sce. 5} Q: What are the effects if the act done by the party or counsel willfully and deliberately constitutes forum shopping? ANS: The effects are as follows: (SAD) 1. The same shall be a ground for Summary dismissal with prejudice, 2. _Itwill be a ground for Administrative sanctions; and 3. It shall constitute Direct contempt (RULES OF COURT, Rule 7, Sec. 5) 456Re of a Corporatic ‘utr rificatic rtificatic Non- Forum Shopping Q: What are the requirements of a corporation executing the verification/certification of non-forum shopping? ANS: Where the plaintiff or a principal party is @ juridical entity like a corporation, it may be executed by a properly authorized person. This person may be the lawyer of the corporation so long as he is specifically authorized by the corporation and has personal knowledge of the facts required to be disclosed therein (National Steel Corporation v. CA, G.R. No. 134468, August 29, 2002). Note: The following officials or employees of the company can sign the verification and certification without need of a board resolution: (CP-PEG) 1. Chairperson of the Board of Directors; 2. President of a corporation; 3. Personnel Officer; and 4. Employment Specialist in a labor.case; and 5. General Manager or Acting General Manager; Note: The above cases do not provide the complete listing of authorized signatories. As long as one is in a position to verify the truthfulness and correctness of the allegations in the petition, the cfficial can sign the verification and certification without need of a board resolution (Swedish Match PHL. v. The Treasurer of the City of Manila, G.R. No. 181277, July 3, 2013). z Effect of the Signature of Counsel ina Pleading Q: What is the effect of the signature of the counsel in a pleading? ANS: The counsel's signature certifies that: (PIG) 1. He has read the Pleading; 1 2. To the 2st of his knowledge, iniormation, and belief, thee is a good Ground to support it; and : 3. Itis not Interposed for delay (RULES OF COURT, Rule 7; Séc. 3). Q: What are ultimate facts? ANS: Ultimate facts are such facts as are so,essential that they cannot be stricken out without leaving the statement of cause of action inadequate (Canete v. Genuino Ice Company, G.R. No. 154080, January 22, 2008). Manner of Making Allegations (Rule 8) Q: Discuss the manner of making allegations. ANS: Every pleading shalll contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, omitting statements of evidentiary facts (RULES OF COURT, Rule 8, Sec. 1). Conditions Precedent Q: How are conditions precedent pleaded? ANS: Where there are matters that must be complied with before a cause of action will arise, a general averment of the performance or occurrence of all such conditions precedent shall suffice (RULES OF COURT, Rule 8, Sec. 3). Fraud, Mistake, Malice, Intent, Knowledge and Other Conditions of the Mind Q: Discuss the manner of pleading fraud, mistake, intent, knowledge and other conditions of the mind. ANS: In pleading fraud or mistake, the circumstances constituting such fraud or mistake must be stated with particularity. In pleading Malice, Intent, Knowledge, or Other conditions (MIKO) of the mind cf a person, the same may be averred generally given 457 = s ae ms ara ae a (er Pthe difficulty in stating the particulars constituting these matters (RULES OF COURT, Rule 8, Sec. 5). Pleading an Actionable Document Q: What is an actionable document? ANS: An actionable document is a written instrument or document upon which an action or defense is based (7 RIANO, supra at 280). Q: How is an actionable document pleaded? ANS: When an actionable document is the basis of a pleading, the pleader must either: 1. Set forth the substance of such document in the pleading and attach the original or a copy thereof as an exhibit, which shall be deemed to be a part of the pleading; or 2. Set forth the said document verbatim in the pleading (RULES OF COURT, Rule 8, Sec. 7). ic Deny Q: What are the types Of specific denials?~—_ ANS: The three types of specific denial are: (APD) 1. Absolute. denial; 2. Partial denialyand 3. Denial, by Disavowal of knowledge (Republic v. Gimenez; G.R. No. 174673, January 11, 2016). Q: What is an absolute denial? : ANS: There is/an.absolute denial when the defendant specifies éach material allegation of fart the truth of which he does not admit and whenever practicable, he shall set forth the substance of the)matters upon which he relies to support’such denial (RULES OF COURT, Rule 8, Sec. 10). Q: What is a partial denial? / ANS: There is partial denialhwhen the defendant does“not make a total denial of the material allegations in a specific. paragraph, denying only.a part of the averment. In doing so, he shall specify so'much of it as is true and material and shall deny only the remaining (RULES OF COURT, Rule 8, Sec. 10). Q: What is a denial by disavowal of knowledge? ANS: There is a denial by disavowal of knowledge when the defendant alleges having no knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint (RULES OF COURT, Rule 8, Sec. 10). Such denial must be made in good faith (Warner Barnes & Co., Ltd. v. Reyes, G.R. No. L-9531, May 14, 1958). Q: What is a general denial? ANS: If the denial does not fali within the scope of the abovementioned kinds of a specific denial, it shall be considered a general denial which is considered as an admission of the averment not specifically denied (Republic v. Gimenez, supra) Effect of Foilure to Moke Specific Denials Q: What is the effect of the failure to make a specific denial? ANS: Where the allegation is not specifically denied, it shal! be deemed admitted by the party against whom such allegation is directed against (RULES OF COURT, Rule 8, Sec. 11) 458BEDAN RED-BOO Note: The following are, nevertheless, not deemed admitted by the failure to make a specie denial: (ACN) Amount of unliquidated damages; 2 Conclusions in a pleading which do not have to be denied at all because only ultimate facts need be alleged in a pleading; and 3. Non-material averments or allegations are not deemed admitted because only material allegations have to be denied (RULES OF COURT, Rule 8, Sec. 11). When a Specific Denial Requires an Oath Q: When is an oath required in a specific denial? ANS: An oath is required in the denial of the: (AU) 1. Genuineness and due execution of an Actionable document (RULES OF COURT, Rule 8, Sec. 8); and 2. Allegations of Usury in a complaint (not allegations of usury in the answer) to recover usurious interest (RULES OF COURT, Rule 8, Sec. 11). Q: What are the exceptions to the requirement of an oath in contesting actionable documents? ANS: The exceptions are: i When the adverse party dogs not appear to be a patty to the instrument, or When compliance with an order. “for nin the original instrument is refused (RULES OF COURT, Rule 8, Sec. 3. Where the verified complaint: contested the actionable document, the defendants were placed on adequate notice thatthe) would be called upon during trial to prove the genuiness or due executién of the disputed actionable document.(Titan, Construction V. David, Sr. NO 169548, March 15, pe 2010). Effect of Failure to Plead (Rule 9) Foilure to Plead Defenses and Objections} Q: Discuss the effects of the failure to plead defenses and objections. ANS: As a general rulé, the failure to raise @ defense or an objection in an answer or 2 motion to dismiss shall be waiver of such deferise ofobjection. However, there shall be no waiver of the objection or defense if itis based on the following grounds: (ReLPS) 1. Res judicata; 2. Litis pendentia; 3. Prescription of the action; and 4. Lack of jurisdiction over the Subject matter (RULES OF COURT, Rule 9, Sec. 1). Note: The above defenses may be raised at any stage of the proceedings (Tijam v Sibonghanoy, supra). Failure to Plead a Compulsory Counterclaim and Cross-Ciaim Q: What is the effect of the failure to plead a compulsory counterclaim and cross- claim? ANS: A compulsory counterclaim or 2 cross-claim that was not set up shall be barred (RULES OF COURT, Rule 9, Sec. 2). Default Q: Define default. ANS: Default occurs when the defending party fails to file his answer within the reglementary period (RULES OF COURT, Rule 9, Sec. 3). 459 5 = — = fat uu > ul 4(_ ~~ BEDAN RED BOO Bis When a Declaration of Default is Proper Q: When can the court order the defendant be declared in default? ANS: The following must be present before the court shall order the defendant in default: (JAM-N-PH) 1. The coun must have validly acquired Jurisdiction over the person of the defendant either by service of summons or voluntary appearant The defendant fails to Answer within the time allowed therefor: There must be a Motion to declare the defendant in default filed by the claiming party; 4. There must be Notice to the defendant by serving upon him a copy of such motion (1 HERRERA, Remedial Law, supra at 807-808); 5. There must be Proof of such failure to answer; and 6. There must be a Hearing to declare the defendant in default (RULES OF COURT, Rule 9, Sec. 3). Effect of an Order of Default = Q: Discuss the effects of an Order of Default. ANS: The order of default has the following effects: (SNN) 1. The party deciared in.defauii loses his Standing in court preventing him from taking part in’ the trial, He may, hoWever,-participate in‘the trial as a witness (RULES OF GOURT; Rule 9, Sec. 3); e The party in-default shall still be entitled to Notice of subsequent proceedings, but not to take part in trial (RULES OF COURT, Rule,9, Sec..3); and 3. The declaration of default is Not an admission of the truth, or validity of the plaintiffs claims (Monarch Insurance Co., Inc. v. CA, G.R. No. 92735, June 8, 2000). | i Note: When a party is declared in default, the court may either proceed to render judgment or require the plaintiff to present his evidence-ex parte; the reception of which may be delegated to the clerk of court (RULES OF COURT, Rule 9, Sec. 3). The difference between the default judgment in| Rule.9 ani failure of the defendani to appear in the pretrial in Rule 18 is that, the judgment rendered against a party in default under the former shall not exceed'the amount or be different.in kind from that prayed for nor award unliquidated damages: (RULES OF COURT, Rule 9;.Sec’3(d)). While under Rule 18, there is no such limitation: ON np Relief from an Order of Default Q: How can a defaulting party get relief from an Order of Default? ANS: The defaulting party may, after notice of the order of default and before judgment, file under oath a Motion to Lift the Order of Default and show that the failure to answer was due to Fraud, Accident, Mistake or Excusable Negligence (FAMEN), and that he has a meritorious defense appearing in his affidavit of merit. In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice (RULES OF COURT, RULE 9, Sec. 3, par. b). Q: Can a denial of Motion to Lift the Order of Default be assailed by a Petition for Certiorari? ANS: Yes. An order denying the Motion to Lift the Order of Default is an interlocutory order and may be assailed by resorting to a special civil action under Rule 65 and not by an appeal (Prudential Bank & T-ust Company v. Macadaeg, G.R. No. L-10454, May 25, 1959). 460EDAN RED BOO Effect of Portial Default Q: What is the effect of a partial default? ANS: Where a pleading asserts a claim against several defendants and some of whom answer and the other fails to do so, the court shall try the case against all the defending parties based on the answers filed and render judgment on the evidence presented Where the claim states a common cause of action against them (RULES OF COURT, Rule 9, Sec. 3, par. c). Extent of Relief to be Awarded Q: What is the extent of relief that may be awarded toa claimant? ANS: Where the defendant is declared in default and subsequently judgment is rendered against him, such judgment shall not exceed the amount or be different in kind from that prayed for nor award uniiquidated damages (RULES OF COURT, Rule 9, Sec. 3, par. d).. Actions where Default is not Allowed: Q: Which actions prohibit a declaration of default? ANS: The following actions do not allow a party to be declared in default: (ANS*) ‘An action for Annulment of marti The declaration of Nullity of a marriage; An action for legal Separation; . In Special civil actions for certiorari, prohibition, and mandamus where a comment instead of an answer is required to be filed; In Small claims; and > fi \ In cases under Summary procedure. ft \ Note: In the first three instances, the cobrt shail ordér thé prosecuting attorney to investigate whether or not collusion exists between the‘parties. If there is no collusion, the court shall order said prosecuting attorney to intétvene for the State in order to see to it that the evidence submitted is not fabricated (RULES OF COURT, Rule 9, Sec. 3, par. e). SeNe on Q: What is the remedy of the aggrieved spouse if the other spouse fails or refuses to answer the complaint? ken ANS: Under A.M. No. 02-11-10-SC (Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages), if the defendant-spouse fails to answer the complaint, the court cannot declare him or her in default but instead, should order the prosecuting attorney to determine if collusion exists between the parties (Ancheta v. Ancheta, G.R. No. 145370, March 4, 2004}. Q: May a defendant be declared in default while a motion to dismiss or a motion for bill of particulars remains pending? ANS: No. The filing of a motion for a bill of particulars suspends the running of the period to file an answer. The period to file an answer is resumed upon the ainended complaint being filed in compliance with the court's order granting the motion for w bill of particulars (Dumanon v. Butuan City Rural Bank, G.R. No. L-27675, December 15. 1982) or upon notice of the denial of the motion, in which case the moving party may file his responsive pleading within the period to which he was entitled at the time of the filing of his motion and which shall not be less than 5 days in any event (RULES OF COURT, Rule 12, Sec. 5) 461 s a) ty >= aa “oe ENVOL 2. 2019 BEDAN RED BOOK dings (Rt endment as a Mat igh Q: When is an amendment a matter of right? ANS: The party has the unconditional right to amend his pleading once before a responsive pleading thereto is served by the other party; in the case of a reply, at any time within 10 days after itis served (RULES OF COURT, Rule 10, Sec. 2). Q: Can the plaintiff still arnend his complaint as a matter of right even if the defendant has a!ready been declared in default? ANS: Yes. Section 2 of Rule 10 provides that amendment is a matter of right before a responsive pleading is filed by the defendant. The order of default is deemed lifted and the defendant is given a new reglementary period of 15 days within which to file an answer to the amended complaint (RULES OF COURT, Rule 11, Sec 3). Q: Can plaintiff still amend his. complaint-as a matter of right against a non- answering defendant even if the other defendants has filed their answer? ANS: Yes, where some but not all the defendants have answered, the plaintiff may still amend its complaint once, as a matter“of 'Tight..in respect to claims asserted solely against the non-answering defendant, but not as to'claims asserted against the other defendants (Remington Industrial Sales Corporation V Court of Appeals G.R. No. 133657, May 29, 2002). Amendments by Leave of Court Q: When is an amendment required to have leave of court? ANS: Where a substantial amendment is sought to be made after-a responsive pleading has already been served, it is necessary for the party seeking such amendment to obtain leave of court. A motion must be filed in court with notice to the adverse party who shall be afforded the opportunity to be heard (RULES OF COURT, Rule 10, Sec. 3). Q: Can the court refuse to allow an amendment? ANS: Yes. The court maysrefuse to allow an amendment under the following circumstances: 1. When itis with intent to delay (RULES OF COURT, Rule 10, Sec. 3); 2. When it is for making the complaint confer jurisdiction upon the court (Home Guarantee Corp. v. R-II Builders, Inc., G.R. No. 192649, March 9, 2011); and 3. When it is for curing a premature or non-existing cause of action (Swagman Hotels &Travel, Inc. v. CA, G.R. No. 161135, April 8, 2005). Formal Amendment Q: What is a formal amendment? ANS: A formal amendment cures a defect in the designation of the parties and other clearly clerical or typographical errors. Said defect and errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided No prejudice is caused to the adverse party (RULES OF COURT, Rule 10, Sec. 4). Effect of Amended Pleading Q: Discuss the effects of an amended pleading. ANS: An amended pleading has the following effects: (SEW) 1. Amended pleading shall Supersede the pleading it amended; Admissions in the superseded pleading can still be received in evidence against the pleader but as an Extrajudicial admission which must be formally offered in evidence; and 462BEDAN RED BOOK 3. Claims or defenses alleged in the superseded pleading which are not incorporated in the amended pleading are deemed to have been Waived (RULES OF COURT, Rule 10, Sec. 8) Supplemental Pleadings Q: What are supplemental pleadings? ANS: A supplemental pleading is one which sets forth transactions, occurrences, or events which have happened since the date of the pleading sought to be supplemented. Its filing shall require leave of court through the filing of a corresponding motion, upon reasonable notice (RULES OF COURT, Rule 10, Sec. 6). \mendments to Conform to or Authorize tio ider Q: What is an amendment to conform to evidence? ANS: When issues not raised in the pleadings are tried with the express or implied conseni of the parties, they shall be treated, in all respects, as if they had been raised in the pleadings. The pleadings may be amended to conform to such evidence, upon motion of any party at any time, even after judgment and the failure to amend shall not affect the result of the trial on these issues (RULES OF COURT, Rule 10, Sec. 5). When to file a Responsive Pleading (Rule Ii). Q: Discuss the Rules on the periods of filing of responsive pleadings. ANS: The following shall be the reglementary periods in filing responsive pleadings: eer) Period for Filing 1. Answer to the | Within 15 days afler service of summons), unless a different complaint period is fixed by the court (RULE? OF COURT, Rule 11, Sec. 1). 2. Answer of a a. IFit has a resident ag-nt - within 15 days after the service defendant of summons to such age! foreign private | ». If it has no resident,agent but it has an agent or officer juridical entity in the Philippines — within 15 days after service of summens to said agent or officer; or c. If it has no resident agent. agent or officer - the service ‘of summons shall be made on the proper government office which will then forward it by registered mail within 10 days to the corporation's office. The answer must be filed within 30 days after receipt of the summons by the entity (RULES OF COURT, Rule 11, Sec. 2) 3. Answer toan | a, If the amendment is a matter of right, within 15 days after amended the service of the amended complaint. complaint b. If the amendment is not a matter of right, the answer must be filed within 10 days from notice of the order admitting the same. Note: This Rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended third (fourth, etc.)-party complaint, and amended complaint-in-intervention (RULES OF COURT, Rule 11, Sec. 3). 4. Answer to a | Within 10 days from service (RULES OF COURT, Rule 11, counterclaim Sec. 4). or cross-claim 463BEDAN RED BOO 5. Answer to a The period to answer shall be the same as the periods given in third-party answering a complaint which shall either be 15, 30 or 60 days complaint as the case may be (RULES OF COURT, Rule 11, Sec. 5). 6. Reply Within 10 days from the service of the pleading responded to (RULES OF COURT, Rule 11, Sec. 6). 7. Answer to Within 10 days from notice of the order admitting the supplemental | supplemental complaint, unless a different period is fixed by complaint the court (RULES OF COURT, Rule 11, Sec. 7). 8. Answertoa | Within 10 days from service of summons (Revised Rule on complaint Summary Procedure, Sec. 5). under the Rules on Summary a Procedure Note: The court may extend the time-to-file-the, pleadings but may not shorten them (ROC, Rule 11, Se0.41) except in quo warrants proceedings (RULES OF COURT, Rule 66, Sec. 8). a\ Q: What is the effect if there is no answer filed for an amended or supplemental complaint? i \G ANS: An answer_eaifliér filed may serve as the answer, to the'amended complaint if no new answer isififed (RULES OF COURT, Rule 11, Sec 3). The,answer to the complaint shall serve as the-ancwer to\the supplemental complaint if né“new! or supplemental answer is filed (RULES OF COURT, Rule 11/Sec 7). : j F. FILING AND SERVICE OF PLEADINGS, JUDGMENTS, FINAL ORDERS AND RESOLUTIONS 3 C / Rules on Payment of Docket Fees; Effects of Non-Payment Q: Discuss the Rule concerning the payment of docket fees. ANS: When an action isvfiled, the/filing must.be. accompanied by the payment of the requisite docket and filing fees. ‘ Jurisdiction over the case is acquired only upon payment of the prescribed fees (Nestlé-PHL v.-FY Sons, Inc., G.R. No. 150780, May 5, 2006). Q: Does the court automatically lose jurisdiction when the amount of docket fees paid is insufficient? ANS: No. The prevailing rule is that if the correct amount of docket fees is not paid at the time of filing, the trial court still acquires jurisdiction upon full payment of the fees within a reasonable time as the court may grant, oarring prescription. in this case, the Clerk of court or his duly authorized deputy has the responsibility of making a deficiency assessment, and the plaintiff will be required to pay the deficiency. The non- specification of the amounts of damages does not immediately divest the trial court of its jurisdiction over the case, provided there is no bad faith or intent to defraud the Government on the part of the plaintiff (Fedman Development Corp. v. Agcaoili, G.R. No, 165025, August 31, 2011). 464YAN Nad BOO RulelZ Filing versus Service of Pleadings Q: Differentiate filing from service of pleadings. ANS: Filing is the act of presenting the pleading or other papers to the clerk of court whereas service of pieadings refers to the act of providing a party with a copy of the pleading or paper concerned (RULES OF COURT, Rule 13, Sec. 2) Manner of Filing Q: Discuss the manner of filing of pleadings. ANS: The pleadings may be filed: 1. By presenting the original copy of the pleading, notice, appearance, motion, order or judgment plainly indicated as such personally to the clerk of court who shall endorse on the pleading the date and hour of filing; or 2. By registered mail which must be:through the Registry Service. The date of the mailing or payments or deposits as shown by the post office stamp on the envelope or the registry receiptyshall be considered as the date of filing, payment, or deposit in court (RULES OF COURT, Rule 13, Sec. 3). Modes of Service Personal Service Q: How is the personal service of pleadings done? ANS: It is made by: (POR) ‘ \ 1. Delivering Personally a copy to the party or his counsel; 2. By leaving it in the counsel's Office with his clerk of a person having charge thereof; or \ 3. If no person is found in his office, or his office.is office, then by leaving a copy between 8 a.m: at the party's or counsel's Residence, if known, with a person of Sufficient age and discretion then residing therein (RULES OF COURT, Rule 13, Sec. 6). Note: The persona! service is the preferred,mode of service (De Pedro v. Romasan Development Corporation, G.R. No. 194751, November 26, 2074). wn, or he has no Service by Mail Q: How is service by registered mail done? ANS: Service by way of registered mail is the preferred mode of mailing (Aberca v. Ver, G.R. No. 166216, March 14, 2012). Service by registered mail shail be made: (PSORPI) By depositing the copy in we Post office; Ina Sealed envelope; Plainly addressed to the party or his counsel at his Office, if known; Otherwise, at his Residence, if known; With postage iully Pre-paid; and With Instructions to the postmaster to return the mail to the sender after 10 days if undelivered (RULES OF COURT, Rule 13, Sec. 7). OoReNs Q: When may a party avail of service by ordinary mail? ANS: If no registered service is available in the locality of either the sender or the addressee, service may be done by ordinary mail (RULES OF COURT, Rule 13, Sec. 7). 465Sy» Substituted Service Q: When is substituted service available? ANS: This mode is availed of only when there is failure to effect service either Personally or by mail when the office and residence of the party or counsel is unknown. 't is effected by the delivery of the copy to the clerk of court, with proof of failure of both Personai service and service by mail (RULES OF COURT, Rule 13, Sec. 8). Q: What are the modes of service of judicial affidavits under the Judicial Affidavit Rule? ANS: The parties shall serve on the adverse party, personally or by licensed courier service, the judicial affidavits of their witnesses not later than five days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents (AM. No. 12-8-8-SC, Sec. 2). Service of judgments, final orders, or resolutions Q: How are judgments, final orders, or resolutions served? ANS: Judgments, final orders, Or. resolutions: shall be served either personally or by registered mail. When’ a party summoned..by publication has failed to appear, judgmenis, final orders or resolutions against him shall be served upon him also by way Of publication at the expense of the prevailing party (RULES OF COURT, Rule 13, Sec. 9). Priorities in modes of service ond filing Q: In the service-and filing of pleadings, which of the modesis the priority? ANS: Whenever practicable, the service and filing of pleadings and'other papers shall be done personally. Except with respect to papers emanating ffom the:court, a resort to other modes must be accompanied by a written explanation why the service was not done personally’ (RULES OF COURT, Rule. 13,/Sec. 11). The. pleadings may be considered as not filed if this. rule is violated (Marinduque Mining & Industrial Corp. v. CA, G.R. No. 161219, October 6, 2008). When Service is Deemed Complete Q: When is service deemed complete? ANS: The following rules shall apply: 1. Apersonal service is deemed complete upon actual delivery; A service by way of registered mail is deemed complete upon actual receipt by the addressee or after 5 days fron: the date he received the first notice of the postmaster, whichever is eerlier; 3. In service by ordinary mail, it is deemed complete upon the expiration of 19 days after mailing unless the court otherwise provides (RULES OF COURT, Rule 13, Sec. 10); and 4. In substituted service, it is complete at the time of the delivery of the copy to the clerk of court (RULES OF COURT, Rule 13, Sec. 8). Proof of Filing and Service Q: How is filing proved? ANS: The filing of a pleading or paper is proved by its existence in the record. If it is not in the record. 1. If filed personally: Proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same; or 2. IF filed by registered mail: Proved by the registry receipt and the affidavit of the person who did the mailing containing a full statement of: (DIP) 466 | | | |BEDAN RED BOOK a. The Date and place of depositing the mail in the post office in a sealed envelope addressed to the court; b. With Postage fully prepaid; and c. With Instructions to the postmaster to retum the mail to the sender after 10 days if undelivered (RULES OF COURT, Rule 13, Sec. 12). Q: How is service proved? ANS: The following rules shall apply to prove service of the pleadings: 1. Proof of personal service — shall consist of: (ARA) a. The written Admission of the party served; or b. The official Return of the server; or c. The Affidavit of the party serving containing full information of the date, place and manner of the service. 2. Proof of service by registered mail — proved by the affidavit of the person mailing of facts showing compliance with Section 7 of Rule 13 and the 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 (RULES OF COURT, Rule 13, Sec. 13). Proof of service by ordinary maif_= service shall be proved by the affidavit of the mailer showing compliance Section 7 of Rule 13 ild.). © G. SUMMONS Q: What is a summons? P j ANS: Summons is a writ by which a defendant is notified of the‘action brought against him (Republic v. Domingo, G.R. No. 175299, September,14, 2011). Its purpose is two- fold: to acquire jurisdiction over the personvof the defendant and to\notify the defendant that an action ha been commenced so that he may be given an opportunity to be heard ‘on the claim against him (Nation Petroleum Gas"Incorporated ‘V-.RCBC, G.R. No. 182370, August 17, 2015). : : Nature and Purpose of Summons in Relation to Actions in Personam, in Rem, and Quasiin Rem me Q: Discuss the nature and purpose of summons in’ relation to an action in personam, in rem and quasi in rem. ANS: In actions in personam, the purpose of summons is (1) to notify the defendant of the action against him; and (2) to acquire jurisdiction over his person whereas in actions in rem or quasi in rem, jurisdiction over the defendant is not mandatory and the court acquires jurisdiction over an action so long as it acquires jurisdiction over the res. The purpose of summons is not the acquisition of jurisdiction but to satisfy the requirements of due process (Alba v. CA, G.R. No. 164041, July 28, 2005). Rule 14 Voluntary Appearance : What is the effect of a voluntary appearance? ANS: Where the defendant makes a voluntary appearance in the action it shall be the equivalent to service of summons and jurisdiction is acquired over him (RULES OF COURT, Rule 14, Sec. 20). Q: What is a special appearance? ANS: There is special appearance when the defendant appears before the court for the purpose of objecting to the jurisdiction of the court over the person of the defendant even if other grounds are included in a motion to dismiss. Special appearance to 467 Pavan AeAquestion a cours jurisdiction is not voluntary appearance (Garcia v. Sandiganbayan, G.R. No. 170122, October 12, 2009). The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance (RULES OF COURT, Rule 14, Sec. 20). Personal Service Q: How is service in person made? ANS: Service in person on the defendant may be made: 1. By handing a copy of summons to him; or 2, By tendering it to him if he refuses to receive it (RULES OF COURT, Rule 14, Sec. 6). Note: In an action in personam, the preferred mode of serving summons is through service in person. Only when service in person cannot be made promptly and after all efforts to do so are exerted, may substituted service be resorted to (Jose v. Boyon, G.R. 147369, Cstober 23, 2003). Substituted Service Q: When can there be substituted service? ANS: Where personal service of summons cannot be made for justifiable causes within a reasonable period of time, substituted service may be had (RULES OF COURT, Rule 14, Sec. 7). Q: How is substituted service of summons done? ANS: It is cartiéd out by leaving copies of the summons at the defendant's residence with a person of suitable age\and discretion residing therein, or leaving copies at the defer;tant's office or tegular place of business with some comipetent person in charge thereof (RULES OF COURT, Rule 14, Sec. 7). / The requisites of a valid substituted service are: (RED) 1. Service of summons within'a Reasonable time is impossible; 2. The person serving the summons exerted Efforts to locate the defendant; 3. The person to whom.the summons is served is of sufficient age and Discretion; 4. The person to whom the summons is served Resides at the defendant's place of residence; and 5. Pertinent facts showing the enumerated circumstances are stated in the Return of service (Dante v. Math-Agro Corp., G.R. No. 167230, August 14, 2009). Note: There must be several attempts by the sheriff to personally serve the summons within a reasonable period of 1 month, at least 3 tries, preferably on at least 2 different dates. In addition, the sheriff must cite why such efforts were unsuccessful (Manotoc v. CA, G.R. No. 130974, August 16, 2006). Q: Who are competent persons in charge of defendant's office or regular place of business? ANS: A competent person in charge refers to one managing the office or business, such as the president, manager or officer-in-charge. The rule presupposes the existence of a relation of confidence between such person and defendant (Ang v. Chinatrust, G.R. No. 200693, April 18, 2016) 468Service upon Defendant whose Identity or Whereabouts is Unknown Q: How is service upon a defendant whose identity or whereabouts are unknown effected? ANS: In any action (in rem, quasi in rem, and in personam) where the defendant is designated as an unknown owner, 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 (RULES OF COURT, Rule 14, Sec. 14). jervice Resideni i ide the Philig Extraterritorial Service, When Allowed Q: When may extra-territorial service be availed of? ANS: Extraterritorial service may be availed of under Sections 15 and 16 of Rule 14. 4. Section 15. A non-resident not found in the Philippines named as a defendant in an action in rem or quasi in.rem may, with leave of court, be the subject of extraterritorial service of s' summons in the following ways: 2. By personal service of summons dorie outside the Philippines, b. By publication in a newspapenofigeneral circulation in such places and for such time as the cour the summons and order by the court shall be sent by registered mail to the last known address of defendant; or 5 AN c. Byany other manner which the court may deem'sufficient. Note: The specific actions which are either ia rem or quasi in rem that will justify extraterritorial service of puppense in actions involving a non- resident are: (AREA) i, Actions that Affect the personal Status of.the plaintif ii. Actions which Relate to, or ‘thesubject matter of which is property within the Philippines, in ‘Which the defendant claims a lien or interest, actual or contingent; iii. Actions in which the.rel felief,demanded consists, whoily or in part, in Excluding the defendant from an interest in property located in the Philippines; and’ iv. When the defendant's properly has been Attached in the Philippines. Note: 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 (RULES OF COURT, Rule 14, Sec. 15) 2. Section 16. A resident who is temporarily out of the Philippines named as a defendant in any action (in rem, quasi in rem, and in personam) may, with leave of court, be the subject of extraterritorial service in the same wayS as abovementioned. Q: How is service on a foreign private juridicai entity made? ANS: 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 (RULES OF COURT, Rule 14, Sec. 12). If the foreign private juridical entity is not registered in the Philippines, or has no resident agent, service may, with leave of court, be effected out of the Philippines through any of the following means: 469 = = =| = a tl = (ri (4Yee ayZ 33 1. By personal service coursed through the appropriate court in the foreign country with the assistance of the Department of Foreign Affairs; 2. By publication once in a newspaper of general circulation in the country where the defendant may be found and by serving a copy of the summons and the court order by-registered mail at the last known address of the defendant; 3. By facsimile or any recognized electronic means that could generate proof of service: or 4. By such other means as the court may in its discretion direct (A.M. No. 11-3-6- SC, March 15, 2011) Proof of Service Q. Discuss the rules regarding the proof of service. ANS: In proving the service of summons, the following rules are applicable: 1. The proof of service shall be made in writing by the server and shall state the: (mP*) a . Manner of service; ~ b. Place and date of service; ©. Specify ahy accompanying Papers; and 4. Name’of the Person who recéived.the summons. It shall be sworn to if made.by person other-than a sheriff. or his deputy (RULES OF COURT» Réle-14, Sec. 18) 2, Where service js by publication, it may be proved by the 2. Affidavit of the printer, his foreman, principal clerk, editor, business or advertising manager to. which a copy of ‘the publication shall be attached; and by an b.. Affidavit showing the deposit of a copy of the summons and order for publication: in the post. office, postage prepaid, directed to the defendant by registered mail-to his last known address (RULES UF COURT, Rule 14, Sec. 19). H. MOTIONS Jn General (Rule 15) Definition of a Motion Q: What is a Motion? ANS: A motion is an application for relief other than by a pleading (RULES OF COURT, Rule 15, Sec. 1). Contents and Forms of Motions Q: Is there a form prescribed? ANS: All motions shall be in writing except when it is made in open court or in the course of a hearing or trial (RULES OF COURT, Rule 15, Sec. 2). Q: What are the contents of a motion? ANS: Motions shall: (RAG) 1. State the Relief sought to be obtained; Be accompanied by supporting Affidavits and other papers when mandated by the Rules or necessary to prove the facts in the motion; and 3. State the Grounds upon which the motion is based (RULES OF COURT, Rule 15, Sec. 3) 470BEDAN RED BOOK Notice of Hearing and Hearing of Motions Q: Who shall set the hearing of a written motion? ANS: Except for motions which the court may act upon without prejudice to the rights of the adverse party (ex parte motions), every written motion shall be set for hearing by the applicant (RULES OF COURT, Rule 15, Sec. 4). Q: Discuss the rules regarding notice of hearing. ANS: The motion which contains the notice of hearing shall be served as to ensure its receipt by the other party at least 3 days before the date of hearing, unless the court for good cause sets the hearing for shorter notice (RULES OF COURT, Rule 15, Sec. 4). The notice of nearing shall be addressed to all the parties concerned and shall specify the time and date of the hearing which shall not be later than 10 days after the filing of the motion (RULES OF COURT, Rule 15, Sec. 5). Procf of service is necessary as no written motion set for hearing shall be acted upon by the court without proof of service thereof (RULES OF COURT, Rule 15, Sec, 6). Q: When are motions heard by the court? ANS: Except motions requiring immediate action, all motions shall be scheduled for hearing on Friday afternoons, or if Friday isa nonworking day, in the afternoon of the next working day (RULES OF COURT, Rule 15, Sec. 7). Omnibus Motion Rule Q: What is the Omnibus Motion Rule? | ANS: Every motion that attacks a pleading, order, judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed waived (RULES OF COURT, Rule 15, Sec. 8): However, the’ following objections are not deemed waived even if not raised: (ReLPS).. / Res judicata; it Litis pendentia; ‘ Prescription of the action; and Lack of jurisdiction over the Subjact matter (RULES OF COURT, Rule 9, Sec. 1). . eee Q: Is it possible to file several motions to dismiss successively without violating the Omnibus Motion Rule? ANS: Yes. Successive motions to dismiss may be filed if the grounds are under the four non-waivable grounds, i.e., ReELPS (RULES OF COURT, Rule 9, Sec. 1). Pro Forma Motions Q: What are pro forma motions? ANS: A pro forma motion refers to a motion which does not satisfy the requirements of the Rules and which will be treated as a mction intended to delay the proceedings (Marikina Development Corp. v. Flojo, G.R. No. 110801, Docember 8, 1995) Motion to Dismiss (Rule 16) Grounds Q: What are the grounds of a motion to dismiss? ANS: The following may be used as a ground for a motion te dismiss: (J?VL?-RPN-CUE) 1. Lack of Jurisdiction over the defendant; 2. Lack of Jurisdiction over the subject matter of the claim; 3. Improper Venue; 4. Plaintiff has no Legal capacity to sue: 471 ae miseBEDAN RED BOO Litis pendentia; Res judicata; Prescription; States No cause of action; Non-compliance with a Condition precedent for filing the claim. The claim is Unenforceable under the Statute of Frauds; and The claim has been paid, waived, aoandoned or otherwise Extinguished (RULES OF COURT, Rule 16, Sec. 1). ageenea Ss Resolution of Motion : What actions may the court take in resolving the motion? ANS: After hearing, the court may: 1. Dismiss the action or claim; 2. Deny the motion; or 3.__ Order the amendment of the pleading. Note: The resolution of the motion shall not be'delayed for the reason that the ground relied upon is indubitable. |t-shall state clearly'and distinctly the reason for the court's action (RULES OF COURT, Rule 16, Sec: 3). ' ° Remedies of the Plaintiff when the Complaint is Dismissed Q: Discuss the remedies/avaiiable to the plaintiff if the motion is granted. ANS: The plaintiff may: | 1. Re-file the complaint (RULES OF COURT, Rule ‘15, Sec, 6) - Where the dismigsal-is final but is without prejudice, the plaintiff mayisimply re-file the action, @:9:, improper venue. j } 2. Appeal =-Where the\dismissal is final and it-bars the re-filing of the case, he may appeal from the order of dismissal, ¢.g., res judicata. 3. Petition, for Certiorari Where the dismissal is. without prejudice and the court has gravely ‘abused its\discretion in doing so, the plaintiff may resort to certiorari undeh Rule 65 (7/RIANO, supra at 413-414), Remedies of the Defendant.when the Motion is Denied Q: What remedies are available tothe defendant if the motion is denied? ANS: The defendant may: ’ 1. Appeal ~ As a rule, if the motion to. dismiss is denied, such order is not appealable. A motion to dismiss.is-an’ interlocutory order. Under Rule 41, interlocutory orders are not appealable. The defendant must file his answer and if adverse judgment is rendered he may tile an apoeal of such iudgment; or 2. Petition for Certiorari - However, where the denial of the motion to dismiss is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, the defendant may resort to certiorari or prohibition (RULES OF COURT, Rule 65, Secs. 1-2). Effect of Dismissal of the Complair n Certain Grounds Q: What is ihe effect of the dismissal of the complaint? ANS: As a general rule, the dismissal of a complaint shal! be without prejudice to the re- filing of the case except those cases covered by the bar-by-dismissal-rule (RULES OF COURT, Rule 16, Sec. 5). 472VOL 2, 2019 Be a=\ay nse) .4 When Grounds Pleaded as Affirmative Defenses Q: Can the defendant, instead of filing a motion to dismiss, incorporate the grounds for dismissal in his answer? ANS: Yes. Where no motion to dismiss is filed but the grounds therefor are pleaded in the answer as an affirmative defense, the court in its own discretion, may set a preliminary hearing as if a motion to dismiss was filed (RULES OF COURT, Rule 16, Ses. 6) Bar by Dismissal Q: Which grounds have the effect of barring the action? ANS: When the dismissal is for any of the following grounds, the action shall be barred and may no longer be re-filed: (PURE) Prescriptioi Unenforceability of the claim under the Statute of Frauds; Res judicata; or Payment, waiver, abandonment or Extinguishment of the claim (RULES CF COURT, Rule 16, Sec. 5). Pope Distinguished from Demurrer to Evidence Under Rule 33 Q: What are the distinctions between a motion to dismiss and a demurrer to evidence? ANS: The distinctions between motion to dismiss and demurrer to evidence are the following: \ Fou khaled Should be filed within the time for but |, Should bé filed only after the plaintiff has prior to the filing of the answer of the |. comzieted the “presentation of his defending party to the pleading |’ evidence (RULES OF COURT, Rule 33, asserting the claiin against him |} .Sec.4). (RULES OF COURT, Rule 16, Sec. 1) SCR Tur aa May be filed by any defending party | May be filed only by the defendant against whom a claim is asserted in the | against the complaint of the plaintiff. action. PAO NUE If denied, defendant must file an | If denied, defendant may resent answer, or else he may be declared in | evidence. default (RULES OF COURT. Rule 9, Sec. 3) if granted, plaintiff appeals and when the order of the dismissai is reversed, the if granted, plaintiff may appeal or if | defendant loses his right to present subsequent case is not barred, he may | evidence (RULES OF COURT, Rule 33, re-file the case (RULES OF COURT, | Sec. 1) Rule 16, Sec. 5) ro Grounded on preliminary objections. Based on insufficiency of evidence. (1 RIANO, supra at 467-468). 473BEDAN RED BOO Me Bill of Particulars (Rule 12) Purpose and when Applied for Q: What is the purpose of the motion for bill of particulars? ANS: The purpose is to seek an order from the court directing the pleader to submit a “bill of particulars” which avers matters with sufficient definiteness or particularity to enable the movant to prepare his responsive pleading. Such motion shall point out the defects complained of, the paragraphs wherein they are contained, and the details desired (RULES OF COURT, Rule 12, Sec. 1). Q: When should the motion be applied for? ANS: The motion shall be filed before the responsive pleading is filed. Reference should thus be had to the periods to file an answer or reply laid down in Rule 11. If the pleading is a reply, the motion must be filed within 10 days from service thereof (RULES OF COURT, Rule 12, Sec. 1). Action of the Court on } A Q: What actions may the court take. upon the motion applied for? ANS: The court may.sither deny of grant the motion cutright or to allow the parties to be heard (RULES OF COURT, Rule 12;Sec:2). Complionce with the Order and Effect of Non-Compliance, | ~ Q: How should the. order be! complied with? \ ANS: If the motion’is Granted either in whole or in part, the compliange therewith must be effected within 10 Gays from notice of the order, unjess a different period is fixed by the court, The bill jnay be filed either in'a separate or/in-an anjended hleading, serving Copy thereof to'the adverse party (RULES OF COURT, Rule 12, Sec. 3). Q: State the effects ofnon-compliance with the court order. ANS: The non-cémpliance with the order produces the following effects: If the order is nof\obeyed'or there. is insufficient compliance, the/court may order the striking out of the pleading onportions thereof to which’the orderwas directed or make ‘such other orders as itmay deen? just (RULES, OF COURT, Rule 12, Sec. 4); Effect on the Period to Filé'a Responsive Pleading Q: What is the effect of the filing 6f the motion as regards to the reglementary period for filing a responsive pleading? ANS: The filing of a motion for a bill of particulars shall stay the period to file the responsive pleading. Note: After the service of the bill of particulars or after notice of the denial of the motion, the movant may file his responsive pleading within the period to which he was entitled to at the time the motion was filed. Such period shall not be less than 5 days in any event (RULES OF COURT, Rule 12, Sec. 5) 474adjudication on the merits (Chingkoe v. Republic, G.R. No. 183608, July 31, 2013). Q: Is the ANS: This dismissal shall be without prejudice to the re-filing of the complaint except when: 1. DISMISSAL Kinds With Prejudice and Without Prejudice Q: What are the differences between dismissal with prejudice and dismissal without prejudice? ANS: The following are the distinctions between a cismissal with prejudice and a dismissal without prejudice: Pyaar fe lee PSO rs Peake lcd It is not an adiudication on the merits. is one made by the court after PS Cl as Ss Remedy is an appeal (RULES OF COURT, | Remedy is an appropriate special Rule 41, Sec. 1). = _| ivil action under Rule 6& (li). Dismissals which have an effect of the adjudication on the merits Q: What are the dismissals which have an effect of/the adjudication on the merits? , ANS: The following are dismissals which’ have an effect of the adjudication on the merits: oh 1. Anotice operates as an adjudication upon the merits whén filed by a plaintiff who has once dismissed in a competent courtanvaction’based on or including the same claim (RULES OF COURT, Rule 17, Sec; 7);" 2. A dismissal due to the fault of the plaintiff shall have the effect of an adjudication Upon the merits, unless otherwise declared by the court (RULES OF COURT, Rule 17, Sec. 3); == 3. If the acts of the party or his counsel clearly.constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice (RULES OF COURT, Rule 7, Sec. 5); and 4, The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shal! be with prejudice, unless otherwise ordered by the court (RULES OF COURT, Rule 18, Sec 5) Q: When can the plaintiff file for dismissal of the complaint by notice? ‘ANS: The plaintiff, at any time before the service of an answer or a motion for summary judgment, may file a notice of dismissal of his complaint. Upon its filing, the court shall issue an order confirming such dismissal (RULES OF COURT, Rule 17, Sec. 1) missal upon notice by the plaintiff with prejudice? 1. The notice of dismissal provides that the dismissal is with prejudice; or 2. The piaintiff has previously dismissed the same case in a court of competent jurisdiction (RULES OF COURT, Rute 17, Sec. 1). 475BEDAN RED BOOK Q: Discuss the Two-Dismissal Rule. ANS: This rule applies when the plaintiff has: (TCC) 1. Twice dismissed the action; 2. Based on or including the same Claim; and 3._Ina court of Competent jurisdiction (1 RIANO, supra at 418). Note: The second notice of dismissal will bar a further re-filing of the action because it will operate as an adjudication of the claim based upon the merits (Id.). Dismissal Upon Motion by Plaintiff Q; Can a plaintiff file a motion to dismiss his own complaint? ANS: Yes. Once an answer or a motion for summary judgment has been served on the Plaintif, the dismissal is no longer a matter of right and will require the filing of a motion to dismiss and not & mere notice thereof. It will be subject to the approval of the court upon such terms and conditions as are just (RULES OF COURT, Rule 17, Sec. 2). Note: Unless otherwise specified in the order, the dismissal under this provision shall be without prejudice; and class suit-shall ot be dismissed nor compromised without the approval of the court (RULES'OF COURT, Rulé.17, See~2). Dismissal Due to the Fault of the Plointif# Q: Can the court dismiss the complaint? ANS: Yes. The court may, upon motion or motu proprio, dismiss a complaint even when the plaintiff has no desire to have the same dismissed when: (APC) 1 ntif fails to Appear for no justifiable cause on the,day of the presentation of his evidence in chief on the complaint; ay 2. _ Plaintiff fails to Prosecuté his action for an unreasonable length of time; or 3. Plaintiff fails to Comply with the Rules-or any order of the, court (RULES OF COURT, Rule 17, Sec. 3). Note: The dismissal shall have the effect of an adjudication upon-the merits and is thus with prejudice to~the \re-filing of, the action, unless ‘the court déclares otherwise. However, the dismissal is without prejudice to the right of the’defendant to prosecute his counterclaim in the same or in a separate action (RULES OF COURT, Rule 17, Sec. 3) VOL 2. iff 2019 J. PRE-TRIAL (RULE 18) Concept of Pre-Trial Q: What is a pre-trial? ANS: The pre-trial is a mandatory conference and personal confrontation before the judge between the parties and their respective counsel. It is conducted after the last pleading has been served and filed, with the plaintiff having the duty to move ex parte that the case be set for pre-trial (RULES OF COURT, Rule 18, Sec. 1). Q: What is the effect if the plaintiff refuses to move that the case be set for pre- trial? ANS: Within five days from date of filing of the reply, the plaintiff must promptly move ex Parte that the case be set for pre-trial conference. If the plaintiff fails to file said motion within the given period, the branch clerk of court shall issue a notice of pre-triai (A.M. No. 03-1-09-SC). Reading A.M. No. 03-1-09-SC together with Rule 17, Section 3 and Rule 18, Section 1 of the Rules of Court accommodates the outright dismissal of a complaint upon plaintiff's failure to show justifiable reason for not setting the case for pre-trial within the period provided by the Rules. Thus, trial courts must consider the facts of each case (Bank of the Philippines V Spouses Genuino G.R. No. 208792, July 22, 2015). 476 | |é EDAN RED BOO Nature and Purpose Q: What should the court consider during the pre-trial? ANS: The court shall consider the following matters in the pre-trial: (SINAWA-PAO) 1. The possibility of an amicable Settlement or submission to alterative modes of dispute resolution; 2. The simplification of the 3 The Necessity or desirabil'ty of amendments to the pleadings; 4. The possibility of obtaining stipulations or Admissions of facts and documents to avoid unnecessary proof; The limitation of the number of Witnesses; The Advisability of a preliminary reference of the issues to a commissioner, The Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist; The Advisability or necessity of suspending the proceedings; and Such Other matters as may aid in the prompt disposition of the case (RULES OF COURT, Rule 18, Sec. 2). Note: It is vital to have the documents and exhibits identified and marked dunng pre-trial (1 RIANO, supra at 431). Nog ee Q: Is pre-trial mandatory? ANS: Pre-trial is mandatory in all civil cases nd invall.criminal cases cognizable by the Sandiganbayan, Regional Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, Metropolitan Trial Courts, and Municipal Circuit Trial Court. It is likewise mandatory in both civil and criminal cases under the Rules on Summary Procedure and Small Claims Procedure (RULES OF COURT, Rule 18, Sec. 2). Notice of Pre-Tria) Q: To whom shall the notice of the pre-trial be served? ANS: The notice of pre-trial shall be served on the counsel. of the party if the latter is represenied by counsel. Otherwise, the notice shall be served'on the party himself. The counsel is charged with the duty of notifying his client of the date, time and place of the pre-trial (RULES OF COURT, Rule 18, Sec:3).~ Effect of Failure to Appear Q: What is the effect of the failure of the plaintiff to appear during the pre-trial? ANS: The failure of the plaintiff to appear shall be cause for the dismissal with prejudice of the action, unless the court orders otherwise (RULES OF COURT, RULE 18, Sec. 5). The dismissal shall have the effect of an adjudication on the merits and is thus final. The remedy of the plaintiff is to appeal the order of dismissal (RULES OF COURT, Rule 41, Sec. 1) Q: Discuss the effect of the failure of the defendant to appear during the pre-trial. ANS: The failure of the defendant to appear shall be cause to allow the plaintiff to present his evidence ex parte and for the court to render judgment on the basis of the evidence presented by the plaintiff (RULES OF COURT, Rule 18, Sec. 5). Howcver, the defendant shall not be declared in default. The judgment may award beyond the claim prayed for in the complaint, as opposed to 2 judgment by default, where the award is limited to what has been prayed for in the complaint. The order to present evidence ex parte is interlocutory and thus not appealable. The defendant may ask for reconsideration and if the denial is with grave abuse of discretion, he may file a petition for certiorari (RULES OF COURT, Rule 41, Sec. 1) 477 LR Ravan.- BEDAN RED BOOK VOL 2. Q; Discuss the rules on filing of the pre-trial brief. ANS: The parties shall file a pre-trial brief 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 (RULES OF COURT, Rule 18, Sec. 6). Q: What should the pre-trial brief contain? ANS: The pro-trial brief shall contain, among others: (SAID-DW) 1. A Statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; Asummary of Admitted facts and proposed stipulations of facts; The Issues to be tried or resolved; The Documents or exhibits to be presented stating the purpose thereof; Note: No evidence shall be allowed to be presented and offered during the trial in support of a party's evidence-in-chief other than those that had been earlier icentified and pre-marked during the pre-trial, except if allowed by the court for good cause shown (A.M. No, 03-1-09-SC |.A.2(b), July 13, 2004), 5. A manifestation of their having availed or their intention to avail themselves of Discovery procedures or referral to commissioners: and The number and names of the Witnesses, and -the substance of their respective testimonies (RULES OF COURT, Rule 18, Sec. 6). FEN © Q. What is the effect of the failure to file a pre-trial brief? ANS: The failure-to tile the brief shall have the same effects as the failure to appear during pre-trial (RULES OF COURT, Rule 18, Sec. 6). Hence, if it is the plaintiff who fails to file a pre-trial brief, such failure shall be cause for dismissal of the action. If it is the defendant'who fails to do. so, such failure shall be cause to allow the plaintiff to prevent his evidence ex parte (1. RIANO, supra at 431). Distinction between Pre-Trial in a Civil Case and Pre-Trial in a Criminal Case Q: What are the differences between: pre-trial in civil cases and those in criminal cases? ANS: The following are the differences between the two (C?AFNP°B): ee PreTrial In Criminal Cases (Oe cncneenens ‘Set when the plaintiff moves ex parte | Ordered by the court and no motion to set to set the case for pre-trial (RULES | the case for pre-trial is required from either OF COURT, Rule 18, Sec. 1). the prosecution or the defense (RULES OF COURT, Rule 118, Sec. 1). As to Tinie of Comnfencemarit’ The motion to set the case for pre- | The pre-trial is ordered by the court after | trial is made after the last pleading | arraignment and within 30 days from the | has been served and filed (RULES | date the court acquires jurisdiction over OF COURT, Rule 18, Sec. 1) the person of the accused (RULES OF COURT, Rule 118, Sec. 1). 4s to Possibility of Entering into Amicable Settlement Considers the possibility of an amicable settlement (RULES OF COURT, Rule 18, Sec. 2(a)) Does not consider possibility of an amicable settlement (RULES OF COURT. Rule 118, Sec. 1). | =k ee — 478AM. No. 03-1-09 SC dated July 12, 2004 requires the proceedings during the preliminary conference to be recorded in the "Minutes of Preliminary Conference” to be signed by both parties and/or counsel (1 RIANO, Non-appearance subjects hoth parties to sanctions (RULES OF COURT, Rule 18, Sec. 4). Defendant must appear personally unless excused for a valid cause or duly represented by a person with the requisite authority specified in Section 4, Rule 18, Otherwise, the court may allow the plaintift to present evidence ex parte and render judgment on the basis thereof (RULES OF COURT, Rule 18, Sec. 5). Plaintiff must appear personally unless excused for a valid cause or duly represented by a person with the requisite authority specified in Section 4, Rule 18. Otherwise, the action may be dismissed with prejudice, unless otherwise ordered by the court eR ur Parties are required to submit pre-trial briefs at least 3 days from the date of pre-trial (RULES OF COURT, Rule 18, Sec. 6). All agreements or admissions made or entered during pre-trial shall be reduced in writing and signed by both the accused and counsel; otherwise, they cannot be used against the accused (RULES OF COURT, Rule 118, Sec. 2). supra at 438). : Poa Bsc od ese S Non-appearance only subjects counsel or the prosecutor to sanctions (RULES OF COURT, Rule 118, Sec. 3). ; Pee Unless otherwise required by the court, the accused presence is not indispensable. The accused may waive his presence at all stages of the criminal action, except at the arraignment, promulgation of . judgment, or wnen required to appear for identification. MD Cte dara ice alr Lae Ri The presence of’ the’ private offended party is not required. Teaco = Submission of pre-trial briefs are not required (1 RIANO, supra at 435). (1 RIANO, supra at 434-435). Pr Q: When will a preliminary conference bt ANS: Not later than thirty days after the last answer is filed (Revised Rules on Summary Procedure, Sec. 7). inary conference in Summary Procedure e held in Summary Procedure? j i Q: What is the effect of defendant's failure to answer under the Rules on Summary Procedure? ANS: 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 479Jaya) 325 damages and attorney's fees claimed for being excessive or otherwise unconscionable. This is without prejudice to the applicability of Section 4, Rule 18 of the Rules of Court, it there are two or more defendants (Revised Rules on Summary Procedure, Sec. 6). Q: What is the effect of failure of the plaintiff to appear in the preliminary conference in Summary Procedure? ANS: The failure of the plaintiff to appear in the preliminary conference shall be a cause for the dismissal of his complaint. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with Section 6. All cross-claims shall be dismissed (Revised Rules on Summary Procedure, Sec. 7). Q: What is the effect of failure of the defendant to appear in the preliminary conference in Summary Procedure? ANS: It depends if there are one or more defendants. Under the rule, if a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with Section 6 of the rule. This Rule shall not apply. .where.one of two or more defendants sued under a common cause of action who“had pleaded ya Common defense shall appear at the preliminary conference (Revised Rules on Summary Procedure, Sec. 7). K. INTERVENTION Q: State the nature of an intervention. x ANS: Intervention is.a remedy by which a third party, not“originally impleaded in a proceeding, becomes a litigant therein to enable him to protect or, preserve a right or interest which may be affected by such proceeding (Chipongian v. Benitez-Lirio, G.R. No. 162692, August 26, 2015). } yoo} Requisites for Intervention» : i i , Q: What are the requisites for an intervention by,a non-party in an action pending in court? / ANS: The requisites for intervention’are the following: (F-SUPC) 1. There must be a:motion for intervention Filed before rendition of judgment by the trial court; 7 2. The movant must Show.that he: (LEBS)_.. a. Has a legal interest inthe matter in Litigation; b. Has a legahinterest in the success of Either party; c. Has a legal interest against Both of them; or d. Is so Situated that he Will Be adversely affected by a distribution or other disposition of property in the custody of the court or an officer thereof, 3. The intervention must not Unduly delay or prejudice the adjudication of the rights of the original parties; 4. The intervenor's rights may not be fully Protected in a separate proceeding (RULES OF COURT, Rule 19, Sec. 1; Mabayo Farms, Inc. v. CA, G.R. No. 140058, August 1, 2002). 5. A Gopy of the pleading-in-intervention shall be attached to the motion and served on the original parties (RULES OF COURT, Rule 19, Sec. 2). Time to Intervene Q: Within what period may a person intervene in a case? ANS: The motion to intervene may be filed at any time before rendition of judgment by the trial court (RULES OF COURT, Rule 19, Sec. 2) 480DAN RED BOO Q: May intervention be allowed after rendition of judgment by the court? ANS: As a general rule, no. Under the Rules, the motion to intervene may be filed at any time before rendition of judgment by the trial court. However, the Supreme Court has recognized the following exceptions: 4. Intervention may be allowed on appeal, provided the intervenor is an indispensable party (Galicia v. Manliquez, G.R. No. 155785, April 13, 2007}; 2. When the intervenor is the Republic (Lim v. Pacquing, G.R. No. 115044, January 27, 1995); and 3. Where is it necessary to protect scme interest which cannot be protected, or to preserve the intervenor's right to appeal (1 HERRERA, Remedial Law, supra at 847). nial of Motion toh ni Q: What is the remedy if intervention is denied? ANS: The remedy of the aggrieved party is appeal. Mandamus will not lie except in case of grave abuse of discretion (Galego v.. Romeo, G.R. No. 130228, July 27, 2004). ¢ L. SUBPOENA (RULE 21) Subpoena Duces Tecum Q: What is a subpoena duces tecum? =. ANS: It is a process directed to a person requiring-him to bring with him books, documents, or other things under his contro! at the hearing or tfial of an action, ot at any investigation conducted by a competent authority, or at the place.in which the deposition is to be taken (RULES OF COURT, Rule 21, Sec. 1). =f | Subpoena ad Testificandum m Q: What is a subpoena ad testificandum : ANS: It is a process directed to a person requiring him to attend and'to testify: 4. Atthe hearing or the trial of an action; or : 2. Atany investigation conducted by competent authority; or 3. For the taking of his deposition (RULES.OF COURT, Rule 21, Sec. 1). Service of Subpoena = Q: How shall a subpoena be served? ANS: Service of subpoena shall be made in the same manner as personal or substituted service of summons. 1. The original shall be exhibited and a copy thereof be delivered to the person on whom it is served; 2. Tendering to him the fees for one day's attendance and the kilometrage allowed by the Rules; except that, when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof, the tender need not be made; 3. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance; and 4. Ifthe subpoena is duces tecum, the reasonable cost of producing the books, documents, or things demanded shall also be tendered (RULES OF COURT, Rule 21, Sec. 6) 481_- BEDAN RED BOOK VOL 2. Vf 2019 dance o} Q: What may the court do in case of failure of a witness to appear after service of subpoena? ANS: The court, upon showing of the failure of the witness to attend and upon proof of the service of the subpoena, may issue a warrant to arrest the witness and bring him before the court or officer where his attendance is required. The cost of such warrant and seizure shall be paid by the witness if the court finds that his failure to answer the Subpoena was willful and without just excuse (RULES OF COURT, Rule 21, Sec. 8). itness mpt Q: What is the effect if a person fails to obey a subpoena without adequate cause? ANS: Failure to obey a subpoena without adequate cause shall be deemed a contempt of the issuing court. If the subpoena was not issued by a court, the disobedience shall be punished in accordance with the applicable law or Rule (RULES OF COURT, Rule 21, Sec. 9). Q: When is a witness not botind by a subpoena? ANS: A witness is not bound to attend as ‘such in the following situations: (VP) 1. Viatory Right'— Where the witness resides more than 100 kilometers from his residence to the place where. he.is to testify by the ordinary course of travel (ROC, Rule. 21>Sec. 10), and 2. _In case/of'a detention Prisoner, where no permission of the court in which his case is pending was obtained (RULES OF COURT, Rule 21, Sec. 10). Quashing of Subpoena Q: When may'the court quash a subpoena duces tecum? ANS: A subpoena duces tecum may be quashed upon motion promptly made and, in any event, before the:time specified therein. It must be shown that: (URAF) 1. Itis Unreasonable and oppressive; 2. The Relevancy of the books, documents or things does not appear; or 3. If the person in whose. behalf-the-subpoena is issued failed to Advance the reasonable cost of the production (RULES OF COURT, Rule 21, Sec. 4, par. a); or 4. The witness Fees and kilometrage allowed by the Rules were not tendered when the subpoena was served (RULES OF COURT, Rule 21, Sec. 4, par. b). Q: When may the court quash a subpoena ad testificandum? ANS: A subpoena ad testificandum may be quashed upon showing that: 1. The witness is not bound thereby; or 2. The witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served (RULES OF COURT, Rule 21, Sec. 4). . COMPUTATION OF TIME (RULE 22) Q: Discuss the Rules on computation of time. ANS: In computing any period of time prescribed or allowed by these Rules or by order of the count, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included. If the last day of the period, as thus computed, falls on a Saturday a Sunday, or a legai holiday in the place where the court sits, the time shall not run until the next working day (RULES OF COURT, Rule 22, Sec. 1) 482DAN RED BOOK Q: Discuss the rule on pretermission of holidays in civil cases as opposed to criminal cases. ANS: The rule provides that in construing statute of limitations, the first day is excluded and the last day included, unless the last day is dies non in which case the act may be done on the succeeding business days. In criminal cases, such a situation cannot lengthen the period fixed by law to prosecute such offender. The waiver or loss of right to prosecute is automatic and by operation of law. Where the last day to file an information falls on a Sunday or legal holiday, the period cannot be extended up to the next working day since the prescription has alreauy set in (REGALADO, supra at 341). Q: What is the effect of an interruption? ANS: Should an act be done which effectively interrupts the running of the period, the allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof. The day of the act that caused the interruption shall be excluded in the computation of the period (RULES OF COURT, Rule 22, Sec. 2). NN. MODES OF DISCOVERY Deposition Pending Action; Deposition before Action or Pending Appeal (Rules 23 and24) : Meaning of Deposition Q: What is a deposition? ANS: A deposition is a written testimony of a witness given intthe 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 (Republic v. Sandiganbayan, G.R. No.112710, May 30, 2001)... 7 Q: When may a deposition be availed of?. ANS: A deposition may be taken: F ~ 4 4. Deposition de bene esse during a peiiding action (RULES OF COURT, Rule 23, Sec. 1); or G 2. Deposition in perpetua rei memoriam= before action or pending appeal (RULES OF COURT, Rule 24). Q: When may a party take a deposition pending action? ANS: A party may take the deposition of another under the following circumstances: 4. By leave of court, after jurisdiction has been obtained over any defendant or over property which is the subject of the action; 2. Without leave of court, after an answer has been served; or 3. By leave of court, when the deposition of a person confined in prison is to be taken (RULES OF COURT, Rule 23, Sec. 1). : State the concept of a deposition before action or pencing appeal. ANS: A deposition before action and a deposition pending appeal are referred to as perpetuation of testimony or perpetua rei memoriam because their objective is to perpetuate the testimony of a witness for use in the future (RIANO, Fundamentals, supra at 550) Q. Who may take depositions? Ans. Within the Philippines, depositions may be taken before any judge, nolary public or the person stipulated by the parties in writing (RULES OF COURT, Rule 23, Sec. 10). In a foreign state or country, depositions may be taken: 1. On notice before a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the Republic of the Philippines 483 i j |BEDAN RED BOOK 2013 2. Before such person or officer as may be appointed by commission or under letters rogatory; or 3. The person stipulated by the parties in writing (RULES OF COURT, Rule 23, Sec.11). Sco; Sar ator Q: Where may a deposition be used? ANS: It may be used either: 1. Atthe trial; 2. Atthe hearing of a motion; or 3. At the hearing of an interlocutory proceeding (RULES OF COURT, Rule 23, Sec. 4). Q; Give an outline showing how a deposition may be used. ANS: A deposition may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, according to the following: i. For the purpose of contradicting or impeaching the testimony of the deponent as witness: . y 2. The deposition of a party or of any one; who at the time of the deposition, was an officer, director, or managing-agent ofa public or private corporation, partnership.or association which is a party: may be usedby an adverse party for any purpose: \ 3. The deposition of a witness, whether or not a party,.may be used by any party for any purpose if the court finds that: (DROUSE) a. | The witness is Dead; or b. | The witness Resides more than 100 kilometers fromthe place of trial or ‘ is{Qut of the'Philippines, unless such absence was procured by the party offering the deposition; or acted | ¢. | The ‘witness is\Unable to testify due to age, Sickness, infirmity or imprisonment; or. d. The party offering the deposition-has been unable to procure the attendance of the witness by Subpoen: . Upon application anid notice, that such” Exceptiorial circumstances exist as to'make it desirable in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow.the’deposition to'be Used? 4. Ifonly part of a deposition is. offered in evidence by a party, the adverse pariy May require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts (RULES OF COURT, Rule 23, Sec. 4). Q: What may be covered by a deposition? ANS: A deponent may be examined regarding any matter which is: 1. Relevant to the subject of the pending aciion; 2. Not privileged (RULES OF COURT, Rule 23, Sec. 2); and 3. Not restricted by an order of the court to protect the parties and deponents or to limit the examination (RULES OF COURT, Rule 23, Secs. 16 & 18). When may Objections to Admissibility be Made Q: When may a party interpose his objections to the admissibility of a deposition? ANS: Objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witnesses were then present and testifying (RULES OF COURT, Rule 23, Sec. 6) 184VOL 2, 2019 Bea 1-10).\ 5141-1010) ae en ing of | ition be Terminated or it Li Q: When may the court terminate or limit the taking of a deposition? ANS: At any time during the taking of the deposition, any party or the deponent may move for the termination or limiting of the scope of the deposition upon showing: 1. That the examination is being conducted in bad faith; or 2. That it is being conducted in such a manner as unreasonably to annoy, embarrass or oppress the deponent or party (RULES OF COURT, Rule 23, Sec. 18). Jnterrogatories to Adverse Parties (Rule 25) Q; State the purpose of written interrogatories. ANS: This type of discovery is availed of by a party to the action for the purpose of eliciting material and relevant facts from any adverse party (RULES OF COURT, Rule 25, Sec. 1). Q: How is written interrogatories served'upon an adverse party? ANS: A party may serve written interrogatories upon an acverse party: 1. By leave of court after jurisdiction, has been obtained over the defendant or over property which is the subject of the action; cr 2. Without leave of court after an answer.has been Rule 25, Sec. 1, in relation to Rule 23; Sec! Consequences of Refusal to Answer. \ Q: What are the consequences of refusal to answer written interrogatories? ANS: If a party or other:deponent refuses to answer ‘any; question upon oral ‘examination, the examination:may be completed on other matters, or adjoumed as the proponent of the question may prefer. The:proponent may thefeaft apply to the proper court of the place where the deposition is being taken, fot-an-order to compel an answer. : ‘QRS ir the application is granted, the court shall require the refusing party or deponent to answer the question of interrogatory and if it also finds that the refusal to answer was without substantial justification, it may requiresthe refusing party or deponent or the counsel advising the refusal, or both of them, to, pay:the proponent the amount of the reasonable expenses incurred in’ obtaining: the order, including attorney's fees. If the application is denied and the court finds that it was filed without substantial justification, the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorney's fees (RULES OF COURT, Rule 29, Sec. 1). = a at =| ny a4 Effect of Fe Q. State the effect if a party is not served with written interrogatories. ANS: Unless allowed by the court for good cause shown and to prevent a faiture of justice, a party not served with written interrogatories may not be compelled by the adverse party: 1. To give testimony in open court; or 2. Give a deposition pending appeal (RULES OF COURT, Rule 25, Sec. 6) re to Serve Written Interrogatories i Admission by Adverse Party (Rule 26) j Q: What is the purpose of a request for admission? ANS: The purpose of a request for admission is to expedite trial and relieve parties of the cost of proving facts which will not be disputed on trial and the truth of which can be ascertained by reasonable inquiry (Concrete Aggregate Corp. v. CA. G.R. No. 117574, January 2, 1997) 485_ BEDANREDBOOK fen Q: State the facts which an adverse party may be required to admit in a request for admission. ANS: The admission may cover: 1. The genuineness of any material and relevant document described in and exhibited with the request; or 2. The truth of any material and relev (RULES OF COURT, Rule 26, Sec. 1). ‘matter of fact set forth in the request Q: When may a party serve upon the adverse party a written request for admission? ANS: A written request for admission may be served upon the other party at any time after the issues have been joined (RULES OF COURT, Rule 26, Sec. 1). Consequences of Refusal to Answer Request for Admission Q: Suppose a party refusal to answer the request for admission, what would be the effect? ANS: Implied admission. Each of the matters of which an admission is requested shall be deemed admitted unless the party to whom the request is directed files and serves upon the party requesting the admission a sworn.statement either denying specifically the matters of which’an admission is requested, or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters (RULES OF COURT, Rule 26, Sec. 2). Effect of Admission Q: What is the effect of an admission? ANS: Any admission made pursuant to the request for admission shall be for the Purpose of the pending action only and cannot be used as such for any other purpose Mor may the admission be used against the admitting party in-any other proceeding (RULES OF COURT, Rule 26, Sec. 3). Effect of Failure to File and Serve Request for Admission Q: State the effect of failure to file and serve a request for admission. ANS: Unless otherwise allowed by-the court for good cause shown and to prevent a failure of justice. a party.who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the Personal knowledge of the latter, shall_not be-permitted to present evidence on such facts (RULES OF COURT, Rule 26, Sec. 5). Production or Inspectioi of Documents or Things (Rule 27) Q. What is required before an order for the production and inspection of documents and things may issue under Rule 277 ANS: The following are the requirements: (FG-SP*) i. A motion must be Filed by a party showing good cause therefor: 2. Notice of the motion must be Given to all other parties: The motion must Sufficienily describe the document or thing sought to be produced or inspected; 4. The document or thing sought to be Produced or inspected must constitute or Contain evidence material to the pending action Documents or things subject of the motion should not be Privileged: The documents or things must be within the Possession, control or custody of a party; and 7. The Rule only applies to a Pending action (ALBANO, Remedial Law Reviewer (2010). p. 388) aa 486VOL 2, 2019 © BEDAN RED BOOK. hy) lank amination of Per ule. Q: What is required before an order for the physical and mental examination of a witness may issue under Rule 287 ANS: The following are the requisites to obtain an order for examination: (CG-PS) 4. The mental or physical Condition of a party is in controversy in the action; 2. A motion showing Good cause must be filed for the physical and mental examination; 3. Notice must be given to the Party to be examined and to all other parties; and 4. The motion shall Specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is made (RULES OF CGURT, Rule 28, Secs. 1 and 2). to. ith Modes of Dis Q;: State the consequences of refusal to make discovery. ANS: The following are the consequences'of the refusal to make discovery: CTE Ree Lule Mere ka cee cd eee Refusal to answer 1. The examining party may complete the examination on any question upon the other matters or adjourn the same (RULES OF oral examination or COURT, Rule 29, Sec. 1). any written 2. The court, may, upon proper application, compel a interrogatory refusing deponent to answer. ‘a. If application is granted and refusal to answer is . without substantial justification, “court may require the refusing party.to pay, the proponent the amount of the reasonabie expenses. incurred in obtaining : the order, including attorney's fees. b. If the ‘application is denied and filed without substantial, justification, court may require the proponent, Gr his,counsel, or both of them, to pay the refusing party thé”amount of the reasonable expenses incurred in opposing the application, including attorney's fees (RULES OF COURT, Rule 29, Sec. 1). 3. A refusal to answer after being directed by the court to do so may be considered as contempt of court (RULES OF COURT, Rule 29, Sec. 2). Refusal to be sworn Cite the disobedient deponent in contempt of court (RULES OF COURT, Rule 29, Sec. 2). Refusal to obey an | The court may make the following orders: | order: 1. The facts sought to be established by the examining 1, To answer party shall be taken to be established for the purpose of designated the action in accordance with the claim of the parly questions; obtaining the order, 2. To produce 2. Refusal to allow the disobedient party to support or documents; or ‘oppose designated claims or defenses or prohibiting 3. To submit to him from introducing in evidence designated documents physical or mental or things or items of testimony: examination 487VOL bd 2019 3. The striking out of pleadings or parts thereof: 4. That further proceedings be stayed until the order is obeyed; 5. Dismissal of the action or proceeding or any part thereof, or rendition of judgment by default against the disobedient party; or 6. The arrest of any party or agent of a party for disobeying its orders, except an order to submit a physical or mental examination (RULES OF COURT, Rule 29, Sec. 3). BEDAN RED BOOK Refusal to admit or | If the party requesting the admissions thereafter proves the serve a sworn denial | genuineness of such document or the truth of any such thereof under Rule | matter of fact, the court may, upon proper application, issue 26 an order requiring the other party to pay him reasonable expenses incurred, in’-making such proof, including alloys fees (RULES OF COURT, Rule 29, Sec. 4). Failure of party, g.c6t, of fice, mays, attend or serve, 4¢" Strikeout all or aity pait of, any pleading of disobedient answers to wi / party; or \ \v%. interrogatories! | 2. (Dismiss the action or proceeding or any part thereof: or f 3. |Enter a judgment by default against ‘disobedient party; jand j \ 4. \In its discretion, order payment of reasonable expenses ‘incurred by the other including attorney's fees (RULES OF COURT, Rule 29, Sec. 5). - O. TRIAL (RULE 30) Q: What is a trial’? \ . ANS: Trial is the Stage in the elementary procedure’ followedby trial courts in the Conduct of civil cases.in which the. parties shall-adduce their respective evidence in support of their claims and/or defenses, (Velarde v. Social Justice Society, G.R. No. 159357, April 28, 2004). >. \ a Q: What are the rules with respect to the appearance of parties in a small claims action? ANS: The parties shall personally appear on the designated date of hearing Appeaiance through a representative must be for a valid cause. The representative of an individual-party must not be a lawyer, and must be related to or next-of-kin of the individual-party. Juridical entities shall not be represented by a lawyer in any capacity. The representative must be authorized under a Special Power of Attcrney (Form 7- SCC) to enter into an amicable settlement of the dispute and to enter into stipulations or admissions of facts and of documentary exhibits (A.M. No. 08-08-7-SC, Sec. 18). Q: May attorneys appear in a small claims action? ANS: No. The rule provides that no attorney shall appear in behalf of or represent a party at the hearing, unless the attorney is the plaintiff or defendant. If the court determines that a party cannot properly present his/her claim or defense and needs assistance, the court may, in its discretion, allow another individual who is not an attorney to assist that party upon the latter's consent (A.M. No. 08-08-7-SC, Sec. 19) 488Q: What are the effects of failure to appear in Small Claims Action? ANS: The effects of failure to appear are: fect of Failure to appear in Small Claims Action Failure cf the plaintiff to appear —_| Failure of the plaintiff to appear shall be cause for the dismissal of the Statement of Ciaim/s. without prejudice. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on a permissive counterclaim (A.M. No. 08-08-7-SC, Sec. 20). Failure of the defendant to appear | Failure of the defendant to appear shall have the same effect as failure to file a Response under Section 14 of the Rule. This shall not apply where one of two or more defendants Who are sued under a common cause of action and have pleaded a common defense appears at the hearing (A.M. No. 08-08-7- SC,Se0%20). Failure of both of the parties to Failure of both parties to appear shall cause appear the dismissal with prejudice of both the Statement of Claims ‘and the counterclaim (A.M. No. 08-08;7-SC, Sec. 20). Q: What is the duty of the judge at the hearing in small claims cases? ANS: At the hearing, the judge shall first éxert efforts to bring the parties to an amicable settlement of their dispute. If efforts at seftlement fail, the*hearing shall immediately proceed in an informal and expeditious manner and be terminated within the same day. Any settlement or resolution of the dispute shall be reduced into writing, signed by the parties and submitted to the court for approval (A.M. No. 08-08-7-SC, Sec. 23). Agjournments and Postponements Q: State the rule on adjournments and postponements of trial. ANS: The general rule is that a court may adjourn a trial from day to day and to any stated time as the expeditious and convenient transaction of business may require. However, except when authorized in writing by the Court Administrator, the court has no power to adjourn a trial for: 1. A period longer than 1 month for each adjournment; or 2. More than 3 months in all (RULES OF COURT, Rule 30, Sec. 2). Pequisites of Motion to Postpone Trial For Absence of Evidence Q: What are the requisites of a motion to postpone trial on the ground of absence of evidence? ANS: The requisites are the following: 1. A motion for postponement stating the ground relied upon must be filed; and 2. The motion must be supported by an affidavit showing: a, The materiality and relevancy of such evidence; and b. That due diligence has been used to procure it (RULES OF COURT, Rule 30, Sec. 3). 489 PA nF ye aeEDAN RED BOOK For liness of Party or Counsel Q: State the requisites of a motion to postpone trial on the ground of illness of party or counsel. ANS: The requisites are the following: 1. Amotion for postponement stating the ground relied upon must be filed; 2, The motion must be supported by an affidavit or sworn certification showing that: a. The presence of such party or counsel at the trial is indispensable; and b. The character of the illness is such as to render his non-attendance as excusable (RULES OF COURT, Rule 30, Sec. 4). Q: Is a motion for postponement a matter of right? ANS: No. A motion for postponement is not a matter of right. It is addressed to the ‘sound discretion of the court (Go-Bangayan v. Bangayan, Jr, G.R. No. 201061, July 3, 2013). Agreed Statement of Facts Q; May the parties agree.on the facts involved in the action? ANS: Yes. The parties to any action may agree,.in writing, upon the facts involved in the litigation, and submit’ the case for judgment on the facts. agreed upon, without the introduction of evidence. No ’trial-shall thus be held, If the parties agree to only some facts in issue, trial shall\be held as to the disputed facts in'such order as the court shall prescribe (RULES OF COURT, Rule 30, Sec. 6). Order of Trial: Reversal of Order Q; State the order of trial of civil actions. ANS: Subject lo-provisions-on separate trials and unless the court for special reasons otherwise directs, the trial shall proceed as follows: 1. The plaintiff shall adduce evidence in support of his complaint; 2. The defendant shall then adduce evidence in, suppori of his defense, counterclaim, cross-claim and third-party complaint; / 3. The third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim and fourth-party complaint; 4. The fourth-parly and so-forth, if any, shall adduce evidence of the material facts pleaded by them; 5. The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court; 6. The parties may then respectively adduce rebutting evidence only, unless the court for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case; and 7. Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings Note: If several defendants or third-party defendants, and so forth, having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence (RULES OF COURT, Rule 30, Sec. 5). Q: When shail a reverse order of trial take place? ANS: Where the defendant, in his answer, relies upon an affirmative defense, a reverse order of trial shall take place. In this situation, the defendant presents evidence ahead of the plaintiff. The plaintiff need not present evidence since judicial admissions do not require proof (RULES OF COURT, Rule 129, Sec. 4) 490BEDAN RED BOO Delegation of Reception of Evidence Q: Under what circumstances may the judge delegate the reception of evidence? ‘ANS: General Rule: The judge shall personally receive the evidence adduced by the parties. Exception: Reception of evidence may be delegated to the clerk of court under the following conditions: (DEA-MOT) 1. The delegation may be made only in Default or Ex parte hearings, and in any case where the parties Agree in writing; 2. The reception of evidence shall be made only by the clerk of that court who is a Member of the bar; 3. _ Said clerk shall have no power to rule on Objections to any question or to the admission of exhibits; and 4. The clerk shall submit a report and Transcripts of the proceedings, together with the objections to be resolved by the court, within 10 days from the termination of the hearing (RULES OF COURT, Rule 30, Sec. 9). > Trial by Commissioners > Reference by Consent or Ordered on Motion Q: Under what circumstances may there be.a trial by commissioner? ANS: Trial by commissioner may be conducted under'the following circumstances: 1. Reference by Consent — When.both parties agree in writing to have the case referred to a commissioner (RULES OF COURT, Rule 32, Sec. 1); or 2. Reference Ordered on Motion — When the coult,,on its own motion or on motion of either party, directs a réference to the commissioner in the following cases: (TAQ) ee ry a. “When the Trial of an-issue of fact requires the examination of a long account; eS ‘ b... When the taking of an Account is necessary for the i court before judgment or ste c. When-a Question of fact, other than upon the pleadings, arises upon motion or othenwise, in any stage of a case, or for carrying a judgment or order into effect (RULES OF COURT, Rule 32, Sec. 2). Powers of the Commissioner Q: What po:vers may the commissioner exercise? ANS: The commissioner has and shall exercise the power: (RASSA) 1. To Regulate the proceedings in every hearing before him; 2. To do all Acts and take all measure necessary or proper for ‘he efficient performance of his duties; 3. To issue Subpoenas and subpoenas duces tecum; 4, To Swear witnesses, and 5. Torule upon the Admissibility of evidence (RULES OF COURT, Rule 32, Sec. 3). However, such powers are subject to the specifications and limitations stated in the order of reference which is furnished to the commissioner. The order may: (R-PED) Direct him to Report only upon particular issues. Direct him to Perform particular acts; Direct him to receive and report Evidence only; and Fix the Date for beginning and closing the hearings and for the filing of his report (RULES OF COURT, Rule 32, Sec. 3). BONS 491 /| r REMEDIAL LAW /(_.. BEDAN RED BOOK eport: ie ane 01 Within what time shall the commissioner file his report? ANS: Upon completion of the trial, hearing or proceeding before the commissioner, he shall file with the court his report in writing upon the matters submitted to him by the order of reference. When his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law in his report. All exhibits, affidavits, depositions, papers and the transcript, if any, of the testimonial evidence presented before him shall be attached to the report (RULES OF COURT, Rule 32, Sec. 9). Q: May a party object to the commissioner's report? ANS: Yes. Upon filing of the report, parties shall be notified by the clerk and they shall be allowed 10 days within which to signify grounds of objections to the findings of the report. Objections based on grounds which were available during the proceedings other than ihe findings and conclusions shall not be considered by the court unless they were made before the commissioner (RULES OF COURT, Rule 32, Sec. 10). Q: What shall the court.consider during ‘the hearing on the commissioner's report? . ly, ANS: When the reportS come up for confirmation, the court cannot be expected to re- hear the case upon-the entire record, but will. review only so. much as may be drawn in question by proper objections (Kréidt v. McCullough & Co. G.R: No. L-11362, January 24, 1918). After/the hearing, the court shall issue an order adopting, modifying or ejecting the report in whole or in part or recommit it to the commissioner or the court (RULES OF COURT, Rule 32, Sec. 11), P. CONSOLIDATION OR SEVERANCE (RULE 3D) r Q: When is consolidation of actions proper? ANS: Consolidation of actions is proper when: 1. Two or more Cases involve a common, question of law or facts; and 2. The said cases\are pending before thé same court (RULES OF COURT, Rule 31, Sec. 4). ‘ 4 Q: State the different modes of consolidating cases. ANS: The modes are the following: j , 1. Quasi-consolidation — where all, except one of several of actions, are stayed until one is tried, in which case the judgment in the one trial is conclusive as to the others; 2. Actual consolidation ~ where several actions are combined into one, lose their separate identity, and become a single action in ..hich a single judgment is rendered; and 3. Consolidation for trial - where several actions are ordered to be tried together, but each retains its separate character, and requires the entry of a separate judgment (Ner? v. Sandiganbayan, G.R. No. 202243, August 7, 2013). Q: Is consolidation cf cases mandatory? ANS: No. As a general rule, consolidation is discretionary upon the court. However, in following cases, consolidation becomes a matter of duty. 1. When the cases are pending before the same judge; or 2. When the cases are filed with different branches of the same RTC and one of such cases has not been partially tried (Raymundo v. Felipe, G.R. No. L- 30887, December 24, 1971) 492(.- . BEDAN RED BOOK Q: When may the court order a separate trial of any claim? ANS: The court may order a separate trial of any claim, cross-claim, counterclaim, third- party complaint or issues in furtherance of convenience or to avoid prejudice. In ‘severance, there is one case with several claims (RULES OF COURT, Rule 31, Sec. 2). Q. DEMURRER TO EVIDENCE (RULE 33) Grounds Q: On what ground may a demurrer to evidence be filed? ANS: After plaintiff has finished presenting his evidence, the defendant may move for the dismissal of the complaint on the ground that upon the facts and the law, the plaintiff has shown no right to relief or insufficiency of evidence (RULES OF COURT, Rule 33, Sec, 1). Effect of Denial Q: Give the effect of a denial of the demtirrer to evidence. ANS: The defendant shall have the right to present his evidence. Such denial of the demurrer to evidence does nat deprive the defendant of the right to adduce evidence on his behalf (RULES OF COURT, Rule 33, Sec. 1). Effect of Grant Q: What is the effect of granting the demurrer to evidence?, ANS: The case shall be dismissed with prejudice. A demurrer to evidence is an instrument for the expeditious termination of an action, thus, abbreviating judicial proceedings (Heirs of Pedro Pasag v. Spouses Parocha, G,R. No. 155483, April 27, 2607). Plaintiff may appeal as the grant is considered as judgment on the merits of the case (RULES OF COURT, Rule 41, Sec. 1). ? \ Waiver of Right to Present Evidence 9 Q: When is there a waiver of the right to present evidence? ANS: If the defendant's motion for judgment cn demurrer to evidence is granted and the order is subsequently reversed on appeal, the’ defendant shall be deemed to have waived his right to present evidence: (RULES OF COURT, Rule 33, Sec. 1). The appellate court cannot remand the case for further prcceedings; rather it should render judgment on the basis of the evidence presented by the plaintiff (Radiowealth Finance Co, v. Spouses Del Rosario, 'G.R. No. 138739, July 26, 2000). Q: Compare the effect of a reversal of an order granting a demurrer to evidence to that of an order of default. ANS: In an order reversing the grant of a demurrer to evidence, the appellate court should render judgment on the basis of the evidence presented by the plaintiff, and this includes unliquidated damages proven during the trial. In an order of default, the court cannot award unliquidated damages, because of the absence of a trial where the same may be proved (RULES OF COURT, Rule 9, Sec. 3, par. d). 493 = a ot < a wl = [riy a4 iil Case VOL 2. Vf 2019 7h ius Demurrer to Evidence in a Criminal 2emurrer to Evidence in a Ch fase Q: Compare demurrer to evidence in a civil case with demurrer to evidence in a criminal case. ANS: The differences are the following: persia lg Defendant need not ask for a leave of court before he files a demurrer to evidence (1 RIANO, Civil Procedure, supra at 470). Reece The granting of the demurrer results in the dismissal of the complaint. The order of dismissal of the complaint is appealable; Note: If plaintiff appeals and judgment is reversed by the| appellate court, it will decide the.case on the basis of the plaintiff's evidence with _ the. consequence that! the defendant already loses his fight to present evidence (RULES OF.COURT, Rule 33, Sec. 1). If the demurrer is*.denied,’ the defendant will proceed to present his evidence (RULES OF COURT, Rule 33, Sec. 1) eae The court cannot dismiss the case ‘motu proprio after the plaintiff rests its case. There should be a demurrer by the defendant (1 RIANO, supra at 470) A eee Cie? Demurrer may be filed with or without leave of court (RULES OF COURT, Rule 119, Sec. 23). unc totac The ‘granting of.the demurrer results in the acquittal of the'accused An acquittal is not appealable under the principle of double jeopardy (1 RIANO, Supra at 470) AS to the effect of denial of the demurrer If the demurrer was filed with leave of court, the defendant may adduce his evidence in his defense. If the demurrer was filed without leave of court, he is not allowed to present his evidence because he is deemed to have waived his right to present his evidence and he submits the case for judgment on the pasis of the evidence of the prosecution (RULES OF COURT, Rule 119, Sec. 23). | to motu proprio dismiss the action - | The court may dismiss the action motu | | proprio after giving the prosecution the chance to present its evidence (RULES OF COURT, Rule 119, Sec. 23). 494“= BEDAN RED BOOK VOL 2. 2019 R. JUDGMENTS AND FINAL ORDERS Q: What is a judgment? ANS: A judgment is one that finally disposes of a case, leaving nothing more for the court to do with respect to it. It is an adjudication of the merits, which, considering the evidence presented at the trial, declares categorically what the rights and the obligations of the parties are; or it may be an order or judgment that dismisses an action (Neypes v. CA, G.R. No. 141524, September 14, 2005). Q: What are the requisites for a valid judgment? ANS: The following are the requisites for a valid judgmer 1 en as : (ASO-WES) The court or tribunal must be clothed with Authority to hear and determine the matter before it; The court must have Jurisdiction over the parties and subject matter; The parties must have been given an Opportunity to adduce evidence in their behalf; The Evidence must have been considered by the tribunal in deciding the case; The judgment must be in Writing, personally and directly prepared by the judge; The judgment must State clearly the facts and the law upon which it is based, signed by the judge and filed with the clerk of court (North Cotabato Communications Corporation v. Sto. Tomas, G.R. No. 217575, June 15, 2016). Q: Enumerate the special forms of judgments. ANS: The special forms of judgments under the Rules of Court and jurisprudence are the following: t ah Judgment upon the merits — A judgment is on the merits when it determines the rights and liabilities of the parties based on the ultimate facts as disclosed by the pleadings or issues presented for trial: (Republic'v. CA, G.R. No. 103412, February 3, 2000); . Judgment by default — !t is one rendered by the Court after a defendant has been declared in default for failure to file an answer within the time required (RULES OF COURT, Rule 9, Sec.-3); Judgment on the pleadings — It is one rendered by the court if the answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading (RULES OF COURT, Rule 34, Sec. 1); Summary judgment - It is one granted by the court upon motion by either party, if it appears from the pleadings, depositions and affidavits that there are No genuine issues as to any pertinent facts hence, no serious controversy (RULES OF COURT, ,iule 35; Raboca v. Velez, A.M. No. RTJ-99- 1469, October 2, 2000); Several judgment — It is one rendered by a court against one or more defendants and not against all of them, leaving the action to proceed against the others (RULES OF COURT, Rule 36, Sec. 4); Separate judgment ~ It is a judgment rendered disposing of a claim among several others presented in a case, after a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of said ciaim (RULES OF COURT, Rule 36, Sec. 5) Judgment for specific acts ~ It is a judgment applicable in cases of. a. Conveyance, delivery of deeds or other specific acts; b. Sale of real or personal property c. Delivery or restitution of real property: d. Removal of improvements on property subject of execution; or e. Delivery of personal property (RULES OF COURT, Rule 39, Sec. 10); 495 Mie eg gan avany ae VdEDAN RED BOO 8. 10. 1% 12. 13. 14, 15. 16. #7, Special judgment — it is a judgment which can only be complied with by the judgment obligor because of his personal qualifications or circumstances or one that requires the performance of an act other than: a. Payment of money; and b. Sale of real and personal property (RULES OF COURT, Rule 39, Sec. 1); Judgment upon confession (Cognovit Accionem) — It is one rendered by the court when a party expressly agrees to the other party's claim or acknowledges the validity of the claim against him (Natividad v. Natividad, G.R. No. L-28296, March 2, 1928); Judgment upon compromise ~ It is one rendered by the court on the basis of a compromise agreement entered into between the parties (RIANO, Fundamentals, supra at 592); Clarificatory judgment — It is one rendered to clarify an ambiguous judgment or one difficult to comply with (Almendras v. Del Rosario, G.R. No. L-20158, October 14, 1968); : ie Judgment nunc pro-tunc (literally, now for.then) ~ It is a judgment intended to enter into the.record’the acts which had already been done, but which do not appear in the records (Briones-Vasquez v./CA, G.R. No. 144882, February 4, 2005}; Judgment sin‘perjaicio— It is-@ judgment without'a statement of the facts in support of its contlusion to be later supplemented by-the final judgment (Dizon v. Lopez, A.M. No. RTJ-96-1338, September 5, 1997). Judgment on demurrer to evidence — It is a judgment/rendered by the court dismissing’a,case upon motion of the defendant, onthe ground that upon the facts presented by the plaintiff and the law on the matter, the plaintiff has not shown any-right to relief (RULES OF COURT, Rule 33)>~—~, | Conditional, judgment ~ It is one the effectivity of Which depends upon the occurrence or the non-occurrence of an event. Such-judgment is generally void because of the absence of any disposition (Cu Unjieng E. Hijos v. The Mabalacat Sugar Co., G.R»No. 45351, June 29, 1940); Incomplete judgment —‘An incomplete judgment is one which leaves certain matters to, be settled in a subsequent proceeding (Ignacio v. Hilario, G.R. No. 1-175, April-30, 1946);and ~ Final and executory judgment — One that,is no longer appealable and is already capable of being executed;because the period for appeal has elapsed without a party having perfected an appeal (RIANO, Fundamentals, supra at 600). F Judgment without T-‘af Q: Give the concept of a judgment without trial. ANS: The theory of summary judgment is that although an answer may on its face appear to tender issues ~ requiring trial - yet if it is demonstrated by affidavits, depositions, or admissions that those issues are not genuine, but sham or fictitious, the court is justified in dispensing with the trial and rendering summary judgment for plaintiff (Carcon Development Corp. v. CA G.R. No. 88218. December 17, 1989). Contents of a: t idgme Q: What are the parts of a judgment? ANS: The judgment shall have the following parts 1. 2. 3. Statement of the case; Statement of facts; Issues or assignment of errors: 496Gerla 33 4, Court Ruling, in which each issue is, as a rule, separately considered and resolved; and, finally, 5. _Dispositive portion (fallo) (Velarde v. Social Justice Society, G.R. No. 159357, April 28, 2004). Q: If there is a conflict between the ratio decidendi and the fallo, which should prevail? ANS: The fallo controls. This rule rests on the theory that the fallois the final order while the opinion in the body is merely a statement ordering nothing. The rule applies when the dispositive part of a final decision or order is definite, clear, and unequivocal, and can wholly be given effect without need of interpretation or construction (Obra v. Spouses Badua, G.R. No. 149125, August 9, 2007). Memorandum Decision Q: What is a memorandum decision? ANS: A memorandum decision is one rendcred by an appellate court and incorporates by reference the findings of fact and conclusions of law contained in the decision or order under review. It must also provide’direct access to the facts and law being adopted, which must be contained ina statement attached to the decision and made an indispensable part of the decision (Francisco v. Winai Permskul, G.R. No. 81006, May 12, 1989). Judgment on the Pleadings (Rule 34) Q: When may a party file a motion for judgment on the pleadings? ANS: Where an answer fails to tender-an issue or otherwise, admits the material allegations of the adverse party's pleading, the court may/on motion, direct judgment on such pleading (ULES OF COURT, Rule $4, Sec. 1). Q: What is meant by “an answer fails te tender an issue the material allegations of the adverse party's pleadings?” ANS: The answer Would fail to tender an issue if it does not comply with the requirements for a specific denial set out in, Section 10 (or Section 8) of Rule 8; and it would admit the material allegations of the adverseipariy’s pleadings not only where it expressly confesses the truthfulness thereof but also if it omits to deal with them at all (Asian Construction & Development Corp. v. Sannaedle Co., Ltd, G.R. No. 181676, June 11, 2014). Q: When is judgment on the pleadings not applicable? ANS: The following actions cannot be the subject of a judgment on the pleadings as the material facts alleged in the complaint shall always be proved: 1. In actions for declaration of nullity or annulment of marriage or for legal separation (RULES OF COURT, Rule 34, Sec. 1); or 2. Unliquidated damages (RULES OF COURT, Rule 8, Sec. 11). Summary Judgments (Rule 35) Q: What is a summary judgment? ANS: A summary judgment, or accelerated judgment, is a procedural technique to promptly dispose of cases where the facts appear undisputed and certain from the pleadings, depositions, admissions and affidavits on record, or for weeding cut sham claims or defenses at an early stage of the litigation to avoid the expense and loss of time involved in a trial (Monterey Foods Corp. v. Eserjose, G.R. No. 153126, September 11, 2003) 497 i t PVE Er NYE y. REMEDEDAN RED BOOK Q; Give the requisites cf a summary judgment. ANS: The following are the requisites for a summary judgment to be proper: 1. There must be no genuine issue as to any material fact; and 2. That the moving party is entitled to a judgment as a matter of law (RULES OF COURT, Rule 35, Sec. 3). Q: What is a genuine issue? ANS: A genuine issue is an issue of fact which calls for the presentation of evidence, as distinguished from an issue which is sham, fictitious, contrived and patently unsubstantial so as not to constitute a genuine issue for trial (Smart Communications, Inc. v. Aldecoa, G.R. No, 166330, September 11, 2013). For. ant Q: When may a claimant file a motion for a summary judgment? ANS: A party seeking to recover upon a claim, counterclaim or cross-claim or to obtain a declaratory relief may, at any..time”aftér the°pleading in answer thereto has been served, move for summary judgment upon all or any, part thereof (RULES OF COURT, Rule 35, Sec. 1). ~ / For the Defendant’ ~ Q: When may a defendant file a motion for a summary judgment? ANS: A party against whom a claim, counterclaim or cross-claim is asserted or 2 declaratory relief is sought may, at any time, move for a summary judgment in his favor a8 to all or any part thereof (RULES OF COURT, Rule 35, Sec! 2). When the Case not Fully Adjudicated } © May there be partial summary judgment? ANS: Yes. If judgment is not rendered upon the whole case, the court shall ascertain what material facis exist,without substantial controversy and those that are controverted. The court shall then render a partial judgment with trial to, proceed’on the malters that remain controverted (RULES OF COURT, Rule 35, Sec. 4). Q: What is the remedy for a partial summary judgment? ANS: The propriety of the summary judgment may be corrected only on appeai or other direct review, not a petition for certiorari, since it imputes error on the lower court's judgment (Philippine Business Bank v. Chua,.G:R: No. 178899, November 15, 2010) Affidavits and Attachments Q: State the form and contents of the affidavits and supporting papers in a motion for summary judgment. ANS: Supporting and opposing affidavits shall be made on personal knowledge setting forth facts admissible in evidence and showing affirmatively that the affiant is competent to testify to the matters stated therein. Certif'ed true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto and served therewith (ROC, Rule 35. Sec. 5). Q: What is the effect of submission of affidavits in bad faith? ANS: The court shall order the offending party or counsel to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including attorney's fees, and the offending party or counsel may further be adjudged guilly of contempt (RULES OF COURT, Rule 35, Sec. 2). 498