CIVIL PROCEDURE MIDTERM EXAM

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ABS-GMA, an international broadcasting station, was sued in a complaint for damages instituted
by B, a congressman, for maligning his name into an issue of pork barrel scam. The cause of action
in the complaint substantially states that “ABS-GMA, in connivance with his political opponents,
unlawfully maligned his reputation.” After ABS-GMA filed in court its Answer and served a copy
of the same to B, the latter served a notice to ABS-GMA to take a deposition upon written
interrogatories on X, a field reporter of ABS-GMA. ABS-GMA opposed the taking of such
deposition upon grounds that it requires a motion/leave of court to require any witness to take
a deposition in a case. Likewise X refused to answer the entire set of written interrogatories
served upon him. For X’s refusal to answer the written interrogatories, B filed a motion to dismiss
the complaint.

a. What are the modes of discovery?

ANSWER:

Rule 23 to Rule 28 provided for the different modes of discovery, namely:

1. Depositions pending actions (Rule 23);

2. Depositions before action or pending appeal (Rule 24);
3. Interrogatories to parties (Rule 25);
4. Admission by adverse party (Rule 26);
5. Production or inspection of documents and things (Rule 27); and
6. Physical and mental examination of persons (Rule 28).

b. What is the purpose of a deposition?

ANSWER:
The following are the purposes of a deposition, to wit:
1. Any deposition may be used by any party for the purpose of contradicting or
impeaching the testimony of the deponent as a witness;
2. The deposition of a party or any one who at the time of taking the deposition was an
officer, director, or managing agent of a public or private corporation, partnership, or
association which is a party may be used by an adverse party for any purpose;
3. The deposition of a witness, whether or not a party, may used by any party for any
purpose if the court finds that:
a. The witness is dead; or
b. The witness resides at a distance more than one hundred (100) kilometers from
the place of trial or hearing, or is out of the Philippines, unless it appears that his
or her absence was procured by the party offering the deposition; or
c. The witness is unable to attend or testify because of age, sickness, infirmity, or
imprisonment; or
d. The party offering the disposition has been unable to procure the attendance of
the witness by subpoena, or
e. Upon application and notice, that such exceptional 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 used; and
4. If only part of a deposition is offered in evidence by a party, the adverse party may
require him or her to introduce all of it which is relevant to the part introduced, and
any party may introduce any other parts (Section 4, Rule 23).

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c. Is the opposition of ABS-GMA tenable?

ANSWER:

The Amended Rules on Civil Procedures requires only an ex parte motion but not a motion
for leave of court. Thus, any party desiring to elicit material and relevant facts from any
adverse parties shall file and serve the latter written interrogatories to be answered by the
party served or, if the party served is a public or private corporation or a partnership or
association, by any officer thereof competent to testify in its behalf (Section 1, Rule 25).

No. The Rules of Court explicitly provide that a motion/leave of court is not necessary to
avail of said modes of discovery after an answer to the complaint has been served. It is only
when an answer has not yet been filed (but after the jurisdiction has been obtained over the
defendant or property subject of the action) that prior leave of court is needed to avail of
these modes of discovery, the reason being that at that time the issues are not yet joined
and the disputed facts are not clear.

d. What is the difference of the use of a deposition of a plain witness and a deposition of a
party?

ANSWER:

The deposition of a party or any one who at the time of taking the deposition was an officer,
director, or managing agent of a public or private corporation, partnership, or association
which is a party may be used by an adverse party for any purpose.

On the other hand, the deposition of a witness, whether or not a party, may used by any
party for any purpose if the court finds that:

a. The witness is dead; or

b. The witness resides at a distance more than one hundred (100) kilometers from the
place of trial or hearing, or is out of the Philippines, unless it appears that his or her
absence was procured by the party offering the deposition; or
c. The witness is unable to attend or testify because of age, sickness, infirmity, or
imprisonment; or
d. The party offering the disposition has been unable to procure the attendance of the
witness by subpoena, or
e. Upon application and notice, that such exceptional 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
used. (Section 4, Rule 23).

e. Is the motion to dismiss filed by B upon grounds of refusal of X to answer written

interrogatories to parties, tenable?

Yes. The motion to dismiss is proper. If a party willfully fails to serve answers to
interrogatories submitted under Rule 25 of the Rules of Court after proper service of such
interrogatories, the court on motion and notice, may dismiss the action or proceeding or any
part thereof, or enter a summary judgment by default against that party, and in its discretion,
order him to pay reasonable expenses incurred by the other, including attorney’s fees. Here,
X refusal to answer written interrogatories to parties may a ground for the dismissal of the
action or proceeding and eventually liable to reasonable expenses incurred by the other
(Section 5, Rule 29).

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f. Distinction between Written Interrogatories (Section 25, Rule 23) Rule versus
Interrogatories to Parties (Rule 25)

As to the Deponent: In the former, the deponent is the party or ordinary witness; while in
the latter, the deponent is the party only.

As to Procedure: In the former, it is with intervention of the officer authorized by the Court
to take deposition, and the depositions are not served upon the adverse party directly. They
are instead delivered to the officer before whom the deposition is to be taken. In the latter,
there is no intervention. The written interrogatories are directed to the party himself. They
are served directly upon the adverse party (Section 1, Rule 25).

As to Scope: The former is the direct, cross, redirect and re-cross examinations; while the
latter, it is only one set of interrogatories.

As to the Time of Interrogatories: The former has no fixed time; while the latter has fifteen
(15) days to answer unless extended or reduced by the court.

As to Binding Effect: The former is binding to anyone who is present during the deposition;
while the latter is binding only to the parties.

g. What is the SCOPE of the examination in DEPOSITIONS?

What is chiefly contemplated is the discovery of every bit of information which may be useful
in the preparation for trial, such as the identity and location of persons having knowledge of
relevant facts; those relevant facts themselves; and the existence, description, nature,
custody, condition, and location of any books, documents, or other tangible things. Hence,
"the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer
can the time-honored cry of 'fishing expedition' serve to preclude a party from inquiring into
the facts underlying his opponent's case. Mutual knowledge of all the relevant facts gathered
by both parties is essential to proper litigation. To that end, either party may compel the
other to disgorge whatever facts he has ill his possession. The deposition-discovery procedure
simply advances the stage at which the disclosure can be compelled from the time of trial to
the period preceding it, thus reducing the possibility, of surprise (Republic v.
Sandiganbayan).

Limitations:

1. The deponent may not be examined regarding any privileged matter.

2. The deponent may only be examined regarding any matter which is relevant to the
subject of the pending action.

3. The court may issue orders to protect the parties and deponents and to limit examination
under Sec. 16 or 18 of these Rules. (Section 2 of Rule 23)

h. What is the EFFECT of Failure to Serve Written Interrogatories?

NO. As a general rule, a party not served with written interrogatories may not be compelled
by the adverse party to give testimony in open court, or to give a deposition pending appeal.
By way of an exception, when allowed by the court and there is good cause shown and the
same is necessary to prevent a failure of justice (Section 6, Rule 25).
This provision encourages the use of written interrogatories although a party is not
compelled to use this discovery procedure, the rule imposes sanctions for his failure to serve
written interrogatories by depriving him of the privileged to call the adverse party as a
witness or to give a deposition pending appeal.

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 However, a party, although not compelled by the Rules, is advised to file and serve a written
request for admission on the adverse party of those material and relevant facts at issue
which are, or ought to be, within the personal knowledge of said adverse party. The party
who fails to file and serve the request shall not be permitted to present evidence on such
facts. (Section 5, Rule 26).

ALTERNATIVE RULE:

Under Section 6, Rule 25 of the Rules of Court provides that a party not served with written
interrogatories may not be compelled by the adverse party to give oral testimony in open
court, or to give deposition pending appeal (Section 6, Rule 25). This provision encourages
the use of written interrogatories although a party is not compelled to use this discovery
procedure, the rule imposes sanctions for his failure to serve written interrogatories by
depriving him of the privilege to call the adverse party as a witness or to give a deposition
pending appeal.

i. May a deponent be compelled to subsequent oral examination?

NO. In Spouses Afulugencia v. Metropolitan Bank, the Supreme Court held that as a rule, in
civil cases, the procedure of calling the adverse party to the witness stand is not allowed,
unless written interrogatories are first served upon the latter. The rule aims to prevent
fishing expeditions and needless delays; it is there to maintain order and facilitate the
conduct of trial. It will be presumed that a party who does not serve written interrogatories
on the adverse party beforehand will most likely be unable to elicit facts useful to its case if
it later opts to call the adverse party to the witness stand as its witness.

II

On the pre-trial conference of a case of Declaration of Nullity of Deed of Sale and Recovery of Lot
with Damages filed by A against B, plaintiff A failed to submit a judicial affidavit of his material
witness, X. Likewise, defendant B failed to appear but his counsel Y was present. Upon
presentation of evidence in-chief by A, B’s counsel opposed the presentation of testimony of X
for A’s failure to submit seasonably a judicial affidavit.

a. What is the effect of B’s failure to attend in the pre-trial conference but was represented
by his counsel on the said incident/proceedings?

ANSWER:

During the pre-trial, if it is the defendant who fails to appear, then the plaintiff is allowed to
present his evidence ex parte within ten (10) calendar days from termination of the pre-trial,
and the court to render judgment on the basis of the evidence offered (Section 5, Rule 18).
In this case, B, the defendant, failed to attend the pre-trial conference notwithstanding the
representation of his counsel. He did not even give any excuse for his non-appearance. Thus,
B’s failure to appear at the pre-trial has adverse consequences, that is, A may be allowed to
present his evidence ex parte and the court shall render judgment on the basis thereof. This
is due to B’s disregard of the mandatory attendance in the pre-trial conference.

Note:

The order of the court allowing A to present his evidence ex parte does not dispose of the
case with finality pursuant to Section 1, Rule 41, that no appeal may taken for an
interlocutory order.

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b. When shall a party submit his judicial affidavit and that of his witnesses?

ANSWER:

The parties shall file with the court and serve on the adverse party, personally or by licensed
courier service, their judicial affidavits and that of their witnesses, not later than five (5) days
before pre-trial or preliminary conference or the scheduled hearing with respect to motions
and incidents.

c. What is the effect of failure to appear in the pre-trial on the part of the plaintiff? And on
the part of the defendant?

ANSWER:
When duly notified, the failure of the plaintiff (and counsel) to appear without valid cause
when so required, pursuant to Section 4, Rule 18, shall cause the dismissal of the action. The
dismissal shall be with prejudice, unless otherwise ordered by the court. Since the dismissal
of the action shall be with prejudice, unless otherwise provided, the same shall have the
effect on an adjudication on the merits thus, final.
A similar failure on the part of the defendant (and counsel) shall be cause to allow the
plaintiff to present his or her evidence ex-parte within ten (1) calendar days from termination
of the pre-trial, and the court to render judgment on the basis of the evidence offered
(Section 5, Rule 18).
Note:
The order of the court allowing the plaintiff to present his or her evidence ex-parte does not
dispose of the case with finality.

d. What is the PURPOSE of PRE-TRIAL?

ANSWER:
Pre-trial as a procedural devise held prior to the trial for the court to consider the following
purposes:
1. The possibility of an amicable settlement or of a submission to alternative modes of
dispute resolution;
2. The stipulation of issues;
3. The possibility of obtaining stipulations or admissions of facts and of documents to avoid
unnecessary proof;
4. The limitation of the number and identification of witnesses and the settling of trial
dates;
5. The advisability of a preliminary reference of issues to a commissioner;
6. (dismissing the action should a valid ground therefor be found to exist;
7. The requirement for the parties to:
a. Mark their respective evidence if not yet marked in the judicial affidavits of their
witnesses;
b. Examine and make comparisons of the adverse parties’ evidence vis-à-vis the copies
to be marked;
c. Manifest for the record stipulations regarding the faithfulness of the reproductions
and the genuineness and due execution of the adverse parties’ evidence;
d. Reserve evidence not available at the pre-trial, but only in the following manner:
i. For testimonial evidence, by giving the name or position and the nature of the
testimony of the proposed witness;
ii. For documentary evidence and other object evidence, by giving a particular
description of the evidence.
8. Such other matters as may aid in the prompt disposition of the action. (Section 2, Rule
18).
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e. May the parties agree to do away with pre-trial and immediately proceed to the trial on
the merits of the case?

NO, because the nature of pre-trial is mandatory (Section 2, Rule 18).

f. What is the effect of failure to file and serve his pre-trial brief?

The effect of failure to file a pre-trial brief shall have the same effect as failure to appear at
the pre-trial (Section 6, Rule 18). 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
present his or her evidence ex parte within ten (10) calendar days from termination of the
pre-trial, and the court shall render judgment on the basis of the evidence offered (Section
5, Rule 18).

g. If a party, whether the defendant or plaintiff, fails to seasonably file his pre-trial brief, may
the court nonetheless conduct pre-trial?
NO. Rule 18 of the Rules of Court mandatorily requires the parties to seasonably file their
pre-trial briefs. Plaintiffs failure to do so shall be cause for the dismissal of the action.
On the other hand, defendant’s failure to do so shall be cause to allow the plaintiff to present
his evidence ex parte and the court to render judgment based thereon. The court cannot
hold pre-trial without the parties filing their pre-trial briefs. (Vera v. Rigor).

Distinguish Summary Judgment from Judgment on the Pleadings.

A summary judgment is distinguished from a judgment on the pleadings as follows:
1. The former is proper even if there is a remaining issue as to the amount of damages, while
the latter is proper if it appears that there is no genuine issue between the parties;
2. The former is based not only on the pleadings but also upon affidavits, depositions, and
admission showing that, except as to the amount of damages, there is no genuine issue,
while the latter is based exclusively upon the pleadings without the presentation of any
evidence. In other words, the former is a judgment on the facts summarily proved by
affidavits, depositions or admissions, while the latter is a judgment on the facts as pleaded;
3. The former may be prayed for by a defending party (Section 2, Rule 35), while the latter may
be prayed by a plaintiff or claimant; and
4. In the former, the motion requires a 10-day notice (Section 3, Rule 35), while in the latter,
the motion is subject to a 3-day notice rule (Section 4, Rule 15).

RULE 33 (DEMURRER TO EVIDENCE)

When and upon what grounds may a defendant move for a demurrer to evidence?
A defendant may move for a demurrer to evidence after the plaintiff has completed the
presentation of his or her evidence (meaning the plaintiff has already rested his case), the
defendant now may move for dismissal on the ground that upon the facts and the law the plaintiff
has shown no right to relief.
What are the effects if his motion is granted? And the effects if it is denied?
The effect if the defendant’s motion is granted and the order of dismissal is reversed on appeal,
the movant loses his right to present the evidence on his behalf. In the case of reversal, the
appellate court shall render judgment for the plaintiff based on the evidence alone (Section 1,
Rule 33).

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In the event that the defendant’s motion is denied, he does not waive his right to offer evidence
(Section 1, Rule 33). An order denying a demurrer to evidence is interlocutory and is therefore,
not appealable. It can however be the subject of a petition for certiorari in case of grave abuse
of discretion or an oppressive exercise of judicial authority.

RULE 37 (NEW TRIAL)

When may a party file a motion for new trial or a motion for reconsideration of a judgment or
final order?
A party aggrieved by a judgment or final order may file a motion for new trial or a motion for
reconsideration within the period for taking an appeal (Section 1, Rule 37).

What are the grounds for filing a motion for new trial and reconsideration to set aside a
judgment or final order?
The grounds for filing a motion for new trial or reconsideration are the following:
1. Fraud, accident, mistake, or excusable negligence which ordinary prudence could not
have guarded against and by reason of which the aggrieved party has probably been
impaired in his rights; and
2. Newly discovered evidence, which the aggrieved party could not, with reasonable
diligence, have discovered and produced at the trial, and which if presented would
probably alter the result (Section 1, Rule 37).

RULE 38 (RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS)

What are the grounds for filing a petition for relief of a judgment?
A petition for relief of a judgment may be filed on the ground that the judgment or final order is
entered, or the proceeding is thereafter taken, against the petitioner through fraud, accident,
mistake, or excusable negligence, praying that such judgment, final order or proceeding be set
aside (Section 1, Rule 38).

Within what period of time may a petition for relief from a judgment be filed in court?
A petition for relief may be filed within sixty (60) days after the petitioner learns of the judgment,
final order, or proceeding, but not more than six (6) months after such judgment or final order
was entered or such proceeding was taken. The petition must be verified (Section 3, Rule 38).

A complaint for specific performance with damages filed before the RTC was dismissed by the
court upon grounds of failure to state a cause of action. Counsel for plaintiff filed a motion for
reconsideration but was denied by the trial court for lack of any reason to disturb the order.
Unfazed, counsel for plaintiff filed a notice of appeal from the said order denying the motion for
reconsideration. Counsel for defendant moved to dismiss the appeal contending that the order
issued by the RTC is an interlocutory order not a judgment or final order.

a. Rule on the motion.

The motion should be denied for lack of merit. An order denying a motion reconsideration
is a final order, not an interlocutory order, as it puts an end to the particular matter resolved
(which is the dismissal of the complaint on the ground of failure to state a cause of action),
or settles definitely the matter therein disposed of, and nothing is left for the trial court to
do other than to execute the order. Hence, an order denying a motion for reconsideration
of an order dismissing a complaint is appealable.
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 ALTERNATIVE ANSWER:
When a complaint is dismissed upon grounds of failure to state a cause of action is a
judgment and final order, not an interlocutory order. In this case, the RTCs dismissal order
already disposed the subject matter in its entirety or terminates the action or proceeding,
leaving nothing more to be done except to enforce by execution what the court has
determined. It is not an interlocutory order because the order does not deal with preliminary
matters and likewise does not leave something else to be decided upon.

b. Final Order versus Interlocutory Order

A final order disposes of the subject matter in its entirety or terminates a particular
proceeding or action, leaving nothing more to be done except to enforce by execution what
the court has determined, but interlocutory order does not completely dispose of the case
but leaves something else to be decided upon.

On the other hand, an interlocutory order deals with preliminary matters and the trial on the
merits is yet to be held and the judgment rendered. The test to ascertain whether or not an
order or a judgment is interlocutory or final is: does the order or judgment leave something
to be done in the trial court with respect to the merits of the case? If it does, the order or
judgment is interlocutory; otherwise, it is final.

Conflict between the Fallo & Ratio Decidende?

When there is a conflict between the dispositive portion or fallo of a decision and the opinion of
the court contained in the text or body of the judgment, the former prevails over the latter. The
exception is where the inevitable conclusion from the body of the decision is so clear as to show
that there was a mistake in the dispositive portion, the body of the decision will prevail (The Law
Firm of Armovit v. CA).