Civil Procedure – Dean Agranzamendez

Module 1

Lecture No. 1

Civil Procedure

 Part of Remedial Law

 It is the procedure governing the filing, processing, and adjudication of a civil action/ civil
case/ civil suit
 Civil procedure is a procedural law or an adjective law because it prescribes the method
of enforcing rights and obtaining redress for their invasion or violation.
 It is different from substantive law, because a substantive law is a law that creates,
defines, and regulates rights and duties that may give rise to a cause of action.
 Example of Substantive Law: Civil Code
 Example of Procedural Law: Rules of Court (Rules of Court - 1997 Rules of Civil Procedure
revised by A.M. No. 19-10-20-SC)
 Civil Procedure is divided into the following topics:
1. General Provision (Rule 1)
2. Ordinary Civil Actions (Rules 2-5)
3. Procedure in the RTC (Rules 6-39)
4. Appeals (Rules 40-56)
5. Provisional Remedies (Rules 57-61)
6. Special Civil Actions (Rules 62-71)

* also include: 1991 Rules of Summary Procedure and Local Government Code ( Barangay Justice
System) and other issuances of the Supreme Court (e.g. small claims)

Jurisdictions of Courts in Civil Cases

Jurisdiction- 2 Latin words juris and dico (meaning: I speak by the law)

- Power or authority of a court or tribunal to hear, try and decide a case

- Authority by which a court or a judicial officer takes cognizance of a case undecided

Kinds of Jurisdiction:

Original – bestowed upon a court in the 1st instance (ex. RTC which has original jurisdiction
over civil actions that are incapable of pecuniary estimation).

Appellate – given to a court by means of an appeal from the judgement of a lower court.

General – power of a court to adjudicate all cases except those expressly withheld from its power
(ex: RTC).

Special or Limited - limits the courts’ jurisdiction only to some particular cases.

Exclusive – power of a court or a tribunal to adjudicate a case to the exclusion of other courts
or tribunals.

Concurrent – (or coordinate jurisdiction) power conferred upon different courts whether of the
same level or of different ranks.

Ex of concurrent jurisdiction of courts of the same level:

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 RTC has concurrent jurisdiction with another RTC – ex: in a criminal case involving
kidnapping (continuing crime) Baguio- La Union- Pangasinan – in this case, the RTC of
Baguio, La Union and Pangasinan have concurrent jurisdiction to try and decide this
case of kidnapping.

*Note: If the case (kidnapping) is filed first with the RTC of Baguio and the RTC of Baguio
has validly acquired jurisdiction, then the said RTC will take cognizance of the case to
the exclusion of all the other courts. (Exclusionary Principle)

Doctrine of Judicial Stability or Non-Interference – a court of co-equal rank cannot

interfere with the judgment or processes of another court of the same rank.

Ex of concurrent jurisdiction of courts of different level:

The RTC, CA and the SC have concurrent jurisdiction to issue writ of certiorari,
prohibition or mandamus. The litigant may file his action to the RTC or with the CA or
with the SC (although there is a doctrine of hierarchy of courts)

*Note: If the jurisdiction is concurrent among courts of different ranks, the doctrine of
hierarchy of courts must be observed. It does not mean that a party has the absolute
freedom to file his petition immediately with the SC. This doctrine will compel the party to
file his petition with the RTC. Only when there is a compelling reason when it is absolutely
necessary that the party may file his petition with a higher court like the SC.

Four level of Judicial System:

First level courts (municipal trial courts, metropolitan trial courts, municipal trial courts
in cities, municipal circuit trial court)
Second level courts - Regional Trial Courts
Philippines is divided into 13 judicial regions
Court of Appeals
Supreme Court – highest court of the land

RTC has appellate jurisdiction over judgements of MTC

CA is an appellate court

SC is an appellate court

Sandigang Bayan is an appellate court but has also an original jurisdiction

Delegated Jurisdiction – the MTC has delegated jurisdiction over cadastral cases and land
registration cases when the land involved is UNCONTESTED, or even if contested but the value
of the land does not exceed 100,000 pesos.

Interlocutory Jurisdiction or Special Jurisdiction – MTC has interlocutory jurisdiction to

hear and decide petitions for writ of habeas corpus, or applications for bail in the absence of all
RTC judges in the province or city. (*petitions for writ of habeas corpus is a petition that is
cognizable by the RTC, so it is the RTC that has jurisdiction over a petition for habeas corpus.
BUT in the absence of any RTC judge in the place, the petition may be filed with the MTC of the
place that has interlocutory jurisdiction over the said petition)

Q: What happens if the court has no jurisdiction over a case?

A: All the proceedings, including the judgment are VOID. If the court has no jurisdiction over a
case, then only power that it has is to dismiss the case. The party may file a motion to dismiss

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alleging lack of jurisdiction but the court itself can dismiss the case on its own even if there is
no such motion to dismiss because a court is required to take notice of the limit of its jurisdiction.
If the court renders judgment without jurisdiction, it can be attacked, assailed or impugned any
time even for the first time on appeal. It can be attacked directly or even collaterally because it
is a void judgment. If a court has no jurisdiction and it renders a judgment, then a party can
assail the judgment directly or collaterally (exception: when the party himself has invoke the
jurisdiction of this court and then renders judgment that is adverse to him. He cannot, anymore,
assail the judgment of the court whose jurisdiction he has invoked – PRINCIPLE OF LACHES OR
ESTOPPEL WILL PRECLUDE OR BAR THIS PARTY FROM IMPUGNING THE JURISDICTION OF
THE COURT).

REQUISITES OF A VALID EXERCISE OF JURISDICTION:

1. JURISDICTION OVER THE PERSON OF THE PARTIES – plaintiff (party bringing the action)
and the defendant (party against whom the action is instituted).
Q: How may a court acquire jurisdiction over the person of the plaintiff?
A: If the plaintiff filed a complaint with a court, then he submits his person to the jurisdiction
of the court.
Q: How may a court acquire jurisdiction over the person of the defendant?
A: By valid service of summons upon the defendant or by his voluntary appearance in court.
2. JURISDICTION OVER THE SUBJECT MATTER OF THE ACTION
3. JURISDICTION OVER THE RES - Necessary only when the defendant is a non-resident
defendant who is not in the Philippines. If the defendant is a non-resident defendant and he
is not in the Philippines, then he can be sued in the Philippines only in two instances:
a. The civil action affects the status of the plaintiff who is in the Philippines; OR
b. The action involves the property of the defendant situated in the Philippines.

Q: What will determine the jurisdiction of the court?

A: The jurisdiction of the court is determined by the facts alleged in the complaint and the law
then enforced at the time of the commencement of the action. NOTE: JURISDICTION MUST BE
DETEMINED AT THE TIME OF THE COMMENCEMENT OF THE ACTION.

Q: How a civil action commence?

A: It is commenced by the filing of an original complaint in court.

EXCEPTION: THE JURISDICTION MAY ALSO BE DETERMINED BY THE DEFENSE SET UP BY

THE DEFENDANT IN HIS ANSWER IN CASE OF EJECTMENT CASE FILED WITH THE MTC AND
THE DEFENDANT WILL SET UP THE DEFENSE OF AGRICULTURAL TENANCY (HE CLAIMS
TO BE AN AGRICULTURAL TENANT OF THE PLAINTIFF). THE COURT WILL NOW CONDUCT A
PRELIMINARY HEARING ON THE AFFIRMATIVE DEFENSE OF AGRICULTURAL TENANCY. IF
AFTER THE HEARING, THE COURT FINDS THAT THERE EXISTS A AGRICULTURAL TENANCY
BASED ON THE EVIDENCE PRESENTED, THEN THE COURT SHOULD DISMISS THE CASE
BECAUSE THE JURISDICTION OVER THA CASE IS VESTED WITH THE DARAB.

Q: What happens when the court acquires jurisdiction?

A: The rule is that, when jurisdiction is acquired by a court, it shall continue to exercise
jurisdiction over the case until its termination. The court will not lose jurisdiction over the case
until the case is terminated (DOCTRINE OF ADHERENCE TO THE JURISDICTION).

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DOCTRINE OF PRIMARY JURISDICTION – administrative agency that has quasi-judicial power
has the primary jurisdiction to try and adjudicate case because this administrative agency is
more equipped with competence and skills to render a judgment or a decision in the case.

Lecture No. 2

Kinds of Civil Actions: (How do you classify civil actions?)

 As to the basis of the action/ as to the foundation: Civil action may either be (1)
real action or (2) personal action
 As to the object of the action – (meaning: against whom the action is directed)
(1)action in personam, (2) action quasi in rem and (3) action in rem

Q: Why is it important to know the classifications of civil action?

A: It is important to know the classification of civil actions so that we will know how to
determine the jurisdiction of courts in civil cases. Also, it is important to determine the venue
of the action. (To determine the (1) jurisdiction, (2) venue and (3) mode of service of summons
upon the defendant.)

Q: What is a real action/ when is a civil action a real action?

A: A real action is an action that affects title to or possession over a real property or any
interest therein. (If the issue concerns the ownership or possession of a real property, then
that action is a real action.)

Note: A real action is founded upon the privity of a real estate – meaning: the issue for
litigation is the title to ownership or possession of a real property.

Note: “title to” means ownership

Example: The plaintiff claiming the defendant has committed an act that damaged or
destroyed his piece of land, and so he goes to court to claim for damages for the destruction
of his land that was caused by the defendant. It is a claim for damages involving his land, is
that a real action?

A: No. Although the property that is involved in this case is a land which is a real property,
yet the plaintiff is not claiming ownership, he is just claiming damages in this civil action,
then the civil action is not really a real action.

Q: What is a personal action?

A: A personal action is an action in which the plaintiff seeks the recovery of a personal
property, or the enforcement or rescission of a contract, or the recovery of damages.

Q: What is the nature of the action to annul a contract of loan including the real estate mortgage
thereon? Is this a real action?

A: No, this action is a personal action. It has been said that a real action is founded upon the
privity of a real estate.

Actions classified according to object or against whom the civil action is directed:

1. Action in personam

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- The complaint or the action is directed against a particular individual. There is a
particular defendant(s)
- It is an action in personam when the action is to establish to claim against a particular
person on the basis of his personal liability and the judgment that the court may render
in that case will bind him personally, it binds him and it binds him alone.
2. Action quasi in rem
- An action quasi in rem is an action brought against an individual also (there is also a
particular defendant)
- The purpose of the action is to subject the interest of the defendant in a particular
property to the obligation burdening the property. The judgment in an action quasi in
rem is conclusive only between the parties.
- It is an action that deals with the status, ownership, or liability of a particular property
but which are intended to operate on these questions only as between the plaintiff and
the defendant.
- Ex: action for partition of property, attachment or foreclosure of a mortgage
3. Action in rem
- Is an action against all persons who might be minded to make an objection of any sort
against the right sought to be established in that action.
- It is an action directed against the whole world.
- The judgment in an action in rem binds the whole world. It is an action against the thing
itself, a particular property, status, NOT against a particular person.
- Ex: land registration proceedings, petition for cancellation or correction of entry in the
civil registry under Rule 108

Q: If an action is an action in personam, is that also a real action?

A: No, an action in personam is not necessarily a real action. It may be, it may not be. A real
action is not necessarily an action in rem. For example, an action to recover title or possession
of real property is a real action but it is an action in personam because it is directed against
a particular individual, it is not brought against the whole world.

In an action in personam, jurisdiction over the person of the defendant is essential so that
the court can take cognizance of the case.

In an action quasi in rem or action in rem, even if the court cannot or has not acquired
jurisdiction over the person of the defendant, still it can validly take cognizance of the case
and assume jurisdiction PROVIDED IT HAS JURISDICTION OVER THE RES.

Q: How may the court acquire jurisdiction over the res?

A: It can do so in any of the following ways:

a) By the seizure of the property under legal process or by the property is brought in to the
actual custody of the court
Ex: Plaintiff files a complaint in which he also seeks the attachment of defendant’s
property located in the Philippines. Then, the property that is the subject of the
attachment will be seized, there will be a seizure of the property and it will be brought to
the actual custody of the court.
b) As a result of the institution of the legal proceedings in which the power of the court is
recognized and made effective. By means of actual institution of the legal proceedings.
Ex: The plaintiff filed an action for annulment of marriage. (Defendant is a non-resident
defendant and he is not in the Philippines) The case affects the status of the plaintiff who
is in the Philippines. How may the court acquire jurisdiction over the res in this example?

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 A: By the institution of the legal proceeding. Meaning: by the filing of the action in court.
The moment the case is filed in court, then the court also acquire jurisdiction over the
res.

JURISDICTION OF THE FIRST LEVEL COURTS OR THE MTCs

Q: Over what civil actions does the MTC have jurisdiction?

A: MTCs have jurisdiction over the following civil actions:

1. Over all civil actions and probate proceeding, whether testate or intestate, where the value
of the personal property or estate or the amount of the demand does not exceed 300,000
pesos or 400,000 pesos in Metro Manila, exclusive of damages of whatever kind, interest,
attorney’s fees, litigation expenses and costs. (personal action)
2. All cases of forcible entry and unlawful detainer (ejectment case or action interdictal)
3. All civil actions which involves title to or possession of personal property or any interest
therein where the assessed value of the property does not exceed 20,000 pesos or 50,000
pesos in Metro Manila. (real action)

NOTE: When it comes to a personal actions, you need to know the total demand or claim of
the plaintiff. If the amount does not exceed 300,000 pesos or 400,000 pesos in Metro Manila,
exclusive of damages of whatever kind, interest, attorney’s fees, litigation expenses and costs,
then, it is the MTC that has jurisdiction. If it exceeds, then, it the RTC that has jurisdiction.
Supposed it is exactly 300,000 pesos or 400,000 pesos, then it falls within the jurisdiction of
the MTC because a number cannot exceed itself.

Illustrative Case:

Total amount of plaintiff’s demand not exceeding 300,000 pesos or 400,000 pesos in metro
Manila exclusive of damages of whatever kind, interest, attorney’s fees, litigation expenses
and costs (DIAL-C) but in his complaint, he is also claiming for moral damages in the amount
of 500,000 pesos. He is also claiming an interest in the amount of 500,000 pesos, etc. His
total claim now is 1,299,000 pesos.

Q: In what court should he file his complaint?

A: He should file his complaint in the MTC because in determining what court can have
jurisdiction, you exclude damages of whatever kind, interest, attorney’s fees, litigation
expenses and costs.

NOTE: If the claim for damages is merely incidental to or the consequence of the main cause
of action, then that should be excluded. BUT if the main cause of action is damages or one
of the causes of action is damages, then the amount of all these damages should be taken
together in determining what court can try the case.

Ex: You are claiming that the cause of a libellous article that was published you suffered
mental anguish, sleepless nights, ect. And so, you claimed to have been defamed by this
libellous article and so you are going to court to file a complaint for damages. You are
claiming moral damages of 500,000 pesos, exemplary damages of 250,000, etc. Then, the
amount of these damages should be taken tog together in determining what court can try
the case. Because here, damages is the main cause of action or one of the causes of
action.

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 You are filing a complaint to recover the value of a property, the value of the personal
property is 299,000 pesos and you are claiming for damages for 1,000,000 pesos. Your
total amount of claim now is 1,299,000 pesos. Will you file your action in the RTC or
MTC?

A: File it in the MTC because your claim for damages is merely incidental to your main
cause of action.

NOTE: In personal action under the jurisdiction of MTC, you must know the total amount of
plaintiff’s demand or claim. It should not exceed 300,000 pesos or 400,000 pesos in Metro Manila
EXCULSIVE OF DIALC. In real action, you should look into the assessed value of the real
property subject of the litigation. It should not be exceeding 20,000 pesos or 50,000 pesos in
Metro Manila.

Q: How will you know the assessed value of the property?

A: Look at the tax declaration.

The assessed value should be alleged or specified in the complaint or at least it should be shown
in the tax declaration that is attached to the complaint.

forcible entry or unlawful detainer – ejectment cases

An ejectment case falls within the EXCLUSIVE JURISDICTION OF THE MTC regardless of the
assessed value of the property. If it is an ejectment case, you are not guided by the assessed
value of the property.

BUT if you file a complaint for unlawful detainer against the defendant, in the same complaint,
you are claiming the payment of unpaid rentals in the total amount of 1,500,000 pesos. Should
that be filed with the RTC because of your claim of payment of unpaid rents which is more than
300,000 pesos or 400,000 pesos? NO, because your claim for the payment of the unpaid rent is
merely incidental to your main action for unlawful detainer.

Unlawful detainer v. Forcible entry

Unlawful detainer Forcible entry

Defendant’s possession lawful at the start Defendant’s possession of the property is
becoming unlawful at a later time unlawful at the start because he takes
possession of the property by means of force,
intimidation, strategy, threat, or stealth.
Unlawful detainer and forcible entry are real action because what is involved here is a real
property but regardless of its assessed value it falls under the jurisdiction of the MTC.

Lecture 3

An action is a real action if it affects title to or possession of a real property or any interest
therein. And all other actions are classified as personal action.

A personal action before the MTC, the amount of plaintiff’s demand or claim exclusive of DIALC
should not exceed Php300, 000 or Php400, 000 in Metro Manila.

A real action which certain (4:40)

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 VIDEO 3

Jurisdiction

Jurisdiction of MTCs.

1. The MTC shall have jurisdiction over all civil actions and probate proceedings, testate or
intestate, where the value of the personal property estate or amount of the demand
does not exceed 3ook or 400k in metro manila exclusive of damages of whatever kind,
interest, atty’s fees, litigation expenses and costs.
2. Overall cases of forcible entry and unlawful detainer
3. All civil actions which involve title to or posseiosn of real property or any interest
therein where the assed value of the property does not exceed 30 ooo or 50 k in metro
manila,

1. Personal action
2. Real action
3. Real action

Kinds of actions.

Kinds of civil action.

-as to the basis of the action

a. real

b. personal

-as to the object – against whom the action is directed.

a. action in personam

b. action in quasi in rem

c. action in rem.

1. The action is a real action if it affects title to or possession of a real property or any
interest therein and all other actions are classified as personal actions. In a
personal action before the MTC the amount of plaintiff’s demand or claim exclusive
of DIAL-C should not exceed 3ooo or 4000 in metro manila.
2. Real action pertains to a forcible entry or an unlawful detainer cases known as
ejectment cases.
NOTE:
a. real actions may be classified into ccion interdictal. Falling within this
classification or unlawful detainer and forcible entry cases. Action interdictal if
the purpose is to recover possession de facto of real property. What is involved
here is possession de facto or physical material possession.

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 b. Accion publiciana is to recover right of possession or possession de jure of real
property.

c. Accion reivindicatoria an action to recover ownership including the possession of

a real property.

3. Real action but could be accion puliciana or accion reivindicatoria . all civil actions
which involves title to or possession of real property or any interest therein where
the assessed value of the property does not exceed 20k or 50k in metro manila.

Second one – forcible entry unlawful detainer cases. This falls within the exclusive original
jurisdiction of the MTC regardless of the amount of the rent involved and regardless of the
amount of damages being claimed by the plaintiff If any.

If the action is one for forcible entry or unlawful detainer, the mtc will have jurisdiction
regardless of the assessed value of the real property involved unlike in the 3rd one where the
jurisdiction of the MTC is determined by the assessed value of the property. it should not
exceed 20k or 50k in metro manila.

Jurisdiction of the RTC

1. The RTC shall have jurisdiction, exclusive original jurisdiction, over all civil actions in
which the subject of litigation is incapable of pecuniary estimation.
2. Over all civil actions which involves the title to or possession of real property or any
interest therein where the assessed value of the property exceeds 20k or 50k in metro
manila.
3. In all actions in admiralty and maritime jurisdiction where the demand or claim exceeds
300k or 400k in metro manila ;
4. In all matters of probate, both testate and intestate, where the gross value of the estate
exceeds 300k or 400k in metro manila
5. In all actions involving the contract of marriage and marital relations; although this
should fall within the jurisdiction of the family court. Family court is an RTC designated
by the SC as a family court.
6. In all cases not within the exclusive jurisdiction of any court or tribunal exercising
judicial or quasi judicial functions; If the case does not pertain or does not fall within
the exclusive jurisdiction of any court or tribunal it is then the RTC who has the
jurisdiction. This makes the RTC a court of general jurisdiction.
7. In all other cases in which the demand, exclusive of interest, damages of whatever
kind, interest, atty’s fees, litigation expenses and cost or the value of the property in
controversy exceeds 300 or 400k in metro manila.

If the claim for damages is merely incidental to the claim of the plaintiff to the main
cause of action, incidental to or the consequence of the main cause of action then it is
exclusive of damages of whatever kind.
But if the main casue of action or one of the casues of action is damages then you
include all this damages and the total amount should determine what court will have
jurisdiction.

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Filling a case based on quasi delict, action for damage, your main cause of action is
damages then you do not exclude damages in determining what court will try the case
ecause your main aus of action is damages.

Personal action and real action.

Personal action
If the action is a personal action the action will fall within the juris of the MTC or of the
RTC depending on the total amout t of plaintiff’s calim or demand exclusive of DIALC
Determine the total claim or demand as alleged in the complaint exclusive of DIALC

If the amount of the demand or claim exclusive of DIALC does not exceed 300k or 400k
in MM then it is the MTC that will have jurisdiction over the action . but if it exceeds
that amoun exclusive DILC then it is the RTC who has the jurisdiction.

Real action

Look into the assessed value of the real property subject matter of the litigation. If the
assessd value does not exceed 20 k or 50k in mm then it is the MTC that will have
jurisdiction. But if it exceeds 20l or 50k in MM tehn it is the RTC. If it is a case of
forcible entry or unlawful detainer then it is the MTC that has jurisdiction regardless of
the assessed value of the property involved in the litigation.

**Assessed value of the property involved must be stated or alleged in the complaint or
at least itmust be shown in the document like thte tax declaration so theat the assessd
value is not shown n the comlaint then there’s no way the court will be able to
determine if it has jurisdiction or therefore the case should be dismissed.

1. Civil actions incapable of pecuniary estimation.

A civil action that is incapable of pecuniary is a apersonal action. When do we say that
the subject matter is incapable of pecuniary estimation- when the sm of the case cannot
be estimated in terms of money.
--you cannot assign a money value to the subject of litigation.
--in a case the basic issue or question is something other than the right ot recover
money or the money calim is merely an incidental to or consequncial being then the
subject is said to be incapable of pecuniary estimation.
Example- an action for specific performance. An action to compel a party to perform his
obligation.

The plaintoff files against the def for specific performance

Caliming 250k by way of damages. –
What court will have jurisdicition- RTC because the calim for damages is merely
incidental to the main action for specific performance.

The plaintiff files a complaint for specific performance or damages in the amunt of 250k
– what court will have jurisdiction ? MTC because if the demand is in the alternative

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then this time the plaintiff has assigned a money equivalent ot his claim for specific
performance. The action for specific performance has become capable of pecuniary
estimation because the plaintiff. but supposed files a complaint demandind for sp
and/or damages in the amount of 250.. – the or will prevail. This becomes capable of
pecuniary estimation.

Other examples, an action for appointment of a receiver.

Action for expropriation--- that is the method by which the state or any person entitled
thereto may exercise eminent domain.
Action for support; action for rescission or annulment of a document.

But although the action is denominated as one for specific performance or annulment
of instrument tor document, if the prpose of the action is for the plaintiff to recover
ownership then the action is in fact a real action and the jurisdiction of the court may
be determined based on the assessed value of the real property involved in the
litigation.

In determining what court has jurisdiction, apply the following test.

Nature of the action test.

Determine of the action is capable or incapable of pecuniary estimation then the

jurisdiction if ht ecourt will be based in the total excluding DILAC then it is the RTC
that has jurisdiction. If it does not exceed then it is th MTC.

The basic issue then it is the RTCt hat has jurisdiction.

The nature of the action test must yield to another test known as the primary or
ultimate objective test. Even if the action appears to be incapable of pecuniary
estimation, if the primary objective of the plaintiff is to recover ownership or possession
of a real property, the action is in fact a real action be determined based on the
assessed value of the property.

But in reality they are real actions.

Ex. An acion for specific performance but in filling the is to comple the defendant is to
execute so as to transfer the ownership then that is a real action although it is
denominated as an action for specific performance

Certificate of title.

The primary objective eof the paintiff is to recover title of his land the jurisdiction of the
court will be determined on the basis of the assessed value of the property or of the land
..

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 Mortgage or real estate mortgage .

Mortgagee – the creditor.

Mortgagor – the debtor

The action is to nullify the estate mortgage then that action

The action is to foreclose the real estate mortgage filed by the mortgagee, that is a real
action. if the mortga is void for lack of notices. The mortgagor will file a complaint to
nullify the foreclosure the real estate mortgage for the nullification for the forclosure of
the real estate mortggae, is that a personal action or a real action ? that is a real action
because it eill affect the ownership of the real property.

Module 2

Lecture 1

Rules 1 of the Rules of Court - General Provision

Rules of Court has been revised and became commonly known as the 1997 Rules of Civil
Procedure;

Rule 6- 35 of the 1997 Rules of Civil Procedure has also been amended by A.M. No. 19-10-20-
SC, which took effect on May 1, 2020.

The Rules of Court, as revised, shall apply in all courts and in all civil, criminal and special
actions, except as otherwise provided by the Supreme Court. (Ex: in MTC, there are instances
where the cases filed in the MTC are not governed by the Rules of Court but they are governed
by the Rules on Summary Proceedings.)

Civil action/ civil case – one by which a party sues another for the enforcement or protection of
a right or the prevention or redress of a wrong.

Ex of civil actions:

1. civil action to enforce payment of an unpaid loan

2. to eject a person from a property
3. to recover a property
4. demand payment of damages

Classifications of civil action:

1. ordinary civil action

2. special civil action
Ex: interpleader, certiorari, prohibition, mandamus, quo warranto, expropriation,
partition, contempt
Rule 65 is all about certiorari, prohibition and mandamus

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 Rule 65 of certiorari is different from Rule 45 which is a mode of appeal (petition for
review on certiorari)
Certiorari, as a special civil action, is different from certiorari as a mode of appeal,
which is the petition for review on certiorari.

Criminal action – an action by which the state prosecutes a person for an act or omission
punishable by law. An act or omission punishable by law is a crime or felony or offense.

Civil action Special proceeding

One by which a party sues another for the
enforcement or protection of a right or the
prevention or redress of a wrong.
Adversarial
Object: formal demand of a right by one
(plaintiff) against the other (defendant)
Parties to the civil action:
a remedy by which a party seeks to establish
a status, a right or a particular fact
May or may not be adversarial
May not be adversarial but becomes
adversarial if there is an opposition
Simply a declaration of a status, right or
particular fact

1. plaintiff
2. defendant

Ex of special proceeding:

1. settlement of estate of a deceased person

2. adoption
3. habeas corpus
4. change of name
5. arbitration, although not mentioned in the rules of court

The rules of court do not apply to the following cases:

1. election cases
2. land registration cases
3. cadastral cases
4. naturalization proceedings
5. insolvency
6. other cases like labor (1-6 except by analogy or in suppletory character whenever
practicable and convenient)

Commencement of a civil action

Q: When is a civil action commenced?

A: The civil action is commenced upon the filing of the original complaint in court.

Filing – refers to the act of presenting the complaint to the clerk of court; payment of correct
amount of filing fees/ docket fees.

The filing of a complaint is deemed completed only upon the payment of the docket or filing
fees, regardless of the actual date of the filing.

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The payment of the filing fee is a jurisdiction requirement. The filing fee may be paid within a
reasonable time but before the expiration of the applicable prescriptive period for the cause of
action.

If the correct amount of the filing fee is not paid, the defendant must raise that question,
otherwise the defendant is estopped.

Exception for payment of docket fees – when the plaintiff is authorized by the court litigate the
case as an indigent litigant/ pauper litigant.

If an additional defendant is impleaded in a later pleading, then, the civil action is commenced
as far as the additional defendant is concerned on the date of the filing of the later pleading,
regardless of whether the motion of its submission is admitted or denied by the court – EX:
plaintiff A files a complaint against B on July 16. On August 1, A filed a pleading to include
another defendant, C (complaint filed on July 16 – original complaint; complaint dated August
1 – amended complaint). The original complaint is commenced on July 16, but as to the case of
C, the action is commenced only on August 1.

“Later pleading” is an amended complaint

Amendment of complaint – Rule 10

Sometimes, amendment is a matter of right, other times, it should be with leave of court.

If an amendment is a matter of right, the plaintiff does not have to obtain leave of court.

Leave of court – permission of the court

If amendment is with leave of court, then, you have to file a motion for leave to amend your
pleading – The court may or may not grant your motion.

If the complaint is amended to change the plaintiff’s cause of action, then, technically, that
amended complaint is a new complaint. Therefore, the civil action is deemed commenced upon
the filing of the amended complaint.

Every cause of action has its own applicable prescriptive period. A cause of action may also
prescribe.

Q: Why do we need to know that the civil action has commenced?

A: Because it is only when the civil action is deemed commenced that the applicable
prescriptive period for the civil action is interrupted. The commencement of the civil action
interrupts the period of prescription as to the parties to the action.

Module 3

Lecture 1

Cause of action for ordinary civil action – Rule 2

Q: What is the basis of an ordinary civil action?

A: The basis of an ordinary civil action is a cause of action.

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Section 1 – every ordinary civil action must be based on a cause of action.

Cause of action – the act or omission by which a party violates a right of another

Requisites:

1. existence of plaintiff’s right by whatever means and under whatever law it arises or is
created (the right may be created by a contract or it may arise from law itself);
2. an obligation on the part of the defendant to respect and not to violate the right of the
plaintiff;
3. an act or omission on the part of the defendant constituting a violation of the plaintiff’s
right which causes damage or injury to the plaintiff

Q: Is a cause of action the same from action?

A: No. (Note: If the plaintiff has no cause of action and he institute an action in court, then that
action may be dismissed for lack of cause of action).

Difference between an action, cause of action and right of action:

1. An action is the suit filed in court for the enforcement or protection of a right or the
prevention or redress of a wrong, while a cause of action is the basis for the filing of the
action.
2. Right of action is he right to commence and maintain an action, while a cause of action
is a formal statement of the operative facts that give rise to such right of action.
3. Right of action is the consequence of the violation of plaintiff’s cause of action,
therefore, there is no right of action if there is no cause of action.

Q: Supposed the plaintiff has only one cause of action how many suits may be filed for a single
cause of action?

A: A party may not institute more than one suit for a single cause of action. A party may not
split a single cause of action.

Splitting of a single cause of action – the process of dividing a claim or a demand into two or
more parts and bringing suit for each of these parts. If two or more suits are instituted on the
basis of the same cause of action, the filing of one or a judgment upon the merits of any one is
available as a ground for the dismissal of the others (either on the ground of litispendencia or
res judicata)

*Litispendencia/ lis pendens – there is another action pending between the same parties and
for the same cause

*Res judicata – bar by prior judgment

Q: When may the defendant file a motion to dismiss on the ground of litispendencia? When
may he file a motion to dismiss on the ground of res judicata?

A: If both actions are pending, then the ground is litispendencia. If there is already judgment in
one case and the judgment has attained finality, then, the ground is res judicata.

General Rule: Motion to dismiss is a prohibited motion

Exception: If it alleges any of the following grounds:

1. Lack of jurisdiction over the subject matter of the action;

2. Litispendencia;

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 3. Res judicata; and
4. Prescription.

Splitting of a cause of action is discouraged, not allowed because of the following reasons:

1. It bridge multiplicity of action;

2. It clogs the dockets of courts; and
3. It causes unnecessary expenses to the parties.

Q: How do we determine the singleness of a cause of action?

A: If the action arises from quasi-delict, it is an action ex-delicto or one arising from the fault or
negligence of the defendant then, the singleness of the cause of action lies in the singleness of
the delict or wrong committed by the defendant in violation of the plaintiff’s right. So, if there is
only one delict committed, then, there is only one cause of action. But if the obligation arises
from a contract, an action ex contractu or one arising or is founded on a contract, you must
determine the divisible obligation and indivisible contract. If the contract is violated and the
obligation is indivisible, then, there is only one cause of action regardless of the number of
violations committed. But if the obligation is divisible, there can be as many causes of action
as there are obligations violated.

Example: X lend P10M to Y payable to 10 yearly instalment at P1M per instalment. If the first
instalment was paid but the second instalment was not paid, then, X may already file a
complaint in court for the payment of the second instalment. If the third instalment becomes
due and is also unpaid, X can again file another complaint for the payment of the third
instalment, and so on. If the obligation is divisible, there can be as many causes of action
as there are violations committed. If the creditor did not file a complaint for the payment of
the due instalment and he waited until the last instalment to become due also not paid. Then
he filed a complaint to demand for the payment of P10M. Q: How many causes of action does X
have in this case?

A: Only one cause of action. Because all these instalments that became due and unpaid will
now be integrated into a single cause of action. Therefore, the creditor can only file only one
complaint.

If the contract (in the same example) contains an acceleration clause that if any instalment is
not paid all the other instalment even though it is not due yet would already become due and
demandable, then there is only one cause of action. Also, even if the contract provides for an
indivisible obligation and the future performance is not yet due but the obligor has already
manifested his refusal to comply, the debtor has indicated in clear terms his refusal to fulfil his
obligation, then the breach is total. Therefore, there can be only one cause of action. This is
also known as the Doctrine of Anticipatory Breach.

Example: X, the creditor, lend P1M to Y. At the same time, Y mortgaged his land to X. If Y
defaults in paying his debt, X can have the following remedies:

1. Payment of the obligation by filing an action for collection; or

2. Foreclose the mortgage

X filed an action for collection. While the case is pending in court, X filed an action to
foreclose the mortgage. Supposed, Y filed an action for the dismissal of the second case on
the ground of litispendencia and the court granted the motion. Is the court correct in
dismissing the second case?

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 A: YES. Because when Y failed to pay his debt, X had only one right that has violated which
is the right to the payment of the P1M. Therefore, X has only one cause of action. By filing
two cases, one for collection and another one for foreclosure, X divided his claim into two
parts and filed two actions on the basis of these two parts. So, the second case for
foreclosure may be dismissed on the ground that there is another action pending between
the same parties and for the same cause. If X chose the first choice (collection) he abandons
the second choice (foreclosure). If he chose to foreclose, he can no longer file an action for
collection. A PLAINTIFF CANNOT SPLIT A SINGLE CAUSE OF ACTION.

Supposed, in the same example, aside from mortgaging his land to X, Y also issued a check
covering the amount of his obligation. When the debt became due, X went to the bank but
the bank dishonored the check for insufficiency of funds. So, X filed in court a criminal
case for violation of BP 22 against Y. While the criminal case is pending, X filed an action
for foreclosure of the mortgage. May X can still file an action to foreclose the mortgage?

NO MORE. Because a criminal action for violation of BP 22 shall be deemed to include the
civil action for recovery of civil liability arising from the offense charged. The civil action to
recover the value of the check is also deemed instituted in the criminal action, therefore, in
the foreclosure case, defendant Y can point to this action to get the foreclosure of the action
dismissed on the ground of litispendencia.

in criminal procedure, if a criminal action is instituted in court, the civil action for the recovery of
civil liability arising from the offense charged is deemed instituted in the criminal action, except:

1. If the offended party waives the civil action;

2. If he reserves the right to institute a separate civil action (this does not apply for the case
of violation of BP 22. Because if the criminal action involves a violation of BP 22, the civil
action to recover the value of the check is deemed instituted in the criminal action.); and
3. If he institutes the civil action prior to the criminal action.

If the plaintiff has several causes of action, may he join these causes of action in one
complaint? YES.

JOINDER OF CAUSES OF ACTION – permissive (a plaintiff who has several causes of action
may join them in one complaint or he may file separate complaints for each of his causes of
action.)

Module 4

Lecture 1

Requisites of Joinder of Causes of Action:

1. The party joining the causes of action shall comply on the rule of joinder of
parties
2. The joinder shall not include a special civil action or a civil action governed by
special rules (ex: an action for annulment of contract or document or instrument, or an
action for specific performance cannot be joined with an action for illegal detainer
because an action for illegal detainer is a special civil action. An action for quieting of
title is a special civil action under Rule 63, therefore, it cannot be joined with an action
for declaration of nullity of title which is an ordinary civil action. An action for partition
is a special civil action under Rule 69, therefore, it cannot be joined with an action for
rescission)

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 Misjoinder of causes of action
o an ordinary civil action is joined with a special civil action, or a special civil
action is joined with an ordinary civil action.
o Not a ground for dismissal of the action. The court it its own initiative may drop
the misjoined cause of action.
Q: If it is not drop, therefore the parties went to trial and presented evidence in
each causes of action, may the court render judgment on these causes of action
although misjoined?
A: Yes, provided the court has jurisdiction over all the causes of action.
3. If the causes of action is between the same parties but pertain to different venues
or jurisdiction, the joinder may be allowed in the RTC, provided one of the causes
of action falls within the jurisdiction of the said court and the venue lies therein.
(Ex: X resides in Baguio. Y resides in Bontoc. X owns a lot located in Agoo, La Union
with an assessed value of P75,000. X lend Y a sum of P250,000 and this debt has
already become due. When X asked Y to oversee his land in Agoo. Y falsified a deed of
sale, consequently, he was able to transfer the title to his name. X wanted to file an
action for the collection of P250,000. X has two causes of action in this case (1)
involving the amount of P250,000 and (2) the one involving the land. X can join
this two causes of action in one complaint but he is not compelled to do so
because joinder of causes of action is only permissive. Supposed, X decided to file
one complaint for the amount of P250,000, he should file it with the MTC of Baguio or
Bontoc at the election of X. X may also file an action for the recovery of ownership or
possession of the land(real action). He file the same, in view of its assessed value, with
the RTC of the place where the property is located.)
4. When the claims in all the causes of action are principally for the recovery of
money, the aggregate amount shall be the test of jurisdiction. – TOTALITY RULE.

RULE 3: PARTIES TO CIVIL ACTION:

- Only natural persons or juridical persons or entities authorized by law may be parties
to a civil action.
- Plaintiff – one who has an interest on the subject of the action and in obtaining the
relief demanded. He may be the claimant in the original complaint/ claimant in the
counter-claim/ claimant in the cross-claim/ claimant in the third party complaint.
Example: X filed a complaint against Y and Z (main action) - in this case, X is the
plaintiff
But if Y filed a counter-claim against X – Y is now the plaintiff
Y filed a cross-claim against Z – Y is the plaintiff (cross-claim is a claim which a party
has against his co-party)
Z may file a third party complaint against Q – Z is the plaintiff.
- Defendant – one who has an interest over the controversy adverse to the plaintiff

Natural persons – individuals

Juridical persons – corporations, partnerships, State and its political subdivisions

Entity authorized by law is an entity that has no legal personality and yet the rule allows it to
be a party to a civil action.

Examples:

1. Two or more persons not organized as an entity with juridical personality enter into a
transaction under a common name, then, they can be sued under that common name

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 although they cannot sue under that common name. If they would like to sue, they
should sue in their own names because they cannot sue under their common name.
2. Estate of a deceased person
3. Labor organization
4. Corporation by estoppel
5. Partnership by estoppel

Sole proprietorship is not an entity authorized by law. So, A operates A Merchandise (a sole
proprietorship), may the sole proprietorship be a party to a civil action? NO. Because it has no
legal personality. It is not an entity authorized by law. And, so, if A would like to file a case
against someone else, he should file it in his own name (A vs. the defendant, NOT A
Merchandise vs. the defendant) because sole proprietorship is not among those who may be
parties to a civil action.

Supposed a sole proprietorship is the plaintiff in a civil case, the action may be dismissed on
the ground that the plaintiff has no legal capacity to sue.

Q: When may this ground (no capacity to sue) be invoked to dismiss an action?

A: If the plaintiff is not among those who may be parties to a civil action, then, the complaint
may be dismissed on this ground.

Q: Supposed the sole proprietorship is the defendant: X filed a complaint against a sole
proprietorship. May the complaint filed by X be dismissed?

A: YES on the ground that the complaint fails to state a cause of action.

Resident Marine Mammals, et al. vs. Secretary of Energy

Plaintiffs in this case: dolphins, whales, other marine mammals.
Issue: Do dolphins, whales, and other marine mammals be parties to a civil action?
Ruling: No, they cannot be parties to a civil action. If there is a violation of any environmental
law, any citizen can file an action. THE COURT HELD THAT THE MARINE MAMMALS CANNOT
BE PARTIES TO A CIVIL ACTION. THE NATURAL PERSON, JURIDICAL PERSON OR AN
ENTITY AUTHORIZED BY LAW CAN BE PARTIES TO A CIVIL ACTION BUT THE ONE FILING
THE ACTION OR THE ONE AGAINST WHOM THE ACTION IS FILED SHOULD BE A REAL
PARTY IN INTEREST.
Rule: An action may be prosecuted or defended in the name of the real party in interest, unless
otherwise authorized by law or by the rules.
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. To be a real party in interest, his interest
must real, material, and must be direct as distinguished to a mere expectancy or a future or
contingent or consequential interest.
Ex: X, the owner of the land, and Y, the lawful possessor, Z the one who committed an act that
disturbed Y in his lawful possession of the subject property.
Q: Who is the real party in interest in the case where the lawful possessor of a real property
claims that he was disturbed in his possession by the defendant, Z?
A: In a case where the unlawful possessor is disturbed in his possession, it is the possessor
himself, not necessarily the owner, who can bring the action to recover the possession of the
subject property.

Contract between A, B, C and D - in case of any violation of the contract, only the parties to the
contract (A, B, C and D) are the real parties in interest. (DOCTRINE OF RELATIVITY OF
CONTRACT, Article 1311 of the CIVIL CODE); exc: WHEN THE CONTRACT PROVIDES OR
CONVEYS A BENEFIT TO A PERSON NOT A PARTY TO THE CONTRACT (STIPULATION

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POUR AUTRUI) That third person may file an action, even though he is not a party to the
contract, because the contract conveyed benefit to him.

Q: WHAT HAPPENS IF THE PLAINTIFF IS NOT THE REAL PARYT IN INTEREST?

A: THE COMPLAINT MAY BE DISMISSED; GROUND: FAILURE TO STATE A CAUSE OF

ACTION.

The plaintiff is among those who may be parties to a civil action (natural/ juridical/ entity
authorized by law) but he is not a real party in interest because he does not stand to be
benefited in any judgment that the court may render in the action. May his complaint be
dismiss?

A: Yes. Ground: failure to state a cause of action.

Q: What if it is the defendant who is not the real party in interest because he does not stand to
be injured in the judgment the court may render in the action?

A: The complaint may also be dismissed. Ground: failure to state a cause of action. Because, if
the defendant is not the real party in interest, then, the complaint cannot state a cause of
action against him.

General Rule: Motion to dismiss is a prohibited pleading

Exc:

1. Lack of jurisdiction of the court over the subject matter of the action
2. Litispendencia
3. Res judicata
4. Prescription
*failure to state a cause of action and no legal capacity is still a ground for dismissal of
the action but they cannot be pleaded in a motion to dismiss anymore. If these grounds
are available, then, the defendant may file an answer asserting an affirmative defense.

A real party in interest may be an indispensable party or a necessary party.

BAR EXAM Q: How do you classify real parties in interest?

A: They may be an indispensable parties or necessary parties.

Indispensable party is one without whom no final determination can be had of an action.

Necessary party is one who is not indispensable but who ought to be joined as a party, if
complete relief is to be accorded as to those already parties or for a complete determination or
settlement of the claim subject of the action.

In case of co-ownership – all the co-owners are indispensable parties, therefore, they must all
join in the action as parties (either as plaintiffs or as defendants) Supposed one of the co-
owners is not impleaded in the action, that omission of an indispensable party is not brought
to attention of the court. Trial proceeded and they presented evidence already. Eventually,
there was a decision rendered by the court in this action. Is the judgment valid? NO, the
judgment is void for lack of authority to act. The judgment is void not only as to the party
absent but also as to the parties present for lack of authority on the part of the court to
act.

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 MODULE 4, LECTURE 2

We are still in module 4. But this is now lecture 2.

So last time we were talking about real parties in interest and we mention that a real party in
interest may either be an indispensable party or a necessary party and then we said that
an indispensable parties, one without whom no final adjudication can be had of an action
meaning if the court renders judgement in that action where an indispensable party is not
impleaded then the judgment is not valid because as we will find out later in the course of our
discussion in this subject, if a person is not a party to an action that judgment will not bind
him. Because if he is not a party to the action then he will be a complete stranger to the action
and a stranger to action is not bound by any judgment that a court May render in the case.

So in our lecture 2, we will discuss the rest of the lesson. Although this rule will require more
than 2 hours to discuss. So this time we will talk about a necessary party.

Who is a necessary party or define a necessary party?

A necessary party is a party who is not indispensable. But who ought to be joined as
party if complete relief is to be accorded as to those already partakes or for a complete
determination or settlement of the claim subject of the action.

The presence of a necessary party in the action will enable the court to adjudicate the
entire controversy. If a necessary party is not impleaded the court may still render a valid
judgment. In that case, although the judgment will not resolve the entire controversy.

I'd like to give you an example to demonstrate to you who is a necessary party as distinguished
from an indispensable party.

So let us say that you have: A as the creditor and B and C as debtors. The amount of the
indebtedness is 1M and the liability of B and C for the obligation is of joint obligation as
distinguish from solidary obligation. If the obligation is joint, then each one of the two debtors
in the example given, each one of them will be liable to pay only one half of the indebtedness.
So B's liability to pay five hundred thousand pesos and C's liability is to pay the other five
thousand pesos. So let us say that if the debt becomes due, A may file a complaint against both
of them so that he can recover the entire amount of the obligation. But if let us say that: A files
a complaint against B alone? Then here, The only amount that A can collect from B is 500,000
pesos.

So the court can render judgment, but only for the amount of 500,000 pesos the judgment will
not settle the entire controversy. The judgment will not satisfy the entire claim of the plaintiff.

Q.: Is C an indispensable party?

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A.: No because there can be a valid judgment that could be rendered in the case.

So how would you then classify C in this example? C is only a necessary party. If he is
not impleaded in this action like in the example that we have then the court cannot adjudicate
the entire controversy and the plaintiff A cannot expect that his claim will be settled
completely. So for the complete settlement of A’s claim, C should be impleaded in the action.
That is an example of a necessary part, but suppose the obligation of B and C is solidary. In
civil law you were told that in a solidary obligation. Any debtor can be compelled to pay the
entire amount of the obligation and so if let us say the debt is now due and A files a complaint
against B alone. And then the question in the bar examination now is: is C in the problem
given an indispensable party or a necessary party then as you can see here, C is neither A
necessary party nor an indispensable party. He is neither because A can collect the entire
amount of 1 million from B even without including C and the judgment that the court may
render is a valid judgement.

Q: What is the effect of failure to join an indispensable party?

Suppose an indispensable party is not joined in the action. Is the failure to join an
indispensable party, is the omission of an indispensable party or the non- joinder of an
indispensable party a ground for the dismissal of the action.

A: no. the joinder of an indispensable party or the failure to implead an indispensable party is
not a ground for the dismissal of the action.

I'd like you to remember that all the time. so the question is suppose the court becomes
aware or is informed that an indispensable party is not impleaded in the action.

What may the court do now?

Answer: the court will issue an order Directing the Plaintiff To amend his complaint to implead
the omitted indispensable party.

So here the court will issue an order directing the plaintiff to include or to implead the omitted
indispensable party

Q: how may the plaintiff implead him?

A:by amending is complaint.

So The court will issue an order directing the plaintiffs to amend his complaint to implead the
omitted indispensable party.

Suppose the plaintiff fails or refuses to comply with the order of the court. Then this time the
court may now dismiss the complaint.

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Q:On what ground may the court dismissed the complaint. Is it on the ground of failure to
implead the indispensable party? Is it on the ground of non joinder of an indispensable party
the answer class?

A:No, the ground will be: Failure of the plaintiff to obey an order of the Court without any
justifiable result. When we get to rule 17 Section 3 you will learn that a court can dismiss the
complaint or the action if without any justifiable reason. The plaintiff fails to obey an order of
the court.

So just take note that non-joinder of an indispensable party, non- Joinder of a party even if the
party is an indispensable party is not a ground for dismissal of the complaint. What about
class if the one who is not impleaded is a necessary party suppose the plaintiff does not
implead a necessary party. then here, the plaintiffs must State the name must state in his
complaint the name of the omitted necessary party. And the reason for his Omission or non-
inclusion, if the court finds the reason for the non-inclusion of the omitted necessary party to
be unjustified. The reason for his not inclusion is not meritorious. then the court shall issue an
order directing The plaintiff is to amend his complaint to include the omitted necessary party, if
the plaintiff refuses to include him the plaintiff refuses to amend his complaint so as to include
or implead the omitted necessary party. Then the failure of the plaintiff or his refusal to
implead him will amount to a waiver of his claim against the omitted necessary party, I'd like
you to take note of that.

In fact, if you will be asked to mention the distinctions between an indispensable party and a
necessary party, then you can mention that as one of the distinctions how will you state that ?

Q: well you say number one is distinction:

A: If an indispensable party, is not impleaded The non- inclusion of an indispensable party

may result in the dismissal of the complaint but then take note that there's no immediate
dismissal. The court will order the inclusion of the omitted indispensable party and if the
plaintiff refuses to implead him, then the complaint may be dismissed on ground of failure of
the plaintiff to obey an order of the court, the non- inclusion of An indispensable party may
result in the dismissal of the complaint on the other hand, The non inclusion of a necessary
party May result in the waiver of the claim of the plaintiff against him.

The second distinction

An indispensable party should be impleaded for a final determination of an action. Because if

an indispensable party is not included there can be no final determination that could be had in
that action on the other hand. If the necessary party is not impleaded. There can be no
complete determination of the action. So you mentioned these distinctions if asked.

Okay, so the next topic is that:

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What happens if let us say here is a party who should be a plaintiff But his consent cannot be
obtained or he is not willing to be a plaintiff in the action he is what you call an unwilling co-
plaintiff. a non-consenting plaintiff may be impleaded as a defendant

Suppose Here is An unwilling co-plaintiff or non-consenting plaintiff And then as I told you
how do you implead him if he's not willing or his consent cannot be obtained you implead
him as a Defendant? but suppose you did not implead him as a Defendant instead you
included him as one of the plaintiffs.

Is that alright?

No, that is not All right, because If a non-consenting party is made a plaintiff that will amount
to a denial of due process because he refuses to be joined as plaintiff but you include him as a
plaintiff.

Or his consent cannot be obtained for any reason then you included him as a plaintiff that
amounts to a denial of due process. So how will you implead him? you implead him as a
Defendant so that the court will be able to acquire jurisdiction over his person.

All right. Okay now the next topic.

We will now talk about persons who can sue in behalf of a real party in interest. So we will now
talk about representatives as parties.

If an action is allowed to be prosecuted or defended by a representative or one acting in a

fiduciary capacity. But the beneficiary Is incapacitated for example, then the beneficiary shall
be included in the title, and shall be deemed to be the real party in interest. So here the
beneficiary shall be included in the title of the action when we will get to pleadings. We will talk
about pleadings We will talk about parts of a pleading and one of them is the caption of the
pleading which includes the title of the case. So the beneficiary, his name shall be included In
the title and shall be deemed to be The real party in interest

😊So what are examples of Representatives who can be parties like a trustee of an express trust
a guardian or an Executor or administrator Or a party authorized by law or the rules like an
acting in his own name and for the benefit of an unknown principal May Sue or be sued
without joining the principal except when the contract involves things belonging to the
principal. This refers to an agency with undisclosed principal

All right. So later, we will talk about minors and who will represent minors but in the
meantime so that we will not forget. Let's talk about pro forma party.

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😊Suppose you will be asked who is a pro forma party.

Well a pro forma party or sometimes a nominal party is one who is joined as a plaintiff or as a
Defendant Not because he has any real interest in the subject matter of the litigation or in the
relief demanded. So he is doing that because he has a real interest in the case itself, but merely
because the rules of pleadings require the presence of such party.

All right, an example is the husband may not file an action without joining the wife. The wife
may be a pro forma party

😊Okay, because the rule is Husband and wife shall Sue or be sued jointly except as provided
by law.

Now let's talk about husband and wife as I have told you. A husband and a wife shall Sue or be
sued jointly except as provided by law, but if let us say the wife filed a case alone, the non-
joinder of the husband is not fatal. The non joinder of the husband is a mere formal defect
which may be cured at any stage of the action why should the husband and the wife be sue
and be sued jointly?? Why should they sue or be sued as man and wife because they are joint
administrators of the absolute Community or the country or the conjugal partnership. The
exception is when The property relations of the husband and wife are governed by the rules on
separation of property or once spouse is dealing with or disposing of his or her exclusive
property. These are the exceptions..All right now. What about minors or incompetent.

A minor or incompetent May Sue or be sued with the assistance of the father Or mother or
guardian and If the child has none by a guardian ad litem.

😊Who is a a guardian ad litem?

is a special Guardian appointed by the court in which a particular litigation is pending

to represent or assist the minor or incompetent in the action

So I'd like you to know class

Status of GAL (GUARDIAN AD LITEM) exists only in that particular litigation in which the
appointment occurs

😊So when you file a complaint and the plaintiff or the defendant is a minor. Then you ask for
an action for the appointment of a GAL to represent the minor or the incompetent.

So we have talked about parties who may be parties for civil action. We have talked about
the kinds of parties. We have real parties in interest and then indispensable parties necessary
party.

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Let's talk about joinder of parties.

Joinder of parties is only permissive XPN when the party is an indispensable party, then its
joinder is compulsory XPN in a class suit.

If there is only a solo Plaintiff who is X and only 1 Defendant, Y

Here, you will not talk about joinder of parties because there can be no joinder when there's
only one party.

There can be several individuals who can be Plaintiffss in an action. then you can join them.
You can join them or if you don't want to join them. You may not join them. Because joinder is
only permissive so there can be joinder of parties.

JOP (JOINDER OF PARTIES) is only permissive

you're not compelled to join them., because it is only permissive XPN only when the party to be
joined is an indispensable party then his joinder is compulsory because without him or without
that indispensable party, there can be no final adjudication in the action.? Right. So joinder of
parties is only permissive.

XPN in a class suit

when you say class suit or class action and all the individuals or persons belonging to the
class are indispensable parties, but not all of them may be joined as parties because there are
so many of them that it is impracticable to join all as parties. Joinder of parties is only
permissive XPN is the one to be joining is an indispensable party except in a class suit
because in the class suit all those that belong to the class are indispensable parties, but not all
of them need to be joined.

CLASS SUIT

Requisites of joinder of parties before we go to class action.

. What are the req of JOP?

the following are the requisite

1. there must be several parties in whom or against whom there exists a right to relief
arising from the same transaction or event. The right to relief for or aginst several
parties must arise from the same transaction or event
2. there must be a question of law or a question of fact common to all of them.

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 a question of the question of law is one that requires interpretation or application of a law.
So the question of law requires interpretation or application of a certain provisions of a
law. A Q of FACT f is one that pertains to a resolution of factual dispute that Is on the set of
facts

😊In other words There is a question of law when the doubt or difference arises as to what the
law is pertaining to our state of facts And there is a question of facts as when the doubt arises
as to the truth or falsity of the alleged facts.

Now I will give you an example of joinder of parties. So let us say that here is bus full of
passengers and then there was an accident involving that bus 10 passengers

Suffered serious injuries When the accident occurred now, I'd like you to know that each one of
them may file a complaint against the bus driver or bus operator.

May the 10 of them also just file one complaint against the bus driver or bus operator. The
answer class is yes, in which case they will now join as plaintiffs in one complaint. So the
Joinder is only permissive take note class

that here the claim of one passenger is separable from the claim of the other passengers and
therefore one passenger can file a complaint against the bus driver or bus operators.

but the 10 of them can also join us plaintiffs in one complaint against the bus driver or bus
operator.

So here why can they join because look at this one the right to relief arose from the same event
or transaction.

What is the event : ACCIDENT then there is a there is a question of fact (Negligence), there is a
question of law common to all of them for this the first effect that is common to all of them
where the question of fact is the negligence on the part of the bus driver.

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Let's talk about class or class suit. P or D class

Req of a class action

1. the subject matter of the controversy is one of common or general interest to many
persons.

2. the parties affected are so numerous that it is impracticable to join all as parties.

3. the parties bringing. Or defending the class suit are found by the court to be sufficiently
numerous and representative as to fully protect the interests of all

I'd like you to take note of the requisites of a class action and memorize them. So
let's explain this requisites one by one

1. the subject matter of the controversy must be of common or general interest to

many person.

There must be a community of Interest among many individuals the interest of one. Is not
separable from the interest of the others. , there must be a Unity of interest in the subject
matter.

EXAMPLE That here is huge tract of land owned by X and X went away or went to some place
and he is absent for some time. X is now called an absentee land owner,.

Then when the landowner K one day, he found that his land is now completely occupied by so
many individual. And so o he would like to find an action against them. But because there are
so many of them he decided to find it as a class action. Q. Is this a proper class action?Because
the plaintiff said that all these individuals can fall under the category of class defendants

A.. No because there is no community of interest in the subject matter of the controversy.

to be a class action the interest of one Individual should not pertain to him and to him alone.
Meaning it must not be separable from the interest of the other individuals

EXAMPLE:

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MARTIME tragedy involving DONA PAZ-sea going vessel sank to the Bottom of the Sea and
almost all pasesengers perished in the seat. And then there was a case filed by the families of
the victims against the ship owner and it was it was called the class suit because there were so
many of them. All right, but then there's a claim for damages which one is claiming for
damages.

Dona past tragedy was held to be not a proper class. because the claim of each one of them for
damages is separable from the claim for damages of the other families.

For example

The claim of one plaintiff is damages that pertains to him and to him alone. He has no interest
over the damages being claimed by the other families. So there is no community of interest.

if asked in bar exam and like it was asked in the past except that this time. It was a plane that
was shot down and the families of the victims denominated it as a class suit. REMMBER DONA
PZ(IT IS NOT A CLASS SUIT)

HAHAHA SORRY GURL, DI NA KAYA EDITING POWERS KO, TRINY KO LAHAT NG SABIHINNI
SIR EE ITRANSCRIBE KO PATI YUNG ALL RIGHT HUHU HAHAHAHHHAHA.
MWAAHHHHHHHH.

-----------------------------------------------------

Module 4

Lecture 3

We’re still in module 4, class. And last time, we talked about the requisites of a class action or
a class suit.

The first one, as we mentioned it last time, is that the subject matter of the controversy must
be of common or general interest to many persons. There is this case that came to be known as
Oposa vs. Factoran, and this is a case filed by minors for the cancellation of timber licenses.
The minors, assisted by their parents, filed this action for themselves and on behalf of other
individuals who are concerned or interested in the preservation of our natural resources. They
brought this action for their generation and for generations yet unborn. And this was held to be
a class action. The subject matter being of common or general interest to many person.

The second requisite is that the parties affected are so numerous that it is impracticable to
join all as parties.

And the last one or the third one, the parties bringing or defending the class action or class
suit are found by the court to be sufficiently numerous and representative as to fully protect
the interest of all.

To comply with the second and third requisites, the complaint must contain an allegation
regarding:

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 1. The existence of a subject matter which is alleged to be of common or general interest to
many persons; and
2. The existence of a class and the number of persons belonging to this class.

It is important to state all these in the complaint so as to guide the court in determining
whether indeed the action is a class action.

And so last time, we mentioned that even if there are so many persons involved in the
litigation, if the interest of each one of them is separable from the interest of the others, then
that cannot be a class action. Because, in a class action, the benefit to one must be a benefit to
all or an injury to one should be an injury to all. Alright? So, we go to the next topic now.

Q: When is there misjoinder of parties?

A: There is a misjoinder of parties or a party is misjoined when that party is made a party to
the action although he should not be impleaded because he has no material interest in the
subject of the litigation. So, if a person is made a party to the action when he should not be
impleaded, there is what we call a misjoinder of parties.

Q: When is there a non-joinder of parties?

A: There is non-joinder when a party who is supposed to be joined in the action is not
impleaded. So, that is non-joinder.

The rule is that, misjoinder or non-joinder of a party is not a ground for dismissal of the
action. Parties may be dropped or added by the order of the court on motion of any party or
upon its own initiative, upon the initiative of the court itself at any stage of the action and on
such terms as may be just. So as we have explained this in the last lecture, class but just to
emphasize the point, I’d like you to know that misjoinder or non-joinder of a party is not a
ground for dismissal of the action, but then, if the court issues an order to implead a party that
is not joined or to drop a party who is misjoined but the plaintiff refuses or fails to obey that
order of the court, then the complaint or action may be dismissed for FAILURE OF THE
PLAINTIFF TO OBEY AN ORDER OF THE COURT.

Now, the next point that I’d like to take up with you is who will plaintiff sue if he is not sure
against whom he will file his complaint/ who will plaintiff sue if he is uncertain?

Well, take note class that if the plaintiff is uncertain against who of several persons he is
entitled to relief, he may joined any or all of them as defendants in the alternative, although the
right to relief against one maybe inconsistent with the right to relief against the other. For
example, there is a person who is injured when two vehicles collided, this person was a
passenger in one of these two vehicles. He is not sure against whom he should file his
complaint. He is uncertain as to whom he could file his complaint. I hope you understand that
part. So, he is not sure against whom he should file his complaint. Alright? Question: Who will
be impleaded or who will be named as a defendant in this case?

Answer: Well here, the plaintiff, if he is uncertain then he can file his complaint against both
the owners or drivers of these two vehicles in the alternative although the right to relief against
one maybe inconsistent with the right to relief against the other. His cause of action against
the owner of the vehicle in which he was a passenger would be based on contract of
transportation or contract of carriage. So his cause of action against the vehicle in which he
was a passenger was based on culpa contractual. But his cause against the owner of the
other vehicle, or even against the driver of the vehicle, would be based on culpa aquiliana.

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Alright? Now, what about if the identity or name of the defendant is unknown? Then that
defendant may be sued as the unknown owner (of the vehicle) or by such other designation as
the circumstances may allow. Alright? Like what? Like the “owner of the vehicle with license
plate number so and so”. If you do not know the name of the owner of the vehicle he may be
sued as an unknown defendant.

Now, let’s go to the effect of death of a party. What happens when a party dies, may be the
defendant or the plaintiff? But I’d like you to take note class that when a party dies, we are not
saying it should be the plaintiff or it should be the defendant, we are saying “when a party,”
alright? When a party dies and his claim is not extinguished by his death. We have cases that
survive the death of a party or cases or actions that are abated by the death of a party. So here,
when a party dies and his claim is not hereby extinguished, it shall be the duty of the counsel
of that party to inform the court within 30 days after such death of the fact of death of the
party and the name and address of the legal representative of the deceased party. So, the
counsel of the deceased party has the duty to notify the court to give notice of the death of the
deceased party, and the name and address of the legal representative of the party. And he must
do this within 30 days after the death of the deceased party. Supposed the counsel fails to
comply, he has noticed the death of his client but he does not notify the court of the death of
his client, then the counsel may be subject to a disciplinary action.

But take note class that the moment a notice is given to the court, then the court has the
following duties:

1. The court shall order the legal representative to appear and to be substituted within 30
days from notice. So, the court must issue an order directing the legal representative to
appear in court and be substituted in the action within 30 days from receipt of the
notice. Alright? We are talking about what? About actions that survive. That is why we
say, “when a party dies and his claim is not extinguished by the death of the
party” meaning the action survives, the action is not abated. The claim of the
deceased party is not extinguished.

Examples of actions that survive:

a. Actions arising from delict
b. Action for the recovery of real or personal property
c. Action for the recovery of a sum of money
d. Action for damages

Examples of actions that do not survive. Meaning, because these action do not survive,
they will just be dismissed:

a. Actions that are personal to a party like an action for support

Let us say that the plaintiff who is demanding support dies, then his action will be
extinguished.
b. Action for annulment of marriage or legal separation, these actions do not survive.
And so, if the actions do not survive they will simply be dismissed and there will be
no substitution of party.

But if the action is one that survives, then there will be substitution of parties.

What are the steps?

First, the counsel of the deceased party must give notice to the court of the death of the
deceased party and he must indicate also, or he must inform the court of the name and
address of the legal representative of the deceased party. And, then, the court will issue

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 an order to the legal representative directing him to appear and to be substituted in the
action within 30 days from receipt of the notice. If these steps are not followed, then
the substitution is not valid.

What is the purpose of the substitution?

The purpose of the substitution is the protection of the right of every party to due process and,
therefore, I mentioned to you that non-compliance will render the proceedings in firm (di ko
sure ito haha) it might nullify the proceedings because there is a violation of due process. That
is why if the court is informed of the death of the party, and then it conducted trial just the
same without requiring substitution, then the judgment will not be binding on the legal
representative or heirs of the deceased party for lack of due process.

But what about, let us say, the deceased party has no legal representative or the one whose
name and address is mentioned by the counsel of the deceased party does not appear in the
action within 30 days from notice? Or there is no legal representative? Then, here, the opposing
party must secure the appointment of an administrator or executor. And then, the
administrator or executor so appointed will be substituted in place of the deceased party.

Supposed a counsel or an attorney is representing the plaintiff or the defendant, and then, the
party dies, may the counsel continue to represent him? No, because the counsel cannot
represent a deceased party. That is why his duty when his client dies is to give notice of death.
And he cannot assume, he cannot resume that he will be retained as counsel by the legal
representative because the legal representative may engage the services of another counsel.

Now, let’s talk about death or separation of a public officer suing or who is sued in his official
capacity. Now, if the public officer dies or resigns or otherwise ceases to hold office as when he
is dismissed, then the action may be maintained and continued by or against the successor.
So, the action may be maintained or continued against his successor if within 30 days after the
successor assumes the office, or such time as the court may allow, it is shown by a party that
there is a substantial need for continuing and maintaining the action and the successor adopts
or continues or threatens to adopt or continue the action of his predecessor.

So, what are the requisites for substitution in case a public officer who is suing or who is sued
in his official capacity and then he dies or he ceases to hold office? The following are the
requisites:

1. There must be satisfactory proof by any party that there is a substantial need for
continuing or maintaining the action;
2. The successor adopts or continues or threatens to adopt or continue the acts of his
predecessor;
3. The substitution is effected within 30 days after the successor assumes office or within
the time granted by the court;
4. And the last one, the notice of application for substitution must be given to the other
party. So, meaning, there must be a notice of the application to the other party.

I’d like you to take note class that the failure to make the substitution is a ground for
dismissal of the action.

Now, let’s go to the effect of death of the defendant in an action involving contractual money
claim. So, the action is a money claim arising from a contract expressed or implied.

Question: So here is the plaintiff filing a complaint for money claim arising from a contract
expressed or implied against the defendant. Let us say, this is an action for damages based on

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quasi-delict then what we will discuss in a short while is not applicable because our topic is
death of the defendant on a contractual money claim. So it should be the defendant who dies
because if it is the plaintiff who dies, then we follow what we have mentioned regarding
substitution.

But I’d like you to take note of this one: what happens if the defendant dies and the complaint
is upon a money claim based on a contract expressed or implied. The action is now pending in
court and then the defendant dies. Then, you have to take note of when or at what point of the
proceedings the defendant dies. Because if the defendant dies before entry of judgement, then
the action will continue until entry of judgment. So here the action survives, the action is not
abated by the death of the defendant. The action will continue until entry of judgment. Of
course, there will be a substitution.

Listen to this one class: when do you have entry of judgment? Well, if the court renders a
judgment and then the judgment becomes final, the judgment attains finality, then there will
be an entry of judgment. And the date of the finality of the judgment shall be presumed to
be the date of entry of judgment. So, there can be an entry of judgment only when the
judgment becomes final. If the judgment is appealed to a higher court, then the judgment will
not become final while the case is on appeal. So, when can there be an entry of judgment? The
moment the judgment becomes final, there will be an entry of judgment.

If the defendant dies before entry of judgment, then the action will not be dismissed, instead it
will continue until entry of judgment. Ordinarily, when you have a judgment and the judgment
becomes final the judgment oblige, the party who prevails in the case (you call him judgment
obligee) will be entitled to an execution of the judgment. The judgment will be enforced by
means of execution. So, the court will issue a writ of execution. But that will not happen in our
topic now because when a defendant dies and his death occurs before the entry of judgment,
then the action will continue until entry of judgment. But the judgment will not be enforced by
means of execution, instead the judgment will be presented as a money claim based on
judgment in the probate (testate or intestate) proceedings involving the estate of the deceased
defendant.

Supposed, here is the creditor and the debtor. The debt is now due but the creditor has not
filed a complaint against the debtor in court yet. Then the debtor dies. May the creditor file a
complaint against the debtor who is already dead? No, because the debtor has no personality
anymore, he is not a natural person anymore. He cannot be a party to a civil action. So, the
creditor cannot sue a deceased person.

So, what is the remedy of the creditor? The remedy of the creditor is to present his claim as
a money claim in the testate of intestate proceedings of the estate of the deceased
debtor. You say testate when the debtor dies with a will. And you say intestate if he dies
without a will.

What about if the debtor is not yet dead and he was sued by the creditor and while the action
is pending, the defendant debtor dies. There is now a case filed against him. As I told you a
while ago, the action should not be dismissed, instead it will be allowed to continue until entry
of judgment. And then, the judgment that is now final cannot be a subject of an execution,
instead it will be presented as a money claim based on judgment. Question: what is the
difference between money claim and money claim based on judgment?

Both will be presented as a claim with the testate or intestate proceedings involving the estate
of the deceased debtor. As to the money claim, that will be subject to proof. The claimant, the
creditor must present proof of his money claim. And if his money claim is disallowed or denied

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by the administrator or executor, then, he has to appeal from the denial of his money claim.
But in money claim based on judgment, the judgment is a conclusive proof of his money
claim. So, he does not have to present proof anymore just present a copy of the judgment.

But if, let us say, the defendant creditor dies after there is a levy on his property, then the
proceedings will be allowed to continue.

This is what happens in an ordinary proceedings:

There is a judgment which becomes so there is now an entry of judgment. Then the judgment
oblige (the prevailing party) files a motion for execution of the judgment and then the court
issues a writ of execution. The sheriff will enforce the writ of execution. The sheriff will levy
execution on the property of the judgment obligor (the one who loses the case is the judgment
obligor). The next one is the sale on execution, etc. (there might some other proceedings like
redemption but we will talk about those proceedings when we get to that topic involving
execution of judgment.)

I told you class that if the defendant-obligor dies after levy the proceedings will continue until
there will be a sale on execution. So, the judgment will not be presented anymore as a money
claim based on judgment in the probate proceedings involving the estate of the deceased
defendant.

What is the effect of the levy?

The levy has the effect of segregating the property levied upon from the other property
belonging to the same defendant. The levy will constitute as a lien on the property levied upon.
But if the defendant dies before levy, then, the judgment will be presented as a money claim
based on judgment in the testate o intestate proceedings of the deceased defendant.

If the defendant dies after the entry of judgment, then you just have to present the judgment as
a money claim in the probate proceedings involving the estate of the deceased defendant. But if
he dies while the action in court, then the action will continue until entry of judgment and
present it as a money claim based on judgment.

*probate proceedings- settlement of estate

Plaintiff files a complaint for money claim based on a contract expressed or implied against the
defendant. But the plaintiff dies before the entry of judgment. What will happen? There will
simply be a substitution of parties. Then, the action will continue until there is judgment ->
the judgment becomes final -> judgment will be executed by means of a writ of execution
-> then there will be a levy -> sale of execution, etc. the claim will not be presented in the
probate proceedings because the defendant is not yet dead, there is no settlement of estate yet.

What happens when there is a pending litigation and then there is a transfer of interest over
the property subject of the litigation? What is the effect of the transfer of interest pendente lite?

When can there a transfer of interest pendente lite? If the interest of the party is conveyed to
another person who is not a party to the action, then there is a transfer of interest pendente
lite. Here, the action will continue.

If it is the plaintiff who will transfer his interest to X while the litigation is pending, then X is
what you call transferee pendente lite. The one making the transfer is the transferor pendente
lite.

What are the rules to follow if there is a transfer of interest pendente lite?

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The rule is that the action may continue by or against the original parties. But I’d like you
to know that the proceedings, including the judgment, will bind the transferee pendente lite.
The transferee will simply step on the shoes of the transferor, he will take the place of the
transferor even if the action is continued between the original parties. But upon motion, the
transferee may be substituted or may be impleaded as an additional party.

WALA YUNG MODULE 4LECTURE 4

MODULE 5 LECTURE 1

So we are now in the rule 4 and this is module 5.

But before we will go to rule for venue of actions in civil cases I'd like us first of all to again talk
about transfer of Interest pendente lite.

What do you mean by transfer of Interest pendente Lite meaning pending litigation?

And I gave you an example last time. But today I'd like to emphasize to you class that if there is
a transfer of Interest pending litigation, then the action may be continued by or against the
original party unless the court upon motion directs the transferee to be substituted in the
action or to be joined with the original party. But even if the transferee is not substituted in the
action or is not joined with the original party and action is continued by or against the original
parties to the action Any judgment that may be rendered by the court will bind the transferee
pendente lite.

How may I transfer of interest pendent lite be affected how well it may be affected by means of
sale or by means of a donation or by any mode by which the interest is conveyed by the
transfer or to the transferee. Like quick claim perhaps Alright, I hope you understand what
that means. Transfer of Interest pendente lite the rule is the action may be continued by or
against the original parties. Unless upon motion, the court directs the transferee to be
substituted in the action or to be joined with the original party.

Now let's talk about another topic still on module 4, if a person is without any means to
prosecute his claim in court then upon his application, he may be authorized by the court to
litigate as an indigent or Pauper litigant

So who is an Indigent litigants or a pauper litigant?

- is one who litigates a claim in court but he has no money or property sufficient and available
for food, shelter and basic necessities for himself and his family.

Indigent litigant

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- is one whose and gross income and of his immediate family does not exceed an amount
double the monthly minimum wage of an employee and who does not own real property with a
fair market value more than 300,000 pesos. So I just like You to take note of who may be an
indigent or pauper litigant. Take note class that this party claiming to be a pauper litigant
must file an application in court to be authorized to litigate his claim as an indigent or pauper
litigant. And if so authorized by the court, he will be exempt from the payment of docket or
filing fees. Now let's talk about when may the solicitor general be required to appear in an
action.

-in action involving the validity of any treaty, law, ordinance ,executive order, Presidential
decree rule or regulation the court may require the solicitor general to appear in the action and
he may be heard in person or through a representative whom he has deputized. All right, so
that That ends our lesson on module 4. Let's go to module 5 which is rule 4 “venue of actions”

what actions are we talking about in this subject class ?again, I'd like you to know and to take
note that the actions that we are talking about is what civil actions?

So what is Venue?

-Venue is the place where the action is to be commenced and tried.

-it has also been defined as the proper location for the trial of a case.

- I'd like you to recall what you have learned in criminal procedure that in a criminal case
criminal case or criminal action, venue is also jurisdictional. So if the accused raises the
question of improper venue, he is in fact questioning the jurisdiction of the court that is in a
criminal case, but in a civil case, the venue of an action is different from jurisdiction.

So I'd like you to memorize and to take note of the distinctions between venue and jurisdiction
distinctions.

Some years ago. This was asked in the bar exam. Not only once not only twice but several
times but also it might be good for everyone to memorize the distinctions between A venue and
jurisdiction.

Number one venue is the place where the action is commenced and tried. While jurisdiction is
the authority of a court to hear and decide the action.

2. Venue may be waived. on the other hand jurisdiction over the subject matter of the action
cannot be waived. Although I'd like you to know that. Jurisdiction over the person of the
defendant can be waived, so that is the second distinction

number three. Venue may be the subject of a written agreement between the parties while
jurisdiction cannot be the subject of a written agreement between the parties why because as
we mentioned Jurisdiction is conferred by law. So it is conferred by law and therefore it cannot
be the subject of a written agreement between the parties

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number four a court cannot motu propio dismiss the action On ground Of improper venue
XPN if a case is governed by the rule on summary procedure while a court Can Motu proprio
dismiss the action for lack of jurisdiction over the Subject matter of the action

Last one number five venue establishes a relation between the plaintiff and the defendant
while jurisdiction is establishes a relation between the court and the subject matter.

question in the bar exam in a civil action. In a civil action is improper venue jurisdictional

in a civil action, improper venue is not jurisdictional. Even if let us say the venue is improperly
laid But if the subject matter of the action is within the jurisdiction of the Court, although the
venue is improperly laid. That court can still render a valid judgment.

They might ask you a problem like the following in the bar exam. I'd like you to know that if the
case is one for ejectment And when you say ejectment it can either be a forcible entry or
unlawful detainer. When is it forcible entry? When is it unlawful detainer? Well, if possession
by the defendant of the real property subject of the case is unlawful from the start then the
action is forcible entry unlawful from start. But is possession by the defendant of the subject
property is lawful in the beginning but becoming unlawful at a later time, then it is an action
for unlawful detainer and we will talk about this in due time. But right now I'd like you to know
class that in ejectment it is a real action. An ejectment whether forcible entry or unlawful
detainer is a real ction. But the issue to be resolved by the court is only physical possession. As
distinguished from legal possession and the venue of ejectment case ,Unlawful detainer or
forcible entry is the municipality or city where the property is situated. That is the venue. Let
us say class that the subject of the unlawful detainer case is a house. It is a house situated in
Baguio

The house is covered by a contract of lease between A lessor and B as lessee

All right, B has not been paying his rent. And so A demanded that B vacate this house but
despite that demand B failed to vacate it. so A who is from Dagupan, A resides in Dagupan

A filed a complaint against B for unlawful detainer with the MTC of Dagupan City. All right. I
like it to know that I told you before class that ejectment cases whether unlawful detainer or
forcible entry fall within the jurisdiction of the MTC.

Let us say that A resides in Dagupan and A is the plaintiff. The house is situated in Baguio. A
filed his complaint against B with the MTC of Dagupan.

All right, and then in due time the MTC of Dagupan rendered judgment Ordering B to vacate
this house located in Baguio City.

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 question is the Judgment of the Court Valid?. Well the answer class. Yes, because it has
jurisdiction. This is an MTC so It has jurisdiction.

Although the venue is improperly laid in Dagupan because the house is located in Baguio City.
I told you when we were mentioning the distinctions between venue and jurisdiction that the
question of improper venue may be waived.

We will go to that later how may the question of improper venue be waived?

What are the rules on venue? What is the venue of the civil action?

Well, it will depend, the rules on venue will depend on whether the action is a real action or a
personal action. So again, you will have to recall what you have learned about real action and a
personal action. If it is a real action because it affects title tool or possession of a real property
then the action shall be commenced and tried in the proper Court which has jurisdiction over
the place where the property involved or a portion thereof is situated.

So if let us say the real property is situated in Dagupan the the venue of the real action would
be Dagupan. If situated in Dagupan then venue the venue is dagupan

what court? then you're talking about jurisdiction. Is it the MTC or the RTC? Then you're
talking about what court will have juridiction

If it is a personal action,

- venue is one where the plaintiff or any of the principal plaintiffs resides or where the
defendant or any of the principal defendants resides or if the defendant is a non-resident
defendant where he may be found at the election of the plaintiffs

In personal action, Who has the choice of venue?

-the plaintiff

Let us say this is a personal action.

X-plaintiff(resides in Baguio)

Y-defendant(resides in Angeles)

Okay, let us say that the court that has jurisdiction is the first level or Municipal trial court in
cities. Suppose X files the action with the MTC of Angeles, Is the venue properly laid in
Angeles?

-Yes, because the one who can choose the venue of the action in a situation like this personal
action is the plaintiff.

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Suppose plaintiff X filed it with the MTC or MTCC of Baguio then the venue is properly laid in
Baguio.

Say or MTC of Baguio, then the value is properly laid in Baguio. Because that is also the venue
of the action, it's either Baguio or Angeles. SUppose, X, the plaintiff files it with the mTc of
Bontoc Then the venue is improperly laid in bontoc

But if it is if it is a real action, the venue is determined by the location Of the real property
subject of the litigation

What is the venue of the action if the defendant is a non-resident defendant who is not
in the Philippines because he does not reside and is not found in the Philippines.Can you
sue him in the Philippines? Well, yes, but only if the action affects the personal status of the
plaintiff or any property of the defendant located in the Philippines. Then the venue of the
action shall be the place where the plaintiff resides or the property of portion of the property is
located.

😊If the defendant is a non-resident defendant that who is not in the Philippines and action is
any one of those I have mentioned because if the actionis an action in personam as I told you
one time, That action cannot be maintained against a non-resident Defendant who is not in the
Philippines. So only if the action affects the personal status of the plaintiff or any property of
the defendant located in the Philippines .

Give an example of actions affecting the personal status of the plaintiff like annulment of
marriage , Legal separation and even Declaration of presumptive death that will affect the
personal status ofthe plaintiff because let us say the plaintiff is married to the defendant But
the marriage is declared void in an action for nullity of marriage then the personal status of the
defendant will now be single or unmarried individual.

Suppose they would ask you in the bar examination. The question of if the defendant is a non-
resident defendant.He comes here, for example For a brief visit And then goes back for where
he comes from then that Defendant is a non-resident Defendant. What is the venue of the
action against a defendant who is not residing in the Philippines? What is the venue of the
action? If the defendant is a non-resident Defendant, well, you have to divide your answer into
two parts.

The first one is you say if the non-resident Defendant is in the Philippines he does not reside
in the Philippines, but he is found in the Philippines because he let's say he comes here on a
tourist visa. For example, and you now file a case against him. What is the venue of the action
the venue is where the plaintiff or any of the plaintiffs resides or where The non-resident
Defendant may be found at the election of the plaintiff where he may be found. And this applies
for where he may be found applies if the non-resident defendant is in the Philippines

the phrase “where he may be found. “

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The phrase will apply only if the non-resident Defendant is in the Philippines, but if the non-
resident defendant is not in the Philippines. And the action affects the personal status of the
plaintiff or any property of the defendant located in the Philippines. Then the venue of the
action is where the plaintiff or any of the principal plaintiffs resides or where the property of
the defendant or any portion thereof is situated or found.

And I had a profitable Dina.

when the question is what is the venue of the action?

Then you have to qualify your answer. You have to say if he's in the Philippines or if it is not in
the Philippines Etc.

Suppose, The non-resident is the plaintiff. The plaintiff is non-resident. Then he files a
complaint with any Court in the Philippines?

Well here class if the plaintiff is a non-resident plaintiff. Then his venue will be limited to where
the where the defendant resides. All right, you change that one if the plaintiff is a non-resident
plaintiff. It is the plaintiff who is a non-resident. Then if he files a complaint, he submits
himself to the jurisdiction of the court, but what is the venue of the action? Well, he will have
no choice of venue. Because the venue shall be where the defendant or principal defendants or
any of the principal defendants resides or where he may be found. If it is a real action or
location of the property.

Now, what do you mean by reside?

-the word reside means the place of abode? Whether temporary or permanent as distinguished
from domicile.

All right the place of Abode whether permanent or temporary.

Suppose They will ask you a question like the following here is X he resides In Baguio But he
does business in Dagupan

His business in the dagupan has a business name called X enterprises and the address of the
business which is a sole proprietorship is in the Dagupan, the defendant is also A resident of
Baguio City

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All right, and then X finds a personal action against the defendant who also resides in Baguio
City, but x filed a complaint in the proper Court of the Dagupan it is where X enterprises is
situated from which the defendant the purchase bought some commodities. Question?. Is the
venue properly laid in Dagupan ? No, because that is just the address of the business of the
plaintiff.

All right. I told you that. A sole proprietorship cannot Sue and cannot be sued because it
doesn't have any legal capacity to sue. All right. And so the venue of the action should be in
Baguio City.

😊Take note class that there are instances. When the rules on venue that we have already
explained will not be applicable.

And one of them one such instance is when there is a specific rule or law providing for a
different venue of the action. Like what like libel? All right, the venue of action involving libel.
that is one example of a case in which the law provides for a different venue.

Okay. Number two is When the parties have validly Agreed in writing On an exclusive venue of
the action .to be valid the agreement on exclusive venue must be in writing. And number two it
must be made prior to the institution of the civil action.

may the parties validly agree On the exclusive venue of their action.

-Yes provided the agreement is in writing and made prior to the institution of the civil action.

All right. So let us say that there is a contract of lease Or any contract between the parties and
then somewhere in the contract There is a stipulation that he States the following.

Any case that party May file against the other arising from this contract Shall be instituted in
the proper Court of Baguio City only.

😊The lessor resides that the say in the Dagupan The lessee resides in La trinidad

But their contract provides that should there be any case that one party May file against the
other arising from This contract , such action shall be instituted in the proper Court of Baguio
only,

the lessor will file his complaint with the proper Court in the group. And then the venue is
improperly laid in Dagupan. Although that is where he resides because their contract provides
for the exclusive venue of the action.

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Is there is a word like only or any word of similar input like alone or exclusive

Then it is understood that the contract provides for an exclusive venue of the action. So that is
the action is commenced. In a place other than the place that is stated in the contract. Then
the venue is said to have been improperly laid because the contract provides for the exclusive
venue of that action.

Lessor resides in Dagupan( it is a personal action) . Lessee resides in La trinidad

The contract between the two of them provides that if there be any action arising from this
Contract it maybe filed in the proper Court of Baguio City. There is no restrictive word. then is
this undersold that the contract provides for an additional venue of the action. So Baguio City
becomes an additional venue. So the venue now maybe Dagupan, La Trinidad ,Baguio City
because the contract provides for an additional venue if there is no restrictive word.

Question: who can raise the question of improper

-the defendant is the one who can question the improper venue of the action

Now class I'd like you to know that the 1997 rules have been amended or revised by am
number 1-10-20-SC. Which took effect on May 1, 2020.

And this Rule now provides that a motion to dismiss is a prohibited motion XPN. f filed based
on any of the following grounds?

-Lack of jurisdiction over the subject matter of the action.

-Litis pendentia or that there is another action pending between the same parties and for the
same cause or

-res judicata that is also bar by prior judgment or

- prescription that is also a bar by the statute of limitations. There are only four grounds. That
may be involved so that a motion to dismiss will not be considered a prohibited motion. In the
past the defendant can file a motion to dismiss on ground of improper venue. Now that motion
to dismiss on grounds of improper venue is already a prohibited motion. And so the only way
now that the defendant May question The venue of the action is by asserting it as an
affirmative defense in his answer.

Alright, so that is the only way the defendant may now raise the question of improper venue by
asserting it as an affirmative defense in his answer.

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Suppose the defendant did not question it, it shall be deemed to have waived the question of
improper venue. If the question of the improper venue is not raised by the defendant by way of
an affirmative defense in his hands.

Module 6

Lecture 1

The 1997 Rules have been amended by AM 19-10-20-SC that took effect on May 1, 2020. This
amended Rule 6 up to Rule 35.

Pleading – is the written statement of the respective claims and defenses of the parties submitted
to the court for appropriate judgment.

I’d like you to recall what we have said that pleadings are necessary to secure the jurisdiction of
the court, so that, the subject matter can be presented for the consideration of the court. I told
you before class that jurisdiction is determined by the facts alleged in the complaint. And, then,
we also said that a civil action is commenced by the filing of the original complaint in court. And
so, pleadings are the means by which the issues are laid before the court, because the issues
involved in a litigation are defined by the pleadings. I hope you understand that part.

So now, let’s go to what? To the kinds of pleadings. What are the kinds of pleadings?

Well you have the following:

1. The complaint
2. The counterclaim
3. The cross-claim
4. Third party complaint
5. Complaint in intervention
6. Answer
7. Defenses of the party are set up in the answer to the pleading asserting a claim against
him.
8. Reply to the answer

Take note, class, that the claims of a party are asserted in the complaint or counterclaim, or
cross-claim or third party complaint or complaint in intervention. On the other hand, you have
also the answer.

The following questions were asked in the Bar Exam:

1. State whether or not the following are pleadings:

a. Complaint
b. Counterclaim
c. Motion to dismiss (not a pleading)
d. Cross-claim

And so, a pleading states a claim or a cause of action. What pleading states a claim or a cause
of action? Complaint, counterclaim and so on.

What a pleading states defences?

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An answer is a pleading that states defences. But I’d like you to know and we will talk in due
time that in cases governed by the rules in summary procedure, the only pleadings allowed are:
(1) counter-complaint, (2) compulsory counter-claim, (3) cross-claim pleaded in the answer and
(4) answers thereto. The compulsory counter-claim must be pleaded in the answer like the cross-
claim.

I’d like you to take note class that the rule is that pleadings are to be liberally construed so as
to do substantial justice. So, formal defects in the pleading may be cured at any stage of the
proceeding by means of an amendment. But then, even if as we say that pleading is to be liberally
construed, still a party is bound by the allegations, statements or admissions made by him in
his pleadings and he cannot take a position that is inconsistent with his allegation, statement or
admission.

Later in another subject, in Evidence, you will learn that if an admission is made in the pleadings,
then that admission is a judicial admission. It is in the nature of a judicial admission and a
judicial admission binds the admitter. And he cannot contradict his admission, as a rule. So, I’d
like you to take note of that one. Pleadings are to be liberally construed so as to do substantial
justice, but then, a party is bound by his allegations, or admissions made in his pleadings.

Now, we go to the specific kinds of pleadings.

1. Complaint.
- It would be nice if you can go to law offices or courts and then you should look at
some sample copies of pleadings like complaint, answer, reply, etc. So that you can
easily understand our discussion. So, if you have time, I think you can still go to some
law offices despite the limitations imposed by the present situation now. I think some
law offices would still allow you to visit them and look at sample copies of these
pleadings.
- That is the first pleading that is filed in court because it is the filing of the complaint
that will commence the civil action.
- Is the pleading alleging the plaintiffs’ or claiming parties’ cause of action or causes of
action
- The names, residences of the plaintiffs and the defendants must be stated in the
complaint. Why should the residence of the defendants be stated in the complaint?
Well, for service of summons. So that the court will know how to serve and where
to serve summons upon the defendant.

What is the pleading that the plaintiff will file with court? He will file a pleading known
as COMPLAINT. The complaint will state the claims or causes of action that the plaintiff
has against the defendant. And then, the defendant will file his answer to the complaint.

2. Answer to the complaint.

- What will the defendant state in his answer? The defendant will state his defences in
his answer.
- The answer will contain defendant’s defences.
- What are the kinds of defences?
a. Negative defences – are in the form of specific denial of a material fact/ facts
alleged in the pleading of the claimant essential to his cause(s) of action. How may
a defendant makes specific denial/ what are the kinds of specific denial?
Kinds of specific denial:
i. Absolute denial - By specifically denying the material allegation or
averment in the pleading of the adverse party and setting forth the

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 substance of the matter upon which the defendant relies for his
denial.
Ex: The plaintiff alleged in paragraph 5 of his complaint that defendant
borrowed Php1 million. “The defendant specifically denies the allegation in
paragraph 5 of the complaint (-specific denial). The truth being that the
amount is not an indebtedness but a deposit for safe keeping with the
defendant (- setting forth the substance of the matter upon which he
relies for his denial).” So, he will state the substance upon which he will
rely for his denial. Even if the words “specifically denies” were used, it
does not amount to specific denial without stating the substance of
the matter upon which he relies for his denial. If the defendant used
“specifically denies” without stating the substance of the matter upon
which he relies for his denial will amount to general denial
notwithstanding the use of :specifically denies” in the statement. I’d
like you to take note this one: that a general denial is an admission.
So, if he simply says, “the defendant specifically denies the allegation in
paragraph 5 of the complaint, the same being false,” well, that kind of a
denial is not a specific denial, it will be a general denial.
But supposed the defendant simply follows/ adopts the words used in the
complaint, and then there is a phrase which says, “it not true that on
July 16. 2019 the defendant borrowed P1Million from the plaintiff
which fell due on Dec. 5,2019,” this NOT a denial. That is called a
negative pregnant denial.
A negative pregnant denial is, in fact, an admission.
ii. Partial denial - the defendant will deny only a part of the allegation
by specifying so much of it as true and deny only the remainder.
Example: Allegation no. 6: that the debt of P1 Million has already become
due and despite demand, defendant has refused to pay.
Partial denial: he will specify so much of it as true and then denies only
the remainder. So here is the answer of the defendant for example: “the
defendant admits that the obligation has already become due but
denies the rest of the allegations, the truth being that the defendant
has already paid the amount of P1Million.”
iii. Denial by disavowal – by stating lack of knowledge or information
sufficient to form a belief as to the truth of the allegation in the
pleading of the adverse party. And that will have the effect of specific
denial by alleging lack of knowledge or information sufficient to form
a belief as to the truth of the allegation in the pleading of the adverse
party.
Example: the plaintiff in his complaint states the following:
“That because of defendant’s refusal to pay, the plaintiff has incurred
other damages in the amount of Php500,000 by way of attorney’s
fees, etc.” The defendant does not know about that, how will he deny
that allegation? By alleging in his answer that he has no knowledge or
information sufficient to form a belief as to the truth of the allegation in
the complaint. And that will have the effect of a specific denial.
Question: Supposed, the fact stated in the allegation is within the
knowledge of the defendant, he was supposed to know it, and then,
notwithstanding that the fact was supposed to be within his knowledge,
he still says that he has no information or knowledge sufficient to form a
belief as to the truth of the allegation? Then, he is making that allegation

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 in BAD FAITH. THAT WILL BE A BAD FAITH DENIAL. And if that kind of
denial is made in bad faith, it will amount to unadmission.

b. Affirmative defences – allegation of new matter which although hypothetically

admitting the material allegations in the pleading, would nevertheless bar or
prevent recovery by him. In an affirmative defense, there will be what we call a
hypothetical admission but notwithstanding that hypothetical admission, the
affirmative defense that is set up would still prevent or bar recovery by the
plaintiff.
What are the affirmative defenses that a defending party may set up in his answer?
Well, we have so many affirmative defenses. And I’d like to mention them to you
one by one. We have for example:
1. Fraud
2. Statute of limitations
3. Release
4. Payment
5. Illegality
6. Statute of Frauds
7. Estoppel
8. Former Recovery
9. Discharge in bankruptcy
10. Other matters by way of confession and avoidance.

Are these the only affirmative defenses that can be set up in his answer? Well, the
defendant may also set up court has no jurisdiction over the subject matter
of the action, there is another action pending between the same party and
the same cause (litis pendentia), the action is barred by prior judgment (res
judicata), court has no jurisdiction over the person of the defendant, the
venue is improperly laid, plaintiff has no legal capacity to sue, pleading
asserting a claim states no cause of action, the condition precedent for the
filing of the claim has not been complied with.

In the past before May 1, 2020, when the rules had not amended yet by AM No.
19-10-20-SC, we still had in those days a motion to dismiss. And a motion to
dismiss may also invoke these affirmative defenses as grounds for dismissal of the
complaint.

But the question is, may these affirmative defenses be pleaded in a motion to
dismiss like in the past? NO. THEY SHOULD BE ASSERTED OF THEY SHOULD
BE SET UP AS AFFIRMATIVE DEFENSES IN THE ANSWER, THEY CANNOT BE
PLEADED IN A MOTION TO DISMISS ANYMORE, EXCEPT FOR ANY OF THE
FOLLOWING GROUNDS:

1. THAT THE COURT HAS NO JURISDICTION OVER THE SUBJECT MATTER

OF THE ACTION;
2. THAT THERE IS ANOTHER ACTION PEDNING BETWEEN THE SAME
PARTIES AND FOR THE SAME CAUSE;
3. THAT THE CLAIM OR DEMAND IS BARRED BY PRIOR JUDGMENT;
4. THAT THA CLAIM OR DEMAND IS BARRED BY STATUTE OF LIMITATIONS.

AND SO, I’D LIKE YOU TO TAKE NOTE OF THESE 4 GROUNDS. AND I’D LIKE
YOU TO KNOW THAT IF THE GROUD IS ANOY OF THESE FROUR GROUNDS,
THEN YOU MAY FILE A MOTION TO DISMISS THE COMPLAINT.

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IF YOU’D BE ASKED, IS A MOTION TO DISMISS STILL ALLOWED? NO, IT IS NOT
ALLOWED ANYMORE BECAUSE UNDER THE PRESENT RULE, A MOTION TO
DISMISS IS A PROHIBITED MOTION, EXCEPT IF THE GROUNDS ARE THE FOUR
GROUNDS (LACK OF JURISDICTION OVER THE SUBJECT MATTER OF THE
ACTION/ THAT THERE IS ANOTHER ACTION PEDNING BETWEEN THE SAME
PARTIES AND FOR THE SAME CAUSE/ THAT THE CLAIM OR DEMAND IS
BARRED BY PRIOR JUDGMENT/ THAT THA CLAIM OR DEMAND IS BARRED BY
STATUTE OF LIMITATIONS)

And so, the Rule AM No. 19-10-20-SC tells us that these affirmative defenses
must be invoked at the earliest opportunity. Section 12-b of Rule 8 provides
that failure to raise the affirmative defenses at the earliest opportunity shall
constitute a waiver therof.

What is the “earliest opportunity”? Asserting them as affirmative defenses in the

answer is deemed to be the earliest opportunity, but if the grounds are any of the
four grounds that I have mentioned to you, any one of them, then invoking them
in a motion to dismiss may also be considered an earliest opportunity.

So, let us say that the plaintiff filed a complaint, and then in due time the
defendant filed an answer. In the answer that he had filed, he asserted or he
pleaded affirmative defenses.

What does the rule require the court to do if affirmative defenses are set up in the
answer? Well, I’d like you to look at the white board class. If the affirmative defense
set up is any one of these: (sabi ni Dean 1-10, nakasulat ata sa white board
niya. I checked the video pero expired na iyung link huhu. Hindi kaya iyun
yung naka-bold and italicized sa taas (fraud, statute of limitations, etc.)?),
then the court must conduct a summary hearing on these affirmative defenses
within 15 days from the filing of the answer. Within 30 days from the termination
of the summary hearing, the court will resolve the affirmative defense. But, if the
affirmative defenses set up by the defendant in his answer is any of these
(1,2,3,4,5)then the court must resolve this affirmative defenses motu propio, no
more summary hearing if these are the affirmative defenses set up in the answer
(referring sa nakasulat sa white board huhu).

But if the affirmative defenses set up in the answer are these ones or any of them
(awww), then the court may conduct a summary hearing within 15 days from the
filing of the answer. And then, within 30 days from the termination of the
summary hearing, the court must resolve these affirmative defenses.

We mentioned, class, that one affirmative defense that a defendant may set up in
his answer is that there is another action pending between the same parties and
for the same cause, you call that litis pendentia, or lis pendens.

Requisites of litis pendentia:

1. There must be identity of parties or at least such as representing the same

interests in both actions;
2. Identity of rights asserted and the reliefs prayed for. The reliefs being founded
on the same fact; and
3. The indentity in both cases is such that the judgment may be rendered in the
pending case regardless which party is successful, will amount to res judicata
in the other case.

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I’d like you to memorize these requisites of litis pendentia.

What does it mean when we say “identity of parties”?

Well, if X is the plaintiff in one case and the plaintiff is also X in the second case, then definitely,
there is identity of parties because the same person is involved in both actions as plaintiff.

But supposed, in the 1st action the plaintiff is X, and in the 2nd action the plaintiff is Y. In the 1st
action: plaintiff X vs. Defendant A; 2nd action: plaintiff Y vs. Defendant A. may there still be
identity of parties? Well, yes. If X and Y represent the same interests, there is what you call a
“community of interests” between the party in the 1st case and the party in the 2nd case. Like let
us say, here is plaintiff X vs. the Local Gov’t of so and so. X is a lessee of a stall in the market
and then there is an ordinance that was enacted by the local government, reducing the period of
the lease. X filed an action questioning the validity of the ordinance which reduces the period of
the lease. And then you have Y, another lessee of a stall in the market also file an action with
the same local government questioning also the validity of the same ordinance. So, even if let us
say X is a different person from Y, the plaintiffs in the 2 cases are different person, yet they
represent the same interests. Therefore, there can still be identity of party. The 1 st requisite is
still present because both X and Y represent the same interest.

Module 6 Lecture 2

In our last lecture, we were talking about the requisites of litis pendentia as an affirmative
defenseAnd this time we go to the next requisite. The next requisite is that: there must be
identity of Rights asserted. And the reliefs prayed for, the reliefs being founded on the same
facts, so that there would be still be an identity of Rights asserted even if the claim is set forth
by way of a counterclaim. I'd like to give you an example of that.

Ex: So if let us say this is just an example you have X as plaintiff and Y as the defendant. All
right, and then in the other action you have X as plaintiff and Y as the defendant. The first
action is for a specific performance. The second action is for rescission based on the same
contract. So here as you can see, there is identity of Rights asserted. All right, but I'd like you
to know that there can be identity of Rights asserted even if the claim is set forth by way of a
counterclaim.

And I'd like you to look at this example.

So let us say that here is a X Filing a case against Y and then so this is for a specific
performance. All right, and then Y Filed a complaint against X and X asserted a counterclaim
against Y also for specific performance involving the same contract.

X asserted his claim for a specific performance as a counterclaim against I told you a while ago
that there can still be identity of right asserted even if the claim is set forth by way of a
counterclaim.

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The requisite the third requisite is that the identity in both cases is such that the judgment
that may be rendered in the pending case regardless of which party is successful willamount to
rest judicata.In the other case

All right. So I'd like you to take note of the third requisite that judgment that may be
rendered in one case whichever party is successful will amount to rest judicata in the
other case. All right. So I told you a while ago that there can still be identity of parties, even if
the position of the parties are reversed.

Ex. A while ago, I gave you X versus Y and then in the second case, it is Y versus X. So even if
the position or the positions of the parties are reversed, they're litis pendentia So the next
question that we will look at is the following. When there are two pending cases involving the
same parties and for the same cause which of the two cases should be dismissed. Is it the first
case or the second case? So let's look at this one X versus Y, the first case that was filed And
then this is the second case Y versus X .

The two cases are based on the same contract between X and Y.

Like in the first case X is asking for a specific performance in the second case Y is asking for
rescission of the contract.I told you that there can still be litis pendentia, even if the positions
of the parties are reversed. Now question, which of the two cases should be dismissed. Is it the
first case or the second case , well we have the following tests to apply. The first test is known
as or it is called “priority in time “ rule.

Priority in time rule. All right, if we apply this rule. Then it means that the first case should
have priority over the second case. It means that the second case should be dismissed if we
apply the priority in time rule, the second case should be dismissed, but then it has been said
class that the priority in time rule must yield to a test known as more appropriate action test.

Q: What does that mean? it means that if that the say The second Case is more appropriate
than the first one then the first case should be the one to be dismissed after all the rule simply
tells us that there is another action pending between the same parties and for the same cause,
it does not say that there is a prior action pending. If that is the wording of the rule, then it
means that the second case should be the one to be dismissed all the time. But as I have told
you the rule simply says that there is another action pending between the same parties and for
the same cause.

😊 So we have two tests. The first one is , priority in time rule under this rule The second case
should be dismissed but As I have told you the priority in time rule must must yield to another
test known us more appropriate action test so that if the second case is more appropriate than
the first case. Then the first case should be the one to be dismissed.

example. So let us say that X and Y are husband and wife. So the wife is X and the husband
his Y. X filed an action against Y for support so it is a complaint for support. Alright, while this
case is pending in court Y filed a complaint against X for legal separation? X filed her answer to

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the complaint and the answer contains a counterclaim for support. I must have mentioned to
you one time. I don't remember it now, but I told you one time I guess that a counter claim is a
claim by a defending party against the opposing party. So that is a counterclaim. And I
mentioned to you a while ago that there can be litis pendentia even if the claim is set forth by
way of a counterclaim. Alright, so we have this example. This is the first case: A complaint by
the wife against the husband for support. This is the second case that was filed by the
husband against the wife for legal separation. But in this case, second case the defendant the
wife filed an answer in which she asserted a counterclaim for support against the husband
question now. Which of the two cases should be dismissed the first one or the second one?

----Well, we apply here class The more appropriate action test you take note that the second
case is more appropriate because here the parties May litigate on the issue of legal separation
and On the issue of support, on the other hand in the first case the parties may only litigate on
the issue of support. And so the second case in the example that we have is more appropriate
than the first case therefore the first case should be the one to be dismissed.

The sufficiency of a complaint: If the complaint fails to syate a cause of action Then failure to
State a cause of action may be asserted as an affirmative defense and if the court finds that
indeed the complaint fails to State a cause of action. that the court will resolve the affirmative
defense or affirmative defenses set up by the defendant in his answer now here class, if the
court finds that indeed the complaint fails to State a cause of action, Then it may dismiss the
complaint for failure to state cause of action.. Now how will you know if the complaint is
sufficient or not (when it contains cause of action): In determining whether the complaint
States a cause of action should the court require the presentation of evidence. Should the court
require the parties to percent evidence? Well, the answer class is no, the court will simply
confine itself within the four corners of the complaint and then the court will look at the facts
alleged in the complaint. And if the court can render judgment based on the facts As alleged in
the complaint if the court can render a valid judgment based on the facts as alleged in the
complaint then the complaint is sufficient. It is states a cause of action, but if let us say even if
the facts are hypothetically admitted if the court cannot render a valid judgment based on
these facts then the cause of action is insufficient And therefore the complaint must be
dismissed.

Let's go to another ground that maybe invoke As an affirmative defense in may also be involved
in a motion to dismiss. I told you last time that motion to dismiss is a prohibited motion except
if the ground alleged in the motion to dismiss is any of the four grounds that we mentioned last
time. One of them is res judicata or bar By Priority judgment now here class. Look at this one.
What are the requisites of res judicata? Requisites of res judicata Number one there must
be a former judgment That is already final. So in one case the court has rendered judgment
and judgment has already attained finality. So the first requisite is the former judgment must
be a final judgment meaning it has attained finality. Second requisite The judgment must
have been rendered by a court having jurisdiction over the subject matter of the action and
over the parties. So the court that rendered judgment must have jurisdiction over the subject
matter of the action and over the parties. And then the third requisite is that The Judgment
must be judgment on the merits. I'd like you to know class that an order of dismissal of a
complaint If it is an order with prejudice is a final order on the merits of the case. And
then the last requisite is that there must be between the first and the second actions identity
of parties, identity of subject matter and identity of causes of action.

I'd like you to know that a cause of action is different from a remedy because a cause of action
may give rise to two or more different remedies but there's only one cause of action. Okay, so

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that if you have a contract for example under that contract is violated by one party, then the
aggrieved party has the choice of Remedy. He has the following remedies. But he can choose
only one of them one is what to file a complaint demanding specific performance or he will file a
complaint seeking the rescission of the contract. So either a specific performance or rescission,
so you will see class that here there are Only one cause of action but the cause of action
involves two remedies.

The aggrieved party has filed an action for a specific performance. He cannot file
another action For rescission involving the same contract, a party cannot by varying the form
of his action or adopting a different method of presenting his case escape the effect of res
judicata. A party cannot escape the effect of res judicata by simply adopting a different method
of presenting his case or what by varying the form of his action. All right. Now I'd like you to
give I'd like to give you an example of what of problem involving whether rest judicata has set
in. So here is X filing a complaint against Y the defendant the whereabouts of Y are Unknown
to X. Alright, so here is X and then there was summons he filed the complaint against Y and
then summons was issued by the way, just so you will know this one: summons as used in
this contest is singular. So you say summons is or summons was Because summons is
singular. How will you convert this into a plural form? You say someone summonses.

So summons was issued Against Y the purpose of the summons is to notify Y of the complaint
that was filed against him and to enable the court to acquire jurisdiction over the person of the
defendant.

We will see later when we get to rule 14. If the whereabouts of the defendant are unknown, the
summons can be served through publication, you call that summons by publication. and so
because X cannot be located on motion of x, The court issued an order directing that the
summons be served upon Y by publication Despite the lapse of so many months and even
years the plaintiff was not able to comply with the order to have the summons published in
some newspapers and so because of the failure of the plaintiff to cause the publication of the
summons, The court dismissed the case.

And the court said that the dismissal is with on the other the court is stated in its order that
the dismissal is due to the failure of X to prosecute his case within a reasonable time. The
court holding that Xs failure to cause the publication of this summons amounted to failure to
prosecute his action within a reasonable time. And then When years later, X has obtained
information regarding where Y can be located. So X, became aware of the location of Y and so
he refiled his complaint against against Y. This is the second case. Y Argued in the second case
that res judicata has set in there was a dismissal of the first case and The dismissal amounted
to adjudication of the case on its merit. Because according to him it was based on plaintiffs
failure to prosecute his action within a reasonable time. So Y filed a motion to dismiss I told
you that you can find a motion to dismiss if the ground is res judicata.

Question class, should Y’s motion to dismiss be granted? So here the question is has res
judicata set in? If the answer is yes, then the second case should be dismissed but if res
judicata has not set in then the second case can proceed, it will prosper so you just have to
look at the requisites of res judicata. One of them is that. The judgment must have been

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rendered by a court That has jurisdiction over the subject matter and over the persons of the
parties. Take note that in the first case the court has not acquired jurisdiction over the person
of Y because of the failure to publish the summons, So in the first case the court has not
acquired jurisdiction over the person of the defendant and therefore one requisite of res
judicata is wanting or Missing which is the court must have jurisdiction over the subject
matter and over the person's of the parties. So the answer is that res judicata has not set in
and therefore the second case can prosper.

What we are doing class is we are explaining the affirmative defenses. Some of them you have
taken up in another subject like the statute of frauds. So we will not explain that anymore,
some of them Also you have taken up in this subject earlier like improper venue. So we will not
talk about that anymore.

what else jurisdiction of Courts? So if the Court lacks jurisdiction, the complaint may be
dismissed that can even be a ground for that can even be set up in a motion to dismiss. And so
the the next affirmative defense that we will talk about lack of legal capacity to sue. All right,
so that should be on the part of the plaintiff, there is no such thing us lack of legal capacity to
be sued but we have is lack of legal capacity to sue. So when you say lack of legal capacity to
sue what party are you talking about? the plaintiff So what does that mean? What does lack of
legal capacity to sue mean? What does it mean? It means that the plaintiff is not in the exercise
of his civil rights or does not have the necessary qualification to appear in the action or does
not have the character or representation that he claims. the plaintiff is said to be Not to
possess a legal capacity to sue. lack of legal capacity to sue is not the same as lack of legal
personality to sue. question of when you say lack of legal personality to so what does that
mean? It means that the plaintiff is not the real party in interest . So if the plaintiff , When you
say the plaintiff has no legal personality to sue what you're saying is that the plaintiff is not the
real party in interest. So what is the ground for the dismissal of the complaint? The ground is
failure to State a cause of action the complaint fails to State a cause of action if the plaintiff is
not the real party in interest. Then his complaint will Fail to State a cause of action.

I'll give you an example. If several persons acting as plaintiffs file an action, which they claim to
be a class suit but the subject matter of the suit is not of common or general interest to many
persons. Then the plaintiffs have no legal capacity to sue because they do not have the
character or representation that they claim and so what they allege to be a class suit may be
dismissed on the ground that the plaintiffs have no legal capacity to sue because They do not
have the character or representation that they claim.

Now another affirmative defense that the defendant May set up in his answer is that a
condition precedent for the filing of a claim has not been complied with. QUESTION in the bar
exams when may the defendant set up this affirmative defense. Well in the following instances
number one, the plaintiff fails to exhaust administrative remedies, the case for example
requires exhaustion of administrative remedies And the plaintiff fails to exhaust administrative
remedies and notwithstanding that he has failed to exhaust administrative remedies He filed
his complaint in court then his complaint may be dismissed on what ground? that a condition
precedent for the filing of a claim has not been complied with.

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Another instance is tha when the plaintiff fails to comply with the requirements of prior or
referral of the dispute to the Lupon, later on class towards the end of the semester. We will be
talking about what disputes should be first referred to the Lupon. There we will find out the if
the requirement of Prior referral to the lupon is not complied with the complaint. May be
dismissed on the ground that a condition precedent for the filing of a claim has not been
complied with. Another one class is when the suit is between members of the same family. It
must be alleged in a verified complaint that Earnest effort toward a compromise has been made
but the same has failed.

So if the suit is between members of the same family, there must be an allegation in the
complaint in a verified complaint That Earnest efforts toward a compromise have been made
but the same have failed. Suppose the suit is between members of the same family, but the
complaint does not contain that allegation. then The complaint may be dismissed. On what
ground? on the ground that a condition precedent for the filing of a claim has not been
complied with. In persons and family relations. You have learned the who should or are
members of the same family like what like parents and children ascendants, descendants and
then brothers sisters each other. There is another person and that person is not anymore a
member of the same. It's not anymore a member of the same family, then you don't have to
comply with this requirement.

we have taken up complaint. We have taken up answer and when we took up answer. We also
explain the kinds of defenses and we also mentioned about affirmative defenses. What are the
affirmative defenses that may be set up and what will the court do if the answer contains
affirmative defenses Etc. And so now we go to another pleading. And this time let's talk about
reply.

Reply So you have you have a plaintiff filing a complaint against the defendant and defendant
filed an answer and then the plaintiff files a reply.

I'd like it to know class that The only instance when the plaintiff must file a reply is when the
affirmative defense of the defendant based on an actionable document

We will talk we will explain that more in detail when we get to actionable document. But right
now I'd like you to know that an actionable document.

It is the basis of a cause of action or the basis of a defense. Then that is an actionable
document like a deed of sale, which is the basis of a cause of action or the basis about defense
is said to be an actionable document. Now, so if the answer Contains an affirmative defense
based on an actionable document then the plaintiff must file a reply to deny under oath the
genuineness and due execution of that actionable document. Suppose the plaintiff fails to do
that. Then the plaintiff will be deemed to have admitted the genuineness and due execution of
the actionable document. So what is a reply? take note of this one class definition of a reply.

---A reply is a pleading the office or function of which is to deny or alleged facts in denial
or avoidance of a new matter alleged in or relating to an actionable document attached
to the answer of the defending party. So if the answer of the defending party, if the if the
defendant or the defending party files an answer and he will attach to his answer an actionable

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document which is the basis of his defense and if the plaintiff would like to deny the
Genuineness and due execution of that actionable document then he must file a reply to deny
under oath The genuineness and due execution of the actionable document attached to
defendants answer.

If he does not do that, or even if he does but the denial is not under oath even if the denial is a
specific but if it is not under oath, then there will be an implied admission of the execution and
genuineness of the actionable document. I hope you understand and so the question in the bar
exam. May be something like for a specific denial to produce the effect of a specific denial To
produce the effect of a negative defense must the denial be under oath masterclass. No, it need
not be under oath. So The denial will produce the effect of a specific denial if it is made in one
of the three ways That we mentioned in our first lecture involving this module. All right,
absolute denial ,partial denial denial by (dis awovall?), right, and you should know how to
explain them one by one. So if made in any of those three ways the denial is said to be specific.
It need not be under oath except to deny the genuineness and due execution of an actionable
document that is the basis of the cause of action or the basis of the defense the denial must be
under oath. That is the only exception. I will give you an example class.

So here Let us say that you have X filing a complaint against Y this is the complaint and
attached to his complaint as the basis of his cause of action an actionable document. All right,
if y wants to deny the genuineness and due execution of the actionable document then he must
deny it this specifically and under oath.

So although so that denial may be specific if not under oath in this example. There will be an
implied admission of the genuineness and due execution of the actionable document. All right.
So question who may me plead and actionable document either the plaintiff or the defendant,
if it is the defendant who will plead it and attached it to his complaint then the plaintiff should
file a reply Under oath if he wants to deny it if he wants to deny the due execution or
genuineness about actionable document.

All right, but you may want to ask, so the complaint May attach an actionable document.

how may the defendant deny the genuineness of the actionable document and undue execution
of the action about document attached by the plaintiff to his reply. Well the defendant may do
so by filing a response.

In his response. He will deny under oath. He will is specifically denyd under oath the
genuineness due execution of the actionable document attached to plaintiffs reply.

Here is X plaintiff filing a complaint against the defendant Y and then the defendant files an
answer, the answer contains new matters, what are new matters. These are affirmative
defenses and then the plaintiff believes that he has another cause of action against the
defendant Y arising from these new matters. So the Plaintiff X believes that he has another
cause of action against defendant Y and this cause of action Arises from the new matters

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pleaded in Defendants answer question may the plaintiff file a reply to assert this new cause of
action against the defendant. I hope you understand the question.

The answer class the plaintiff cannot set up A cause of action or claim against the defendant in
a reply. So the plaintiff cannot set up a new cause of action or claim even if the new cause of
action or claim arose from the new matters alleged in Defendants answer the plaintiff cannot
set up a new cause of action in a reply because The function or office of a reply is simply to
deny the genuineness and due execution of an actionable document attached to defend us
answer. That is the only function of a reply. I hope you understand that part. And so you might
want to know but suppose sir. The plaintiff has a new cause of action against the defendant
Arising from these new matters how may the plaintiff set up these new actions, the answer by
way of an amended pleading or a supplemental plaeading, by way of an amended complaint or
a supplemental complaint.

All right. Now, let's go to counterclaim. We are talking about pleadinsg. So we have discussed
complaint. We have discussed answer we have discussed reply now, let's talk about
Counterclaim. I told you that a counter claim is a claim which a defending party has against an
opposing party. A claim which are the offending party has against the opposing party. The
opposing party is the plaintiff. All right or the claimant.

What are the kinds of a counterclaim, then we have the following kinds of counterclaim one is
called compulsory counterclaim and the other one is permissive counterclaim. So two kinds of
counterclaim compulsory counterclaim, and then the second one is what? Permissive
counterclaim

What are the requisites of compulsory counterclaim

number one. It arises out of or is necessarily connected with the transaction or occurrence
That is the subject matter of the opponent's claim or complaint.

Module 6

Lecture 3

Last time we talked about counterclaim. And today, we will continue our lesson on the kinds of
counterclaim. We mentioned last time that a counterclaim may either be a compulsory
counterclaim or a permissive counterclaim.

I’d like us to look at the requisites of a compulsory counterclaim.

1. It arises out of or is necessarily connected with the transaction or occurrence that is the
subject matter of the opposing party’s claim.
2. It does not require for its adjudication the presence of a person over whom the court
cannot acquire jurisdiction.
3. It must be cognizable by the regular courts of justice.
4. It must be within the jurisdiction of the court both as to the amount and by the nature
thereof, except that in an original action before the RTC the counterclaim is still
considered compulsory regardless of the amount thereof.

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 5. It must already be existing at the time the defending party files his answer.

So these are the requisites of a compulsory counterclaim. For a counterclaim to be compulsory,

first, it must arises out of or is necessarily connected with the transaction or occurrence that is
the subject matter of the opposing party’s claim. We will give an example for that later to
explain that point.

Second, it does not require for its adjudication the presence of a person over whom the court
cannot acquire jurisdiction. I mentioned to you last time, class, that if an action is an action in
persona, and the defendant is a non-resident defendant who is not in the Philippines, then he
cannot be sued in the Philippines because the court will not be able to acquire jurisdiction over
his person. So, that is the meaning of the second requisite.

The next one is not very difficult to understand because, to be a compulsory counterclaim, it
must be cognizable by the regular court of justice like the MTC, RTC.

The next one is it must be within the jurisdiction of the court both as to the amount and by the
nature thereof, except that in an original action before the RTC the counterclaim is still
considered compulsory regardless of the amount thereof. Let me give you an example of that.

So, let us say here is X vs. Y. the action is filed with the MTC. Action to recover ownership of a
real property, the assessed value of which does not exceed Php20,000.00. So, this case falls
within the jurisdiction of the MTC. Y filed an answer asserting a counterclaim against X for an
amount of Php500,000.00. So, you will know class that the counterclaim of Y is beyond the
jurisdictional amount that can be taken cognizance by the MTC. So, here, this cannot be a
compulsory counterclaim because the MTC cannot render a judgment for this amount of
Php500,000.00. May the defendant Y still assert it in his answer against X? Well, take note
that the amount is beyond the jurisdiction of the MTC. And so, if the MTC finds that Y is
entitled to this amount, it can render judgment but not for the entire amount of
Php500,000.00. And so, it is not asserted as true compulsory counterclaim but merely a
special defense.

So, I’d like you to take note that, to be a compulsory counterclaim, it must be within the
jurisdiction of the court both as to the amount and the nature thereof, EXCEPT that it is in the
RTC, the counterclaim is compulsory regardless of the amount thereof. Let me give you an
example of that.

So, let us say that now, the complaint is filed with the RTC because the assessed value of the
land involved in this action is more than Php20,000 or Php50,000. So, it falls within the
jurisdiction of the RTC. Y filed his answer to the complaint asserting a counterclaim for Php1
Million or Php500,000. Is that alright? YES, BECAUSE THE AMOUNT IS WITHIN THE
JURISDICTION OF THE RTC. BUT SUPPOSED, Y’S COUNTERCLAIM WAS ONLY FOR THE
AMOUNT OF Php150,000, would that still be compulsory counterclaim? YES. Because the
exception is that in an ORIGINAL ACTION BEFORE THE RTC, THE COUNTERCLAIM IS
CONSIDERED COMPULSORY REGARDLESS OF THE AMOUNT THEREOF.

And the last one, it must be already existing at the time the defendant files his answer.
Because if the claim is not yet existing at the time of the filing of the answer, it has not accrued
yet, then that cannot be a compulsory counterclaim.

Now, I’d like you to take note class that a compulsory counterclaim, a counterclaim
whether compulsory or permissive is a pleading. But a counterclaim is incorporated in
the answer that the defendant files in court.

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Now, let’s go to the distinctions between a compulsory counterclaim and a permissive
counterclaim.

1. A compulsory counterclaim arises out of or is necessarily connected with the

transaction or occurrence constituting of the subject matter of the opposing party’s
claim. While a permissive counterclaim does not arise out of or is not necessarily
connected with the transaction or occurrence which the subject matter of the opposing
party’s claim.
2. A compulsory counterclaim is barred if not set up in the answer while a permissive
counterclaim is not barred even if not set up in the answer.

I told you a while ago, that a counterclaim is incorporated in the answer that the defendant will
file in the court. Now here class, I’d like you to know that if the counterclaim is compulsory it
must be set up, it must be asserted in the answer. Supposed the defendant has a compulsory
counterclaim against the plaintiff but for some reason, he fails to set it up in his answer. What
happens? Then, that compulsory counterclaim is BARRED.

Take note that if the counterclaim is compulsory, it cannot be the subject of different or
independent litigation. On the other hand, if the counterclaim is permissive, even though it is
not set up in the answer, it is not barred.

So, if let us say the defendant has a permissive counterclaim against the plaintiff, he may or he
may not set it up in his answer. Assuming that the defendant has a permissive counterclaim
against the plaintiff, may he set it up in his answer? YES. May he file a separate case against
the plaintiff to litigate his permissive counterclaim? YES, BECAUSE A PERMISSIVE
COUNTERCLAIM IS NOT BARRED EVEN IF IT WAS NOT SET UP IN THE ANSWER. IT CAN
BE THE SUBJECT OF A SEPARATE, INDEPENDENT LITIGATION.

Supposed the defendant has a compulsory counterclaim against the plaintiff but he did not set
it up to his answer. What happens is that he files a complaint against X to litigate his
compulsory counterclaim. What will happen to this case? IT WILL BE DISMISSED ON THE
GROUND OF LITIS PENDENCIA BECAUSE A COMPULSORY COUNTERCLAIM CANNOT BE
THE SUBJECT OF A SEPARATE SUIT OR LITIGATION.

3. The plaintiff is not required to answer a compulsory counterclaim and he cannot be

declared in default with respect thereto. While a permissive counterclaim, must be
answered after the payment of the docket fees, otherwise the plaintiff may be declared
in default with respect to that permissive counterclaim.

If the defendant dos not file his answer within the time for filing it, then the defendant may be
declared in default. BUT if the counterclaim is a compulsory counterclaim, the plaintiff of the
original action may or may not file an answer. If he does not file an answer to the compulsory
counterclaim, he cannot be declared in default as to the compulsory counterclaim.

But if the counterclaim is a permissive counterclaim then the plaintiff, who is the defending
party to the permissive counterclaim must file an answer. If he does not file an answer to that
permissive counterclaim, he may be declared in default.

4. A compulsory counterclaim is not an initiatory pleading, and therefore, it does not

require a certification on non-forum shopping. On the other hand, a permissive
counterclaim is an initiatory pleadings and it requires a certification of non-forum
shopping.

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What is a counterclaim, again? A counterclaim is a claim which a defending party has against
the plaintiff.

Now, take note of this one class, may a compulsory counterclaim implead a person who is not a
party to the original complaint? YES, SO THAT THERE CAN BE A COMPLETE
ADJUDICATION OF THE CLAIM SUBJECT MATTER OF THE ACTION. SO, A COMPULSORY
COUNTERCLAIM MAY IMPLEAD A PERSON WHO IS NOT A PARTY TO THE ORIGINAL
COMPLAINT. The purpose is to enable the court to adjudicate the entire controversy involving
the parties.

I will give you an example. So, here, class, the plaintiff is X and the defendant is Y. usually, if Y
asserts a counterclaim, it will be a claim that Y has against X. So, X and Y is the original
parties to the original complaint. But supposed, X and Y are joint debtors of A. Then, there is
another legal matter involving X and A. Let us say, X filed a case against A for the recovery of
ownership of a parcel of land. A has a counterclaim against X involving the indebtedness of X
and Y in favour or A. So, Y is not a party to the original complaint. May the counterclaim
implead a person who is not a party to the original complaint? YES. If A will file a
counterclaim against X, he can only recover ½ of the indebtedness because the liability is joint.
Now, for the complete adjudication of his claim, he may implead Y in his counterclaim even if Y
is not a party to the original complaint.

Should summons be served with the defending party? Well, X need not be served summons
because he is already a party to the original complaint. But Y, who was impleaded by A, should
be served with summons so that he can answer the counterclaim that A has asserted against
him.

CROSS-CLAIM

- Is a claim by one party against a co-party arising out of a transaction or occurrence

that is the subject matter either of the original action or of the counterclaim therein.
- Let us say, X filed a case against Y and Z, if Y has a claim against Z, then that
would a cross-claim.

THIRD PARTY COMPLAINT

- A claim that a defending party may, with leave of court, file against a person
not party to the action, called a third party defendant, for contribution,
indemnity, subrogation, or any other relief in respect of his opponent’s claim.
- Example of “contribution”: X is the plaintiff and Y is the defendant. Y may file a
case against Z. Take note that Z was not a party to the original action. In the
original action, X is the plaintiff and Y is the defendant; but as to the third party
complaint, Y is the third party plaintiff and is called the third party defendant.
- There is no such thing as 2nd party complaint.
- Example: Y and Z, debtors of X. Liability of Y and Z is solidary. X filed a complaint
against Y alone to recover the amount of obligation which is Php1 Million. So, X can
compel Y to pay the entire amount of the debt since Y and Z are solidary debtors. Y’s
remedy is to file a third party complaint against Z for contribution, to compel z to
pay also ½ of the indebtedness. Y CAN FILE A THIRD PARTY COMPLAINT
AGAINST Z FOR CONTRIBUTION.
- May only be filed with leave of court.
- Example of “indemnity”: X owns a car that is insured by Y Insurance Company.
There was an accident, A filed a complaint against X for damages but his car is

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 covered by an insurance policy issued by Y. Then, X may file a 3rd party complaint
against Y for indemnity.
- Example of “subrogation”: X as a lessor, Y as a lessee, Z as a sub-lessee. So let us
say that X filed a complaint against Y to recover the cause of repair that X has made
on the property subject of the lease contract. But there is also an agreement
between Y and Z that Z should be liable for the repair of the subject property, then if
X files a case against Y, then Y can file a 3rd oarty complaint against Z for
subrogation.
- Example of “any other relief”: X (vendor) sold a land to Y (vendee). Z sued Y
because Z, according to him, he is in fact the owner of the property that X sold to Y.
Y may file a 3rd party complaint against X to enforce his warranty against eviction,
and that is an example of “any other relief.”

PARTS OF A PLEADING:

1. Caption
2. Body
3. Signature
4. Address
5. Verification
6. Certification on Non-Forum Shopping

1. Caption
- Includes the name of the court, title of the case, docket number if one has already
been assigned.
- The title of the case must specify the names of all the parties and their participation
in the action, if plaintiff or defendant.
- Who assigns the docket number? The clerk of court.

In the complaint you have to mention all the names of the parties.

Subsequent pleadings – pleadings after the complaint, like the answer. It is enough to
mention the name of the first party with an appropriate indication that there other parties.

We will continue from here.

ZOOM CLASS (SEPTEMBER 12, 2020)

PARTS OF A PLEADING (continuation)

There is one XPN that if you appeal a judgment you will file a notice to appeal, or record of
appeal and they are not the same, the rule requires the names of all the parties to be stated in
the notice and record of appeal.

In a complaint, the name of all the parties must be specified but in a subsequent pleading it is
enough to mention the name of the first party with an appropriate indication that there are
other parties, however in a notice of appeal or in a record of appeal, the names of all the parties
must be specified.

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Let's go to the other parts of a pleading. We have the body. The body of the pleading states its
designation. so if complaint is an answer, then it must state answer , so the body should set
forth the designation of the pleading the allegations of facts constituting the parties’ claims or
defenses and then the reliefs prayed for and the date of the pleading. it may include General
player for such other relief as may be found just and Equitable.

As I have told you before the 1997 rules has been amended by am number 19-10-20-SC and
also now under the new rules aside from the designation aside from the allegations
constituting the Cause the last or defense of the parties and then the relief prayed for and the
date Okay, now pleading the must also State the following. You have number one the names of
witnesses who will be presented to prove the party’s claim or defense.

If you are preparing a complaint or preparing an answer, you must already include the names
of the witnesses who will be presented to testify to prove the party’s claims or defenses. And
then the second one is what the summary of the witnesses intended testimonies. Provided
the judicial affidavits of the witnesses must already be attached to the pleading, take note that
under the new rule, only Witnesses whose judicial affidavits attached to the pleading will be
allowed to testify at the hearing and aside from the documentary and Object evidence in
support of the allegations contained in the pleadings must also be stated.

Alright, we go to the next part of the pleading which is what the signature the address

Q: Who should file the pleading?

A: the counsel representing the party may sign the pleading.

The counsel May sign the pleading but even the party himself or herself May sign the pleading.

question suppose our party is already represented by a counsel may the party can still sign the
pleading? Yes. All right, but if a party is not represented by a counsel. He should sign his own
pleading.

In one bar examination the question that was asked was what is pro se?

---when a party signs his own pleading the he signs it PRO SE. a party may litigate pro se,
without the aid or assistance of a counsel.

What is the significance of his signature of his signature? What does the signature of a counsel
constitute?

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----The signature of a counsel constitutes as certificate by him that the pleading is not being
presented for any improper purpose such as to harass cause unnecessary delay or needlessly
increase the cost of litigation.

Number two that the claims defenses or other legal contentions are warranted by existing law
or jurisprudence or by a non-frivolous argument for extending, modifying or reversing the
existing jurisprudence. the factual contentions have evidentiary support. We will talk about
modes of Discovery. And then the next one is one the denials of factual contentions are
warranted.

Q: what is the effect of unsigned pleading

A. It produces no legal effect.

Verification is also part of the pleading, but it need not be verified unless the rules requires it
to be verified.

How is a pleading verified?

---by affidavit of affiant that:

1. The allegations in the pleading are true and correct based on his personal knowledge or
based on authentic document
2. The pleading Was not filed to harass or cause unnecessary delay or neddlessly increase
the cost of litigation
3. The factual allegation in the pleading has evidentiary support after reasonable
opportunity for discovery.

Q: what is the purpose of verification? Well, verification is intended to secure and assurance
that the allegations in the pleading are true and correct not the product of the imagination or a
matter of speculation and that it is being filed in good faith. (Check the pleadings that need
verification)

Certification on non-forum shopping aka cert. against forum sgopping NOT cert. against non-
forum shopping

When do you need cert. on non forum shopping?

---COMPLAINT AND OTHER INITIATORY PLEADING

Initiatory peading

---a pleading that initiates cicvil case or action.

Example: Permissive counterclaim

All right now listen to this one. Well, I believe that commences the Civil proceedings leading the
initiative.

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Okay, but I like you to know that that certification on man Forum Shopping must be executed
by the plaintiff or petitioner stating that or certifying under oath that he has not filed any claim
involving the same issues in any court or tribunal or quasi judicial agency and to the best of
his knowledge there is no such other claim that is pending in other courts. He must also certify
under oath that if there is such other proceedings or a pending action or claim, He must make
a complete statement of the present status of his claim or action, And then he must also certify
under all that is he should learn their after that the same or similar action is pending in
another Court, He shall report that fact to the court within 5 days from the time, He learns of
the same.

All right now question. What is the effect suppose the pleading requires a cert. against forum
shopping? how will you comply with these requirements on certification against Forum
Shopping by attaching the certification to the pleading or by incorporating it in the pleading. So
either you incorporate the certification in the pleading or you attached a copy to the pleading,

What is the effect of non-compliance?

----the lack of certification is not curable by amendment.

your complaint or your pleading will be dismissed, but the dismissal is without prejudice
unless otherwise stated by the court that it is prejudice.

Suppose just to comply, you submitted a false certification for certification on answer.

Well, the submission of our forms certification on non- Forum Shopping constitutes indirect
contempt and Your complaint will be dismissed without prejudice to criminal and
administrative action.

This without prejudice. What does that mean? Then you can refile your complaint. If the party
or counsel willfully violated this rule, this will result in the summary dismissal of his complaint
and the dismissal is with prejudice.

When is there forum shopping?

--when the elements of lites pendentia or res judicata are present.

Who must execute the cert. on non-forum shopping

---the plaintiff or the petitioner himself. Because they have the knowledge if whether or not
they instituted the case to other courts.

All petitioners must sign the certification on non-forum shppong except when they are families
or relatives or owners of the properties in dispute. And therefore this share A common interest
in the subject matter of the case then some but not all of them may sign the certification. So if
let us say there are five co-owners, all of them have the same interest over the property subject
of the litigation then a few of them or some of them may sign the certification.

if husband and wife files a complaint one spouse May sign the certification because after all the
case involves a property Of the conjugal partnership or it is a community property.

Some of the plaintiffs were abroad, the failure to sign may be excused (as to ones who were
abroad)

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May a person other than plaintiff or petitioner may execute the cert. non forum shopping?

--yes if there is an authorization stating that the person to sign the same in the form of a
secretary’s certificate or SPA attached to the pleading.

May a Counsel himself sign the certification? No, cannot sign the certification.

However in the following instances the counsel has been allowed to sign the certification

1. the counsel is the solicitor general

2. then the certification is executed by the in-house counsel.

MODULE 7 LECTURE 1

Module 7

Rule 9: Effects of Failure to Plead

Before we go to Module 7, I’d like to take up with you a few things regarding Module 6. I was
telling you before about verification and certification on non-forum shopping. And it is
important that you should know the distinctions of the two. So, take note of the following
distinctions:

1. A verification is a sworn statement that the allegations in the pleading are true and
correct based on the personal knowledge of the affiant and/ or based on authentic
records. On the other hand, a certification on non-forum shopping is a sworn statement
that there is no other action or claim that has been filed or that is pending in another
court or tribunal.
2. A verification may be required in an initiatory pleadings, like a complaint, and even a
responsive pleading like the answer. On the other hand, a certification on non-forum
shopping is required only in a complaint or other initiatory pleadings.
3. A defect in the verification is curable by amendment but a defect in a certification on
non-forum shopping is not curable by amendment.
4. A defect in the verification does not immediately result in the dismissal of the complaint
while defect in the certification on non-forum shopping, or even lack of certification, will
result in the dismissal of the complaint.
5. A verification may be signed by a counsel or a party while a certification must be signed
only by a party.

(So, you memorize those distinctions.)

How to plead an actionable document in a pleading?

I mentioned to you last time that an actionable document may be the basis of a cause of action
or a defense. And then, the adverse party must deny it specifically under oath. But then, take
note that for that to apply, the actionable document must be properly pleaded in the pleading.
So, the next point I’d like to take up with you is how to plead an actionable document?

An actionable document is pleaded by setting forth the substance of the actionable document
in the pleading and attach the original copy or a copy of the actionable document to the
pleading. So, two things you must do: (1) set forth the substance of the actionable document in

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the pleading; and (2) attach the original copy or a copy of the actionable document to the
pleading.

So, if an actionable document is properly pleaded in a pleading, and the adverse party fails to
specifically deny it under oath, then he will be deemed to have admitted the genuineness and
due execution of that actionable document. And because of that implied admission, he will not
be allowed to set up defenses that are inconsistent with his implied admission. Like what? Like
he cannot set up the defense of forgery because forgery is inconsistent with his implied
admission. But he can still set up defenses that are not inconsistent with his implied
admission. Like what? Like payment, prescription, waiver, estoppel, or fraud (these are not
inconsistent with his implied admission).

That ends our lesson on Module 6.

We go now to Module 7, Effects of Failure to Plead (Rule 9)

Section 1 tells us about waiver of defenses and objections. It says that all objections and
defenses must be pleaded in a motion to dismiss or in an answer, otherwise these shall be
deemed waived.

So, if you have objections or defenses, how will you plead those objections and defenses? Well,
the rule says they must be pleaded either in a motion to dismiss or in an answer. Although
under the new rule, the way to plead defenses is to plead them by way of affirmative defenses
in the answer. Although, as I have mentioned to you one time, you may still file a motion to
dismiss provided that motion to dismiss is not a prohibited motion. Take note, class, that a
motion to dismiss is now a prohibited motion, except in some instances. So, if your motion to
dismiss falls under any of those exceptions, then you may still file a motion to dismiss.

Waiver of objections or defenses

- All objections or defenses must be pleaded either in a motion to dismiss or in an

answer, otherwise these shall be deemed. Exceptions: If it appears from the pleadings or
evidence in record that:
1. The court has no jurisdiction over the subject matter of the action;
2. There is another action pending between the same parties and for the same cause;
3. The action is barred by prior judgment;
4. The action is barred by the statute of limitations, then the court shall dismiss the
complaint.

So, these four defenses are not barred even if not set up in a motion to dismiss or in an
answer. (You memorize the four grounds/ defenses that are not deemed waived even if not set
up) but I’d like you also to add or to take note that a compulsory counterclaim or a cross-claim
must be set up, otherwise this shall be barred.

Where should a compulsory counterclaim or a cross-claim be set up? In the answer, because
the rule tells us the following:

A compulsory counterclaim or a cross-claim existing at the time of the filing of the answer
must be contained, incorporated, pleaded in the answer.

Default

When a plaintiff files a complaint in court, the court, in due time, issues a summons. The
summons is served in the defendant, and the defendant has 3o days extendible by another 30
days or a total of 60 days to file his answer to the complaint. If the defendant fails to file his

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answer within the period allowed, then he may be declared in default; and a judgment by
default may be taken against him.

And so, class, in our discussion, what triggers the defendant being in default is his failure to
file his answer. But then, I’d like you to know that the court cannot motu proprio declare the
defendant in default. So, let us say that a complaint was filed, the record will show that the
defendant was serve with summons some months ago, it has been more than 5 months and yet
the defendant has not filed his answer to the complaint. And so, the court issued an order
declaring the defendant in default. And the court rendered a judgment in default. Was the court
correct in declaring the defendant in default?

No, because the court cannot motu proprio declare the defendant in default.

What are the requisites so that the defendant may be declared in default?

1. The plaintiff must file a motion to declare the defendant in default.

What do you call the motion that the plaintiff will file? Motion to declare defendant in
default.

2. There must be notice of his motion to the defendant.

3. Proof of failure on the part of the defendant to file his answer within the reglementary
period.

When we get to Rule 15, we will explain class that the motion to declare the defendant in
default is a litigious motion.

Why it is that even if the record would show that the defendant has not filed his answer the
court cannot motu propio declare the defendant in default?

Because the plaintiff must be able to protect his own interest. So, if you’re the plaintiff you
have to watch out and protect your own interest.

Default does not occur by failure of the defendant to attend the pre-trial because if the
defendant fails to attend the pre-trial without any justifiable cause, then the court will simply
authorize the plaintiff to present his evidence ex parte; or default does not occur by failure of
the defendant to attend the trial, because if the defendant fails to attend the trail, then
instances will simply be construed as a waiver on his part to assail the evidence presented
against him or a waiver of his right to adduce his own evidence.

Failure to file an answer within the time allowed by the rules is not the only instance where the
defendant may be declared in default. There are some instances when a defendant who has
filed an answer may still be declared in default:

1. If he refuses to obey an order requiring him to comply with the modes of discovery. If
the defendant fails to obey an order requiring him to comply with the modes of
discovery. (We will explain that when we get to that subject known as Modes of
Discovery.)
2. If the defendant or the managing agent of the defendant wilfully fails to appear before
the officer who is to take his deposition. (You just have to take note that again because
we will explain that when we get to that topic Modes of Discovery.)

Also class, I’d like you to take note that if the case is governed by the rule on summary
procedure, then a motion to declare defendant in default is a prohibited motion and, therefore,
the plaintiff cannot file that motion because it is a prohibited motion. And so, if a case is
governed by the rule on summary procedure, the court cannot declare the defendant in default

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even if a motion is filed because that motion is a prohibited motion. Instead the court on its
own or upon motion shall simply render judgment as may be warranted by the facts alleged in
the complaint and limited to what is prayed for therein.

So, a case is governed by the rule on summary procedure. The defendant was served with
summons requiring him to file his answer to the complaint but he never did file any answer to
the complaint. What may the court do?

The court may simply render judgment as may be warranted by the facts alleged in the
complaint and limited to what is prayed for therein.

Now, once the defendant is declared in default, the court has two options. (We are now talking
about our lesson, it’s not anymore a case governed by the rule on summary procedure.)
Supposed, on motion of the plaintiff, the defendant is declared in default. What are the options
of the court now? Well, the court has two options:

1. The court can immediately proceed to render judgment granting the claimant or plaintiff
such relief as his pleading or complaint may warrant; or
2. The court, in its discretion, requires the claimant or plaintiff to submit evidence ex
parte. That is discretionary on the part of the court to require the plaintiff to present
evidence ex parte.

If the court goes to the 2nd option- require the plaintiff to present evidence ex parte, then the
presentation of evidence ex parte may be delegated to the clerk of court PROVIDED the clerk or
court is a member of the Philippine Bar. So, in the Bar examination, they may ask you
questions like, if the court requires the plaintiff to present evidence ex parte against the
defaulted defendant, may the reception of evidence be delegated to the clerk of court? Yes,
provided that the clerk of court is a member of the Philippine Bar.

The steps are: Motion of the plaintiff to declare the defendant in default; and then we follow the
requisites that we mentioned a while ago (plaintiff must file a motion to declare the defendant
in default with notice of the motion to the defendant, and proof of failure of the defendant to file
his answer). If the court finds the motion to be meritorious, then the court will issue an order
declaring the defendant in default- that is the Order of Default. Then, the court has two
options, and then at a later time, the court will render a judgment by default. Do not confused
the order of default with the judgment by default.

The order of default is the order declaring the defendant in default. Which comes first? Of
course the order of default. Once the order of default is issued, the court may render a
judgment by default.

What is the extent of the relief that may be awarded in the judgment by default? Well, the
judgment rendered against the defendant in default shall not exceed the amount or be different
in kind from that prayed for nor award unliquidated damages.

So, even if there is presentation of evidence ex parte and then the evidence would show that
the plaintiff is entitled to a higher amount than that prayed for in his complaint, then the
judgment by default cannot exceed the amount or be different in kind from that prayed for nor
award unliquidated damages.

Example: The plaintiff is asking only P1million by way of damages in his complaint; that is
based on a contract between two parties. At the trial, the plaintiff was able to prove that he is
entitled to more than P1million. May the court render judgment for an amount higher than the
amount prayed for in the complaint? NO (in the judgment by default). (But when we get to Rule

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10, we will talk about amendment to conform to evidence. There, when the plaintiff was able to
prove that he is entitled to a higher amount, the court may grant that amount, BUT NOT IF
THE DEFENDANT IS DECLARED IN DEFAULT BECAUSE AN AMENDMENT TO CONFORM TO
EVIDENCE DOES NOT APPLY TO A DEFNDANT IN DEFAULT.)

Q: What is the effect of an order of default?

A: The defaulted defendant shall be entitled to notice of subsequent proceedings but shall not
to take part in the trial. Meaning, he loses his standing in court except that he shall be entitled
just the same to notices of subsequent proceedings.

Let us now talk about the effect of partial default. I’d like to explain that to you by giving you
an example.

Let us say that here is X, he filed a complaint against Y and Z. The complaint asserts a
common cause of action against Y and Z. Y files an answer but Z did not file an answer. On
motion of X, Z was declared in default. What should the court do now, is it proper for the court
to divide the proceedings into two -render a judgment against the defaulted defendant and then
hear the case as to the defendant who has filed an answer? NO. In a situation like this one
where a plaintiff files a complaint asserting a common cause of action against several
defendants, one or some of them file an answer and the others did not, then the court should
try the case against all the defendants on the basis of the answer that was filed. So, that is the
effect of partial default. The court should not split the case between those in default and those
not in default, rather it should try the case against all the defendants on the basis of the
answer that was filed by one or some of the defendants. It is not within the authority of the
court to divide the case by 1st hearing the case ex parte as against the defaulted defendant and
then render a judgment against them; and then proceed to hear the case as against the non-
defaulted defendants.

What happens if the defendant is declared in default? Does a defendant who has been declared
in default still has remedies? Well, yes. The following are the remedies of the defendant
declared in default:

1. Motion to set aside order of default. Do not say “motion for reconsideration” that
is not among the remedies of the defendant declared in default.
The motion to set aside order of default must be under oath and must be filed by
the defendant at any time from notice of the declaration of the default but before
judgment. Defendant must show, by an affidavit of merit, that his failure to file his
answer was due to fraud, accident, mistake or excusable negligence and that he has
a good and meritorious defense.
I told you class a while ago that a defendant declared in default shall be entitled to
notices of subsequent proceedings, and so, if the plaintiff files a motion to declare
him in default, he must be given a notice of that motion. If the court issues order
granting the motion declaring him in default, that is the order of default itself, the
he must be served with a copy of that order because he is entitled to notices of
subsequent proceedings
Now, listen to this one: from the time he learns that he has been declared in default,
from the time of notice of declaration in default but before judgment, he may file a
motion to set aside order of default.
What is the time frame within which the defendant may file a motion to set aside
order of default? FROM THE TIME AFTER NOTICE OF DECLARATION IN DEFAULT
BUT BEFORE JUDGMENT.

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 But I’d like you to know that the motion must be under oath and must be
accompanied by an affidavit of merit. The affidavit of merit must state that his
failure to file his answer was due to fraud, accident, mistake or excusable
negligence. So, the affidavit of merit must state facts showing that the failure of the
defendant to file his answer was due to fraud, accident, mistake or excusable
negligence.

Now, listen to this one: what is that fraud that we are talking about?

That is EXTRINSIC FRAUD - Fraud that prevented the defendant from having his day in court;
fraud that kept him away from the court – that is the kind of fraud that we are talking about.

So, if that is the kind of fraud that happens, then the defendant may file a motion to set aside
order of default.

Example of extrinsic fraud:

Let us say that X and Y used to be good friends until X borrowed money from Y. Y gave him
P1million loan. But X failed to pay despite his so many promises. Y filed a complaint against X.
When X received summons, he went to Y and complained, “Why did you file a case against me
when I am your bestfriend?” Y assured him not to worry and not to answer it because he just
needed a complaint to show to his wife that he is doing something about it. But Y filed a
motion to declare him in default. There was a copy of the motion sent to the defendant’s
address. But X did not received the notice because he was away. Then, Y filed a motion.
Eventually, the court issued an order declaring him in default. That is the kind of fraud we are
talking about- fraud that kept the defendant away from the court; fraud that prevented him
from presenting his defenses; fraud that denied him a day in court – a ground that can be set
up in a motion to set aside order of default.

But I’d like to tell you that this motion to set aside order of default is not appealable. A
judgment by default is appealable but an order of default is not appealable. Why not
appealable? Because order of default is simply interlocutory, therefore, it is not appealable.

What do you mean by “interlocutor”? The order does not put an end to the case, the order does
not terminate the case, something else is yet to be done. So, take note that when the court
issues the order of default, the case is not finish, the case is not over because the court is yet
to render a judgment against the defaulted defendant. And so, if the order is interlocutory, it is
not appealable. It is interlocutory if it does not terminate the case.

What is the opposite of interlocutory? The opposite is final order. A final order is appealable,
like when you file a complaint and you failed to prosecute the case within reasonable time and
then the court issues an order dismissing your complaint. The order dismissing your complaint
puts an end to the case, therefore, that is a final order and it is appealable. I’d like you to take
note that the order declaring the defendant in default is not a final order, it is interlocutory,
therefore, it is not appealable.

2. Motion for new trial. There can be motion for new trial only if a judgment by
default has been rendered but the judgment has not become final yet. The defaulted
defendant may file a motion for new trial on the ground of F-A-M-E (FRAUD,
ACCIDENT, MISTAKE, OR EXCUSABLE NEGLIGENCE).
In a motion for new trial, there must be already a judgment but the judgment is not
final yet. Instead of appealing, the defaulted defendant may file a motion for new
trial.

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 3. Appeal from the judgment by default. There should now be a judgment rendered
declaring the defendant in default but within 15 days from the notice of the
judgment, he files a notice of appeal. So, within the period for perfecting an appeal,
the defendant may either file a motion for new trial or he may appeal from the
judgment itself.
4. Petition for relief from judgment. Based on F-A-M-E.
But I’d like you to take note class that this petition for relief from judgment should
be filed if appeal is not available as remedy through no fault by the defendant
himself. Meaning: the defendant was not able to file his appeal through no fault of
his own, because a petition for relief from judgment, as we will explain when we get
to Rule 38, is a remedy in equity, it may only be resorted to if appeal is not available
as remedy through no fault of the appellant.
This petition for relief from judgment should be filed within 60 days from notice of
judgment but within 6 months from entry of judgment. So, I’d like you to know that
a petition for relief from judgment is available as remedy, it may be resorted to only
when judgment has already become final.
In a civil case, if the judgment has attained finality, may there be a remedy against
judgment that has become final? Yes, one of them is a petition for relief from
judgment.
When can there be an entry of judgment? When the judgment has become final,
then there may be an entry of judgment.
5. Action for the annulment of the judgment. Based on extrinsic fraud.

MODULE 8 LECTURE 1

We are now in module 8 rule 10 and we will talk about amended and supplemental pleadings
but before we go to that. I'd like us to complete our discussion on the remedies of a
defendant declared in default. And we mentioned the following last time:

 a motion to set aside order of default,

 a motion for new trial,
 and then we have appeal and then the next one is
 a petition for relief from judgment and we have explained all of these.
 Now we go to number 5, which is an action for annulment of judgment. So here class.
The defendant was declared in default and then there was a judgment by default
against him the judgment by default became final and then within 4 years from the
discovery of the fraud the defendant may file an action for the annulment of judgment.

I'd like you to know that the complaint for annulment of judgment may be filed by the
defendant on the ground of extrinsic fraud within 4 years from the discovery of the fraud. I'd
like you to understand that this is not the only ground that may be alleged in an action for
annulment of judgment but we are talking about remedies of a defendant declared in default
and one of such remedies is for him to file an action for annulment of the judgment but he
should only file it on the ground of fraud and he can do so within 4 years from the discovery of
the fraud.

We will again talk about this when we get to annulment of judgment. But right now just take
note class the one remedy that the defendant may file is an action for annulment of judgment.
The judgment here must be a final judgment or judgment that has attain finality. And then the

 last remedy of a defendant declared in default is a petition for certiorari which he may
file within 60 days from notice of the Judgment subject of the petition. I'd like you to
know that if he files a motion for reconsideration, then the 60 days should be reckoned

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 from the denial of His motion for reconsideration the 60-day should be reckoned from
notice of the denial of his motion for reconsideration.

This remedy is available to the defendant if he has been improperly declared in default and
what is an example of that as when he has filed an answer and yet he was declared in default.
So here, the defendant can file a petition for certiorari alleging that the declaration of default
against him was tainted by grave abuse of discretion amounting to lack or excess of
jurisdiction. So I'd like you to memorize those remedies of a defendant declared in default. Take
note that no judgment by default may be declared by the court in the following cases.

CASES WHERE NO DEFAULT IS ALLOWED.

1. Annulment of Marriage
2. Declaration of Nullity of Marriage
3. An action for Legal Separation.
4. Action for Expropriation. No default is allowed and then in forcible entry or unlawful
detainer and other cases covered by the rule on summary procedure. In annulment of
marriage, in Declaration of nullity of marriage and in legal separation, if the defendant
does not file an answer he cannot be declared in default instead the court should order
the State to inquire whether or not there is a collusion between the parties and if there
is no collusion, then State should order the prosecution to intervene on behalf of the
State. All right, so that ends our lesson on module 7. All right. So we now go to rule 10.
Amended pleading is not the same as supplemental pleading.

Q: What are Amendments?

A: Amendments of pleading or Amendment of pleading shall consist of adding or striking out

an allegation or the name of any party and then also correction of mistakes in the name of a
party or a mistaken or inadequate allegation or description of an object in a pleading.

Let us say that you failed to implead a party.

Q: How will you implead a party?

A: By amending your complaint or pleading. So that is how to implead an omitted party. That
is how to to join or include omitted party.

But suppose there's some mistake in allegation or allegation is insufficient or inadequate or the
allegation is not correct. Well, you can correct or you can supply the deficiency by amending
your pleadings.

Q: What is the purpose of an amendment?

A: Well, the purpose of an amendment is one so that the actual merits of the controversy may
be determined without regard to technicalities. So the purpose of amendment is to allow the
parties to bring all these issues before the court so that the actual merits of the case or the
controversy between the parties can be determined by the court.

Q: What are the kinds of amendments?

A: Well, the kinds of amendments are:

1. Formal amendments; and

2. substantial amendments.

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Q: What is a formal Amendment or when is an amendment formal?

If you want to correct a defect in the designation of parties, I told you that parties
should have their own designation in the pleading like plaintiff or defendant. Now, let us say
that instead of calling him plaintiff you called him a petitioner or complainant, then you can
simply correct that by amendment that is just a formal defect. Other clerical errors may be
summarily corrected. Formal amendments like mistake in the name of the parties or names of
the parties. So these are formal Amendment then all other amendments are considered
substantial: like you will change the cause of action or you add another cause of action to your
complaint.

Q: When may an amendment be made or when may a party amend his complaint?

A: formal and substantial amendments can be made once as a matter of right before a
responsive pleading is served or in case of a reply at any time within 10 days after it is served.

Q: So what is a responsive pleading is a complaint a responsive pleading?

A: No, it is not responsive pleading. A responsive pleading is a pleading that is filed by a party
to deny an allegation against him. An answer is a responsive pleading. A reply is also a
responsive pleading but reply may be filed only when the defense of the defendant is based on
an actionable document.

So you have the plaintiff and then you have the defendant. The plaintiff files a
complaint, no answer has yet been filed by the defendant. The plaintiff may amend his
complaint once as a matter of right because there is no responsive pleading served upon him
yet. So he can file his complaint by filing an amended complaint. So here, the filing of the
amended complaint is without leave of court.

Now suppose the complaint would like to amend the amended complaint so he will file
a second amended complaint, no responsive pleading has been served on him yet,

Q: May he still amend the amended complaint by filing a second amended complaint as in the

example given.

A: Yes, but this time he will need leave a court because the rule says that a party may amend
his pleading once as a matter of right before a responsive pleading is served. So prior to the
filing of the answer or a responsive pleading the plaintiff has the absolute right to amend his
complaint and this applies whether the amendment is formal or substantial or whether a new
cause of action is introduced in the amended complaint. So before a responsive pleading is
served on the plaintiff he has absolute right to amend his complaint once.

Suppose the defendant files a motion to dismiss the complaint. So plaintiff files a complaint,
summons was served on the defendant and the defendant files a motion to dismiss instead of
an answer.

Q: May the plaintiff still amend his complaint once as a matter right?

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A: Yes, because motion to dismiss is not a responsive pleading. It is a motion and when we get
to rule 15, we will explain what a motion is, just know at this time that a motion is not a
pleading and therefore it cannot be a responsive pleading.

Suppose the court resolve the motion by granting it and the court issued an order dismissing
the complaint. I told you one time that an order dismissing a complaint is a final order. And so
the plaintiff can appeal from that order of dismissal, the order dismissing the complaint is
appealable. The order dismissing the complaint at a certain point after 15 days if it is not
appealed, but the plaintiff may attain finality, we will explain those points later when we get to
judgment. If the court issues an order granting the motion to dismiss and dismissing the
complaint. Well if the order of dismissal has not attained finality yet and may still be appealed,
the plaintiff has the option of amending his complaint instead of appealing from the order of
dismissal. Why is that?

Q: May the plaintiff still amend his complaint notwithstanding the order of dismissal?

A: Yes provided the order of dismissal has not yet become final but the moment it has become
final and unappealable any more than the plaintiff cannot amend his complaint at that point
because there is nothing else to amend. I hope you understand those points.

After the filing of a responsive pleading like here. The defendant files an answer to the
complaint and an answer as all of you know is a responsive pleading.

Q: Suppose the question in the bar exam is after the plaintiff has been served with a copy of

defendant’s answer may the plaintiff still amend his complaint?

A: Yes but if the plaintiff would like to introduce substantial Amendment at this point when
there is already a responsive pleading the plaintiff can do so, but he must first obtain leave of
court.

Need to write this one: after the filing of a responsive pleading, substantial amendments
require leave of court.

If you have questions, you just write down your questions and then ask them when we
will have a zoom meeting or Zoom session. Although even if we say that many times
you're not asking questions, really.

Q: When may the court refused Leave or what are the limitations on the right of a party to
amend his pleading? When may the court refused the amendment? Or refuse to leave to amend
the pleading?

LIMITATION ON THE RIGHT OF A PARTY TO AMEND HIS PLEADING

1. A responsive pleading has been served and filed and the motion for leave to amend is
made with intent to delay.

So here a responsive pleading has been filed and been served on the other party and the
motion for leave to amend is made with intent to delay. The purpose of the amendment is

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merely to delay then if that appears to the court to be the purpose of the amendment then the
court will refuse to grant leave.

2. The purpose of the amendment is to confer jurisdiction upon the court.

Then the court must deny the amendment.

Example: This is the complaint filed by the plaintiff against the defendant and the
complaint was filed with the RTC but the claim of the plaintiff is only 275, 000 pesos Exclusive
of DIAL-C. Take note that the RTC has no jurisdiction over the subject matter of the action
because the total amount of the plaintiff’s claim is only 275 thousand pesos and so the
defendant files a motion to dismiss alleging that the court has no jurisdiction over the subject
matter of the action. So what the plaintiff did was he amended his complaint arguing to this
point that amendment is a matter of right according to him because the motion to dismiss that
the defendant has filed is not a responsive pleading so he amended his complaint and he raised
the total amount to 725,000 pesos or even 1 million. So the plaintiff is now telling the
defendant and the court that the amount of his claim is now within the jurisdiction of the RTC.
Well, the court should not allow this amendment because obviously the purpose of the
amendment is to bring his complaint the cause of action within the jurisdiction of the RTC.
Amendment should not be permitted or should not be allowed when its purpose is to confer
jurisdiction upon the court. The reason being that was because the court must first acquire
jurisdiction before it can act.

3. The purpose of the amendment is to cure the defect of a non-existent cause of action

Amended complaint will retroact to the date of the filing of the original complaint.

So here's what I'd like you to know that if at the time of the filing of the complaint, the cause of
action is non-existent so the palintiff like to cure the defect of non-existent cause of action that
cannot be done by Amendment. So I'd like you to memorize the limitations on the right of a
party to amend his pleading. You memorize them.

Q: Suppose leave is required so that a party can amend his pleading, when a responsive

pleading has been filed and you would like to amend your pleading and the amendment is

substantial

A: Then you need to first obtain leave of court, so you file a motion for leave to amend your
complaint and then you attach to the motion your proposed amended complaint that is how to
do it. You should attach to your motion for leave your proposed amended complaint now
suppose what you did is. You simply file your amended complaint without asking leave of court
to amend your complaint. You just file it.

Q: If the amendment requires leave of court but the party amending his pleading did not

anymore obtain leave of Court. What is the standing of the amended pleading?

A:, It has no standing and therefore it may be stricken out from the records of the case.

Example: here is X, the plaintiff, he filed a complaint against two Defendants Y and Z. Y filed
an answer to the complaint, but Z filed a motion to dismiss

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Q: May X amend his complaint as against Y and Z?

A: As to Y, he will need leave of court but as to Z he can amend his complaint as against Z even
without leave of court because at this point amendment as to the defendant who has not filed
an answer who has not filed a responsive pleading is a matter of right.

Amendment to conform to evidence. I'd like you to know that when you go to court and try
your case, you will only try the issues raised in the pleadings. So the issues raised in the
pleadings will be identified by the parties with the assistance of the court at the pre-trial but
what do I mean by Amendment to conform to evidence? What does that mean? When does it
apply? When issues not raised in the pleadings are tried with the express or implied consent of
the parties they shall be treated in all respects as if they had been raised in the pleadings and
there can be an amendment to conform to the evidence but failure to amend will not affect the
result of the trial of these issues.

So here, you try only the issues meaning you will present evidence on the issues raised
by the pleadings or made out in the pleadings. So these issues will be identified at the pre-trial
and issues will be stated by the court in the pre-trial order that it will issue after the pre-trial.

Suppose, issues not raised in the pleadings are tried with express or implied consent of
the parties then they shall be treated in all respects as if they had been raised in the pleadings
and there can be an amendment to conform to the evidence. Failure to amend will not affect
the result of the trial of these issues. What does that mean? Where if the party fails to make
the amendment , then his pleading nonetheless is deemed amended so as to conform to the
evidence.

Q: When can there be an implied consent to try an issue not raised in the pleadings? Like let
us say the claim of the plaintiff is only 1 million pesos that is his claim based on his allegation
that is the amount that the defendant owed him. All right, but then other trial the plaintiff is
presented evidence showing that the defendant owed him much much more not only 1 million
pesos, but 1.8 million pesos.

The defendant did not object to the presentation of this evidence showing that that the amount
due the plaintiff is more than 1 million more than what is alleged in the complaint.

Q: What happens then?

A: The defendant has impliedly consented that this issue be tried likewise. The complaint will
now be deemed amended to conform to the evidence that the amount of the debt is 1.8 million -
the evidence?

Q: So what is amendment to conform to evidence?

A: When issues not raised in the pleadings are tried with express or implied consent of the
parties. They shall be treated in all respects as if they had been raised in the pleadings and
there can be an amendment to conform to the evidence.

Okay, but suppose when the plaintiff was presenting evidence to show that what the defendant
owes him is 1.8 million the defendant objected there was a timely objection from the defendant
saying that is not the claim of the plaintiff his pleading says 1 million objection the defendant
says and court sustained the objection

Q: What is the remedy of the plaintiff?

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A: The remedy of the plant is to ask the court to allow him to amend his complaint so as to
authorize the presentation of evidence. So we have the following amendment to conform to
evidence and amendment to authorize presentation of evidence.

Q: When does amendment to authorize presentation of evidence happen?

A: When evidence is subjected to other trials on the ground that it is not within the issues
made by the pleadings and the court sustained the objection on motion of the party affected
like the plaintiff example the court may allow the pleadings to be amended. So as to authorize
the presentation of evidence and the court may do so with liberality.

Q: What are the effects of amended pleading.

1. It supersedes the pleading that it amends.

2. Admissions in the superseded pleading may be received in evidence against the pleader
3. Claims or defenses alleged in the superseded pleading but not incorporated in the
amended pleading shall be deemed waived. XPN, of course those defenses that are not
deemed waived even if not pleaded. In a motion to dismiss or in an answer mentioned in
Section 1 Rule 9 which are not deemed waived even if not set up in a motion to dismiss
or in an answer. All right. So these are the effects of an amended pleading.

Q: How is an amended pleading filed? How do you file an amended pleading?

Same class this is the original complaint. Then you file an amended complaint. Then you say
here amended complaint and then the amendments or the amended portion of the pleading
must be indicated by underscoring them.

This will be a lot easier to understand if you can see a sample copy of an amended pleading.
That's why I have mentioned to you plans that you need to go to some law offices. Or even I
don't know if they will allow you to do that now, but if you know a law office that can
accommodate you then you go there and then ask them to show you sample copies of pleading.

Q: What is a supplemental pleading?

A: Well, if let us say you have file you're pleading like a complaint and then facts occur or
events transpire after the filing of the complaint then you can file a supplemental complaint to
allege those facts or events occurring since the time or after the filing of the complaint.

Q: What then are the distinctions between an amended pleading and a supplemental
pleading?

A:

1. An amended pleading is either filed as a matter of right or with leave of court while a
supplemental pleading is always with leave of court.
2. An amended pleading alleges matters or facts occurring before the filing of the original
pleading while a supplemental pleading alleges matters or facts occurring after the filing
of the original pleading
3. An amended pleading supersedes the pleading that it amends while a supplemental
pleading allows the original pleading to stand so meaning the original pleading is not
superseded instead the original pleading and the supplemental pleading will be taken
together. So I hope you will memorize the distinctions between amended pleading and
Supplemental pleading.

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 We go back to amendment to conform to evidence, amendment to authorize presentation of
evidence, these will not apply in a case where the defendant has been declared in default.

Amendment to conform to evidence does not apply to a defendant declared in default.

Why? Because judgment by default cannot exceed the amount or be different in kind from that
prayed for nor award unliquidated damages.

Any question you have if you have questions write them down right them right there
now so that you won't forget and then when we will have a zoom meeting, then you ask
your questions, but right there now so that you won't forget them. All right, so that is all
for this module.

MODULES 9 & 9-A – RULES 11 & 12

_____________________________________________________________________________________

MODULE 9
WHEN TO FILE RESPONSIVE PLEADINGS (RULE 11)

A responsive pleading is one that sets up defenses – negative defenses or affirmative defenses. A
complaint is not a responsive pleading. An answer is a responsive pleading.

Is a motion to dismiss a responsive pleading?

No. A motion to dismiss, even when allowed, is not a responsive pleading.

1) ANSWER TO A COMPLAINT IN A CASE GOVERNED BY THE RULE ON SUMMARY

PROCEDURE
Q: What about an answer to a complaint in a case governed by the rule on summary
procedure – what is the period within which to file the answer?
A: It is 10 days from service of summons. Ten calendar days – you have to include
Saturdays, Sundays, and even holidays.

Take note (and this applies to all): When counting the number of days, exclude the first and
include the last. If the last day falls on a Saturday, Sunday or legal holiday, in the place where
the court sits, then the pleading may be filed on the next business day, provided it is not a
holiday.

Example: If the defendant receives the summons on July 1, the last day to file the answer is on
July 11. But if July 11 (last day) falls on a Saturday, Sunday or legal holiday, in the place where
the court sits, then it may be filed on the next business day.

Take note that the holiday should be where the court sits.
Example: If the holiday falls on September 1 (Baguio Day), and the place of trial is Baguio City
(place where the court sits), but the counsel is from La Trinidad (where his/her office is located),
September 1 is not a holiday in La Trinidad. So, the answer may be filed on the next business
day, because the holiday should be holiday where the court sits.

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2) ANSWER TO A COMPLAINT IN REGULAR CASES
Q: What about an answer to the complaint in regular cases or cases governed by the regular
rules – what is the period within which to file the answer?
A: It is 30 calendar days from service of summons upon the defendant, unless a different
period is fixed by the court.

(It used to be 15 days, but the 1997 Rules have been amended. It is now 30 days. When we go
to Rule 14, we will talk about summons.)

The reckoning point is from the date of service of summons/the summons is served on the
defendant. (Summons, as used in this context, is singular.)

Supposed the lawyer hired by the defendant has to attend to so many court appearances, etc.
and therefore he may not be able to meet the deadline, then he can file an extension for no more
than 30 calendar days (a one-time extension). That will be a total of 60 days. Take note that
the defendant is allowed only one motion for extension.

3) ANSWER TO THE AMENDED COMPLAINT

Q: What about answer to the amended complaint – what is the period within which to file
the answer?
A: If the amendment is a matter of right, the defendant will have 30 calendar days after
being served with a copy of the amended complaint/service of a copy of the amended
complaint. If the amendment is with leave of court, it is 15 days from notice/receipt of
the order admitting the amended complaint.

Example: Plaintiff has filed a complaint, and then defendant has filed an answer.

May the plaintiff amend his complaint, although the defendant has already filed his answer to the
complaint?
Yes, but this time, the amendment should be with leave of court. So the plaintiff will file a motion
for leave to amend his complaint attaching to his motion the proposed amended complaint. If
the court grants the motion and admits the amended complaint, then the defendant will be
served with a copy of the order admitting the amended complaint. From the time the defendant
receives the order admitting the amended complaint, he will have 15 calendar days to file his
answer to the amended complaint.

Supposed the defendant has failed to file his answer to the amended complaint, may he be
declared in default?
No, because his answer to the original complaint will stand as his answer to the amended
complaint.

If the defendant files his answer to the amended complaint, it is called answer to the amended
complaint. You do not say amended answer. (An amended answer is when the defendant simply
amends his answer.)

May the defendant amend his answer even if the plaintiff does not amend his complaint?
Yes, in which case, you call it amended answer.

If the plaintiff files an amended complaint, this time it is with leave of court because the
defendant has already filed his responsive pleading, the defendant may file his answer to the
amended complaint. If the defendant does not file an answer to the amended complaint, his
answer to the complaint will serve as his answer to the amended complaint.

4) DEFENDANT IS A FOREIGN PRIVATE JURIDICAL ENTITY

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Q: What about if the defendant is a foreign private juridical entity – how many days does
it have to file its answer to the complaint?
A: If the summons is served upon its resident agent, then it has 30 days from service of
summons. If the summons is served on a government official designated by law to receive
summons on behalf of the defendant foreign private juridical entity, it has 60 calendar
days after receipt of the summons by such entity. (When we get to summons, we will explain
that again.)

Take note that if the defendant is a foreign private juridical entity, the summons must be served
on its resident agent. (We will explain that more in detail when we get to Rule 14.)

If the foreign private juridical entity (example: foreign private corporation) has no resident agent,
the summons may be served on the government official designated by law to receive summons
on behalf of the defendant foreign private juridical entity.

5) ANSWER TO THIRD, FOURTH PARTY COMPLAINT

*Do not confuse third party complaint with third party claim.

An answer to a third party complaint should be filed within 30 calendar days after service
of summons, unless a different period is fixed by the court.

6) ANSWER TO A COMPLAINT IN INTERVENTION

*Complaint in intervention – we will explain this some other day

An answer to a complaint in intervention must be filed within 15 calendar days from notice
of the order admitting the complaint in intervention, unless a different period is fixed by
the court.

7) ANSWER TO A COUNTERCLAIM OR CROSS-CLAIM

An answer to a counterclaim or cross-claim must be filed within 20 calendar days from

service of the counterclaim or the cross-claim.

If it is a permissive counterclaim, it must be answered; otherwise, the plaintiff (who is the

defendant as to the permissive counterclaim) may be declared in default. If it is a compulsory
counterclaim, it may or it may not be answered.

8) ANSWER TO A SUPPLEMENTAL COMPLAINT

An answer to a supplemental complaint must be filed within 20 calendar days from notice
of the order admitting the supplemental complaint, unless a different period is fixed by
the court.

If no supplemental answer is filed, the answer to the complaint shall serve as the answer to the
supplemental complaint.

9) ANSWER TO A REPLY

An answer to a reply must be filed within 15 days from the service of the pleading
responded to.

We mentioned that the plaintiff will have to file a reply if the defense contained in the answer is
based on an actionable document and the actionable document is attached to the answer.

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May the defendant file a motion for extension of time to file responsive pleading?
No. A motion for extension of time to file a pleading, other than an answer, is a prohibited motion.

Example: Supposed you were not able to meet the deadline (the period for filing the answer has
expired). You did not also file a motion for extension. After the expiration of the period to file the
answer, can you file a motion for extension?

No, because, at that time, there is nothing else to extend. The period has expired and therefore
there is nothing else to extend.

What then is you remedy?

Your only remedy is to file a motion to admit the answer, attaching to your motion your answer
and explaining why you were not able to file it on time. If the court will find the reason to be
meritorious, then it may admit your answer even it was filed out of time. The court may allow an
answer or other pleading to be filed after the time fixed by these rules, provided you can offer a
justification for you tardiness in filing your answer.

May the period for filing of responsive pleadings be shortened?

No. The court may extend but cannot shorten the time for filing of an answer, except in quo
warranto cases, where the period may be shortened.

When may a complaint be filed?

(A complaint is not a responsive pleading.) A plaintiff may file his complaint from the accrual of
his cause of action or anytime thereafter but before his cause of action is barred by the statute
of limitations.

Do not rely on old books, because you might be confused. The period for filing of
responsive pleadings in the old books is not the same as now.

MODULE 9-A
BILL OF PARTICULARS (RULE 12)

W hat is a bill of particulars?

It is a definite statement of any matter which is not alleged with sufficient definiteness or
particularity in a pleading. The purpose is to enable the defendant or a party to properly prepare
his responsive pleading.

Example: Here is a complaint. The complaint is vague, because the allegations are not stated
with more definiteness or particularity. It lacks specifics. And so the defendant wouldn’t know
what to say in his answer because the allegations in the complaint are vague or indefinite. What

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is the remedy of the defendant? To file a motion for a bill of particulars. The defendant will file a
motion asking the court to direct the plaintiff to give a more definite statement, to give a bill of
particulars, so that those vague allegations will become clearer.

A motion for a bill of particulars is resorted to when the complaint is deficient in some details
with respect to the factual basis of the allegations. But if the deficiency amounts to a failure to
state a cause of action, then the remedy is not a motion for a bill of particulars but to assert it
as an affirmative defense.

A motion for a bill of particulars should be filed before filing an answer or before responding to
a pleading.
Example: Here is a complaint. The defendant examines the complaint. He reads all the
allegations, and he could not understand what the complaint is all about because the allegations
are vague. What the defendant will do as a remedy is to file a motion for a bill of particulars. If
the court grants the motion, the plaintiff will file a bill of particulars (that will be a more definite
statement of those that are not alleged with sufficient definiteness or particularity.)

When may the defendant file a motion for a bill of particulars?

Before filing his answer.

Example: The defendant receives summons. He has 30 days to file his answer (counted from
service of the summons). Before filing his answer, he may file a motion for a bill of particulars.
What will happen to his motion? We will explain that by way of an example.

Example: Plaintiff filed an action against defendant. Defendant received the summons on July
1. The defendant has 30 days from July 1 to file his answer. His last day to file his answer is
July 31. On July 11, he filed a motion for a bill of particulars. The court believes that the motion
is not meritorious because the complaint, after all, is very clear, it is sufficient, it is not vague,
all the statements and allegations are clear. The defendant received a copy of the order on July
25. If defendant’s motion for bill of particulars was denied, what is the remedy of the defendant?
To file an answer to the complaint. Until when may the defendant file his answer to the
complaint? He will have 20 days from July 25 (the date defendant received a copy of the court’s
order denying his motion for a bill of particulars) to file his answer. Thus, he will have until
August 14 to file his answer.

After service of the bill of particulars (if the motion is granted) or notice of the denial of the
defendant’s motion for a bill of particulars (if defendant’s motion is denied,) the defendant has
the remaining period that he was entitled to at the time of the filing of the motion which shall
not be less than 5 days in any event.

Example: Defendant received the summons on July 1. He has until July 31 to file his answer.
On July 29 (two days before the deadline to file his answer), he filed a motion for a bill of
particulars. It was denied. The order denying his motion was received by the defendant on August
5. Until when may he file his answer? He has 5 days from August 5, because the rule says “it
shall not be less than 5 days in any event.” He has the remaining number of days, he has the
balance “which shall not be less than 5 days in any event.”

When may a motion for a bill of particulars be filed?

Before filing an answer. But if the pleading is a reply, the motion must be filed within 10 days
from service of the reply.

Example: The plaintiff files a reply (because an actionable document is attached to the answer).
The defendant cannot understand the reply. In this case, the motion must be filed within 10
days from service of the reply.

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Supposed you are the defendant, and you filed a motion for a bill of particulars, and then you
are asked: Is your motion a litigious motion? Yes, and therefore you have to serve a copy of your
motion on the plaintiff. A motion for a bill of particulars is a litigious motion and therefore the
plaintiff must be given a notice of your motion.

If you file a motion for a bill of particulars, what do you need to do in your motion?
You have to point out the defects you are complaining of. You have to point out the defects in
the complaint, the paragraph(s) where they are (defects) found, the details that you desire to be
stated by the plaintiff. Without the defects and the paragraph(s) where the defects are found and
the details that you desire, the court will not be able to understand your motion and will simple
deny your motion.

What is the duty of the clerk of court upon the filing of the motion for a bill of particulars?
The clerk of court must bring it immediately to the attention of the court, and the court may
deny or grant the motion outright or give the party an opportunity to be heard.

Supposed the court grants the motion and directs the plaintiff to comply with the order, how may
the plaintiff comply with the order?
Within 10 days from notice of the order, the plaintiff must comply. He may file the bill of
particulars either as a separate pleading or as an amended pleading. He may amend his
complaint to cure the defect of insufficient allegations as pointed to by the defendant.

Supposed the plaintiff believes that there is nothing wrong with his complaint (it is clear), and
he refuses to comply, the court may order the portion of the pleading to which the order is
directed to be stricken out or that the complaint be stricken out. If the entire complaint is stricken
out, then there is no more complaint and therefore the case is dismissed or the court may simply
dismiss the complaint for failure of the plaintiff to obey a court order.

We finished 2 modules in one lecture. We have concluded our discussion on Module 9 and
Module 9-A, so you need to comply with the instructions stated in the syllabus. That is
all for this lecture.

– Nothing Follows –

MODULE 10 LECTURE 1

Module 10 (Rule 13)

Our lesson today class is a filing and service of pleadings, judgments, and other papers.

So we will talk about filing and service of pleadings, judgments, and other papers. And this one
is Rule 13, we are in module 10.

So what is meant by filing? Filing class is the act of submitting the pleading or other
paper to the court. But I mention to you one time that when it comes to a complaint the
complaint is deemed filed only upon the payment of the filing or docket fees, so that is
filing.

Service is the act of providing a party with a copy of the pleading or any other court
submission. The act of providing the other party with a copy. That is service.

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So when you file you go to court, but we will talk about modes of filing in a short while,
meanwhile when you say served or service of pleadings upon whom may the pleadings be
served? It should be served upon the party, but if a party is represented by a counsel then the
service should be made upon the counsel, if a counsel represents several parties he will be
served with only one copy of the pleading or papers, but if lets say several counsel or counsels
appear for a party or parties then they will be entitled to only one copy. the pleading will be
served upon the agreed counsel if what is so designated. So take note of that one.

Well I would like you to pay attention to this word “Counsel” when used to refer to a lawyer the
word counsel according to my grammar teacher does not take an “s” even if used in plural
form. If you refer to more than one then you say several counsel are present. So the word
counsel when used in a plural form does not take an “s”.

We go to Modes of Filing. How do you file? or ways or means? but you say mode or modes of
filing.

1. Personal Filing. How is personal filing accomplished? by submitting personally the

original copy of the pleading, motion or other papers to the court plainly indicated as
such.

2. Filing by registered mail. By sending them to the court by registered mail.

3. Filing by Accredited Courier. By sending them to the court through an accredited

courier like LBC. but that must be accredited courier. It is now on the new rules.

4. Filing by electronic mail or E-mail or other electronic means like facsimile or fax. By
Transmitting them to the court by electronic mail. When we say electronic mail we ay E-
mail or by other electronic means as may be authorized by the court in places where the
court is electronically equip. because if the court is not electronically equip then you
cannot send it through E-mail.

I like you to take note however class that while electronic filing is now one of the modes of filing
authorized by the rules yet if you go to Section 14 of Rule 13 you’ll find out that the following
must only be served or filled by personal filing or by registered mail and should not be filed
electronically, unless expressly authorized by the court, unless express permitted by the court.

The following must be filed only through the following modes: personal filing or filing by
registered mail.

1. Initiatory pleading- An initial responsive pleadings such as an answer must be filed only
through personal or filing by registered mail.

2. Subpoena or protection orders and writs

3. Appendices or exhibit to motions and other documents that are not readily amendable to
electronic scanning.

4. Sealed and confidential document or records.

These are pleadings and papers that should be filed only by personal filing and filing by
registered mail.

So you file a pleading and other papers. Question you follow the modes that I have just
mentioned to you. When are they considered filed? At what point or at what time are they
considered filed? Well if made by personal filing the clerk of court shall indorsed on the
pleading, motion or other court submission the date or hour of filing. So if you file you have a

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copy and then the clerk of court will stamped it and will endorse on it the date and time of
filing. It is the date and time of your pleading or other court submission is aid to have been
filed. But what about if made by registered mail. If made by registered mail or by accredited
courier the date of the mailing of the pleading, motion or other court submission and the
payments or deposit are shown by the post office staff on the envelope or the registry receipt
shall be considered as the date of its filing. Payment or deposit in Court. The enveloped shall be
attached to the record of the case. So if by registered mail the date of mailing is the date of
filing. That why the envelope shall be attached to the records of the case because the envelope
will show the date of mailing even the, one who goes to post office, to mail it, alright will be
issued a receipt that is also, the receipt will also indicate the date of mailing. If by electronic
mail or other electronic mails. The date of the electronic transmission shall be considered as
the date of filing. So you have date of electronic transmission. Alright.

Question What are the papers required to be filed with the court and served on the parties that
is affected? well you have the ff. judgment resolution, order, pleading subsequent to the
complaint, written motion, notice appearance demand, offer of judgment or similar paper shall
be filed with the court and served on the parties affected. Take note class that even judgments
has to be filed with the court when you get to Rule 36 and you go to Sec. 1 you will find out
that one requirement of a valid judgment is that it must be filed with the clerk of court we will
talk about that on due time, so we have mentioned the modes of filing do not confuse this with
the modes of service. So you have one set of modes of filing and another set modes of service.
So what are the modes of service of pleadings, motions, notices and other court
submissions.

1.) Personal service so you serve on the other party a copy of your pleading by providing
him with a copy of pleading. How is it accomplished? Personally delivering a copy of the
pleading, motion, notice order and other court submissions to the other party or to his
counsel. I told you that a party is represented by counsel then it must be upon the
counsel the service should be on the counsel. How? By leaving it on his/her office with
his clerk or with a person having charge of the office. But suppose he has no office or the
office cannot be located then by leaving a copy between the hours in 8 in the morning
and 6 in the evening at the parties or counsel residence if know with a person of
sufficient age and discretion residing there in. So you just have to take note how
personal service is made.

2.) Service by mail so when you talk about modes of service you have personal service,
you also have service mail but what distinguishes filing by mail and service by mail is
that filing by mail is only through registered mail but when you say service by mail it
may either be by registered mail or by ordinary mail. Take note class that service by
registered mail is made by depositing the copy in the post office in a sealed envelope and
you also have.

3.) Service by accredited courier

4.) Service by electronic mail or by facsimile transmitter or other electronic means as

may be authorized by court.

5.) Substituted service, but you do not have substituted filing. How is it accomplished?
Substituted service of pleadings, motions, etc. is accomplish by delivering a copy the
clerk of court with proof of failure of both the personal service and service by mail you
can make substituted service by simply delivering a copy of the pleading, motion, etc. to
the clerk of court. What court? Court where the case is pending but this one class is only
a substitute that’s why we call it substituted service only a substitute and it may be

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resorted to only when it can be shown that you first attempted personal service and
service by mail but both failed that’s why it must be proved.

But I also want you to take note that when it comes to judgements, final orders or
resolutions these are the orders, resolutions that dispose of the case like a judgment
although they resolve a case on merits.

I’d like you to know that the rule provides the following modes of service when to comes
to judgments, final order, or resolutions:

1.) Personal service

2.) Service by registered mail
3.) Service by accredited courier
4.) Service by publication

So there is also service by publication when it comes to a judgment, final order or resolution.

We are talking about final order as oppose to interlocutory order. I mention to you a while ago
that when you say final order this is the order that finally disposes of the case on its merit.

There may be service by means by publication but this may be done only when the defendant
is summoned by publication and he did not appear in the action where can there be service of
judgment by publication? Only when the defendant is summoned by publication and he did
not appear in the action. So let us say the summoned on the defendant was made by
publication but he filed an answer to the complaint and he participated in the trial then you
cannot serve the judgment upon him by publication because he appeared in the action, so two
things so that the judgment may be served by publication.

1.) The defendant is summoned by publication

2.) He did not appear in the action.

Now, when it comes to notice of hearing there is a new rule to notice hearing and this is called
presumptive service or sometimes say presumptive notice.

Presumptive service of a notice of hearing, the rules tell us there is a presumptive notice
to a party of a court setting, if such notice appears on the recorded that it had been
mailed at least 20 calendar days prior to the scheduled date of hearing and the addressee
is from within the same judicial region. Where the case is pending, or if the addressee
resides or the addressee from outside the judicial region it should be 30 calendar days.
I’d like you to take note however that this I mention to you that this presumptive notice
applies only to the service of notice of hearing when it comes to service of judgments
service of other pleading there is no presumptive service.

When is a service complete? or what is the rule regarding completeness of service? Why do we
need to know when Service is complete? because if you’re talking about the period of filing the
period shall be counted from the date the service is deemed complete. like let us say a
judgment is served on a party and it turns out the judgment is adverse to him and he would
like to appeal when will you start counting the 15 days to appeal because appeal may be taken
of within 15 days from notice of the judgement being appealed from.

1. If by personal service it is complete upon actual delivery.

2. If by ordinary mail it is complete upon expiration of 10 calendar days after mailing unless
the court provides otherwise.

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3. If by registered mail it is complete upon actual receipt by the addressee or after 5 calendar
days from the date the addressee received the first notice of the post master whichever is
earlier.

Example: We are talking about service of registered mail so let us say that it was the date of
mailing is July 1 now the addressee received it on July 16 but earlier the addressee received a
notice from the post master on July 13 and he actually received it July 16. When is the service
complete? It is complete after 5 days from receipt of notice. 5 days from July 9. So let us say it
is a judgment and the judgment is adverse to him the he should start counting 15 days not
from July 16 but from July 14 if he will start counting 15 days from July 16 then his appeal is
filed out of time because the reckoning date is July 14.

4. If service by accredited courier it is complete upon actual receipt by the addressee or after
atleast two attempts to deliver by the courier or upon the expiration of 5 calendar days after
the first attempt to deliver whichever is earlier. (This is a new rule)

Example: There are 2 attempts to deliver. The first one was made July 1 and the second was
made July 2 then it is complete on July 2. Now suppose the second attempt was made on July
16, when is the service deemed complete? The rules says after atleast 2 attempts or after 5
days of the first attempt whichever is earlier. 5 days from July 1 is July 6. July 6 is earlier than
July 16 so the service is deemed complete as of July 6.

5. If by fax transmission it is complete upon receipt by the other party as indicated in the
facsimile transmission printout.

6. If by electronic service like E-mail or any other electronic means it is complete at the time of
the electronic transmission of the document. However class I’d like you to take note that
electronic service is not effective or complete if the party serving the document learns that it did
not reach the addressee or person to be served

7. If by substituted service it is complete at the time of the actual delivery to the clerk of court.

Included in Rule 13 is notice of lis pendens. This is a notice of lis pendes this is not the lis
pendens or litis pendencia or “author action pendant(?)” which is a ground for dismissal of an
action. It is not the same as notice of lis pendens which is our lesson now.

What is notice of lis pendens?

A notice of lis pendens may be recorded only if the action is a real action. Real action is
the one that affects the title to or possession over a real property or an immovable
property.

So what is this notice of lis pendens? It is an announcement to the world that a

particular real property is the subject of a pending litigation and so it serves as a
warning to everyone who might want to deal with this property or enter into transaction
involving this property that he will acquired it subject to the account of the litigation. So
if let us say, you buy a property and there is a notice of lis pendens, then you buy it subject to
the outcome of the case.

Do you need a court order to be able to record a notice of lis pendens? where is a notice of lis
pendens or in what office is a notice of lis pendens recorded? A notice of lis pendens is
recorded in the office of the register of deeds of the province or city where the real property is
located. I like you to know that the recording is extra judicial in the sense that you do not need
a court order to record a notice of lis pendens. that is why there no separate action just to
record a notice of lis pendens.

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Is there an action called for annotation for lis pendens? None. so lets say, you file an action
merely to record a notice of lis pendens to compel the registry of deeds to record a notice of lis
pendens is there an action like that ? none because the recording of the notice of lis pendens is
extra judicial.

What do you state in the notice? It shall contain the name of the parties, the object of the
action let us say if it is the land you describe the land and the notice is directed to the registry
of deeds, so you attached to your notice a copy of the complaint, but if you don’t attached a
copy of the complaint as long as you indicate the title of the case, the case number, the court
where it is pending in the request of recording the notice.

The request for recording of the notice can be in a form of letter. (Sir, The undersigned
respectfully request your office to record a notice of lis pendens involving the following property
(description of the property) which is now the subject of a pending litigation in the Civil case
no. … pending upon the RTC Branch … )

In what action may a notice of lis pendens may be recorded? The notice of lis pendens
may be recorded only or is available only in a real action. Specifically, this actions are :

1. Action to recover possession or ownership of a real property

2. Quiet title thereto

3. To remove clouds therefrom

4. For Partition

5. Any other proceeding of any kind in court directly affecting title to the land or use or
occupation thereof or a building thereon.

Who may record a notice of lis pendens? The plaintiff or even the defendant if the defendant in
this action is also asking for an affirmative relief involving the property subject of the litigation.

Let us say that the notice of lis pendens is now recorded in the office of the Registry of
Deeds , as I mentioned to you a court order is not required for the recording of a notice
of lis pendens because the recording is extra judicial, but suppose the other party would
like it to cancelled. Cancellation of the notice of lis pendens. Take note class the
although the recording is extra judicial you just have to file a case and the if the case is
one that involves title to or possession of a particular real property then you may record
a notice of lis pendens in the office of the Registry of deeds, so the notice serves a
warning to everyone that the property is subject to a pending litigation.

Is cancellation also extra judicial? No, there must be a court order for the cancellation of
the notice of lis pendens. So to record a notice of lis pendens you do not need a court
order but when you will cancel there must be a court order and the court will issue an
order directing the cancellation of the notice of lis pendens if it is shown:

1. That the notice is only for the purpose of molesting the other party or the adverse
party.

2. It is not necessary to protect the right of the party who caused it to be recorded.

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 MODULE 11

LECTURE1

Our lesson is rule 14 and this is summons. First, I’d like you to know that summons is a writ
issued and signed by the clerk of court upon the filing of the complaint and payment of the
requisite docket fees addressed to the defendant and directing him to file his answer to the
complaint with a warning that if he fails to do so then the plaintiff will take a judgment by default
and he may be granted the relief applied for. The summons must contain the name of the court
and the names of the parties. And the two-fold purpose of summons is to enable the court to
acquire jurisdiction over the person of the defendant and to notify the defendant of the filing of
the complaint against him. Alright, so that is the definition and that is the two-fold purpose of
summons.

Just so we will be clear on this one, summons is singular. So you say summons was or summons
is and the plural form is summonses. So what is the significance of summons? Supposed that
will be asked in the bar exams, what is the significance of summons? Summons is the primary
means by which a court is able to acquire jurisdiction over the person of the defendant and to
give notice that an action has been commenced against him. It is the writ by which a defendant
is notified of the action brought against him.

I’d like you to know class that jurisdiction cannot be acquired over the person of the defendant
even if he knows of the case filed against him unless there was a valid summons upon him or
the defendant voluntarily appears in the action.

And so if you would be asked. How may a court acquire jurisdiction over the person of the
defendant? The answer class number 1. By valid service of summons upon him, and number 2.
by his voluntary appearance in the action.

Question, what is equivalent to service of summons? Answer - The voluntary appearance of the
defendant in the action should be equivalent to service of summons.

Next question, when may the court direct the clerk of court to issue the summons to the
defendant? The answer class, if the complaint is not dismissible on its face under section 1 rule
9, we talked about that one-time section 1 rule 9. These are the defenses that cannot be waived
even if not set up in a motion to dismiss or in an answer. So, question is when may the court
direct the clerk of court to issue the summons to the defendant? The answer class, if the
complaint is not dismissible on its face under section 1, rule 9, the court shall within 5 calendar
days from receipt of the complaint or initiatory pleading and proof of payment of the requisite
legal fees direct the clerk of court to issue the summons to the defendant. Alright. But if the
complaint is dismissible on its face under section 1, rule 9 then the court will simply dismiss the
complaint because it is dismissible on its face. So here the court will not anymore direct the
issuance of summons. Why? Because there is no more need for the issuance of summons on the
ground that the complaint has already been dismissed.

Question. I told you a while ago that the summons contains the name of the court and the names
of the parties. Aside from the name of the court and the names of the parties, what should the
summons contain? What should the summons contain aside from the name of the court and the
names of the parties? The answer class. The following should be contained in the summons or
the summons should contain the following. Number 1, an authorization for the plaintiff to serve
the summons to the defendant if authorized by the court upon ex parte motion. Number 2 a
direction that the defendant answer within the time fixed by the rules and a notice that unless
the defendant so answers, plaintiff will take a judgment by default and may be granted the relief
applied for.

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A copy of the complaint and order for the appointment of a guardian ad litem if any should be
attached to the original and each copy of the summons. So, a copy of the complaint and a copy
of the order for the appointment of a guardian ad litem should be attached to the summons.

Question, who may serve the summons or by whom may summons be served? Who may serve
the summons? The answer class, summons may be served by number 1. the sheriff or his deputy
or other proper court officer and then number 2 or by the plaintiff if authorized by the court in
case there is a failure of service of summons by the sheriff, his deputy or other proper court
officer. So here class, the plaintiff may now be authorized to serve summons. Also, the plaintiff
shall be authorized to cause the service of summons in the following instances. If the summons
is to be served outside the judicial region of the court where the case is pending. So if the
summons is to be served outside the judicial region of the court where the case is pending, the
plaintiff may be authorized to cause the service of the summons. Number 2, if the summons is
returned without being served on any or all of the defendants. Alright. Now. As I mention to you
class. If summons is returned without being served on any or all the defendants, the court shall
order the plaintiff to cause the service of summons by other means available under the rules.

Question. What if the plaintiff fails to comply with the order for him to cause the service of
summons? Well, the failure of the plaintiff to comply with the order will cause the dismissal of
the complaint or initiatory pleading without prejudice. The dismissal is without prejudice.

If you have questions, you just write down your questions. I’d like you to take note of what we
are saying class because the rules now are different from the rules in the past.

Question. If the summons is issued, what is the lifetime of the summon? Or until when is the
summons valid? The answer class, a summons has no definite lifetime. Once issued it shall
remain valid until duly served or recalled by the court. However, class, if the summons is lost or
destroyed without being served then the court upon motion shall issue what is known as an alias
summons.

So when may the court issue an alias summons? The answer class, if the summons is lost or
destroyed without being served the court may upon motion (there should be a motion) issue an
alias summons. Who may file the motion? Well of course the one who is interested to have
another summons issued is the plaintiff. So he will be the one to file a motion for the issuance
of an alias summons.

Now. So, we have mentioned who may serve the summons. I told you that even the plaintiff may
now serve the summons. So the plaintiff if authorized by the court may serve the summons in
case there is a failure on the part of the sheriff or his deputy or any proper court officer to serve
the summons. Then we also mentioned other instances when the plaintiff may cause the service
of summons.

So what are the mode of service of summons or how are summons be served?
Modes of service of summons. We have the following modes of service of summons.
1. Service in person on the defendant. Do not say personal service. You say, service in
person on the defendant.
2. Substituted service
3. Service of summons by publication

Alright. So question now is, how is service in person on the defendant made? There are two ways
to make service in person on the defendant. Number 1 by handing a copy of the summons to the
defendant in person and informing him that he or she is being served with summons by handing
a copy. So it is a face to face situation by handing a copy of the summons to the defendant in
person and informing him or her that he or she is being served with summons. And the second

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way is what, if the defendant refuses to receive or sign for it by leaving the summons within the
view and in the presence of the defendant. by leaving the summons within the view and in the
presence of the defendant. In the past class, it is what? If the defendant refuses to receive and
sign for it by tendering it to him. That was in the past. Now, by leaving the summons within the
view and in the presence of the defendant. Like if let us say you are handing a copy to the
defendant he refuses to receive and sign for it then you leave the copy. if there is a table leave it
there. within the view and in the presence of the defendant. When you say within the view, does
it mean that the defendant should be looking at the summons being left within his view? No. as
long as it is within his view. He can see it if he wants to see it. And in the presence of the
defendant. Alright so that is how to make service of summons in person on the defendant.

What about substituted service of summons? How is it effected? If for justifiable causes the
defendant cannot be served with summons in person after at least three attempts on two different
dates then substituted service of summons may be effected. So if let us say, service in the person
of the defendant cannot be made after how many attempts? at least three attempts on two
different dates. So you are talking about two different dates and you are talking about at least 3
attempts. When you a say at least 3 attempts, it can be more than 3 attempts but not fewer than
3 attempts. Alright. At least 3 attempts on 2 different dates. When you say 3 attempts on two
different dates there must be 2 attempts on a particular date. Okay. So there must be one attempt
on one day and two attempts on another day or 2 attempts on the first day and then one attempt
on another day. I hope you understand. after at least 3 attempts on 2 different days. Okay that
is what? That will answer the question of when, when may substituted service of summons be
effected.

The next question is how is substituted service of summons be effected? How? This time we will
talk about how to make substituted service of summons. How? By Number 1 by leaving a copy
of the summons at defendant’s residence to a person at last 18 years of age and of sufficient
discretion residing therein. so you leave a copy with a person at defendant’s residence. The
person must be at least 18 years of age and of sufficient discretion residing therein. So the person
with whom the summons may be left should be what? at least 18 years of age and of sufficient
discretion and he must be residing at defendant’s residence. Suppose the person is 18 years of
age but he is not of sound mind then he is not of sufficient discretion. Suppose you have this
person over 18 years of age and with sufficient discretion but he was just visiting the defendant
at that time, he was a visitor at defendant’s residence then you cannot leave the copy with him
because for that method of substituted service of summons to be valid the person at least 18
years of age and at sufficient discretion must be residing at defendant’s residence. So the first
one is what? by leaving a copy of the summons at defendant’s residence to a person at last 18
years of age and of sufficient discretion residing therein. The second one. By leaving a copy of
the summons at the defendant’s office or regular place of business with some competent person
in charge thereof. Who is a competent person? Well, a competent person includes but is not
limited to one who customarily receives correspondences for the defendant. So that is a
competent person.

Alright. The third way of making substituted service of summons by leaving a copy of the
summons if refused entry upon making his authority and purpose known with any of the officers
of the home owner’s association or condominium corporation or its chief security officer in charge
of the community or the building where the defendant may be found. Alright, you leave a copy
of the summons if refused entry so we are talking about a condominium or subdivision and then
you go there, you knock on the door for example, you are refused entry. You are not allowed to
enter then you can leave a copy of the summons with any of the officers of the home owners’
association or condominium corporation or you leave a copy of the summons with its security
officer in charge of the community or the building where the defendant may be found.

Alright. Then the next one. By sending an electronic mail to the defendant’s electronic mail
address if allowed by the court. Question, may summons be served by electronic mail? May

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summons be served by sending to defendant’s electronic mail address? Well that is one way of
making a substituted service of summons but I’d like you to know class that substituted service
of summons by sending an electronic mail or email to the defendant’s email address is allowed
may be made only if allowed by the court.

If summons is served upon the defendant by substituted service, then the one serving the
summons by substituted service shall make a return of the summons. Return means what? it is
a report. Report of what happened with the summons. We call it return of summons.

Now take note of this one class. If summons is served by substituted service, the return to be
filed by the sheriff or process server or person authorized by the court to serve the summons
shall state the following. so the return must state the following. number 1 the impossibility of
prompt personal service within the period of 30 calendar days from issue and receipt of
summons. Alright. So here, it must be shown and it must be stated in the return of summons
the impossibility of prompt personal service meaning service in person within a period of 30
calendar days. So meaning class, what does this mean? It means that there must be a showing
or it must be shown that within a period of 30 calendar days from the time the summons was
issued service in person upon the person of the defendant cannot be made. There is an
impossibility of prompt service in person upon the defendant. So what does that mean? It means
that, for a period of 30 days, there must be an attempt to serve the summons upon the defendant
in person but that mode of service is impossible. there is an impossibility. The second, the date
and time of the three attempts on at least 2 different dates to cause the service in person and
the details of the inquiries made to locate the defendant residing thereat. So this must also be
stated in the return of the summons; the date and time of the 3 attempts on at least 2 different
dates. not only that, even the inquiries made to locate the defendant must also be stated in the
return of the summons. And then the next one, the name of the person at least 18 years of age
and of sufficient discretion residing at the residence of the defendant, name of the competent
person in charge of defendant’s office or place of business or the name of the officer of the home
owners’ association or condominium corporation or its chief security officer in charge of the
community or the building where the defendant may be found. So the name of the person must
be stated in the return of the summons. Alright. Now so we have mentioned the following modes
of service of summons; service in person upon the defendant, substituted service and then
service by publication.

So our next topic is what? Service of summons by publication.

Question. What are the instances when service of summons by publication may be made? The
following are the instances:
1. In any action where the identity of the defendant is unknown as when the defendant is
simply designated as an unknown owner. When we say “in any action”, does that include
action in personam? Yes. Action quasi in rem? Yes. Because the rule says “in any action”.
when you say “in any action” it means simply that in any action.
2. In any action in which the whereabouts of the defendant are unknown and cannot be
ascertained by diligent inquiry within 90 calendar days from the commencement of the
action.
3. If the defendant does not reside and is not found in the Philippines but the suit can
properly be maintained against him in the Philippines it being an action in rem or action
quasi in rem. I hope you understand what that means. We mentioned that many times.
The defendant if does not reside and is not found in the Philippines meaning the
defendant is what? a non-resident defendant who is not in the Philippines but the suit
can be properly maintained against him because it is an action in rem or quasi in rem.
We mentioned long time ago the instances when a non-resident defendant who is not in
the Philippines may be sued in the Philippines. When the action affects the status of the
plaintiff who is in the Philippines or number 2 it affects or it involves the property of the
defendant situated in the Philippines.
4. If the defendant is a resident of the Philippines but is temporarily out of the Philippines.

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Now suppose the defendant is a non-resident defendant who is not in the Philippines or
the defendant does not reside and is not found in the Philippines and the suit can properly
be maintained against him it being an action in rem or quasi in rem. How may summons
be effected outside the Philippines? So the summons may have to be effected outside the
Philippines. Alright. No I’d like you to take note about this class. We talked about this
one time. so what kind of defendant are we talking about? A defendant who is what? A
defendant who does not reside in the Philippines or you may refer to him as non-resident
defendant and what? He is not in the Philippines. Not found in the Philippines. So this is
a defendant who does not reside in the Philippines and is not found in the Philippines.
Okay. So 2 things; does not reside in the Philippines and not found in the Philippines.
So, he is outside the country. So the summons will be served outside the country. So you
call this extra territorial service of summons.

Question. Does it mean that if we serve the summons upon a defendant who is not in the
Philippines and he does not reside in the Philippines, does it mean that the court will be
able to acquire jurisdiction over the person of the defendant? No. the court will not be
able to acquire jurisdiction over the person of the defendant because the defendant is
what? does not reside in the Philippines and is not found in the Philippines. But then as
I mention to you one time. what is important in a situation like this is for the court to be
able to acquire jurisdiction over the res. Over what? The res. And you go back to our
discussion regarding this in the past. How may the court acquire jurisdiction over the
res? We have talked about this in the past. Then you might want to know. A question like
if the court cannot acquire jurisdiction over the person of this defendant any way so why
serve him summons if the court cannot acquire jurisdiction over the person of the
defendant just the same? Well the purpose of the summons. The purpose of serving him
with summons is to comply with due process. Alright. So, that is the purpose of serving
him with summons even if the court will not be able to acquire jurisdiction over the person
of the defendant. what is this defendant? One who does not reside in the Philippines and
is not found in the Philippines. Meaning a non-resident defendant who is not in the
Philippines.

Question. So here the summons will be served upon this defendant by extra territorial
service of summons. Meaning the summons will be effected outside the Philippines. How?
What are the modes of extra territorial service of summons? The following: 1. by personal
service or as provided for in international conventions to which the Philippines is a party
and then also by publication in a newspaper of general circulation in such places and for
such time as the court may order in which case a copy of the summons and the order of
the court shall be sent by registered mail to the last known address of the defendant.
So, it is not enough to publish the summons in a newspaper of general circulation along
with the publication of the summons, a copy of the summons and order of the court must
be sent by registered mail to the last known address of the defendant. So that is the next
one and the last one is in any other manner the court may deem sufficient.

Okay. Now I’d like to explain the last one to you. What is the last one? In any other
manner the court may deem sufficient. In one case class, what happened was the
summons was sent to the defendant by registered mail to his last known address. Alright
the defendant assailed or questioned the validity of the service of summons arguing that
the sending of summons by registered mail is simply a part of service of summons by
publication. The defendant said that in service of summons by publication, two things
must be done, number 1 publish the summons ins a newspaper in general circulation
and then send a copy of the summons to him at his last known address by registered
mail. So he was arguing that there was no valid service of summons upon him because
the summons was simply sent to him at his last known address by registered mail. There
was no publication. Alright so according to him the mode of extra territorial service of

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 summons is void. But in that case the SC said that there is yet another mode of service
of summons and that is what? In any other manner, the court may deem sufficient. So if
the summons, the extra territorial service of summons was made by sending the
summons to him by registered mail at his last known address and the court will deem
that to be sufficient then it will be a valid service of summons. Provided, that court will
deem it to be sufficient.

Alright. But I’d like you to know class that in any of these modes of extra territorial service
of summons will require leave of court. So extra territorial service of summons will require
leave of court. The next point that I’d like to take up with you is so we have finished our
discussion on by whom may summons be served. By whom? Meaning who will serve the
summons an then we went on to explain on how summons may be served. We said that
that is what? The modes of service of summons and then now we will talk about upon
whom may the summons be served. Upon whom? Well of course the service of summons
shall be made upon the defendant. Alright. Service of summons shall be made upon the
defendant but take note of the following: if the defendant is an entity without juridical
personality (we talked about that one time) then the service may be effected upon all the
defendants by serving upon any of them. I think we need to recall what is meant by entity
without juridical personality as when persons associated in an entity without juridical
personality are sued under the name by which they are generally or commonly known.
Then service may be effected by all of the defendant by serving the summons upon any
of them. Then number 2 if the defendant is a prisoner confined in a jail or an institution,
service upon this defendant shall be effected by serving the summons upon him by the
officer having the management of such jail or institution who is deemed to be a special
sheriff for said purpose. So here it will be the officer who has management of the jail or
the institution. Alright. And then if the defendant is a minor, insane or an incompetent
person, service of summon upon him shall be made upon this defendant and on his legal
guardian or if he has none upon his guardian ad litem. Alright. We said that if a guardian
ad litem is appointed the order appointing the guardian ad litem should also be attached
to the summons. Alright. Suppose the defendant is a foreign juridical entity or the
defendant is a domestic juridical entity upon whom may summons be served? Well this
will entail a long discussion and so we will talk about this next meeting, in our next
presentation.

MODULE 11SUMMONS (RULE 14)

Today class, we will continue our discussion and we will talk about how summons may be
served upon a domestic private juridical entity. What is an example? Like a corporation or
partnership. So if the defendant is a domestic private juridical entity, upon whom may the
summons be served? Upon any of the following:

 President
 Managing partner
 General Manager
 Corporate Secretary
 Treasurer
 In-house counsel

Take note class that if the defendant is a domestic private juridical entity like a corporation or
a partnership, then the summons may be served upon any of the following.

In the past class, the enumeration was exclusive. What does that mean? It means that the
summons should be served upon any of these officers only if the defendant is a domestic
private juridical entity. But with the amendment of the rules, if summons cannot be served

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upon any of them then the summons may also be served upon their secretaries. So if these
officers are absent or unavailable, in the event of their absence or unavailability, then the
summons may be served upon their secretaries or upon any person who customarily receives
correspondence for the defendant at its principal office.

May the summons be served upon the security guards now? In the past, no. Now, well if the
security guard is a person who customarily receives correspondence for the defendant, at its
principal office, then the service of summons upon that security guard may be upheld as valid
at present. But take note class that if the summons cannot be served upon any of these
individuals I have mentioned including the secretaries or person who customarily receives
summons, for the defendant at its principal office, either because they are absent or
unavailable, or there is a refusal on the part of these persons mentioned, despite at least 3
attempts on 2 different days then service of summons may be made electronically if allowed by
the court.

So question in the bar exam, may summons upon a domestic private juridical entity be
served electronically? If there is a refusal on the part of these individuals to receive this
summons despite at least 3 attempts on 2 different days then service may be made
electronically if allowed by the court. So before you resort to electronic service of summons in
the situation that I have mentioned to you, you have to ask the court to allow electronic service
of summons because the rule says if allowed by the court. So that is service of summons upon
a domestic private juridical entity.

What about if the private juridical entity is a foreign private juridical entity, how may
summons be served upon this defendant? You have to make a distinction class, if the
defendant foreign private juridical entity transacted or is doing business in Philippines, it is
licensed to do business or transact business in the Philippines, service may be made upon its
resident agent then upon the government official designated by law to receive summons for the
foreign private juridical entity or on any of its officers, agents, directors or trustees within the
Philippines.

So class I would like you to know that if the defendant is a foreign private juridical entity
licensed to transact or licensed to do business in the Philippine, then the service of summons
may be made upon its resident agent. But if there be no such resident agent then upon the
government official designated by law to receive summons or on any of its officers, agents,
directors or trustees within the Philippines.

Who is this government official designated by law to receive this summons? If the private
juridical entity is doing business in an insurance company, then the government official is the
insurance commissioner, as to all other corporations it is the securities sans exchange
commission.

Now if let us say the foreign private juridical entity is not registered in the Philippines or has no
resident agent but has transacted or is doing business in the philippines then the service of
summons with leave of court may be effected outside the country. Through any of the following
means:

Etraterriotial service of summons - notice class that if the defendant, or the foreign
private juridical entity is licensed to do business in the Philippines, then summons will
be served in the Philippines. I hope you understand that one. But if the foreign private
juridical entity is not registered in the Philippines, then the summons may be served
outside the country through any of the following means:

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 A. By personal service through the appropriate court in the foreign country with the
assistance of the Department of Foreign Affairs
B. By publication once in a newspaper of general circulation in the country where the
defendant may be found. So the publication is not in the Philippines is but in the
country where the defendant may be found and by serving of the copy of the
summons and court order by the registered mail at the last known address of the
defendant
C. By facsimile or by electronic means with the prescribed proof of service
D. By such other means as the courts in its discretion may direct.

So question is, may the service of summons be done by e-mail to the defendant? Yes.
Because the rule says by electronic means with the prescribed proof of service. The rule also
says, by such other means as the court may direct. When it comes to private foreign juridical
entity, you have to distinguish between one that is authorized to do business in the Philippines
and one that is not registered in the Philippines but is doing business in the Philippines or has
transacted business in the Philippines.

Upon whom may the summons be served if the defendant is a public corporation? If the
defendant is the Republic of the Philippines, service of summons may be effected on the
solicitor general. Can you sue the republic of the Philippines? Well you learned in another
subject that the state may not be sued without its consent. It can be sued provided it gives its
consent. There are some exceptions to the rule on non-suability of the state. But if the
defendant is the Republic of the Philippines then you still need to serve summons upon him.
How may the summons be served or upon whom? The service of summons may be effected
on the solicitor general.

If the defendant is a province, city or municipality or a pubic corporation, service of summons

may be effected on its executive head or such other officer as the law or court may direct.

Alright now, what is the proof of service of summons and in what form shall the proof of
service be made? So what is the proof of service of summons? The proof of service of
summons shall be made in writing by the server and shall set forth the manner, place and date
of service and shall specify any papers which have been served along with the summons and
the name of the person who received the summons and shall be sworn to when made by a
person other than a sheriff or his deputy. So if made by a person other than the sheriff or his
deputy, the proof of service of summons which is in writing shall be sworn to.

If summons was served by electronic mail as we mentioned a while ago, a printout of the email
with a copy of the summons as served in the affidavit of the person mailing shall constitute as
proof of service. This is when the summons was served by electronic mail. A printout of the
email with a copy of the summons as served shall constitute as proof of service.

If the service is made by publication the service may be proved by the affidavit of the publisher,
editor, or advertising manager. So this is when the summons was served by the publication
then the proof of service is the affidavit of the publisher, editor, or advertising manager and to
the affidavit should be attached a copy of the publication.

Now, suppose the summons was not served in any of the modes, or upon any of the
individuals or it was made by other persons other than those we have mentioned, what is
the effect of service of summons? None, because that service of summons is void.

But then what is the effect of defendant’s voluntary appearance in the action? Assuming
that no summons was issued or the service of summons is void? Even if the service of

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summons upon the defendant is void, or the defendant has not been served with summons, his
voluntary appearance in the action is equivalent to service of summons.

That is why one time we mentioned how may the court acquire jurisdiction over the person of
the defendant, then we said, (1) by valid service of summons; and (2) by defendant’s voluntary
appearance.

Question, suppose the defendant files a motion to dismiss, although I would like to mention to
you again, that generally, a motion to dismiss is prohibited, but suppose the defendant files a
motion to dismiss, and his motion, he includes other grounds aside from lack of
jurisdiction over his person, what is the effect of the inclusion of such other grounds? So
the defendant files a motion to dismiss alleging that the court has not acquired jurisdiction
over his person on account of void service of summons, but in his summons he has included
other grounds. What is the effect of the inclusion of such other grounds? Well, the
inclusion in a motion to dismiss of other grounds, aside from lack of jurisdiction, over the
person of the defendant shall be deemed a voluntary appearance.

So if the defendant files a motion to dismiss alleging that the court has not acquired
jurisdiction over his person because of the void service of summons upon him but in his
motion to dismiss, he includes other grounds, then that will be deemed a voluntary appearance
on the part of the defendant.

Listen to this one class because this is a new rule. But in the past I would like to tell you
that if service of summons is void or no summons has been served upon the defendant, and
then the defendant has not made a voluntary appearance in the action and so a lawyer appears
on his behalf, it is a special appearance only for the purpose of questioning the court’s
jurisdiction over his persons.

In the past class, I would like tell you that the way to question lack of jurisdiction over the
person of the defendant is by means of a special appearance only for that purpose. Now if that
happens today, a lawyer or counsel appears on behalf of a defendant, he enters a special
appearance to question the court’s jurisdiction over the person of the defendant, he will
question the validity of service of summons, what may the court require defendant’s counsel
to do? The court may require the counsel to serve the summons on his client or the defendant.

If you look at section 13 rule 14, and this is a new provision. It tells us that where the
summons is improperly served and a lawyer makes a special appearance on behalf of the
defendant to question the validity of service of summons, the counsel shall be deputized by the
court to serve summons on his client.

That ends our lesson on summons. That concludes our lesson on module 11. You will need to
comply with the requirements that you will need to submit within a certain time. Next time we
will have a zoom meeting class as we did for the past weeks and so you will have to come with
your questions that you need to ask regarding past lessons. But because we still have plenty of
time, we will start our discussion with rule 15.

MODULE 12 RULE 15

Rule 15 is about motions. We will talk about requisites of a valid motion.

So for next meeting you will have to come with a sample copy of a motion. Each one
should bring a sample copy of a motion and because this is a zoom meeting, when I call
your name you will have to show me your sample copy of a motion. If I call your name

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next meeting, you will show me your sample copy of a motion. You need to go to some
law offices and asked to be shown a sample copy of any motion so that you will
understand, you can easily follow our discussion next meeting.

A motion generally must be in writing.

What is a motion? Motion is an application for an order other than by a pleading.

What does that mean? When you file a pleading in court demanding a relief to be granted to
you by the court, you are asking the court to issue a judgment or an order, that is what you
will ask the court when you file a pleading. Now, if you want to ask the court for an order or a
relief other than by a pleading, then you may do it by means of a motion.

As I have mentioned to you, a motion must be in writing. By the way what is the opposite of
written? Oral. Do not say verbal. Because when you say verbal, that will include both oral and
written communications. A written communication is verbal. An oral communication is also
verbal. So the opposite of written is verbal.

Now, a motion must be in writing. Is that applicable in all instances? No because there
may be oral motions. The rule says, a motion must be in writing except those made in open
court in the course of the trial or proceeding. Let us say that you are presenting a witness in
court, and his testimony is concluded. Then the court will ask you to present your next
witness, but your next witness is not available on that day, then you ask the court to reset the
case to another date, then you say in court. You make an oral manifestation. You say “Your
Honor please, I respectfully move that the hearing be reset to another day because we have no
other witness to present today.” So you are making a motion. Then there class, you do not have
to put your motion into writing because the motion is made in open court in the course of the
trial.

But then class, soon you will find out that a motion may be non-litigious or it may be
litigious. If the motion is non-litigious it does not have to be heard by the court and so there
will not be any notice of hearing but if the motion is litigious then the court at its discretion
may set the motion for hearing in which case the court may issue a notice of hearing.

I am asking you to have a sample copy of a motion because in the past class, if the motion is a
litigious motion, then there must be a notice of hearing incorporated in the motion. And it is
the applicant, the party filling the motion who will attach to his motion a notice of hearing. The
notice of hearing should specify the date, time and place of the hearing of the motion. So that
is the notice of hearing. If it does not specify the date and time of the hearing, then the notice
of hearing is defective and it will invalidate the motion itself. It will render the motion pro
forma. And so I would like you to take note you might have come across several case in which
the Supreme Court held the motion to be a defective motion and therefore not a valid motion
because of the absence of a notice of hearing. In those days class, the notice of hearing was
required to comply with due process. And the notice of hearing in those days must be served
upon the adverse party by the movant himself at least 3 days before the date of the hearing.

If you are not able to comply with that, that will render the motion void. It is a pro
forma motion. Do we still have that rule? No more. Because it is not anymore the movant
that will make the notice of hearing. That will now be discretionary on the part of the court
whether to set the motion for hearing or not.

So now, you have to distinguish between a non-litigious and litigious motion.

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If the motion is a litigious motion, then the court may set the motion for hearing in which case
it will issue a notice of hearing. Just so you will understand class, lately I have not,
notwithstanding the new rule on the matter, lately I saw some motions still containing a notice
of hearing. So it means that either the counsel has not been informed of the new rules or it is
simply the old habit does not go away very fast.

Just so you will have a little understanding on what we are calling to be a notice of hearing, I
will show you on the board a notice of hearing. The notice is made by the moving part himself
and it is addressed to the adverse party and as I have mentioned to you it must specify the
date and time of the hearing of the motion.

(SULAT SA BOARD)

This is just a sampl of a notice.

Notice of hearing

There’s a name for the counsel for the other party and then it says greetings. So it is addressed
to the other party. And it tells something like take notice that on _____ at ______ - so this is the
date and time. The undersigned will submit the foregoing motion for reconsideration if it is a
motion for reconsideration for the approval and consideration of the court. And then, this is the
signature of the counsel for the moving party. And then there must be proof of service of the
motion. And then we said that it must be served at least 3 days before the date of the hearing
specified in the notice itself. So if your motion does not contain a notice of hearing, it is void.
Or even if it contains a notice of hearing, but the date and time is not specified, that will also
render the motion void or pro forma. Or let us say the movant fails to comply with 3 day notice
rule, then the motion is also rendered a pro forma motion.

That’s why next time you need to come and show me a sample copy of a motion so that you will
be able to understand the discussion. And you must have noticed class that rule 16 is either
deleted or transposed to some other rules. Technically, there is no more rule 16 because rule
16 is a motion to dismiss. But I mentioned to you before, that a motion to dismiss is a
prohibited motion except if it is based on 4 grounds. What are the 4 grounds?

 Lack of jurisdiction over the subject matter of the action

 Lis pendens
 Res judicata
 Barred by the statute of limitations – prescription

A motion to dismiss is allowed only if based on any of these four grounds. That’s why we don’t
have rule 16 anymore. The grounds found in section 1 of rule 16 may now be pleaded as
affirmative defences. Like failure to state a cause of action, improper venue etc. these are now
to be pleaded as affirmative defences.

We will continue our discussion on motions next meeting.

Zoom meeting will be on Saturday (5:30-6:30) we will discuss motions on Friday. You will
have to bring your sample copy of a motion on Saturday during our zoom meeting.

Module 12; Rule 15

Announcement:

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When I call your name you should be able to show me your sample of your motion (during zoom).

Discussion: Motion.

I would like you class to take note what a motion is.

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

So if you are asking the court to grant you a relief and it is not stated in your pleading the you
do it by means of motion.

DEAN: But I would like you to memorize the requisites of a valid motion.

1. a motion must be in writing except if made in open court and in the course of proceedings.

Eg. A motion asking the court to reset the hearing or an action asking the court to allow
you mark an exhibit, then it is made in open court or in the course of proceeding.

2. a motion must the relief sought to be obtained and the ground upon which it is based.

And if required by the rules or necessary to prove the facts therein stated it must be
accompanied by an affidavit or other supporting paper.

3. it must be served by personal service, or accredited private courier or by registered mail or by

electronic means.

So it must be served upon the other party by personal service, or accredited private
courier or by registered mail or by electronic means to ensure its receipt by the other
party. But take note class, in the list of the modes of service as provided for in Rule 15,
there is no service by ordinary mail as to motion.

Now take note, if the motion is made in open court or in the course of proceeding the rule require
the court to resolve the motion immediately after the adverse party is give the opportunity him
or her opposition.

Eg.

A motion is made in open court, and then court will ask the other party “You have an objection?”
if the other party says “no objection” then the court should resolve the motion immediately either
by granting or denying it.

In most instances, if a motion is made in open court and there is no objection from the other
party then the court may grant the motion.

If the other party has an opposition then the court should allow him to argue his opposition in
open court. After the argument then the court should resolve the motion. Or if the motion is
based on facts not appearing on record then the court may require the parties to submit affidavit
thereon or to submit a deposition or give oral testimony.

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Now take note class that your motions are classified as litigious or non-litigious.

A motion which the court may act upon w/o prejudicing the rights of the adverse party is non-
litigious.

The following are non-litigious motion:

1. A motion for issuance of an alias summons

Dean: I told you one time that summons has no definite lifetime. Once issued by the court the
summons shall remain in effect until it is served on the defendant. But if the summons is lost or
destroyed, then the Plaintiff may file a motion to file for the issuance of an alias summons. The
court may issue an alias motion, the motion for the issuance of alias summons is non-litigious.

2. Motion for extension to file answer.

Dean: I would like you to know that motions are also classified into prohibited motions and
motions that are not prohibited. Later we will say that a motion for extension to file a pleading
is a prohibited motion except a motion for an extension to file answer but a party may file only
one motion for motion for extension to file an answer. That motion for extension to file answer is
non-litigious motion.

3. A motion for the issuance of a writ of execution.

You will come to know more about this motion when we get to writ of execution. If the judgment
becomes final then you have a judgment obligee and a judgment obligor. The judgment obligee
will enforce the judgment against the judgment obligor and the way to do it is to get a writ of
execution. But you don’t just go to court and get a writ of execution, you have file a motion for
the court to issue a writ of execution. That motion is nor litigious mot.

4. Motion for the issuance of order directing the sheriff to execute a final certificate of sale.

This is also in execution. We will talk more about his when we get to the topic.

5. Motion for issuance of writ of possession.

This is non-litigious.

If the motion is non litigious motion it shall not be set for hearing but it shall be resolved by the
court within 5 calendar days from the receipt of the motion by the court to resolve the motion.

So you file a motion. You serve a copy of that motion to the adverse party. How do you serve? It
shall be serve by the modes of service that we just mentioned. There will be no hearing bec non-
litigious motion but the court is give 5 calendar days from receipt of the motion by the court to
resolve the motion.

2. Litigious motion.

Eg.

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1. A motion for bill of particulars?

Who file for bill of particulars?

The defendant because he files for motion for bill of particulars before he responds to a pleading.

2. Motion to dismiss.

A motion to dismiss is a litigious motion except that you will find out later it is a prohibited
motion except in few instances.

3. Motion for new trial.

4. Motion for reconsideration.

5. Motion for execution pending appeal.

Take note that a mot for issuance of writ of execution is non-lit motion but if you are asking for
motion for execution pending appeal then it becomes a litigious motion.

6. Motion to amend after responsive pleading has been filed.

Why is this a litigious motion? Because after a responsive pleading has been filed, amendment
is with leave of court. There should be leave of court if the amendment is after a responsive
pleading has been filed. (17:23)

7. Motion to cancel a statutory lien.

8. Motion for an order to break in or for the writ of demolition

9. Motion for intervention.

(Most of these motion you are not familiar with them yet.)

10. Motion for judgment on the pleadings.

11. Motion for summary judgment

12. Demurrer to evidence.

-is a motion. It is in the nature of motion to dismiss on the ground of insufficiency of evidence.

13. Motion to declare defendant in default.

14. Other similar motions like motion to set aside order of default.

So here class the movant (party filing a motion) or moving party. The movant should serve the
other party a copy of his motion and the n if the motion is a litigious, the opposing party shall
file an opposition to a litigious motion w/in 5 calendar days from receipt of the motion.

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The rule tells us that no other submissions shall be allowed or shall be consider by the court in
the resolution of the motion. So the court should not ask the parties to submit anything else
after the opposing party has filed his opposition to a litigious motion

In the past, (before the effectivity of the new rules) if a motion is filed usually the mot is set for
by the applicant or movant himself. And at the hearing, the other party will ask the court to allow
him to submit an opposition. Then the moving party will also ask the court to file a reply or
opposition then a comment or rejoinder. These are not allowed anymore.

So if a party files a motion, the other party within 5 days from receipt of the motion may file his
opposition to the motion. And the rules says no other submission like rejoinder, comment should
not be considered by the court in resolving the motion.

When it comes to a non- litigious motion, the court has 5 days from receipt of the motion to
resolve it. But if the motion is a litigious motion the court has 15 calendar days from receipt of
the opposition to the motion or expiration of 15 days for filing the position to resolve the motion.

Take note that if a motion is a litigious motion, the opposing party or the other party has five
days from receipt of the motion to file his opposition.Within 15 days from the receipt of the
opposition by the court or expiration of the 15 day period to file the opposition (it may happen
that opposing party will not file an opposition at all) the court will resolve the motion.

BarQ: Do motions require a notice of hearing?

A: if the motion is a non-litigious motion there is no notice of hearing. A notice of hearing is not
required if the motion is a non-litigious because it is non litigious and the court may simply
resolve the motion within 5 days from the receipt of the motion itself.

On the other hand if the notion is a litigious motion, the hearing on the lit is discretionary on
the part of the court. It is the curt who will issue notice of hearing and if it does issue a notice of
hearing, then the notice shall be addressed to all the parties concerned and it shall specify the
time and date of the hearing of the motion.

What motions are not allowed because they are prohibited?

1. Motion to dismiss except on the following grounds:

That the court has no jurisdiction over the subject matter of the claim

There is another action pending between the same parties and for the same cause.

That the cause of action is barred by prior judgment

That the COA is barred by the statute of limitations.

2. Motion to hear affirmative defenses.

In the past there was such a motion called motion for preliminary hearing for affirmative
defenses. There is no motion like that at this time.

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Why? Because the court has 30 calendar days to resolve the motion. The 30 calendar days is
reckoned from either from the time of the receipt of the answer or the termination of the summary
hearing if one is conducted.

3. Motion for reconsideration of the court`s action on the affirmative defenses.

Plaintiff files a complaint in court and the defendant file his answer containing affirmative
defenses. The court will resolve the affirmative defenses that are stated in the answer w/in 30
days (reckoned from either from the time of the receipt of the answer or the termination of the
summary hearing if one is conducted).

Suppose the court denies the affirmative defenses, May the defendant file a motion for
reconsideration of the court’s action on the denial of the affirmative defenses?

A: No, because the rules says that a motion for reconsideration of the court`s action on the
affirmative defenses is a prohibited motion. But I will tell you that if the affirmative defenses set
forth in the answer are granted by the court and therefor dismisses the complaint then a motion
for reconsideration should be allowed. Because the motion is dismissed. If the complaint is
dismissed and the dismissal is with prejudice then the order of dismissal may attain finality and
so in my opinion there may be a motion for recons

4. Motion to suspend proceedings if the there is no temporary restraining order or injunction

issued by a higher court.

5. Motion for extension of time to file affidavits, pleadings or any other papers. Except if the
motion for extension is to file an answer then a one-time motion to file an answer is allowed.

6. Motion for postponement intended for delay.

Suppose you will be asked in the bar exams, is a motion for postponement prohibited?

Yes, when it is intended for delay. Because the rule itself tells us that if a motion for
postponement is based on acts of God or force majeure or physical inability of the witness
to appear and testify then a motion of postponement is allowed.

Take note that after the pre-trial, the court issues the pre-trial order and the pre-trail order will
state the dates for hearing, the dates allotted for the plaintiff for the presentation of his evidence,
the dates allotted for the defendant for the presentation of his evidence. The dates are already
fixed then you file for motion of postponement (based on the force majeure for example). The
court will allow the postponement but then the presentation of evidence must still be terminated
on the dates previously agreed upon by the parties as stated in the pre-trial order.

Dean: So class you just have to memorize what I have told you regarding the non-litigious motion,
litigious motions, prohibited motions, motions that are not prohibited. You have to be familiar
with it.

Let us say that here is a case:

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Plaintiff files a complaint against defendant and the defendant files an answer. The answer
contains affirmative defenses. I told you that the court will resolve the affirmative defenses and
the resolution of the court will result in the dismissal of the complaint or not.

In here, if the court denies the affirmative defenses the defendant cannot file for mot for rec. if
the court grants the affirmative defense and dismisses the complaint. Is the dismissal of the
complaint with prejudice or is it without prejudice.

When we say without prejudice, you cannot file the complaint. If the dismissal is without
prejudice you can refile the complaint.

If the dismissal is with prejudice the plaintiff cannot refile his complaint. His remedy is
appeal from the order of dismissal.

If the dismissal is w/o prejudice the plaintiff cannot appeal, his remedy is refile.

BarQ: the defendant file his answer and he sets up in his answer affirmative defenses. The court
grants the affirmative defenses and dismisses the complaint. Is the dismissal with prejudice or
w/o prejudice?

A: the dismissal is with prejudice therefor the refiling of the complaint is barred if the dismissal
is based on any of the following grounds:

1. That the COA or claim is barred by prior judgment or res judicata;

2. That the COA or claim is barred by statute of limitations or prescription;

3. That the claim or demand set forth in plaintiff pleading or complaint has been paid,
waived, abandoned or otherwise extinguished;

4. That the claim on which the action is founded is unenforceable under the statute of
frauds.

So if the complaint is dismissed based on this grounds then the dismissal is with prejudice.

So if let us say that the affirmative defense set forth by the defendant is any of these and then
the court grants the affirmative defense or defenses, the dismissal is with prejudice. But if the
dismissal of the complaint is based on other grounds other than these then it is without
prejudice.

For eg.#1

The affirmative defense set up is improper venue and then the court is convinced that the venue
of the action is improperly made because it should be filed with another court. If the court grants
the affirmative defense of improper venue then the dismissal is without prejudice, then the
plaintiff can file his complaint in the proper venue of the action.

Eg. #2

Plaintiff files his case with the MTC. The court dismisses the action on ground of lack of
jurisdiction over the subject matter of the action. It is the RTC has jurisdiction.

Q: Is the dismissal with or w/o prejudice?

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A: the dismissal is without prejudice. The plaintiff may refile his complaint in the court that has
jurisdiction.

So if you`d be asked the question of if the court grants the affirmative defenses asserted in the
answer or set up in a motion to dismiss (if the motion is allowed) then it dismissed. Is the
dismissal with or w/o prejudice?’

A: it depends on what ground the complaint is dismissed. If any of these:

1. That the COA or claim is barred by prior judgment or res judicata;

2. That the cause of action or claim is barred by statute of limitations or

prescription;

3. That the claim or demand set forth in plaintiff pleading or complaint has been
paid, waived, abandoned or otherwise extinguished;

4. That the claim on which the action is founded is unenforceable under the
statute of frauds.

then the dismissal is with prejudice.

Omnibus Motion.

What is an Omnibus Motion?

An omnibus motion is a motion that attacks a pleading an order, a judgment, or proceeding.

What is an example of a motion that attacks a pleading?

A: Motion to dismiss (if allowed) is a motion that attacks a pleading.

What is an example of a motion that attacks an order, a judgment, or proceeding?

A: motion for reconsideration is a motion that attacks an order, a judgment, or proceeding.

Motion for new trial.

What is the omnibus motion rule?

A: the omnibus motion rule is a rule that requires that a motion must state all the grounds and
objections then available and those grounds and objections not set up are deemed waived.

The rule requiring the movant to include all grounds and objections that are available at the time
of the filing of the motion. Those grounds and objections not filed in the motion are deemed

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waived. Except those grounds which are not deemed waived even if not set up as stated in sec.
1, rule 9. You should be familiar with them.

What does the rule require the movant, the applicant to do if he files a motion for leave to file a
pleading, a motion, etc. (like you file a leave to amend your answer).

A: the rule requires that you already attach the proposed amended pleading that you are asking
the court to admit.

So a motion for leave to file a pleading or to file a motion of leave to file a motion or pleading shall
be accompanied by a pleading or motion sought to be admitted.

As to form, the motion must comply with the rules applicable to pleadings. So you also have the
captions, pleadings, etc.

MODULE 13

MODULE 13

Our lesson for today is dismissal of actions. We are now in Rule 17 and this is Module 13 –
Dismissal of Action.

But in Rule 17, the dismissal of the action is caused by the plaintiff himself or due to the act of
the plaintiff. It may either be caused by the plaintiff or due to the act of the plaintiff. And so, the
question is may the plaintiff himself dismiss his own complaint?

So, here is the plaintiff he files his complaint, he pays the appropriate docket fees and then, later,
he will dismiss his complaint himself. Do we have plaintiff like that? Well, this is the topic that
we have in Rule 17, Dismissal of Actions.

And so, the question is, if the plaintiff dismiss his complaint, how may the plaintiff dismiss his
own complaint? Well, there are two ways, class. (1) The plaintiff may file a Notice of Dismissal;
or (2) a Motion to Dismiss.

I mentioned to you one time class that a motion to dismiss is a prohibited motion, except when
filed on four grounds that we explained last time. But that motion to dismiss is a motion to
dismiss filed by the defendant. It is a prohibited motion except if filed in any of the four grounds
that we mentioned last time. But this motion to dismiss (that we are now talking about) is a
motion to dismiss filed by the plaintiff himself.

So, how may the plaintiff dismiss his complaint? Number 1, by filing a Notice of Dismissal. The
plaintiff himself will file a Notice of Dismissal. And Second, by filing a Motion to Dismiss. The
plaintiff, himself, will file a motion to dismiss his own complaint.

Is this Motion to Dismiss likewise a prohibited motion? NO, a motion to dismiss his own
complaint filed by the plaintiff himself is not a prohibited motion, it is a motion authorized or
allowed by Rule 17.

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So, let’s talk about the first way by which a plaintiff may dismiss his own complaint. We said by
Notice of Dismissal. The plaintiff himself files a notice of dismissal.

Question in the Bar Exam: When may the plaintiff dismiss his own complaint by filing a notice
of dismissal? At what point in the proceedings?

Answer: Before service upon him (upon the plaintiff) of defendant’s answer or a motion for
summary judgment.

So, here is the plaintiff v. the defendant. He (plaintiff) files a complaint and he pays the
appropriate docket fees, and then he wants to dismiss his own complaint. Can he do that? Yes,
of course!

How? By filing a Notice of Dismissal. I’d like you to know, class, that the plaintiff may dismiss
his own complaint by filing a Notice of Dismissal before he is served with defendant’s answer or
a motion for summary judgment.

Now, I mentioned to you about an answer one time, and I think when we say “answer” you know
what that means, we have talked about that many times in the past. But what perhaps you do
not know yet is a motion for summary judgment. And we will talk about that motion in the future,
one of these days. So, just write it down- that the plaintiff may dismiss his complaint by a notice
of dismissal before service upon him of defendant’s answer or a motion for summary judgment.

Question: Supposed the plaintiff filed a Notice of Dismissal. Let us say on July 16, what may the
court do? Well, the court will issue an order confirming the dismissal. So, the order that the
court may issue confirming the dismissal may come at a later time, perhaps, a few days after
July 16, like, let us say, August 1 when the court issues an order confirming the dismissal.

Question: In the example that we have when is the complaint said to have been dismissed? At
what point or on what date is the complaint said to have been dismissed?

Answer: On July 16, when the Notice of Dismissal is filed, then the complaint is dismissed as of
that date when the Notice of Dismissal is filed. So, the next day, July 17, this case is no longer
a pending action because it has already been dismissed.

What about the order issued by the court on August 1? That is an order that simply confirms
the dismissal. It does not approved the dismissal, it merely confirms the dismissal. Approval is
not the same as confirmation. I hope you understand the presentation on this point.

BUT LISTEN CLASS, question is: what is the nature of the dismissal? Or what is the effect of the
dismissal?

Well, the dismissal is without prejudice to the refiling of the complaint.

So question: May the plaintiff refile his complaint, exactly the same complaint except that, this
time, he will change the date of course? YES, because the dismissal is without prejudice. (Write
in your notebook, “the dismissal is without prejudice” meaning the plaintiff can refile his
complaint or the plaintiff can file his complaint again.) Why? Because the dismissal by Notice of
Dismissal is without prejudice.

Are there exceptions? Yes, there are exceptions.

1. Except if in the notice of dismissal the plaintiff states that the dismissal is with
prejudice. Except in the notice of dismissal filed by the plaintiff, the plaintiff himself
states that the dismissal shall be with prejudice, then it will be with prejudice because

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 the plaintiff himself is mentioning or has stated in his notice that the dismissal is with
prejudice; or
2. The second exception is the dismissal shall be considered an adjudication of the case
on its merit if the plaintiff has once dismissed his action based on or containing
the same claim. So, if the plaintiff has once dismissed his complaint or action containing
or basing on the same claim, then the refiling is also barred because the rule says it shall
be considered an adjudication upon its merits. You call that the “two-dismissal rule”.
What is the “two-dismissal rule”? It is the rule that bars the refiling of the complaint by
the plaintiff who has once dismissed an action based on or including the same claim.
Example: So, you have X, he files a complaint against Y. then he files a Notice of
Dismissal. The court issues an order confirming the dismissal. And then months or weeks
later, X files the same complaint against Y, and then after filing his complaint against the
same defendant Y, he again files a notice of dismissal. Then the court issues an order
confirming the dismissal. And then, weeks later or months later, he again files the same
complaint against the same defendant. Question: Can he still file this complaint? NO
MORE, because the complaint is now barred by what is known as the two-dismissal rule.
So, if the plaintiff files a complaint against the defendant. The defendant has not filed an
answer or a motion for summary judgment yet. So, the plaintiff has not been served with
an answer or a motion for summary judgment then the plaintiff can dismiss his complaint
by filing a notice of dismissal. If the notice is dismissal is silent as to whether the
dismissal is with prejudice or without prejudice, then the dismissal is said to be without
prejudice. Supposed, the plaintiff says the dismissal is with prejudice, then it will be with
prejudice because the plaintiff himself says that the dismissal is with prejudice. Supposed
the plaintiff says in the notice that it is without prejudice, then it is without prejudice.
But supposed nothing is said that it is with or without prejudice, then it is without
prejudice. (I hope you understand that presentation, class.)

Now, supposed the defendant has already filed an answer to the complaint or a motion for
summary judgment, QUESTION IN THE BAR EXAM: May the plaintiff this time still dismiss his
complaint notwithstanding that he has been served with defendant’s answer or a motion for
summary judgment? YES, NOT ANYMORE BY NOTICE OF DISMISSAL BUT BY MOTION TO
DISMISS.

Who will file the motion to dismiss? THE PLAINTIFF HIMSLEF FILES A MOTION TO DISMISS.

But I’d like you to take note class that the motion to dismiss requires the approval of the court.
A while ago, we said that the notice of dismissal has to be confirmed but this time a motion to
dismiss has to be approved. I requires a court approval.

So, let us say that the motion to dismiss was filed on July 16, but the order of the court approving
the motion to dismiss was issued on August 1. When is the complaint said to have been
dismissed? Is it on July 16 or August 1?

Answer: Upon the approval of the motion to dismiss which is, in the example given, August 1.

Take note: Here, what is the nature or effect of the dismissal? The court issues an order approving
the motion to dismiss. Question: What is the nature or effect of this dismissal?

Answer: The dismissal is without prejudice to the refiling of the complaint by the plaintiff. Except
only if the order itself states otherwise. Unless otherwise stated in the order approving the motion
to dismiss.

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So, I’d like you to know class that the dismissal of the complaint upon motion of the plaintiff is
without prejudice unless otherwise stated in the order. Unless the order itself states that the
dismissal shall be with prejudice.

If let us say, the defendant has asserted a counterclaim against the plaintiff in this action and
then the plaintiff files a motion to dismiss his complaint, then the court issues an order approving
the motion to dismiss, then the dismissal shall be limited to the complaint because the dismissal
of the complaint shall be without prejudice to the right of the defendant to prosecute his
counterclaim in the separate action; unless within 15 days from notice of the motion, he
manifests his preference to have his counterclaim resolved in the same action. (I’d like you to
take note of that) That it is without prejudice to the right of the defendant to prosecute his
counterclaim in a separate action, unless within 15 calendar days from notice of plaintiff’s
motion, the defendant manifest his preference to have his counterclaim resolved or litigated in
the same action.

Example: defendant has asserted a counterclaim in his answer and that happened before he was
served of the copy of plaintiff’s motion to dismiss. Now, if the court issues an order, the order
approving the motion to dismiss is limited to the complaint – it is not the case itself but the
complaint. So, the dismissal is limited to the complaint. Because it is without prejudice to the
right of the defendant to prosecute his counterclaim in another or separate action. But may it be
resolved in the same action? YES, if within 15 days from notice of plaintiff’s motion to dismiss,
he will express his preference to have his counterclaim resolved in the same action.

I would direct your attention to SECTION 3 of RULE 17 and I’d like you to pay attention to this
section because it tells us the instances when a complaint may be dismissed upon motion of the
defendant or on court’s own motion – meaning even no motion filed by the defendant, the court
an dismiss it motu propio or sua sponte, meaning upon the court’s own initiative or upon the
court’s own motion.

Instances when the complaint may be dismissed due to the fault of the plaintiff and this is upon
motion of the defendant or upon the court’s own motion. So section 3 says, (1) if for no justifiable
cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the
complaint or (2) if the plaintiff without any justifiable cause fails to prosecute his action for an
unreasonable length of time; and (3) for no justifiable cause, the plaintiff fails to comply with the
rules of court or fails to comply with the order of the court, then on motion of the defendant or
upon the court’s own motion, the complaint may be dismissed.

Question: What does that mean (for no justifiable cause)?

There is no reason at all, there is no reason advanced by the plaintiff and when the date of his
presentation of evidence in chief arrives, on that day he fails to appear and there is no explanation
why the plaintiff failed to appear on that date. His complaint may be dismissed upon motion of
the defendant or upon court’s own motion.

Supposed the defendant did not file a motion at all, may the court itself dismiss the complaint?
YES, it can do so motu proprio.

Bar Exam: So, here is plaintiff filing a complaint against the defendant, and in due time
defendant filed his answer. Then the pre-trial was concluded and the case was set for
presentation of evidence. (Later, class, when we get to pre-trial, I will tell you that the court will
issue a pre-trial order. And the pre-trial order will already indicate the dates of hearing, dates for
presentation of plaintiff’s evidence ad dates for presentation of defendant’s evidence.) Let us say
that despite notice, the plaintiff failed to appear on the date of the presentation of his evidence
in chief on the complaint.

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Question: What may happen to his complaint? It may be dismissed. Although, class, in reality,
let us say the plaintiff is given 5 trial dates to present and complete the presentation of his
evidence on these 5 separate trial dates. Let us say, July 1, July 5, July 16, July 19 and July
30. These trial dates are mentioned in the pre-trial order. These are the dates when the plaintiff
should present his evidence in chief on the complaint. On July 30, the plaintiff is expected to
complete his presentation of evidence. 1st trial date, the plaintiff is unable to present any
evidence. Well, this trial date (July 1) is simply been waived. The plaintiff is deemed to have
waived the presentation of his evidence on that trial date. If that happens again in July 5 because
the plaintiff is not available, then that is also deemed waived. And if that happens again in July
16, it is deemed waived. And if that happens again in July 19, it is deemed waived. Supposed on
July 30, the plaintiff was able to complete the presentation of his evidence, then the court cannot
dismiss his complaint because the plaintiff was able to present his evidence in chief on the
complaint, and he was able to conclude, complete his presentation of his evidence in chief on
the complaint.

If let us say, again on July 30 the plaintiff was not able to call his witnesses, he was not able to
present his evidence, then the court may now dismiss his complaint. Because without any
justifiable cause, the plaintiff failed to present his evidence in chief on the complaint.

What about when the plaintiff presented his evidence in chief on the complaint and then he
rested his case, he formally offered his evidence and then he rested his case? And the defendant
also presented his evidence and he rested. Then, the plaintiff asked the court to give him 2 trial
dates to present his rebuttal evidence, so, he was given 2 trial dates. On these two trial dates,
the plaintiff failed to appear and present his evidence. QUESTION: MAY THE COURT DISMISS
HIS COMPLAINT? NO, BECAUSE THE FAILURE TO APPEAR IS FAILURE TO APPEAR ON THE
DATES FOR THE PRESENTATION OF HIS REBUTTAL EVIDENCE. WHAT THE RULE IS
MENTIONING IS FAILURE TO APPEAR ON THE DATES OF THE PRESENTATION OF HIS
EVUDENCE IN CHIEF ON THE COMPLAINT. (Rebuttal evidence is not an evidence in chief.)

Supposed there is a counterclaim asserted by the defendant. The pre-trial was concluded. And
there is now the trail dates and the presentation of the evidence in chief on the complaint, he
failed to appear. There was only one trial day he asked, and he failed to appear without any
justifiable cause and so the court dismissed the case. Is the dismissal correct? NO, because the
dismissal is limited to the complaint; because it is without prejudice to the right of the defendant
to prosecute his counterclaim in a separate or in the same action.

What is dismissed is the complaint because it is without prejudice to the right of the defendant
to prosecute his counterclaim in a separate or in the same action.

NOW LISTEN TO THIS ONE: Supposed the complaint was dismissed under Section 3 of Rule 17
(Section 3- three instances when the court may dismiss the complaint on motion of the defendant
or on its own initiative – YOU NEED TO MEMORIZE THEM. The second one is failure to prosecute
his action for an unreasonable period of time. The case has been sleeping for so many years it is
not moving and the plaintiff is not doing anything to prosecute his action. And some years have
passed and nothing have been done in his complaint because the plaintiff himself did not file
anything to make his complaint move. Then that will be failure to prosecute his action for an
unreasonable length of time, just simply call it failure to prosecute.)

Question: What constitutes an unreasonable length of time? That will be a question of fact. What
is reasonable will have to depend on the circumstances of time, place and person.

Supposed, no judge has been assigned to the court, then it is not the fault of the plaintiff that
his case is not moving because no judge has been assigned to preside over that court. As when

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the presiding judge of that court has retired or has been dismissed, and then there is no
replacement. Let us say, because of the situation there was a lockdown for so long a time, and
so the courts are closed for the time being, and it cannot be determined or ascertained when
they will be functioning again as courts, then it is not the fault of the plaintiff that his case is
not moving, so, that cannot be said as failure to prosecute.

So, what is failure to prosecute within reasonable period of time I a question of fact.

Failure to comply with the Rules of Court or failure to obey an order of the court – like when the
plaintiff is directed to amend his complaint to implead an indispensable party, he refused to do
so, he did not want to comply, what may the court do? Dismiss his complaint for failure to obey
an order of the court.

In all these instances (under section 3), the dismissal shall be with prejudice.

What is the effect/ nature of the dismissal? It is with prejudice. Unless it is otherwise stated in
the order dismissing the complaint.

Let us say, the court issues an order nothing is said in the order whether it is with or without
prejudice, then the dismissal is WITH PREJUDUCE. If the order dismissing the complaint is
silent as to whether it is with or without prejudice, under section 3, the dismissal is with
prejudice.

Supposed the order says “without prejudice,” then it shall be without prejudice.

Question: What is the remedy of the plaintiff if his complaint is dismissed under Section 3 of
Rule 17?

Answer: It will depend on the nature of the dismissal. If the order is silent, then the dismissal is
with prejudice, then the remedy of the plaintiff if to appeal from the order of dismissal. He cannot
refile. But if the order states that the dismissal is without prejudice, then plaintiff’s remedy is to
appeal (refile) his complaint.

Listen to this one class:

If the dismissal is without prejudice, the order of the dismissal is non appealable. But if it is
without prejudice, then the remedy is appeal because you cannot refile.

Supposed the order of the court dismissing the complaint under Section 3 of Rule 17 is silent,
and then the plaintiff did not act on it, he allowed more than 15 days to expire from the date he
received the order dismissing his complaint. Can he still appeal? NO MORE, because the order
of dismissal has attained finality.

Supposed, the plaintiff refiled his complaint, then his complaint may now be dismissed on the
ground of barred by prior judgment or res judicata. The defendant can file a motion to dismiss
alleging that the complaint that was refiled is barred by prior judgment.

Listen to this one, class: The dismissal under Section 3 of Rule 7 constitutes an adjudication of
the case upon its merits. And so, the dismissal is equivalent to a judgment. That is why, if the
order of dismissal becomes final and the plaintiff refiles his complaint, the defendant may seek
the dismissal of the complaint alleging res judicata or barred by prior judgment.

So, that concludes our lesson for Rule 17, dismissal of actions.

Next topic: pre-trial.

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Pre-trial is mandatory, it cannot be dispensed with. Like in criminal case, there is also a pre-trial
and it cannot also be dispensed with because it is mandatory.

In both criminal and civil actions, pre-trial is mandatory.

What is pre-trial?

A pre-trial is a procedural device intended to clarify and limit the basic issues between the
parties. Its main objective is to simplify, abbreviate and expedite the trial or even dispensed with
it.

At the pre-trial, the parties have entered into stipulation of facts, they agreed to the facts to be
presented to the court. There is no dispute as to the facts, and all that the court has to resolve
is a question of law. Can they (parties) question the facts agreed upon? YES, AND SO TRIAL IS
DISPENSED WITH.

The main purpose of pre-trial is to simplify the issues, abbreviate and expedite the trial or even
dispensed with it completely. Or they can agree on some facts and just a few facts remaining for
trial, then the pre-trial will be focused on the disputed facts.

Take note: the stipulation of facts must be in writing.

Pre-trial is a conference at which the court, with the cooperation of the parties, will seek to
determine precisely what are the factual issues to be tried and how the parties will intend to
establish their positions on this disputed factual issue.

When may a case be set for pre-trial?

After the last responsive pleading has been served and filed then the case is ripe for a pre-trial
and the clerk of court may now issue a notice of pre-trial.

What is that last responsive pleading?

That will depend on what are the pleadings that have been filed.

MODULE 14, LECTURE 1

We are in module 14 Rule 18 and our lesson is Pre-trial. A Pre-trial is a procedural device
intended to clarify and limit the basic issues between the parties. Its main objective is to
simplify, abbreviate or expedite trial or otherwise dispense with it. The main objective of
the conference among the parties at the pre-trial is to determine what precisely are the
factual issues between or among the parties and to limit the presentation of evidence on
these factual issues.

Q: When may the case be set for pretrial or when is a case ripe for pre-trial

A: Well, the case may be set for pretrial after the last responsive pleading has been served and
filed.

Q: What is the last responsive pleading?

A: Last responsive pleading is determined by what pleadings are already been filed.

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So that if let us say, this is the plaintiff and then you have the defendant. And then this is the
complaint, summons was served on the defendant and he files an answer to the complaint that
is all that the defendant has filed an answer to the complaint. The answer is the responsive
pleading to the complaint and that is the last responsive pleading and therefore, the case may
now be set for pretrial but if the defendant files an answer and it contains counterclaim against
the plaintiff then the counterclaim is not the last responsive pleading because the answer
contains a counterclaim against the plaintiff. The last responsive pleading might be in this case
an answer to the counterclaim. Although if the counterclaim is of compulsory counterclaim,
the plaintiff need not file an answer there too. Alright. I hope you understand.

Supposed her claim is all permissive counterclaim. This is also a pleading. All right, then at
that point that is not the last responsive pleading yet because the last responsive pleading
would be an answer to the permissive counterclaim. All right now is let us say the plaintiff will
not file an answer to the permissive counterclaim, then the plaintiff should be declared in
default with respect to the permissive counterclaim. But as we noted one time, a party may be
declared in default only upon motion of the other party.

Supposed, they would ask you in the bar exam. Plaintiff files a complaint against the
defendant, the defendant does not file an answer to the complaint. It is now way Beyond the
period for filing of the answer and yet, the defendant has not filed any answer to the complaint
question.

Q: May the case be set for pretrial now? Is the case already ripe for pre-trial at this
point.

A: No, because the last responsive pleading has not been filed.

Q: What will happen in this case?

A: There will be no pretrial because the defendant has not filed his responsive pleading and so
it cannot be said that the last responsive pleading has been served and filed.

So here class in this situation in this example, there will be no pretrial, instead, all motion of
the plaintiff, the defendant should be declared in default and then there will be a judgment by
default. No pre-trial would be have in this case for the reason that the last responsive pleading
has not been filed.

Here is the defendant he files an answer and then eventually he files with the Court third-party
complaint against X, then the last responsive pleading in this example would be the answer of
X to the third party.

I told you a while ago class: What will be the last responsive pleading in a case will be
determined by what pleadings have already been filed? Now let us say that the last responsive
pleading has been served and filed. Let us assume that the last responsive pleading has been
served and filed,

Q: Who has the duty to set the case for pretrial?

A: Well, under the present rules, it is the duty of the clerk of court within 5 calendar days to
issue a notice of pretrial setting the case for pre-trial within 60 days from the date of the filing
of the last responsive pleadings.

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**Within five calendar days from the filing of the last responsive pleading, the clerk of the clerk
of court shall issue a notice of pretrial setting the case for pretrial not later than 60 calendar
days from the date of the filing of the last responsive pleading.

Q: What must be included in the notice of pretrial?

A: Well aside from the directive for the parties to file their respective pre-trial briefs, the notice
of pretrial must also include the dates of the pretrial and of the Court-Annexed Mediation and
of the Judicial Dispute Resolution. The notice of pretrial directs the parties to file their
respective pre-trial briefs in a manner as to ensure its receipt by the other party at least three
days before the date of the pre-trial

Q: Upon whom should the notice of pretrial be served?

A: The notice of pre-trial must be served upon the party if not represented by a counsel. But if
the party is represented by a counsel the notice of pretrial must be served on his counsel and
the counsel has the duty to notify his client or party represented by him of the date and time of
the pre-trial. I'd like you to take note of that

This is a departure from the old rules. Long ago when I was a new lawyer class, the notice of
pre-trial must be served not only upon the counsel but upon all the parties even if represented
by counsel, and so in those days, it was extremely difficult to set a case for pretrial because if
let us say if there are five plaintiffs all of them must be given notices and if there are six
defendants all of them must be given notices aside from the lawyers if the defendants are
represented by different lawyers, then all of them must also be given notices of pretrial, now if
let us say that the date stated in the notice would arrive and then they go to court let us say
and then the record would show that one of them has not been notified, then the pre-trial
could not be conducted in those days.

Now, procedure has been simplified so that now the notice of pretrial should be served on the
party if not represented by counsel and if represented by counsel, the counsel himself has the
duty to notify the party represented by him of the date and time of the pre-trial.

I told you that within five calendar days from the date of the filing of the last responsive
pleading, the clerk of court must issue a notice of pretrial etcetera. Now, let us say, let's just
suppose. The clerk of court failed to send the notice well, there's nothing that prohibits the
plaintiff’s counsel from filing a motion asking that the case be set for pre-trial because the clerk
of court has neglected to send a notice of pretrial as required by the rules. So if there is a
failure on the part of the Clerk of Court to send the notice of bridge, then the counsel is not
also precluded from filing a motion to set the case for pre-trial but that is only when the clerk
of court fails to send the notice of pretrial as required by the rules.

Supposed pre-trial is conducted even when one of the parties has not been served with a notice
of pre-trial because the counsel representing him has in fact filed a motion asking the court to
set the case for pretrial on the date. That's why he was not given notice of the pretrial anymore,

Q: Is the pre-trial conducted without a notice of pre-trial valid?

A: No, it is not valid.

Q: What is the nature of pretrial?

A: Well, pre-trial is mandatory. That is the nature of a pre-trial. It is mandatory in a civil case.
It is also mandatory in all criminal games so in both Criminal and Civil actions pre-trial is
mandatory.

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Supposed, when the date set for pretrial arrived and all the parties and their counsel are in
court and then both counsel stood and manifested the following: your honor, we do not believe
that there can be a settlement in this case and so with all due respect, may we respectfully
move that the pre-trial be dispensed with and then the court granted the motion and the pre-
trial was not conducted any more because on motion of the counsel the court dispensed with
the pre-trial.

Q: Is that correct?

A: No, because settlement is not the only purpose of the pre-trial.

Q: What are the matters to be taken up at the pre-trial or what are the purposes of
pretrial?

A: The matters to be taken up of the pre-trial are the following:

1. the possibility of an amicable settlement or a submission to Alternative modes of

dispute resolution

Q: What are the alternative modes of dispute resolution?

A: 1. Arbitration, although you don't really have to arrange them in this order

2. mediation
3. conciliation.
4. early neutral evaluation.
5. Mini Trial.
6. any combination of the foregoing.

2. simplification of the issues

Q: how will you determine the issues to be tried in this case?

A: Well, issues may be classified into factual issues, if the controversy is with respect to the
facts, the parties could not agree on the facts. So you call them factual issues or the
controversy may be on the legal principles or the provisions of law that should be applied in
which case you have legal issues. Now as to the factual issues, these are determined by the
pleadings the complaint and the answer.

So if let us say the plaintiff alleges in his complaint that the defendant borrowed 1 million from
him then the defendant admitted then that will not be an issue anymore.

But if the defendant specifically denies having borrowed 1 million from the plaintiffs then one
issue is that whether or not the defendant is indebted to the plaintiff in the amount of 1
million, although putting it that way whether or not that is Very crude way of defining an issue.
If you take up legal writing there is a better way of defining an issue involved in a case.

Usually, that is how the they frame the issues involved in the case whether or not okay,
although my grammar teacher tells me that it is enough to say whether you don't have to say
or not. So if you say whether the defendant is indebted to the plaintiff, that is sufficient,
although It has become our habit to include or not whether or not so “or not” has become the
cousin of whether, whether or not, so you just have to unlearn to discard that habit of

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automatically saying or not whenever you say whether all right, but that is in a class in legal
writing.

3. possibility of obtaining stipulations or admissions of facts and of documents to avoid

unnecessary proof

So at the pre-trial a party may propose for admission certain facts like the plaintiff will say may
I invite the defendant to admit it that upon filing of the complaint, his indebtedness has
accrued of 1.8 M and then the defendant says admitted then you don't have to prove that
because the admission is in the nature of a judicial admission now.

When you will take up evidence, there are certain matters that do not need proof or evidence.
One of them is one of judicial admission: An admission made in the pleadings or in the course
of the proceedings would be in the nature of a Judicial admission. A Judicial admission is an
admission made by a party to a case in the course of the proceeding in the same case and then
the rule on evidence tells us that the admission if it is judicial binds that admitter and he
cannot take opposition that is inconsistent with this admission. He cannot contradict his
admission except if he can show that it was made through a palpable mistake or that no such
imputed admission has been made. like when the plaintiff will ask the defendant to admit that
the deed of sale attached to his complaint as it is the faithful reproduction of the original copy
and then the defendant will say that is admitted then you don't have to admit you don't have to
prove the authenticity of that copy anymore because it has been admitted.

4. limitation of the number and identification of witnesses and setting up trial days.

Now listen to this one class. Well if let us say you have a witness, but he has not been
mentioned at the pre-trial, you may not be allowed to present him to give his testimony even if
it is very material because you did not mention him at the pre-trial unless you can show a
good cause to the court and then the court may allow you but the point is if you have not
mentioned him, you cannot present him unless the court will allow you because you are able to
explain why you failed to mention his name.

Q: Identification of witnesses, what does that mean?

A: You have to identify them that you have to mention their names.

5. Advisability of preliminary reference of issues to a commissioner.

Like if the case involves adjustment of long accounts, all right accounting then you may agree
with other party to refer the adjustment of accounts to an accountant

If It's a boundary dispute It involves boundary dispute then you may agree to refer the matter
to a panel of surveyors. You call them Commissioners.

6. propriety of rendering judgment on the pleadings or summary judgment or of dismissing

The action should a valid ground therefore be found to exist.

It may be too hazy because you don't know what is judgment on the pleadings. You don't know
how this summary judgment. All right, but I will tell you class. Okay, just so you will have a
little understanding but we will talk about them again in due time that there can be a

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judgment on the pleadings when the plaintiff files a complaint the defendant files an answer
the answer fails to tender on the issue or in otherwise admits the material allegations in
plaintiff’s complaint then on motion of the plaintiff there may be what you call judgment on the
pleadings. The court will render judgment based on the pleadings. Why? Because the answer
fails to tender and issue, I don't know if you can understand what that means tender and
issue. Like let us say here is the complaint says it alleges that the defendant borrowed 1M from
the plaintiff on July 16, 2019 and the defendant admits it then there's no issue. The answer
does not tender an issue because it admits it but if the defendant denies and the denial is a
specific denial then there will be an issue. The issue is whether the defendant borrowed 1M
from the plaintiff on July 16, 2019.

Summary judgment, there is no genuine issue as to any material fact. There is an apparent
issue but it is found by affidavit by deposition or by admission that the issue is not genuine
that the issue is false or pretended not genuine then there will be going to be summary
judgment just so you will understand what we are talking about. Later, we will discuss in detail
judgment on the pleadings and summary judgment.

In pre-trial also one of the purposes of pretrial is:

7. the requirement for the parties to:

1. mark their respective evidence if not yet marked in the judicial affidavits of their
witnesses.

I think you need to know you need to become familiar with what we are talking about judicial
affidavit and I told you one time to perhaps go to some law offices and then stay there for two
days or one week on the job training so that class you will get to know all these pleadings, By
the way, this subject civil law procedure is the bulk of remedial law and remedial law in the bar
exam is 20%. This subject will be so easy to understand if you become familiar with the
pleadings that we are talking about like judicial affidavit.

The requirement for the parties to mark their respective evidence.

Q: What will be the marking be?

A: Well, if you are the plaintiff you use the letters of the alphabet like exhibit A exhibit B Etc.

If you are the defendant, you will use the numbers like exhibit one exhibit 1, exhibit 2.

Supposed, there are two defending parties, they have conflicting defenses. Let us say then if
the name of the defendant the first one is Agranza and the other one is Mendez. Then the
markings of exhibits for the first defendant will be exhibit 1- Agranza, exhibit 2-Agranza.

2. examine and make comparisons of the adverse parties’ evidence is vis-à-vis (in relation) to

the copies to be marked

So here class if let us say you have this document dated July 16, 1949 and then you do not
want to submit the document because it has sentimental value for example, just an example
and then you have a copy, the copy is the one to be marked. Okay, and then the other party
will examine and compare the copy with the original and then he will manifest for the record
whether the copy is a faithful reproduction of the original.

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3. Manifest for the record stipulations regarding the faithfulness of the reproduction
and the genuineness and due execution of the parties’ evidence.

Q: May a party reserve evidence that is not available at the pre-trial can he reserve it?

A: Yes, but only in the following manner. So the reservation of evidence not available at the
time of the pre-trial should be made in the following manner:

 if the evidence is testimonial given by a testimony of a witness then by giving the name
of the witness or the position of the witness and the nature of the proposed testimony
you will make a reservation to present him as a witness later. Okay. So you made the
reservation at the pre-trial then you have to mention his name and the nature of his
proposed testimony.
 if the evidence is documentary or an object evidence, then by giving a description of
the evidence you describe if it is a documentary evidence or it is an object evidence
then you describe the documentary evidence or the object evidence. The rule tells us
that no reservation shall be allowed if not made in the manner that I have just
mentioned to you.

8. such other matters asked me Aid in the prompt disposition of the action.

SIMPLIFIED VERSION:

Section 2. Nature and [p]urpose. – The pre-trial is mandatory and should be terminated
promptly. The court shall consider:
(a) The possibility of an amicable settlement or of a submission to alternative modes of dispute
resolution;
(b) The simplification of the issues;
(c) The possibility of obtaining stipulations or admissions of facts and of documents to avoid
unnecessary proof;
(d) The limitation of the number and identification of witnesses and the setting of trial dates;
(e) The advisability of a preliminary reference of issues to a commissioner;
(f) 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;
(g) The requirement for the parties to:

1. Mark their respective evidence if not yet marked in the judicial affidavits of their
witnesses;
2. Examine and make comparisons of the adverse parties’ evidence vis-a-vis the copies
to
be marked;
3. Manifest for the record stipulations regarding the faithfulness of the reproductions
and
the genuineness and due execution of the adverse parties’ evidence;
4. 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.

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 No reservation shall be allowed if not made in the manner described above.
(h) Such other matters as may aid in the prompt disposition of the action.

You have to memorize them class. So that if I asked in the bar exams, then you will know to
state in your notebook.

Q: Whose presence is required at the pre-trial?

A: Well the party and counsel are required to appear at the pre-trial.

Before the amendment, only the party is required to appear at the pre-trial, now, the party and
counsel.

Q: What are the effects of the failure of the party and counsel to appear at the pre-trial what

are the effects?

A: 1. Well if it is the plaintiff and his counsel who failed to appear at the pre-trial despite
notice. It should be despite notice because if there's no notice there is no obligation to appear
because there is no notice so the failure without just cause of a party and counsel to appear at
the pre-trial despite notice shall result in a waiver of any objection to the faithfulness or
reproduction of documentary evidence mark or their genuineness and you execution.

2. when duly notified the failure of plaintiff and cousel this time to appear without valid cause
shall cause the dismissal of the complaint the dismissal shall be with prejudice unless
otherwise ordered By the court. The remedy of the plaintiff is appeal if the dismissal is with
prejudice. But if the dismissal is stated to be without prejudice, the remedy is one is refile the
complaint

Okay, similar failure on the part of the defendant and counsel shall be a cause to allow the
plaintiff to present his evidence ex-parte against the defendant the presentation of evidence ex
parte shall be within 10 calendar days from the termination of the pre-trial and the court shall
render judgment. Based on the evidence presented. Okay, we will continue from here next
meeting. It will still be on pretrial. All right, as I have told you it might be a nice idea a good
idea for you to go to some law offices and observe what is going on.

Module 14 Transcript (Lecture 2)

Pre-trial (Continued)
Rule 18

We resume our lesson on Pre-trial (Rule 18).

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Last time, I was telling you about the effects of the failure of a party and his counsel to appear
at the pre-trial despite notice to them. I told you that their failure to appear will result in the
waiver of their objection to the faithfulness of the reproduction of a copy of a documentary
evidence that is marked or their genuineness and due execution.

I also mentioned to you the effect of the failure of the plaintiff and his counsel to appear at the
pre-trial despite notice. If the plaintiff and his counsel fail to appear at the pre-trial despite notice
to them, then the action or the complaint will be dismissed by the court and the dismissal
amounts to an adjudication of the case on its merit. That means that the dismissal should be
with prejudice, except only if the court states otherwise in its order of dismissal.

I mentioned to you many times last time that if the dismissal is with prejudice, then the remedy
is appeal from the order of dismissal. But if the dismissal is without prejudice, then the remedy
is re-file the complaint. But if it is the defendant and his counsel who failed to appear at the pre-
trial despite notice, then that will authorize the plaintiff to present his evidence ex-parte against
the defendant and for the court to render judgment based on the evidence presented by the
plaintiff.

Q: What about if, let us say, the party and his counsel are present at the pre-trial, but
they failed to bring a document to be marked as evidence, or they failed to bring an object
evidence? What will be the effect of such failure to bring to court the evidence required?
That will deemed a waiver of the presentation of such evidence. The party who fails to bring a
documentary evidence or an object evidence at the pre-trial will be deemed to have waived the
presentation of such evidence.

Q: Is there an instance when the non-appearance of a party and counsel at the pre-trial
or court-annexed mediation or judicial dispute resolution despite notice will be excused?
Yes, if the non-appearance of a party and counsel at the pre-trial, court-annexed mediation or
judicial dispute resolution is caused by or due to (1) acts of God, (2) force majeure, or (3) duly
substantiated physical inability.

The physical inability of the party or counsel must be duly substantiated.

What do you mean by force majeure?

You say force majeure if it is an extraordinary event beyond the control of the person who was
absent.
Example: a war/riot/strike/violent protest that blocked the streets or highway

Sometimes ‘force majeure’ is used interchangeably with ‘acts of God’. But the rule includes both,
so there should be a distinction between an ‘act of God’ and ‘force majeure’. When you say acts
of God, these are events caused by forces of nature (like earthquake, flood).

Q: Supposed a party anticipates that he will not be able to appear at the pre-trial because
of certain reasons or any cause that might prevent his appearance in court. May a
representative appear on behalf of such party during the pre-trial, court-annexed
mediation or judicial dispute resolution?
Yes, if such representative is fully authorized in writing to (1) enter into an amicable settlement,
(2) submit to alternative modes of dispute resolution, and (3) to enter into stipulations or
admissions of facts and documents. (Usually, this is a special power of attorney.)
Memorize these.

Q: May there be a second pre-trial?

A second pre-trial may be held if both parties consent to the holding of second pre-trial.

Q: What must the parties file before the pre-trial?

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The parties are required to file their respective pre-trial brief.

(The word ‘pre-trial’ is written with a hyphen, but the word looks more elegant without
a hyphen.) :-D

Q: What shall the pre-trial brief contain?

The following:
1) A concise statement of the case and the reliefs prayed for – What is the case all about?
The defenses set up by the defendant/defending party?
2) A summary of admitted facts and the proposed stipulation of facts – What are the facts
admitted by the parties in their pleadings?
3) The main factual and legal issues to be tried or resolved
4) The propriety of referral of the factual issues to commissioners – like when the case
involves a judgment of accounts and the matter is too complicated to be handled by a
layman, then you will need a certified public accountant, the matter can be referred to a
CPA, who will be designated as a commissioner)
5) The documents and other object evidence to be marked, the purpose should be stated –
includes the kinds of evidence according to nature: object evidence, documentary
evidence, testimonial evidence
Example: The gun used in a shooting incident (object evidence)
Another example: Deed of Sale (documentary evidence) – in your pre-trial evidence, you
have to describe the evidence and state the purpose/what matter you seek to prove with
that documentary evidence (like, you say: To prove that the plaintiff bought this lot from
the defendant in 1949)
6) The names of the witnesses and the summary of their respective testimonies – If you fail
to mention a document or you fail to mention the name of the person who will be testifying
as your witness, then you cannot present him anymore at the trial. You cannot also
present the document at the trial as your evidence, unless you can show good cause,
then the court may allow you.
7) A brief statement of points of law and citation of authorities

Q: What will you do with the pre-trial brief?

You serve it on the other party and file it in court. You must serve a copy of your pre-trial brief
on the other party in such a manner as to ensure the receipt by the other party of your pre-trial
brief at least three days before the date of the pre-trial. The mode of service should be such as
to ensure the receipt of the pre-trial brief by the other party at least three days before the pre-
trial.

Bar Question: Supposed a party fails to file his pre-trial brief. What is the effect of the
failure of a party to file his pre-trial brief?
It will have the same effect as failure to appear at the pre-trial.

Q: Supposed the plaintiff is present in court; his counsel is also present; the defendant
is present in court; the counsel for the defendant is also present – everybody is present
in court. But then, although the defendant has submitted his pre-trial brief, the plaintiff
failed to file his pre-trial brief. May the court conduct a pre-trial, notwithstanding that
the plaintiff has not filed his pre-trial brief?
No, the court cannot conduct a pre-trial. Instead, the court should apply the rule on the effect of
failure to file a pre-trial brief – it will have the same effect as failure to appear at the pre-trial.

Q: Let’s say that the pre-trial was conducted. It was terminated. What shall the court do
upon the termination of the pre-trial?
The court shall issue a pre-trial order within 10 calendar days from the termination of the pre-
trial.

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Q: What shall be stated in the pre-trial order?
The pre-trial order shall recite in detail the matters taken up at the pre-trial. It shall also state
the following:

1) An enumeration of the admitted facts – At the pre-trial, there will be exchanges of

manifestations between the parties

Example: Counsel for the plaintiff might say, for example, “May I invite the defendant to
admit the following…
If the defendant admits, then he will say, “Admitted.” If he cannot admit, he will say,
“Denied.”

All these will have to be stated in the pre-trial order – an enumeration of the admitted
facts.

2) The minutes of the pre-trial conference

3) The legal and factual issues to be tried
4) The applicable law, rules, and jurisprudence
5) The evidence marked by the parties
6) The specific trial dates for continuous trial, which shall be within the period provided by
the Rules – When we get to Trial, we will mention the timeframe within which a party
should present his evidence. The pre-trial will state the specific trial dates for continuous
trial.

The judge will ask the plaintiff, addressing the plaintiff’s counsel, “You have five
witnesses, counsel. How many trial dates do you need for these five witnesses?” The
counsel for the plaintiff might say, “We need four trial dates, or five trial dates, or six trial
dates.”

“What about you, defendant, how many trial dates would you need?”
The defendant’s counsel will respond by mentioning the number of trial needs he would
need for the complete presentation of defendant’s evidence.

They will look at their schedule of cases and the calendar of the court, and then they will
fix the trial dates, which will be agreed upon by all the parties. Those will be the dates to
be stated as the trial dates in the pre-trial order.

7) The case flowchart to be determined by the court, which shall contain the different stages
of the proceedings up to the promulgation of the decision and the use of time frames for
each stage in setting the trial dates – like presentation of evidence by the plaintiff,
presentation of evidence by the defendant, submission of memoranda up to the
promulgation of the decision

8) A statement that the one-day examination of witness rule and most important witness
rule will have to be followed

Bar Question: What is the one-day examination of witness rule?

This is provided for in A.M. No. 03-1-09-SC (Guidelines for Pre-Trial).

The one-day examination of witness rule requires that a witness has to be fully examined
in one day only. The direct testimony and the cross-examination of the witness will have
to be conducted in one day.

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The rule says that this must be strictly adhered to, subject to the court’s discretion during
the trial on whether to extend the direct or cross-examination for justifiable reason.

Example: The witness is an expert witness. (You will learn this when you take up
Evidence.) He will testify on DNA evidence, for example. He went to court, but for some
reasons, when he was in the middle of his testimony, when he was asked to produce the
result of the DNA examination, and then when he looked in his bag, for example, the
result of the DNA examination is not in his bag; he forgot about it. He was able to explain
to the satisfaction of the court why he failed to put it in his bag. Then the court may allow
resetting, so the testimony of the witness may be continued on another day.

The Most Important Witness Rule

At the pre-trial, the court shall determine the most important witnesses to be heard. The
court will limit the number of witnesses.

Example: Let us say that you mentioned five witnesses – witnesses A, B, C, D, and E. The
two witnesses are important witnesses; the testimonies of the three others may be
dispensed with because they are simply corroborative or cumulative; they will testify on
the same matters already testified to by the other two witnesses. The court may dispense
with the presentation of the three witnesses – that will be limitation of the number of
witnesses. If a party will present 10 witnesses who will be testifying regarding the same
matters anyway, then one or two of the 10 witnesses would be enough, because the court
will hear the same thing from the other witnesses anyway.

The court will determine the most important witnesses to be heard and the court will
limit the number of witnesses.

Take note: If you mention the names of the witnesses, you have also to state the facts to
be proven by each of these witnesses (the matters each witness will testify on in his
testimony) and the approximate number of hours per witness shall be fixed.

Specific Trial Dates for Continuous Trial

You have to stay within the timeframe. It cannot be: this date [will be the first trial date],
and then the next trial date will be two or three months later. (Off the record: Sometimes
this is what some courts are doing. That should not be allowed.)

Q: Is postponement of the presentation of party’s witnesses at the scheduled date

allowed?
It is not allowed. Although, as I mentioned, courts allow it. But the rule says it is not
allowed, except only if the failure of the witness to attend is caused by acts of God, force
majeure, or physical inability of the witness to appear and testify.

The party who caused the postponement will be warned by the court that the presentation
of his evidence must still be terminated within the remaining days previously agreed
upon. There will be no replacement date – that date will not be replaced. You have to
present or complete the presentation of your evidence within the remaining dates
previously agreed upon at the pre-trial.

That is why, as a matter of practice, for practical purposes, when you choose your trial
dates, number one consideration: choose trial dates in which you do not have any conflict
of schedule. Number two: when you are fixing your trial dates, if you have five witnesses,
you ask the court to give you six trial dates. You have an extra. Let’s say, for any reason
you cannot utilize one of these trial dates, then you have an extra trial date. Because
under the rule, postponement of presentation of a witness is not allowed. You have to

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prepare at least two witnesses, so that if one cannot come, then you have a substitute
witness.

Q: Supposed you are the one presenting your evidence/representing the plaintiff
and then on the trial date that you yourself had chosen, you failed to appear (as
I told you, that will be a waiver of your right to present a witness on that date) or
your witness failed to appear (I told you that the postponement will have to be
justified). Supposed the plaintiff is the one presenting evidence. On that trial date,
the plaintiff’s counsel is in court; his witness is in court, he is ready to go to trial.
But when the case was called, defendant’s counsel is not in court and the
defendant himself is not in court. Supposed the opposing party fails to appear
without any valid cause, on the scheduled hearing as stated in the pre-trial order,
may the other party (like the plaintiff in our example) still present the witness?
Yes. The presentation of the scheduled witness will proceed, with the absent party being
deemed to have waived the right to interpose any objection and to conduct cross-
examination. The absent party will be deemed to have waived the right to interpose any
objection and also to have waived the right to conduct cross-examination.

When you will call a witness, you will have to offer his testimony, and the opposing party
may object to the offer of the testimony. When you conduct the examination, the other
party may object to a particular question. If the testimony is by means of a judicial
affidavit, the other party can object to a particular question that is in the judicial affidavit
and to a particular answer.
Example: He will say, “You Honor, please we object to question and answer number 10
in the judicial affidavit of this witness and we move that it be bracketed and deleted.”

“What is your ground, counsel?”

“The ground is it is immaterial. It is not relevant to the issues in this case.”

Then the court may say, “Strike it out, bracket it and delete it.”

Q: What is the effect of the contents of the pre-trial order?

The contents of the pre-trial order shall control the subsequent proceedings in the course
of the trial, unless modified before the trial to prevent manifest injustice.

Q: Is a court-annexed mediation mandatory?

Yes, a court-annexed mediation is mandatory.

Q: When shall the court refer the parties for a court-annexed mediation?
(By the way, the court-annexed mediation is conducted by the Philippine Mediation
Center. There is a mediator to be assigned to the case.)
After the pre-trial, the court shall refer the parties for a mandatory court-annexed
mediation. The period for the court-annexed mediation shall not exceed 30 calendar days.

Q: What about a judicial dispute resolution – is it mandatory?

No, a judicial dispute resolution is not mandatory, even if the court-annexed mediation
fails (if it does, the case will be returned to the court of origin and then the court of origin
may determine if a judicial dispute resolution may still be conducted notwithstanding
failure of court-annexed mediation). Judicial dispute resolution is not mandatory but
discretionary on the part of the court.

Example: In the opinion of the judge of that court, there is a need to refer the matter for
a judicial dispute resolution, then the case will be referred to another court for a judicial

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 dispute resolution. If it fails, then trial will be conducted but by the court of origin (the
court in which the case is originally raffled).

9) A statement that the court shall render judgment on the pleadings or summary judgment,
as the case may be

That concludes our lesson on Rule 18, Module 14. Next time, we will go to the next
module. You have questions? You write them down and you ask them in our next Zoom
meeting.

– Nothing Follows –

MODULE 15,16 & 17

We are now in Modules 15,16, and 17 and this are Rules 19,21 and 22. We will discuss them
one after another. Last time class we talk about pretrial in rule 18 and the last topic we were
talking about was court annexed mediation and judicial dispute resolution. Court annexed
mediation we mentioned is mandatory on the other hand judicial dispute resolution is
discretionary on the part of the court. So there may or there may not be judicial dispute
resolution depending on the court and we explained that last time. Before we go to our lesson
today, I’d like us to know that the proceedings in court annexed or judicial dispute resolution
are confidential so meaning they cannot be used at the trail even if let us say one party had made
an admission during the court annexed and judicial dispute resolution the other party cannot
make or use that admission at the trial because the proceedings are confidential and another
point I’d like to emphasis is that the court after a pretrial may render what you call a judgment
or summary judgment, we will explain judgment on the pleadings on a latter time and also
summary judgment but I’d like you to know that after pretrial the court may render judgment
on pleading or summary judgment and it can be done upon motion of the party or motu prorio
by the court. The court may included in the pretrial order that the case will be submitted for
judgment on the pleading or summary judgment and then I’d like you to take note that the order
of the court that the case will be submitted for judgment on the pleadings or summary judgment
cannot be the subject of an appeal or a petition for certiorari; although the judgment itself
meaning the judgment on the pleadings or the summary judgment is appealable.

Rule 19, Intervention.

Now class in intervention there must be a pending action because a person will intervene in the
action if there is no pending action then you cannot talk about intervention. Take note class that
in intervention the initiative to become a party to the pending place comes from the intervenor.
Lets say X as a plaintiff and then Y as a defendant and then Z who is not a party can become a
party may means of intervention the initiative to become a party come from the intervenor and
this should not be confuse with a third-party complaint because in a third-party complaint the
initiative to bring in a person who is not yet a party to the action comes from the defendant who

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is also known now as a third-party plaintiff, he will bring in Z into the action by means of a third-
party complaint and Z will now be referred to as third-party complainant. In intervention he will
be referred to as intervenor, in a third-party complaint he will be referred to as third-party
defendant.

Q: Who may intervene in an action?

Not anyone can intervene.

1. A person who intervenes must one who has a legal interest in the matter in litigation
2. A legal interest in the success of either party.
3. A legal interest against both.
4. He is so situated as to be adversely affected by the disposition of a property or distribution of
a property in the custody of the court or an officer thereof.

When we say “legal interest” that means a material interest the intervenor stands to be injured
or to be benefited by a judgment that may be rendered by the court in the pending action. So it
means that the intervenor will be either gain or will lose as a result of a judgment that may be
rendered. An example is let us say here is X vs. Y and plaintiff filed an application for the
attachment of these property, this property is believed to be the property of defendant Y and so
there was a levied on attachment. The property was the subject of a levy on attachment but it
turns out that this property is owned by Z but it has levied upon. Take note case that in this
example has so many remedies one of them is to intervene in the action. So he will intervene in
the action because he has a legal interest in the matter in litigation or he is so situated as to be
adversely affected by the disposition of a property or distribution of a property in the custody of
the court. So here Z can intervene in the action.

What about let us say Z in the example given, is a transferee pendente lite ? We talk about this
one time. So let us say that the litigation between Z and Y, the case involves between the two of
them involves a grand piano (for example) and then while the case is pending in court X conveyed
his interest over this piano to Z (transferred his interest over this piano to Z) the transfer of
interest is pendente lite because it was made while the action is pending in court and so Z is now
referred to as transferee pendente lite.

Q: May Z intervene in this action? No, he cannot intervene because by means of the transfer of
the interest pendente lite Z became a virtual party in this case even if Z does not intervene he
will be affected by the judgment and the judgment court in this case will bind him. If let us say
X prevails in this case that will benefit Z, if X lose in this case that will also affect Z, and so even
if Z does not intervene the judgment would be binding upon him because Z as a transferee takes
that place of X.

Q: When may a person intervene? At what point in the proceedings may a person intervene? Let
us say that this person is anyone of those 4 persons we mentioned awhile ago. And he wants to
intervene, at what point?

At anytime before rendition of judgment by the trial court.

Let us say the case is now on appeal may a person still intervene? No more because there is
already a judgment rendered by the trail court. And in act the judgment is now the subject of an
appeal although you must have come across some cases in which even while the case is on

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appeal a person was allowed to intervene because he is an indispensable party. So if a person is
an indispensable party he may be allowed to intervene even in that stage of proceedings.

Q: How may this person intervene?

By filing a motion for leave of court to intervene and he will attach to his motion his proposed
pleading in intervention which will be served on the original parties.

Q:What do you call the “pleading in intervention”?

You call it a “complaint in intervention”. Except only when the intervenor unites with the
defending party in resisting the claim of the plaintiff that it will be called “answer in intervention”.
If the motion to intervene is granted and the complaint in intervention is admitted then the
complaint in intervention may be answered, an answer to the complaint in intervention may be
filed within 15 calendar days from notice of the order admitting the complaint in intervention.

Q: When may the court refuse leave to intervene?

1. When it will unduly delay or prejudice the adjudication of the rights of the original parties. (As
when there was a delay in upbringing of the intervention the case was already submitted for
decision, theres no decision yet but the trial is over. Although the court may also allow)
2. When the intervenor’s rights may be fully protected in a separate proceeding.

Intervention is not allowed in the following:

1. In land registration cases because the remedy of a person adversely affected by the land
registration case is to file an opposition.
2. Cases governed by the rules on summary procedure.

Intervention is merely collateral or ancillary to the principal action. The intervention is not an
independent proceeding. So that if the original or main action is dismissed the complaint in
intervention can no longer be acted upon.

Rule 20 is calendar of cases. You just read that one.

Rule 21 is about subpoena.

Q: What is a subpoena?

A subpoena is a process directed to a person requiring him to attend and testify at the hearing
or trial of an action or at any investigation conducted by a competent authority or at the taking
of his deposition. (You have to memorize definition of a subpoena)

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Q: What are the kinds of subpoena?

You have:

1. Subpoena ad testificandum- subpoena requires the person to attend and testify

2. Subpoena duces tecum- subpoena requires him to produce and bring to court certain
documents, objects, etc. and to testify thereon.

But if you simply says “subpoena” without more, that is understood to mean subpoena ad
testificandum. (You have to memorize the kinds of subpoena)

Q: Who may issue a subpoena? (This one is very important)

1. The court before whom the witness is required to attend and testify.
2. The court where his deposition is to be taken.
3. The officer of body authorized by law to do so in connection with an investigation that is being
conducted.
4. Any justice of the Supreme court, Court of Appeals in any case or investigation pending within
the Philippines.

These are the officers who may issue a subpoena. What about the police can they issue a
subpoena? No. What about an agent of Nation Bureau of Investigation? No also. What about the
prosecutor? Yes.

Q: Suppose you file a request for the issuance of the subpoena. Does that require a notice to the
other party? No, does not require a notice to the other party.

Absent any proceeding, suit or action commenced or pending before a court or before any officer
authorized to conduct an investigation a subpoena cannot be issued if theres no pending
investigation.

Q: When is a witness not bound by a subpoena?

The following are the instances when a witness is not bound by a subpoena:

1. If the witness resides more than 100 km from his residence to the place where he is to testify
by ordinary course of travel. He can file a Motion to Quash the subpoena. What do you call the
right of the witness not to be compelled to testify in a civil case? The viatory right of a witness.
Suppose your case is pending before a court in Baguio city you have a witness who resides in
Quezon city (definitely morethan 100 km from Baguio City) you need him to testify in your case
pending in Baguio city. If he volunteers to come in Baguio City you have no problem, but suppose
he invokes his viatory right. Let us say a subpoena is served on him but he refuse to testify
saying he is not bound by the subpoena and so he files a Motion to Quash. What is your remedy?
To take his deposition in Quezon City. His deposition will be held/taken in Quezon City and so
he cannot invoke his viatory right. How will you take his deposition in Quezon City? What are
the steps to follow so you can take his deposition in Quezon city? You file a notice to the other
party in the action stating the time, place and the name of the person whose deposition would
be taken. And then the notice will be served to the other parties and then they will be proof of

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service of the notice for the taking of the deposition and then this proof of deposition shall be
presented to the clerk of court to the place (like Quezon city) where the deposition is to be taken.
And then on the basis of such proof of notice the clerk upon authority and under the seal of the
court shall issue the subpoena and the subpoena will be served in the witness and the his
deposition in Quezon city. He cannot longer invoke his viatory right because his deposition will
be taken in the same city where he resides.
2. The witness is a prisoner.
There are 2 kinds of prisoner:

1. A detention prisoner. The witness is not bound by the subpoena if there is no permission
of the court in which his case is pending.
2. But if the prisoner is serving sentenced to death, reclusion perpetua, or life imprisonment
and is confined in a penal institution then he is not bound by the subpoena unless there is
an authority of the Supreme Court to bring out the prisoner.

Q: What are the grounds to quash a subpoena?

The grounds are:

1. If the subpoena is a subpoena duces ticum, then the subpoena can be quash on the following
grounds:
A) If it is unreasonable and oppressive;
B) Relevancy of the books, documents , or things does not appear;
C) The person in whose behalf the subpoena is issued fails to advance the reasonable cost of
the production thereof; and
D) The witness fees and kilometrage allowed by the rules were not tendered at the time the
subpoena was served. (How much was the witness fee? The last time I look at the rules was
200 pesos per day.)
2. If the subpoena that is the subject to motion to quash is a subpoena ad testificandum, the
grounds are:
A) The witness is not bound by the subpoena. We mentioned the instances where the witness
is not bound by the subpoena.
B) The witness fees and kilometrage allowed by the rules were not tendered at the time the
subpoena was served.

Q: How is a subpoena served? What are the modes of service of a subpoena?

A subpoena is served in the same manner as personal or substituted service of summons. But
at the time of service the following must be tendered to the witness: the witness fee, the cost for
the production of the documents and other materials subject of the subpoena.

Q: Can a person be compelled to appear and testify without a subpoena? Yes, if let us say the
person is already present in court then he can be compelled to testify even without a subpoena.

Q: What are the consequences of disobedience to a subpoena?

1. The person who disobey a subpoena duly served may be arrested and brought before the court
where his attendance is required.
2. Citation by contempt by the court from which the subpoena is issued.

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 Rule 22. Computation of time.

Q: How do you compute time? Or the number of days? Let us say you have 15 days to file a
motion or pleading or notice. How will you count 15 days? You received the judgment on July 1
and you have 15 days to appeal the judgment. How will you count 15 days starting in July 1
(that is very important in law practice) Well, the rule is that you exclude the first and you
include the last. So you say July 1 you do not include that. July 16 include the last. In counting
the number of days exclude the first and you include the last; but if the last day falls into a
Saturday, Sunday or legal holiday in the place where the court sits then the pleading, motion or
notice may be filed on the next business day. “In the place where the courts sits” that phrase
refers to holiday it does not refer to Saturday or Sunday. For example September 1 is a holiday
in Baguio but not in La Trinidad. So let us say, your office is located in Baguio City the court
where the case is being tried is located in La Trinidad. Your deadline is September 1, can you file
it in the next business day? No, because it is not a legal holiday in La Trinidad where the court
sits.

Q: A light felony prescribes in 60 days. The 60th day fell on a Sunday and so the complaint was
filed the next day which was Monday, that was the 61st day, and so the accused file a motion to
quash alleging prescription of the offense. The prosecution oppose the motion arguing that the
last day for filing the complaint fell on a Sunday. So according to him if the last day of filing falls
off on a Saturday, Sunday or legal holiday in the place where the court sits it can be filed in the
next business day. And so according to the prosecution the motion to quash must be denied. If
the court denies the motion to quash because the judge agrees with the prosecution in his
argument. Would the court be correct? No, because the offense prescribes the day before the
filing of the compliant in court. The rule, that the last day of filing falls off on a Saturday,
Sunday or legal holiday in the place where the court sits applies only in filing of pleadings,
motions, notices and other papers in court. It does not apply to prescription of offenses or
even causes of action.

Why is it that the phrase “legal holiday in the place where the court sits”. why is it only applies
to legal holiday? Because if it is Saturday in Baguio, it is also Saturday in other parts of the
country. If it is Sunday in Manila, it is also Sunday in Baguio. But if it comes to a holiday there
are holidays that apply only to certain localities.

MODULE 18

MODES OF DISCOVERY (RULE 23 TO RULE 29)

We are in module 18 and it covers rule 23 up to rule 29. These rules are about the modes of
discovery.

MODES OF DISCOVERY

It has been said that these modes of discovery are in the nature fishing expedition because these
modes are resorted to by a party to unmask the other party, his opponent, for him to be able to

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know or ascertain information or facts that are in the possession of the other party which is
relevant to the issues involved in the case.

Different modes of discover

- Any one of these modes may be resorted to by one party to discover the facts that are in the
possession or under the custody of that party. So that the trial will not be undertaken in the
dark, so that before they go to trial, this party is able to ascertain the facts that are known
to or in the possession of his opponent.

Q: What are the purposes of these modes of discover?

a. To narrow down or clarify the basic issues between the parties

b. To ascertain the facts that are relevant to the issues involved in the case.

Q: what are the modes of discovery?

a. Deposition pending action – also known as deposition de bene esse. (Some people
pronounce it as “de-be-ne-es” but i’m not sure. As long as you know how to spell it, that’s
ok.)
b. Deposition before action or pending appeal – also referred to as deposition in perpetuam
rei memoriam.
c. Interrogatories to parties
d. Request for admission
e. Production or inspection of documents or things
f. Physical or mental examination of a party

(memorize them. It has been asked a lot of times)

Q: what should a party do if he wants to resort to these modes of discover?

(you have to identify what mode of discovery he would like to avail himself of)
 If it is Deposition pending action - a party should file an ex parte motion in court. (take
note: there must be a pending action). If a party either the plaintiff or the defendant would
like to avail himself of this mode of discovery, then he should file in that pending action or in
the court where the action is pending, an ex parte motion to take the deposition of the other
party or a person who is not a party to the action either by upon oral examination or upon
written interrogatories.

Ex. X as the plaintiff and Y as the defendant.

 Who may avail himself of this mode of discovery called deposition pending action?
Either the plaintiff or the defendant.
 Whose deposition may X take? It may be the deposition of Y who is a party to this
action or the deposition of W who is not a party to the action.
 Whose deposition may be taken? The deposition of a party or a deposition of a person
who is not a party to the action.
 In the same way, Y may also take the deposition of X or any person who is not a party
to the action.
 Q: how may the deposition be taken? It can be upon oral examination or upon written
interrogatories.

 If it is a deposition before action - no action has yet been filed but an action is anticipated
to be filed in the near future. So this party would like to perpetuate his own testimony or the

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 testimony of another person. This is known as perpetuation of testimony. I told you that this
deposition before action is also known as deposition in perpetuam rei memoriam.

- No action is pending in court but an action is anticipated to be filed.

- Q: What should a party do if he wants to resort to this mode of discovery known as deposition
before action? He should file a verified petition in the court of the residence of any expected
adverse party. So let us say if you have 4 expected adverse parties. they reside in diff places,
baguio, agoo, dagupan, angeles. Let us say that you are the one who would want to
perpetuate your own testimony or the testimony of other person. Then what should you do?
You file a verified petition in the court of the residence of any of the expected parties. You
say expected parties because there is no action yet. There is no pending action.
- Q: What about if it is a deposition pending appeal? If an appeal has been taken from a
judgment of a court or before the taking of an appeal if the time for perfecting the appeal
has not yet expired, the court in which the judgment was rendered may allow the taking of
deposition of witnesses to perpetuate their testimony for use in the event of furthers
proceedings in the said court. In such a case, the party who desires to perpetuate the test
should file a motion in the said court for leave to take the deposition upon notice and service
thereof as if the action is pending in that court.
- NOTE: if there is now a pending action, it is a deposition pending action, you file an ex parte
motion. If it is a deposition before action, you file a verified petition. Where will you file the
verified petition? in the court of the residence of any of the expected parties. If it is a
deposition pending appeal, you file a motion for leave to take the deposition. Where will you
file the motion for leave? In the court that rendered the judgment. When may you file the
motion? If an appeal has been taken from the judgment or before the time of within the time
of perfecting an appeal provided that period has not yet expired. (just take note of what we
have just said)

 Suppose it is an interrogatory to parties? A party desiring to take the interrogatories of a

party, should file an ex parte motion. With what court? The court where the case is pending.
There is a pending case.

 If it is a request for admission by the adverse party, the thing to take note of is at any time
after issues have been joined, a party may file and serve upon the other party a written
request for admission.

 If it is Production or inspection of documents or things – it is upon motion of any party

with the court where the case is pending.

 If it is a Physical or mental examination of a party of a person – it should be upon notice

to the party to be examined and to all the parties in an action in which the mental or physical
condition of a party is in controversy. There should be a motion and notice to the person to
be examined and all other parties.

Let’s got to deposition.

Q: what is a deposition?

A deposition is the taking of testimony of any person whether a party to the action or not a party
at the instance of a party to the action.

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Q: Whose deposition may be taken? the deposition of a party or a party who is not a party to the
action.

Q: Upon whose instance may the deposition may be taken? At the instance of a party to the
action. so the deposition is taken out of court upon oral examination or written interrogatory.

The person whose deposition is to be taken or whose deposition is being taken or who has given
a deposition, you call him a deponent.

Q: If a party desires to resort to these modes of discovery, is a leave of court required? Well, you
have to make a distinction.

In deposition, it could be a deposition pending action, deposition in interrogatories to parties,

requests for admission, if an answer to the complaint has already been filed then leave of court
is not required. So if an answer to the complaint has already been filed, were talking about
deposition pending action or interrogatories to parties or request for admission, then leave of
court is not required if an answer has already been filed.

But if an answer has not yet been filed but the court has already obtained jurisdiction over the
person of the defendant or over the subject matter of the action, no answer has been filed yet,
then, there must be leave of court. Provided the court has already obtained jurisdiction over the
person of the defendant or over the subject matter of the action.

But for production or inspection of documents or things and mental or physical examination of
a party, there must always be leave of court.

Q: What is the scope of a deposition? – the deponent may be examined regarding any matter not
privileged provided it is relevant to the subject of the pending action whether it relates to a claim
or defense of any party.

Q: Before whom may depositions be taken? – if within the Philippines the deposition may be
taken before a judge or a notary public or a person authorized to administer oath. If in a foreign
country, the deposition may be taken before the secretary of the embassy or the diplomatic
minister and his staff or the consul general, consul, vice-consul or consular agent of the republic
of the Philippines or (I want you to take note of this) before such person or officer as may be
appointed by a commission or letters rogatory.

Q: What is a commission? – a commission is an instrument issued by a court of justice or other

competent tribunal in a foreign country to authorize persons to take a deposition or to do any
other act by authority of the court or tribunal that issued it. (I’d like you to take note class and
this is very important so that you will be able to distinguish a commission from letters rogatory)
a commission is addressed to an officer designated by name or a descriptive title. So a
commission is issued by court of justice or competent tribunal issued to a person addressed to
an officer designated by name or a descriptive title. On the other hand, letters rogatory (you
always put an s. letter“s”) is an instrument set in the name and by authority of a judge or court
to another court or judge requesting the latter to cause to be examined upon interrogatories filed
in a case pending before the court that issued it a witness who is within the jurisdiction of the
judge or court to whom the letters of rogatory are addressed.

Letters rogatory are addressed to a judicial authority in a foreign country. It may be applied for
and issued only after a commission has been returned and executed. So let’s say, a commission
was issued to an officer it was not executed, then that is the time when letters rogatory may be
issued.

Q: May a deposition be used as an evidence? - Q: For what purpose is a deposition be used?

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 1. If the deponent is a party to the case, his deposition may be used for any purpose.
2. If the deponent is a person not a party to the case, his deposition may only be used for
the purpose of contradicting him or impeaching him if he testifies.

Meanwhile, when you say for any purpose, what do you mean? – well, (a) to establish a claim or
a defense. So meaning, if you use the deposition to establish a claim or defense then you are
using the deposition as an evidence. It can be used as an evidence to establish or probe a claim
or defense; or (b) for the purpose of contradicting or impeaching him if he testifies.

On the other hand, if the deponent is a person not a party to the case, his deposition may only
be used for the purpose of contradicting him or impeaching him if he testifies. Except, if the
witness or deponent is dead or resides more than 100 kilometers from the place of trial or the
witness is unable to attend or testify because of age or some other infirmity or the party offering
the deposition is unable to procure the attendance of the witness or deponent by means of
subpoena or such other exceptional circumstances exist.

 Example problem. X v. Y
 X took Y’s deposition. So this is now the deposition of Y. Because there was no
settlement arrived at the pre-trial. Eventually, the parties went to trial and X
presented his evidence. Among the evidence presented by X to present his claims
against Y is the deposition of Y. Y did not testify as a witness in this case. But X has
in his possession the deposition of Y. Q: May X use the deposition of Y to prove his
claims against him? Yes, because the deposition of a party may be used by the other
party to prove or establish his claims or defense.

 But suppose the trial is in Baguio. X took the deposition of W, who resides in Baguio.
And W is always available to testify. W was never called to testify in this case. X
presented his evidence and then when he was asked to offer his evidence, I hope you
understand what I am saying. (at the trial, there will be that part of the proceeding
when the party will offer his evidence. If it is a documentary or object evidence, there
will be that point in the proceeding where X will have to offer his evidence) and so
when X made an offer of his evidence, he offered as part of his evidence the deposition
of W. Q: if you were the defendant Y, what objection could you make, if any, to the
admission of W’s deposition. Well, if I were Y, I will object to the admission of W’s
deposition on the ground that that deposition is inadmissible in evidence because it
is hearsay.

 But suppose W resides more than 100 kilometers from Baguio City. He resides in QC.
Q: Can X Use W’s deposition as an evidence? Yes. That is one of the exceptions.

 If let as say, X took W’s deposition. W resides in Baguio and is always available to
testify and then Y presented W as his own witness and then W testified in a way that
is not consistent with his deposition. His testimony is not consistent with what he
said when he gave his deposition, then X can use W’s deposition for the purpose of
contradicting him or impeaching him as a witness. When you will take up evidence,
you will learn all of this like impeachment of a witness and modes of impeaching a
witness, can you impeach your own witness, then the answer is no subject to some
exceptions.

 If Y would present W as his own witness, then X can impeach him if he testifies in a
way that is contrary to what he had mentioned in his deposition. He can use the
deposition as a means to impeach him if he testifies contrary to what he had

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 mentioned or said in his deposition. In evidence you will talk about what evidence is
admissible and what evidence is not admissible. I told you a while ago that hearsay
is not admissible in evidence. So let as say X took W’s deposition. W is in Baguio city.
W’s deposition is favorable to X, then X cannot use W’s deposition as his evidence.
What is X’s remedy? It is to call W as his own witness. So if the deponent is a person
not a party to the action, his deposition can be used only for the purpose of
impeaching him except if the witness is dead or resides more than 100 kilometers
from the place of trial etc.

 Q: suppose this is a criminal case. You have a witness who resides more than 100
kilometers from the place of trial and that witness is a witness for the defense or the
witness is about to depart form the Philippines with no fix date of returning and that
witness is a witness for the prosecution or the witness is sick etc. Q: may the
deposition of this witness be taken and used in evidence at the trial in a criminal
case? No. the way to do it is to take the conditional examination of the witness. You
call it conditional examination of a witness.

 Q: does that apply to both prosecution witness and defense witness? Yes. It is called
conditional examination. But what is the difference? If the witness is a prosecution
witness, his conditional examination may only be taken before the court where the
case is pending. But if the witness is a witness for the accused his conditional
examination may be taken before a judge or before a member of the Philippine bar in
a good standing. When we say before a judge, it could be a judge of any court.

Modules 19 & 19-A

Trial (Rule 30) & Consolidation and Severance (Rule 31)

Our lesson class is Rule 30 Trial and Rule 31 Consolidation and Severance. But I’d like to
recall to you what we took up last time. We talked about the modes of discovery and we
mentioned class the distinctions between deposition of a person who is not a party to the
action and one who is a party to the action as to purposes for which the deposition is used. I’d
like you to understand all of this so that it will be very easy for you to recall. You can recall
only if you understand the discussion.

Today class we will talk about Trial. We are now in Module 19 & 19-A. Take note class that
after the pre-trial the court will issue a pre-trial order. The pre-trial order will specify the dates
of the trial. Take note class that subject to just a few exceptions, the trial cannot be postponed
to another date.

Q: what does the rule require the parties to do regarding the scheduled hearings as
agreed upon by them and set forth in the pre-trial order? The rule requires the parties to
strictly observe the scheduled hearings as agreed upon and set forth in the pre-trial order.

The schedule of the trial dates for both the plaintiff and the defendant shall be continuous and
initial presentation of plaintiff’s evidence shall not be later than 30 days after the termination

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of the pre-trial. The plaintiff shall be allowed to present his evidence and complete the
presentation of his evidence within a period of 3 months or 90 calendar days which shall
include the date of the judicial dispute resolution if what is conducted. I told you one time that
while a court-annexed mediation is mandatory, the judicial dispute resolution is discretionary
on the part of the court.

The initial presentation of defendant’s evidence shall be not later than 30 calendar days after
the court’s ruling on plaintiff’s formal offer of evidence. You will take this up in evidence. Here,
the plaintiff is given a total of 90 calendar days to complete the presentation of his evidence.
After which, the plaintiff will make a formal offer of his evidence. In the formal offer of evidence,
the plaintiff will mention in court one by one the exhibits and the purposes for which the
exhibits are being offered and then the defendant or the adverse party is allowed to comment or
object to plaintiff’s evidence. After which, the court will resolve to either admit or deny
plaintiff’s evidence. That will be what? - the resolution of the court on plaintiff’s offer of
evidence.

Now, it will be the turn of the defendant to present his own evidence, and this will happen not
later than 30 days from the ruling of the court on plaintiff’s offer of evidence. The defendant
will complete the presentation of his evidence within a total period of 90 days or 3 months.

What about if there is a third party complaint or fourth party complaint or cross claim? The
presentation of evidence to the third/fourth party complaint, or counterclaim or cross claim
shall be determined by the court. But the total number of days shall in no case exceed 90
calendar days. It will depend on whether or not the parties will have rebuttal evidence. If they
have rebuttal evidence, or served rebuttal evidence, the court will also set the date for the
presentation of rebuttal evidence which shall be completed within a period of 90 days.

Now depending on the number of witnesses, the trial dates may be shortened. But take note
class that the rule states that the total period for the presentation of the parties’ evidence shall
be within 10 months or 300 calendar days. But if there is no third/fourth party complaint,
counterclaim or cross claim then the presentation of evidence of all the parties shall be
terminated within a period of 6 months or 180 calendar days.

Then the case will be submitted for decision. But the court may allow the submission of what
we call memorandum or memoranda. The case will be submitted for decision. The rule tells us
that the court shall decide the case and serve copies of the decision on all the parties within a
period not exceeding 90 calendar days from the submission of the case for decision with or
without memoranda - What does that mean? For example if the court has given the parties a
period to submit their respective memoranda, but they failed to do so then the court shall
decide the case just the same within a period of not exceeding 90 calendar days from the date
the case is submitted for decision with or without memoranda.

Q: may the trial be postponed? The court may adjourn a trial from day to day and to any
stated time or date as maybe convenient but it shall have no power to adjourn or reset the case
for a longer period than one month. So let’s us say that a case is postponed today, the next
date cannot be longer than one month from today.

But as we mentioned one time, the party who caused the postponement is warned that the
presentation of his evidence must be terminated on the remaining days as agreed upon or as
stated in the pre-trial order.

Now, let us say that the parties are now presenting evidence, take note class that the trial will
be limited to the issues stated in the pre-trial order that is why we said one time that at the
pre-trial the parties with the assistance of the court will define the issues that will be

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submitted to the court for trial and then the issues will be stated in the pre-trial order and at
the trial, the evidence that will be presented will be limited to the issues of the pre-trial order.
In short, the trial shall be limited to the issues stated in the pre-trial order.

Although one time, when we were in Rule 10, we talked about amendment to conform to the
evidence. And again I’d like to remind you about what happens when an issue not raised in the
pleadings are tried with express or implied consent of the parties, meaning the issue is not
raised in the pleadings, it is also not stated in the pre-trial order of the court, and then the
parties try this issue with their express or implied consent, then there may be an amendment
to conform to the evidence. So the trial shall be limited to the issues stated in the pre-trial
order subject to what we have discussed regarding amendment to conform to the evidence.

So the first one to adduce or present evidence is the plaintiff in support of his complaint. Then
the plaintiff will formally offer his evidence, assuming that he has called his witnesses - all his
witnesses have already testified and so the plaintiff will now make a formal offer of evidence
and then will rest his case.

Then the defendant will have his turn. The defendant shall adduce evidence in support of his
defense, counterclaim, cross claim or fourth party complaint if any. Then he will also rest his
case. And then the third party defendant, if any, shall also adduce his evidence or his defense
counterclaim, cross claim or fourth party complaint, if any. And then the parties against whom
any counterclaim or cross claim has been pleaded shall adduce evidence in support of their
defense. And then the parties may respectively adduce rebutting evidence and then upon
admission of the evidence, the case is deemed submitted for decision unless the court directs
the parties to argue or submit their respective memoranda.

Now class, the offer of evidence and objection thereto by the other party shall be made orally in
court. That is the rule now although I would still believe that if the evidence or exhibits are too
many and it might be more advisable to require that the offer of evidence be made in writing if
the exhibits are too many and numerous.

Q: who will receive the evidence? The judge will receive the evidence of the parties.

Q: may the reception of evidence be delegated to the clerk of court? Yes. But only if the
clerk of court is a member of the Philippine Bar. And only in the following instances:

 In default or ex-parte hearing

 In any case in which the parties agree in writing

Suppose the parties can agree upon the facts. There is no dispute regarding the facts because
the parties agree as to the facts of the case. Question, may the parties agree upon the facts
and submit the case for decision based on the facts without introduction of evidence?
Yes. The parties may agree on the facts and then submit the case to the court for judgment or
decision based on the facts agreed upon provided the agreement is in writing. Written
agreement regarding the facts of the case

Suppose the parties can agree only on some facts but they dispute the other facts then the trial
shall be held as to the disputed facts. But even so if there is a partial agreement on some facts
that partial agreement must still be in writing.

But I’d like you to take note class that there cannot be a judgment based on stipulation of
facts. The parties cannot agree on the facts and then submit the case for judgment based on
these facts on the following instances. So these are now the exceptions:

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 1. Legal separation
2. Annulment of marriage
3. Declaration of nullity of marriage

In these cases class, a judgment cannot be rendered on agreed stipulation/statement of facts.

That there cannot be a judgment based on stipulation of facts.

Take note class that in these cases of legal separation, annulment of marriage and declaration
of nullity of marriage, there cannot be a judgment by default. There cannot also be a judgment
on the pleadings in legal separation, annulment of marriage and in declaration of nullity of
marriage. Also, there cannot be a summary judgment in these cases and there cannot be a
judgment upon confession or judgment upon a compromise.

Q: May an action be suspended? Is it allowed to suspend an action? Yes. Under the civil
code, an action may be suspended if it is shown that the parties are willing to discuss a
compromise. So there is willingness on the part of one or both parties to discuss a compromise.
Or if it appears that one of the parties before the commencement of the action has offered to
discuss a possible compromise but the other party has refused the offer.

On this basis, the action may be suspended.

Now let’s talk about consolidation of cases.

Q: When can there be a consolidation of cases? When actions involving a common question
of law or common question of facts are pending before the court, it may order a joint hearing or
trial of any or all the matters in issue in the actions. So meaning that there are two actions
pending before the same court and they involve a common question of law or a common
question of facts then there can be consolidation of these two actions.

Q: Why is consolidation of actions allowed? - To avoid the possibility of conflicting decisions

being rendered and in the interest of orderly administration of justice.

Suppose the actions are pending in different courts. Question, may there be a consolidation
if the actions are pending before different courts? Yes, let us say that there is a civil action
and criminal action, the civil action is to enforce or recover civil liability arising from the offense
charged, then the civil action even if pending before another court may be consolidated with
the court trying the criminal action.

I’d like to explain that to you class. So you have learned that when a criminal action is
instituted in court, the civil action for the recovery of civil liability arising from the offense
charged is deemed instituted in the criminal action subject to the following exceptions:

1. The offended party waives the civil action

2. The offended party reserves the right to institute it separately
3. The offended party institutes the civil action prior to the criminal action

But if the civil action is an independent civil action then what we have just mentioned will not
apply. SO we are talking about civil action to recover civil liability arising from the offense
charged. One term that you can use is civil liability ex-delicto. So the civil action to recover civil
liability arising from the offense charged is deemed instituted in the criminal action.

So when you go to trial, you will be trying both the criminal and civil aspect of the case. One
exception is if the offended party institutes the civil action prior to the criminal action. So

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meaning this is the civil action and then it was filed first and while the civil action is pending in
court, the criminal action is instituted. What will happen to the civil action? The civil action
will be suspended in whatever stage it may be bound before judgment on the merit. Meaning, if
the civil action is instituted first and while it its pending in court, the criminal action is
instituted, then the effect of the institution of the criminal action is to suspend the civil action.
The civil action will be suspended in whatever stage before final judgment it may be found. The
only instance in which it is the criminal action will be suspended is when the civil action is a
prejudicial question. If the civil action is a prejudicial question, then it will be the criminal
action that will be suspended.

So it may happen class that the civil action is in what court – like a court in La Union. Because
as we have learned, if it is an action for damages that is a personal action, the venue of the civil
action shall be in the residence of the plaintiff or defendant at the election of the plaintiff. We
talked about that one time.

But let us say that the offense or crime happened in Baguio City, I also told you one time that
in a criminal action, venue is jurisdictional. So subject to some exceptions, if the crime or
offense is committed in Baguio, you have to file the information in a court in Baguio. Either the
first level courts or second level courts - depending on the penalty for the offense.

Q: So let us say that the civil action was filed in a court in La Union but the criminal
action is instituted in a court in Baguio City, may there be a consolidation of these two
actions even if they are pending in two different courts? Yes, there can be a consolidation.
But I’d like you to understand class that consolidation is not automatic in the sense that it
must be upon motion.

Q: upon whose motion? - Upon motion of the offended party.

So the offended party will file a motion for consolidation.

Q: In what court should the motion be filed? - In the court trying the criminal action. So the
court will not order a consolidation without any motion being filed. So the offended party will
file a motion in the court trying the criminal action. And then if the motion is granted, there
will be a consolidation.

Q: What case will be consolidated with what case? – It will be the civil action that will be
consolidated with the criminal action.

Q: May there be a consolidation although the actions are pending in different courts?
Yes. As we have noted in our example. In fact even if let us say because of the amount of the
plaintiff’s claim, the case is filed with the RTC in La Union, but because of the penalty involved
in the offense the criminal action is filed with the MTC, may there be a consolidation? Yes.
What case wil be consolidated with what case? So meaning the civil action will be consolidated
with the criminal action. And so the moment there is a consolidation, the two cases will be
tried jointly.

Q: Let us say that there is a petition for the issuance of a writ of possession. May this
petition be consolidated with the action to annul the foreclosure? No. because strictly
speaking, the petition for the issuance of a writ of possession although it is denominated as a
petition, it is not really a judicial process. It is a non-litigious process summary in nature. On
the other hand, an action to foreclose is an ordinary civil action and is adversarial in character.

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So if there is a consolidation, the right of the petitioner in the petition for the issuance of the
writ of possession will be prejudiced by consolidation with the annulment of the foreclosure
case.

Example: (Board)

Let us say that X – mortgagor and Y – mortgagee. And it is a mortgage upon a land, so it is a
real estate mortgage. X defaulted in the payment of his obligation so upon Y’s application, the
mortgage was foreclosed. There was a foreclosure sale. And let us say that Y was the successful
bidder. And then there was a certificate of sale that was issued by the sheriff who conducted
the foreclosure proceedings. And then Y filed a petition in court against X, for the issuance of
writ of possession. What is the remedy of the successful bidder at the foreclosure sale if he
wants to claim possession of the property that was sold at the foreclosure sale? Let us say that
the mortgagor is still in possession. The answer is to file a petition for the issuance of writ of
possession. So that was what Y did – he filed a petition in court for the issuance of the writ of
possession. Meanwhile, X alleged that the foreclosure sale is void. Let us say that he is
questioning the validity of the foreclosure of sale for failure to comply with the requirements of
notices. So this is an action to annul the foreclosure sale. Q: May this petition for the
issuance of writ of possession be consolidated with this action to annul the foreclosure
sale? No, because even if it is denominated as a petition for the issuance of a writ of
possession, this is an ex-parte petition. It is in fact although termed as a petition it is in fact a
motion that the court may (sorry di ko maintindihan) ex-parte. It is to annul judicial process.
On the other hand, this is an ordinary civil action, this is adversarial and this is non-
adversarial. Although there may be a respondent like X, it is still non adversarial. That is why
there can be no consolidation. This petition cannot be consolidated with this another ordinary
civil action.

Next meeting, we will continue from here in our next video presentation but on Saturday, it will
be a zoom meeting. So if you have questions, any question at all like our midterm exam is
coming up and you need to ask questions about it you present all these questions in our video
zoom meeting on Saturday. So that is all for today.

Module 20 & 20-A

Today class we will take up rule 32: trial by commissioner and rule 33: demurrer to
evidence.

Trial by Commissioner or Trial before a Commissioner.

Q: Who may be a commissioner?

He may be an accountant, a surveyor, an examiner or anyone who may be appointed by the court
by means of an order known as order of reference.

Q: when may the court refer the case for trial by a commissioner?
A: Upon agreement of parties in writing or if the parties do not agree, the court may still refer the
case for trial by a commissioner upon his own motion or on motion of either party.

e.g.
The case will require an examination of loan accounts or boundary disputes.

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Q: let us say that the case is referred to a commissioner for a hearing or trial, does the
commissioner have the power to issue a subpoena to a witness for example?
A: Yes.

Q: Does he also have the power to rule upon the admissibility of evidence?
A: Yes. Unless that power is withheld by the court from him. But if not otherwise provided in the
order appointing him as commissioner the commissioner has the power to rule on the
admissibility of evidence.

Q: Suppose, the commissioner issues a subpoena to a witness but the witness failed to obey the
subpoena. May the commissioner punish him for contempt?

A: Take note the refusal of the witness to obey subpoena will constitute a contempt of the court
that appointed the commissioner. So it is the contempt of the appointing court. It will be the
court that can punish him (the witness) for contempt.

If a commissioner is appointed by a court, trial shall proceed before the commissioner, as it

would be held in a court and after the trial the commissioner will submit his report to the court.
Objections by a party to the report may not be raised before the court that appointed the
commissioner unless the objections were made before the commissioner during the hearing.

Objections to the report that were then available during the hearing shall not be considered by
the court unless made before the commissioner.

If the parties will stipulate that the commissioner's finding will be final then only questions of
law shall be considered by the court.

Q: Are there instances where a commissioner is required to be appointed by the court or by the
rules.

A: Yes. And these are the instances:

1. In expropriation cases under rule 67 to determine the just compensation of the property
subject of the expropriation case;
2. In partition under rule 69 when the parties are unable to agree as to the manner of
partition.

Demurrer to Evidence.

Take note:
09:00-09:45 How to write and pronounce the word demurrer. Sorry, guys 😅 hindi ko alam kung
paano i-put into words. Though nirecord ko siya pero mahina. ✌

Q: Who files a demurrer?

A: In a civil case the one who files a demurrer is the defendant. There is also a demurrer to the
evidence in a criminal case, and the one who files it is the accused.

Q: May a defendant file a demurrer before the presentation of evidence by the plaintiff?
A: No. The time to file a demurrer is after the plaintiff has completed the presentation of his
evidence. Meaning after the plaintiff rested, or after the plaintiff has completed his presentation
of his evidence that is when the defendant may file a demurrer.

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Take note:
We call it Demurrer TO the evidence. That is why the time to file demurrer or the defendant may
file demurrer after the plaintiff has completed the presentation of evidence.

Q: Upon what grounds may a demurrer be filed?

A: On the ground that upon the facts and the law, the plaintiff has shown no right to relief.
Simple Term: Insufficiency of Evidence.

Discussion:
The ground is insufficiency of the evidence to sustain a judgment in favor of the plaintiff. So here,
the plaintiff completed his presentation of evidence, he rested his case and in the opinion of the
defendant. Or the way the defendant evaluates the plaintiff's evidence is that the evidence is not
sufficient to sustain a judgment in favor of the plaintiff. The plaintiff has not proven his claim
by preponderance of evidence, the defendant may file a demurrer to the evidence.

So here, the demurrer to evidence is in the nature of motion to dismiss on ground of insufficiency
of evidence. If the defendant files demurrer to evidence, he is seeking the dismissal of the case
on ground of insufficiency of evidence.

Case:
Plaintiff v. Defendant. Plaintiff presented his evidence. Suppose to be, it is now the turn of the
defendant to present his evidence, but instead of presenting his evidence, the defendant files a
demurrer to the evidence. In this case the defendant opted not to present his evidence. Instead
he has now filed a demurrer to the evidence.

Q: Does the defendant need a leave of court to file the demurrer to the evidence/ is leave of court
required?

A: In a civil action, it is not required. In a criminal action, the accused may file a demurrer to the
evidence with leave of court or without leave of court. In a criminal case, there is a distinction
between an accused filing a demurrer with leave of court and an accused who file without leave
of court.

But in a civil action, the filing of the demurrer to the evidence does not require leave of court. So
the defendant should not file a motion for leave to file demurrer to evidence because that is not
required.

Instead of presenting his evidence, the defendant filed a demurrer to the evidence.
Q: What will happen to the demurrer? How may the court resolve the demurrer?
A: The court may deny the demurrer to evidence. Why should the court deny? Because in the
opinion of the court, the plaintiff has presented sufficient evidence.

Q: What is the remedy of the defendant whose demurrer to evidence is denied?

A: The remedy of the defendant is to present evidence because in a civil case, a defendant whose
demurrer to evidence is denied by the court does not lose his right to present his evidence in the
event of the denial to his demurrer to evidence.

Q: What if the court finds that indeed the evidence presented by the plaintiff is insufficient?
A: Then the court may grant the demurrer to evidence.

Q: What happens to the case if the demurrer to the evidence is granted by the court?

A: The case is dismissed.

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The order granting the demurrer to evidence is an order of dismissal. It dismisses the case. And
so the dismissal is based upon the finding of the court that the plaintiff's evidence is insufficient
and therefore the dismissal of the case constitutes as an adjudication of the court on the merits
of the case.

Q: What is the remedy of the plaintiff if his case is dismissed upon the demurrer to evidence filed
by the defendant?
A: remedy is to appeal from the order of dismissal.

An order denying the demurrer to the evidence is interlocutory and therefore the order denying
the demurrer is not appealable. And so the defendant cannot appeal from an order denying his
demurrer because that order is interlocutory. But an order granting the demurrer dismisses the
case. And so that is a final order as opposed to interlocutory. Therefore the order granting the
order is appealable. Who will appeal? The plaintiff not the defendant.

.
Q: Suppose the plaintiff does not appeal within 15 days from notice of the order dismissing his
case.
A: The order dismissing his case will become final. May he still file? No more, because the order
dismissing his case constitutes an adjudication of case on its merit.

So the case is now on appeal.

Q: What may the appellate court do?
A: if the appellate court finds that indeed that the plaintiff`s evidence is insufficient, the it will
simply sustain or affirm the order of dismissal.

Q: But suppose, appellate court finds the plaintiff`s evidence is sufficient?

A: Then it will reverse the order of the dismissal

Q: if the appellate court reverses the order of dismissal, should the appellate court set the case
for hearing to receive defendant`s evidence? (Take note that the defendant at this point has not
presented his evidence at all).Or should the appellate court remand the case to the trial court for
the reception of defendant`s evidence?

A: No. the appellate should not receive defendant`s evidence or remand the case to the trial court
for presentation of defendant`s evidence BUT should decide the case based on the evidence
presented by the plaintiff. In which event the defendant has waived his right to present evidence.

Discussion:
So the case is now on appeal to the appellate court. If the appellate court finds that the dismissal
of the trial court is correct because in the mind of the appellate court plaintiff’s evidence is indeed
insufficient, it will simply affirm or sustain the order of dismissal. But if the appellate court
reverses the order of dismissal because in the mind of the appellate court, plaintiff`s evidence is
sufficient it will simply render a decision based on the evidence presented by the plaintiff.

I would like to direct your attention to a portion of Section 1 of Rule 33 it says:

“If the motion (demurrer to the evidence) is granted but on appeal the order of dismissal
is reversed, the defendant shall be deemed to have waived the right to present evidence.”

Bar Q: If a defendant files a demurrer to the evidence, does he waive his right to present
evidence?

A: If his demurrer is denied, then defendant has the right to present his evidence. Meaning he
has not waived his right to evidence.

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But if his demurrer to evidence is granted, but on appeal the order of dismissal is reversed by
the appellate court, then defendant shall be deemed to have waived the right to present evidence.

Bar Q Problem: the RTC is the trial court in the problem, the plaintiff presented his evidence,
after which the defendant filed a demurrer. The RTC granted the demurrer and dismissed the
case. Plaintiff appealed to the CA from the order of dismissal. CA found that the order of dismissal
is not correct, because in the opinion of the CA plaintiff`s evidence as presented in the RTC. So
the CA remanded the case to the RTC. Is the remanding of the case correct?

A: No. because what the court of appeals should have done is simply to decide the case based
on the evidence presented by the plaintiff.

Distinctions between Demurrer to Evidence in a Civil Case and Demurrer to Evidence in

Criminal Case:

The following are the distinctions:

1. In both civil and criminal cases the ground is insufficiency of evidence.

Discussion: In a civil case the quantum of evidence is preponderance of evidence.
In a criminal case it is proof beyond reasonable doubt. Will be expounded in the
subject called Evidence.

2. In a civil case the demurrer to the evidence is upon motion of the defendant. In a
criminal case, the demurrer to the evidence may be upon the motion of the accused or
upon the court`s own initiative after giving the prosecution the opportunity to be heard.

Discussion: In a civil action the court after the plaintiff has concluded has
completed the presentation of his evidence, the court cannot dismiss the case on
a demurrer to the evidence without any motion being filed by the
defendant. But in a criminal action, the court may dismiss the case on ground
of insufficiency of evidence, upon the demurrer of evidence filed by the accused or
upon the court`s own initiative after giving the prosecution the opportunity to be
heard.

Problem: here is a criminal case, after the accused was arraigned, trail followed.
Prosecution presented its evidence then it rested its case. The court found the
evidence presented by the plaintiff insufficient, may the court dismiss the case on
ground of insufficiency of evidence even if the accused did not file a demurrer to
the evidence?
A: Yes. Because in a criminal case the court may dismiss the case on ground of
insufficiency of evidence on its own initiative after the giving the prosecution an
opportunity to be heard.

3. In a civil case, leave of court is not required so that the defendant may file a
demurrer to evidence. But in a criminal case the accused may file his demurrer to
evidence with leave of court or without leave of court.

Discussion: in a criminal case, an accused who files his demurrer to evidence with
leave of court does not waive his right to present evidence in the vent his demurrer
is denied by the court, but an accused who files who files a demurrer to the
evidence without leave of court, submits the case for decision by the court without
presenting his evidence and on the basis of the evidence presented by the
prosecution.

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 4. In a civil action if the demurrer to the evidence is granted, the plaintiff may appeal
from the order granting the demurrer. But in a criminal case if the demurer to the
evidence is granted and therefore the case is dismissed on ground of insufficiency of
evidence, the state as the plaintiff in this case, cannot appeal from the order dismissing
the case.

Discussion: Because the order dismissing the criminal case amounts to an

acquittal. It is based upon the finding of the court that the evidence presented by
the prosecution is insufficient to sustain a judgment of conviction. That is why
the state cannot appeal from the order granting the demurrer to the evidence
because an appeal form this order will place the accused in double jeopardy.

A demurrer to the evidence is in the nature of a motion to dismiss on ground of insufficiency of

evidence.

Distinctions between demurrer to evidence and motion to dismiss.

1. A motion to dismiss is usually filed before the filing of an answer, while a demurrer to evidence
is made after the plaintiff has rested its case.

2. A motion to dismiss is based on the four grounds while a demurrer is based only on the failure
of plaintiff to show a right to relief (insufficiency of evidence).

3. A denial to motion to dismiss will require the subsequent filing of an answer while a denial of
a demurrer requires the subsequent presentation of defendant`s evidence.

Dean: more important is for you to know the distinctions between a demurrer in a civil action
and demurrer to criminal action.

Next time class, on Saturday we will have a zoom meeting and if you have question in this lesson
or past lessons then you ask them during our zoom on Saturday.

That concludes our discussions or lesson in this module. That will be all for now.

MODULE 21 & 21-A

Last time, class, we talked about demurrer to evidence. We also, pointed out the distinctions
between a demurrer to evidence in civil cases and demurrer to evidence in criminal cases. So,
today, we will talk about the Judgment on the Pleadings and Summary Judgment. So, we will
be taking up two topics today - Judgment on the Pleadings and Summary Judgment.

So, first let us talk about the Judgment on the Pleadings. You say “Judgment on the Pleadings”
(with an S). So, do not just say “Judgment on the Pleading” but you say “Judgment on the
Pleadings”. So, the judgment will be based on the complaint and the answer.

Q: Who will moved for judgment on the pleadings?

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A: The answer, class, the plaintiff. The plaintiff in the main case, or the plaintiff in a
counterclaim, or plaintiff in a cross-claim, or plaintiff in a third-party complaint. So, the one
moved for judgment on the pleadings is the plaintiff.

Next question: When or at what point may the plaintiff move for Judgment on the Pleadings?

After an answer has been filed. So, the plaintiff may move for Judgment on the Pleadings on
when an answer has already been filed.

Suppose the defendant has not filed any answer yet, may the plaintiff move for the Judgment
on the Pleadings?

No, because there is only one pleading. And so, if no answer has yet been filed, the motion that
the plaintiff may file is a motion to declare the defendant in default.

And, so, class, I’d like you to know that a motion for Judgment on the Pleadings may only
be filed by the plaintiff after answer has been filed.

On what ground?

On the ground that the answer fails to tender an issue or it otherwise admits the
material allegations in the complaint.

So, the ground is what? The answer fails to tender an issue or it otherwise admits the material
allegations in the complaint.

Q: When may it be said that the answer fails to tender an issue?

Well, if the denials are not a form of a specific denial (and we talked about this one time- how
to make a specific denial?). So that the defendant’s denials are not in the form of specific
denial, then they amount to an admission. Therefore, the answer fails to tender an issue and,
therefore, the plaintiff may file a motion for Judgment on the Pleadings. As when the defendant
files an answer saying or alleging the following:

1. Defendant specifically denies all the material allegations in the complaint from the 1 st
paragraph up to the last paragraph. That is all that the defendant has said in his
answer.
What would that amount to? It amounts to an admission. Because notwithstanding the
use of the word “specific” or “specifically”, the denials are in fact mere general denials
and they amount to an admission.
Also, we mentioned one time that if the denial is in the form of a negative pregnant
denial, then that is also an admission.
Suppose the defendant files an answer. It is a complaint for collection of an
indebtedness. The answer that the defendant files alleges that the plaintiff should wait
until the defendant becomes financially capable to pay his obligation – that is all that
the defendant states in his answer.
Q: does it tender an issue or does it present any issue at all?
A: No, therefore, the remedy of the plaintiff for that example is to move for judgment on
the pleadings.
Q: When we say “the answer fails to tender an issue”, what does that mean?
A: Well, like we said, when it fails to comply with the requirements of specific denial.
Q: When can we say that the answer admits the material allegations in the complaint?
A: When the answer itself expressly confesses to the truthfulness of the allegations. As
when the defendant says in his answer “defendant admits the material allegations in

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 paragraph 5 of the complaint,” then the allegation in paragraph 5 of the complaint is
admitted. So, it admits the material allegations in the complaint when:
1. It expressly confesses to the truthfulness of the allegations to the complaint;
2. When it fails to deal with it at all. What does it mean? As when there is a paragraph
5 in the plaintiff’s complaint, it contains a material allegations in that paragraph
but nothing is said by the defendant in his answer regarding that paragraph – it
fails to deal with it at all, then that also amounts to an admission. It admits the
material allegations in the complaint.

When we say “Judgment on the Pleadings”, it is a judgment rendered by the court based on the
pleadings and only the plaintiff may move for the Judgment on the Pleadings after an answer
has been filed and this happens when the answer fails to tender an issue or it otherwise admits
the material allegations in the complaint.

But I’d like you to take note, class, that when the answer raises factual issues involving
damages, it is not proper for the court to render a Judgment on the Pleadings because this will
require the presentation of evidence.

So when the answer raises a factual issue regarding the damages being asked, then the court
cannot render a Judgment on the Pleadings because the factual issues raised will require
presentation of evidence.

Q: suppose defendant’s answer fails to tender an issue or it otherwise admits the material
allegations in the complaint, the plaintiff, however, has not filed any motion for Judgment on
the Pleadings. May the court motu proprio render a Judgment on the Pleadings?

A: No, the court without any motion filed by the plaintiff cannot render a Judgment on the
Pleadings.

But I’d like you again to take note about what we have said on the past that there cannot be a
Judgment on the Pleadings in the following cases:

1. In cases involving declaration of nullity of marriage;

2. 2. Annulment of marriage; and
3. Legal separation

So, even if the defendant files an answer and his answer admits the material allegations in
the complaint, there cannot be a Judgment on the Pleadings on these cases.

SUMMARY JUDGMENT

Summary judgment is also known as “accelerated judgment”. So, this motion for summary
judgment is a device for weeding out sham claims or defenses at an early stage of the litigation,
thereby avoiding the expense and loss of time involve in a trial.

So, in a judgment on the pleadings, there will be no trial. In summary judgment, there is also
no trial. But I’d like you to take not of this one, class: that in summary judgment, the
movant may either be the plaintiff or the defendant.

So, who can move for summary judgment/ accelerated judgment? (We are now talking about
summary judgment.)

Either the plaintiff or the defendant may move for a summary judgment.

Again, when we say “plaintiff”, he may be the plaintiff in the main action, or plaintiff in a
counterclaim, or cross-claim or plaintiff in a third-party complaint.

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If the moving party is the plaintiff, when may the plaintiff move for summary judgment?

At any time an answer has been filed. But if it is the defendant who is moving for the summary
judgment, then the defendant may move for the summary judgment before or after he has filed
an answer.

Q: On what ground?

If it is the plaintiff who is moving for summary judgment the ground is, although the answer
presents an apparent issue, it can be shown that the issue is sham or false, that there is no
genuine issue as to the material fact and the plaintiff in entitled to a judgment as a matter of
law.

What does that mean – “there is an apparent issue”?

The answer tenders an issue but the plaintiff can show by affidavit, by deposition, by
admission that the issue is sham or false.

When we say “sham”, what does that mean? It is not genuine, it is pretended, it is contrived.
There is no real issue, the issue is sham – it is false; it is not genuine.

Example: Let us say that the plaintiff files a complaint for collection of an indebtedness alleging
in his complaint that the defendant borrowed from him P750,000.00 based on a promissory
note. Then, the defendant files an answer alleging that the amount demanded as shown in the
complaint is not correct. It is not true that the amount is P750,000.00 – it is less than that
according to the defendant in his answer. But the plaintiff can show by means of an affidavit,
by means of a deposition or by means of admission, that the allegation on the defendant that
the amount is not correct or that the amount is less than that is not true, the amount really is
P750,000.00. Then the answer tenders an issue (there is an issue) but it can be shown that the
issue is not genuine, it is false, it is sham.

What about if the defendant is the one filing the motion for summary judgment?

If it is the defendant filing the motion to summary judgment, he can file the motion even before
filing his answer or after he has filed an answer.

Now, on what ground?

On the ground that the plaintiff’s claim against him is false, is sham, is not genuine, and so,
there is no genuine claim here – there is an apparent claim but it is not genuine.

That is why, class, I’d like you to take not that if they would ask you in the Bar exam, may a
motion for a summary judgment be filed even before the answer has been filed? Is it proper to
move for a summary judgment even if the defendant has not filed his answer yet?

Yes if the moving party or the one filing the motion is the defendant himself. But if it is the
plaintiff who files the motion for sum judgment, there must already be an answer filed.

Now, question: When is an issue sham or false?

You will say in the Bar Exam: An issue is sham or false if it is not genuine. (Is that a correct
answer? Yes, but then you have to explain what a genuine issue is.) An issue is said to be
genuine when the issue requires presentation of evidence, the issue of fact requires or calls for
presentation of evidence.

So, whether it be the plaintiff or the defendant who files the motion for sum judgment, the
motion must be supported with affidavits, depositions or admission. The moving party will not

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simply file just a motion. His motion must be accompanied by supporting affidavits,
depositions or admissions.

What are the steps to follow?

The steps or the procedures are as follows:

1. Plaintiff or the defendant (so, it depend on who is filing the motion) serves on the other
party a copy of the motion. The motion should cite supporting affidavits, depositions, or
admission. And it must also cite the law applicable and relied upon.
2. Then, the next step is that the adverse party files a comment and serve upon the
moving party, the movant, opposing affidavits, depositions and admissions within a
non-extendible period of 5 days from the receipt of the motion.

So, if you have this example, class: plaintiff v defendant. Who may file a motion for summary
judgment? Either plaintiff or defendant.

The movant (we call it movant because it may refer to the plaintiff or to the defendant) serves
upon the other party his motion. His motion is accompanied by affidavits, depositions or
admissions. Within a non-extendible 5 days from receipt of motion, the other party will serve
on the movant his comment supported by opposing affidavits, depositions or admissions. The
comment of the other party should also be supported with opposing affidavits, depositions or
admissions. Then, unless the court will set the case for hearing, the court shall render a
summary judgment forthwith. (What do you mean by forthwith? At once.”) unless the court
orders a hearing.

What does that mean? The hearing is optional. The court may or may not order a hearing on
the motion. So, the rule tells us that unless the court orders a hearing, the court shall render
summary judgment forthwith.

So, those are the steps. What will happen, class? What will be the judgment?

Listen to this one: If the movant is the plaintiff, and the court finds that the motion is
justified, and therefore, there is really no genuine issue as to any material fact, then it will
render a summary judgment for the plaintiff. But if the court finds that the motion is not
justified, then it will deny the motion and set the case for trial and then trial.

If the movant is the defendant, and the court finds the motion to be justified, then the court
shall issue an order dismissing the complaint, otherwise the court finds that the motion is not
justified, then the court will order the filing of the answer if an answer has not yet been filed.
And then, the case will be set for pre-trial and then trial.

Suppose they would ask you in the bar examination: Suppose the court finds the motion for
summary judgment justified, what should the court do?

Well, it depends on who is the movant. If the movant is the plaintiff and the court finds it to be
justifies, it will render a summary judgment. If not justified, it will deny the motion. If it is the
defendant who is filing the motion, and the court finds the motion to be justified, then the
court will issue an order dismissing the case. And if the court finds the motion not to be
justified, then it will simply deny the motion.

Q: Is a summary judgment appealable? Yes.

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Judgment on the pleadings is appealable. So, a party adversely affected by a judgment on the
pleadings is the defendant, and so, the defendant may appeal from a judgment on the
pleadings. But suppose the court denies the motion for judgment on the pleadings because in
the opinion of the court, in the mind of the court, the answer tenders an issue.

Well, an order denying a motion for judgment on the pleadings is not appealable because that
order is interlocutory.

Ok now, let us go to summary judgment.

In the same way, class, a summary judgment is also appealable but if the court denies the
motion for summary judgment, the order denying the motion is not appealable.

Q: May a partial summary judgment be rendered? May there be a partial summary judgment?

A: Yes, there can be a partial summary judgment. Like let us say the court finds that the
issues with respect to some matters are sham or false but there are genuine issues as to the
other aspects of the case, then the court may render a partial summary judgment.

Q: May appeal be taken from a partial summary judgment? May there be an appeal from a
partial summary judgment?

A: No. an appeal will not lie from a partial summary judgment becausse a partial summary
judgment is interlocutory.

So, you say in the Bar Exam, class, that a partial summary judgment is interlocutory.

What is the opposite of interlocutory? The opposite is final.

When do we say that an order is interlocutory?

We say that an order is interlocutory if it does not put an end to the case, something else is yet
to be done, something else is yet to happen on the case, then it is interlocutory.

Example: plaintiff v defendant

The court issues an order dismissing the complaint. Like plaintiff without any justifiable cause,
plaintiff fails to appear on the date for the presentation of his evidence in chief on the
complaint, and so because of that the court issues an order dismissing his complaint.

Listen to this one: If the plaintiff does not do anything about the order, then the order
becomes final. And the case is dismissed, the plaintiff cannot refile his complaint because the
dismissal amounts to an adjudication of the case on his merit. And so, if the plaintiff refiles his
complaint, the defendant can invoke res judicata. That is a final order.

I’d like you to know that this can be very confusing: A final order, if not appealed within 15
days from notice, will attain finality. So the word “final” (take note of this one class because it
can be very confusing) can be used in two senses: final as oppose to interlocutory; or final in a
sense that it has attained finality – so here, you say final and executory.

If we use the word final to mean as opposed to interlocutory – it means that it is an order or
process that finally puts an end to the case. Like this one, it puts an end to the case (example
given above)

On the other hand, if we say, interlocutory, the case is not dismissed, the case is not over yet.
The order does put an end to the case. Like an order denying a motion to dismiss. The order

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does not terminate the case. So, an order denying a motion for judgment on the pleadings, that
is an interlocutory. An order denying a motion for summary judgment is also interlocutory.

What about partial summary judgment?

Well, when you say partial summary judgment, the case is not finished yet. If the court renders
a partial summary judgment, the case is not terminated, the case is not over. Therefore, partial
summary judgment is interlocutory.

May an appeal be taken from a partial summary judgment?

No, because a partial summary judgment is interlocutory, and, therefore, the partial summary
judgment shall be taken together with the judgment that the trial court will render after the
trial.

Distinction between judgment on the pleadings and summary judgments:

The following are the Distinction between judgment on the pleadings and summary
judgments:

1. A judgment on the pleadings is available or may be filed if there is no genuine

issue, as when an answer fails to tender an issue or it otherwise admits the
material allegations on the complaint while a summary judgment is available
or may be rendered when there is an apparent issue, there seems to be an
issue but the issue is sham, false or fictitious.
(Example: As when the defendant says “I have paid”. So the defendant set up the
defense of payment, so there is an issue. But in the pre-trial, the defendant is asked
for a receipt to prove payment but he has nothing to offer and then he finally admits
“I have not paid yet.” Then there can be a summary judgment. Because although
the answer tenders an issue, it was later proven that the issue is sham, false,
fictitious.)
2. A judgment on the pleadings is based exclusively on the pleadings (what
pleadings? The complaint and the answer). So the court will not look beyond the
complaint and the answer. The court will confine itself to the complaint and the
answer in rendering the judgment on the pleading. While on the summary
judgment, the judgment is based not only on the pleadings but also on
affidavits, depositions and admission showing that there is no genuine issue.
3. A judgment on the pleadings can be filed only after an answer has been filed.
So, a motion for judgment on the pleadings can be made only after an answer has
been filed. While in summary judgment, the motion may be filed even before an
answer is filed if it is the defendant who is moving for the summary judgment.
4. A judgment on the pleadings can only be had by the plaintiff. So, the moving
party in judgment on the pleadings is the plaintiff. While in summary judgment,
either the plaintiff or the defendant may file the motion for summary
judgment.
5. A Judgment on the pleadings is a judgment based on facts as pleaded by the
parties, while a summary judgment is a judgment based on facts as shown by
the pleadings and as summarily proven by affidavits, depositions and
admissions.

Q in the Bar Exam: If an answer fails to tender an issue, what motion may be filed?

A: A motion for judgment on the pleadings and the motion may only be filed by the plaintiff.

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Q (it may be asked in the Bar Exam) If an answer tenders an issue, may there be a summary
judgment?

A: Yes. If it is proven by affidavits, deposition, admission that the issue is sham or false.

Q: If the answer tenders an issue, may there be a judgment on the pleadings?

A: No, but there may still be a summary judgment if the issue is shown to be sham or false.

ON SATURDAY WE WILL HAVE A ZOOM SESSION. IT WILL BE A VIRTUAL CLASSROOM,

CLASS. THERE, IF YOU HAVE QUESTIONS ON THIS LESSON, AND OTHER PAST LESSONS,
THEN FEEL FREE TO ASK YOUR QUESTIONS. DO NOT ALLOW THE QUESTIONS TO LINGER
WITHOUT ANY ANSWER AT ALL.

ZOOM GALING KAY ACE ABOUT JUDGMENT

RULE 37: NEW TRIAL OR RECONSIDERATION

Module 23

Our lesson today is New Trial or Reconsideration, and this is Rule 37. We are in Module
23.

But before we go to our lesson, I’d like us to look at the questions asked in the midterm
exams last week. We will go over them one by one.

Question 1: The defendant states that he specifically denies that in July 2018, he borrowed 1
million from the plaintiff. Is defendant’s denial sufficient?

Answer: No, defendant’s denial is not sufficient because this kind of a denial which is a literal
denial is negative pregnant, and negative pregnant is an admission. Despite the language of the
allegation of the defendant, his allegation amounts to an admission.

Question 2: Does a defendant have a duty to investigate the facts pleaded in a complaint before
alleging in his answer that he has no knowledge or information sufficient to form a belief as to
the truth of those facts?

Answer: Yes, he has a duty to investigate the facts pleaded in a complaint before setting up this
kind of a denial. This is a denial by disavowal, which must be set up in good faith. The defendant
or any party has the obligation to ascertain the factual contentions pleaded in the pleadings to
see to it that these factual contentions have evidentiary support. Therefore, the defendant has a
duty to ascertain that the factual contention have evidentiary support.

Question 3: May a defendant set up a counterclaim in his answer that is not within the subject
matter jurisdiction of the court where the main case is pending?

Answer: If it is in the RTC, yes, even if the counterclaim in his answer that is not within the
jurisdiction of the RTC because in an original action before the RTC, the counterclaim would still
be compulsory regardless of the amount thereof. But the answer would be no if it is in the MTC.

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Question 4: On October 1, defendant files an answer alleging the following affirmative defenses:
a) that venue is improperly laid and b) that the plaintiff has no legal capacity to sue. Five days
after the filing of the answer, the court dismisses the complaint on the ground that plaintiff’s
claim as alleged in his complaint has already prescribed. In his motion for reconsideration of the
order of dismissal, the plaintiff argues that the court erred in dismissing his complaint on ground
of prescription because defendant has not set it up as an affirmative defense. Is the court correct
in dismissing the complaint?

Answer: Yes. If you go to Rule 9, Section 1, you will find there four defenses that are not waived
even if not set up in the answer or in a motion to dismiss. One of the four is that the claim or
demand is barred by the statute of limitations, and this is prescription. So, the defense of
prescription is not waived even if not set up in a motion to dismiss or in defendant’s answer. And
when you look at Section 1 of Rule 9, you will find that if it appears from the pleadings or on the
evidence on record that the claim has prescribed, even if no motion to dismiss is presented, the
court can dismiss the complaint.

Question 5: The plaintiff has already terminated the presentation of his evidence, but before the
defendant could call his first witness to testify, the court dismissed the complaint because a
party found to be indispensable has not been joined. Is the court correct in dismissing the
complaint?

Answer: No. Non-joinder of a party, even if the party is indispensable, is not a ground for
dismissal. If the court becomes aware that an indispensable party is not included in the action,
what it can do is to issue an order directing the plaintiff to implead the omitted indispensable
party. If the plaintiff refuses to obey the order of the court (the plaintiff refuses to comply), then
the court can dismiss the complaint on the ground of failure of the plaintiff to obey an order of
the court, and that will have something to do with Rule 17, Section 3.

Question 6: Is a person who has a legal interest in the matter in litigation entitled to intervene
in a pending action as a matter of right?

Answer: No. Intervention is always subject to the discretion of the court. Intervention is always
with leave of court. Therefore, a person cannot intervene as a matter of right.

Question 7: On the 20th day after defendant was served with summons, he filed a motion to
dismiss the complaint alleging that the venue was improperly laid. The court issued an order
denying the motion outright although it was clear from the allegations in the complaint that
venue was indeed improperly laid. After 30 days from service of the summons, the court declared
the defendant in default for his failure to file his answer. Is the court correct in denying
defendant’s motion to dismiss and in declaring him in default?

Answer: Yes, the court is correct in denying defendant’s motion to dismiss because, subject to
some exceptions, a motion to dismiss is a prohibited motion.

No, the court is not correct in declaring defendant in default because the court cannot, motu
proprio, declare a defendant in default. There must be a motion to declare defendant in default,
which must be filed by the plaintiff.

Question 8: After the plaintiff was served with a copy of defendant’s answer, the plaintiff served
on the defendant a request for admission of the same facts alleged in plaintiff’s complaint that
the defendant had already denied in his answer. Defendant did not respond to the request for
admission. May the defendant be deemed to have admitted the facts stated in plaintiff’s request
for admission?

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Answer: No. This is not a proper request for admission because the facts sought to be admitted
have already been denied by the defendant in his answer.

Question 9: Is the trail by commissioner compulsory?

Answer: No, except in two cases: 1) expropriation and 2) partition.

Question 10: Four of the six defendants have already filed their answer. Despite the expiration
of more than one month from the service of the summons, the two other defendants have not
filed their answer. May the case be set for pre-trial now? May a judgment by default be rendered
already against the two non-answering defendants?

Answer: No, the case may not be set for pre-trial because the last responsive pleading has not
yet been filed. The last responsive pleading is the answer of the two other defendants. But since
they are not filing an answer, the remedy is for the plaintiff to file a motion to declare them in
default.

No, a judgment by default may not be rendered already against the two non-answering
defendants because, first, they must be declared in default. But assuming that the plaintiff files
a motion to declare them in default and the court grants the motion and it issues an order
declaring the defendant in default, then what the court does if the complaint presents a common
cause of action against all the defendants is that it should try the case on the basis of the answer
thus filed. It is not correct for the court to split the case into two – one as against the defendants
declared in default and render a judgment by default against them and then try the case as to
the other remaining defendants.

Question 11: After plaintiff has rested his case, defendant filed a demurrer to the evidence, but
the court denied defendant’s demurrer. On September 16, defendant received the order of the
court denying his demurrer. Is this order appealable? If so, until when may the defendant appeal
from this order? If not, what is the remedy of the defendant?

Answer: An order denying defendant’s demurrer is not appealable because it is interlocutory. In

a civil case, if a defendant files a demurrer and the demurrer is denied, then the remedy of the
defendant is to present his evidence. A defendant who files a demurrer, but the demurrer is
denied, does not waive his right to present evidence.

Question 12: What are the rules to be observed if the obligor dies and there are claims against
him?

Answer: If there is no case filed against him yet and he dies, then the claim against him may be
filed in the probate proceedings of the deceased obligor. But if there is a case filed against him
and the defendant dies before entry of judgment, then the case should be allowed to proceed
until entry of judgment but the judgment cannot be the subject of execution. It should be
presented as a money claim in the settlement of the estate of the deceased defendant (you just
have to explain those answers).

Question 13: Why is negative pregnant treated as an admission?

Answer: Because it is not clear which one is being denied?

If you got 90 or above, then you congratulate yourselves. If not, you study some more.

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So we go to out lesson – New Trial or Reconsideration.

New trial is not the same as reconsideration. You file a motion for new trial or you file a motion
for reconsideration.

Q: When may a motion for new trial or a motion for reconsideration be filed?

Answer: The motion for new trial or the motion for reconsideration must be filed within the
period for perfecting an appeal, which is usually 15 days from notice of the judgment. But it is
not 15 days all the time. When we get to that topic about appeals, we will know when to file an
appeal and we will also know how to appeal and the modes of appeal.

The motion for new trial or the motion for reconsideration must be filed within the period for
perfecting an appeal. The period is 15 days from notice of the judgment or final order.

Example: Let us say that you received today the judgment (October 21). So you count 15 days
from October 21. Exclude the first and include the last (so do not include October 21). Your last
day to file your appeal is November 5 (so 15 days from October 21).

Who may file a motion for new trial or a motion for reconsideration?

It can be the plaintiff; it can be the defendant.

Who can file a demurrer to evidence?

Only the defendant.

Grounds in Filing a Motion for New Trial

If you file a motion for new trial, you need to have grounds that you can set up in your motion
for new trial.

1) FAME –

a) Fraud – extrinsic or collateral fraud

b) Accident
c) Mistake
d) Excusable negligence

 Fraud

The fraud here is extrinsic fraud. What is the other word that you can use to replace the word
‘extrinsic’? It is ‘collateral.’ The opposite is intrinsic fraud.

*extrinsic fraud – fraud that prevented a party from having his day in court; fraud committed
outside the trial/court

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  Accident – a fortuitous event or a fortuitous circumstance or happening that is beyond
the control of a party (examples – sickness of a party, lack of notice because the notice
was sent to another address or to another person)

 Mistake – refers to mistake of fact, not mistake of law (example: the failure to answer
because of the belief that it is not anymore necessary as there is a pending discussion
regarding settlement of the dispute)

 Excusable negligence – there is an omission to do something which a prudent person

would have done under the same circumstances (example: the failure to submit on time
because of the distance involved)

2) Newly discovered evidence – one which the aggrieved party could not, with reasonable
diligence, have discovered or produced at the trial, at which if presented and admitted would
probably alter the result

Requisites

1) The evidence is discovered after trial

2) Such evidence could not have been discovered and produced at the trial with reasonable
diligence
3) The evidence is material and not merely cumulative or corroborative or impeaching and
is of such weight that if presented and admitted would probably alter the result (would
probably change the judgment)

(Take note of the requisites of a newly discovered evidence.)

Example: If the piece of evidence has always been there during the trial, but the counsel
representing the party simply forgot about it and so he was not able to present it, and when there
was a judgment that is adverse to his client, he remembered this piece of evidence, and he
presents a motion for new trial alleging that this is a newly discovered evidence – is the counsel
correct?

No. It is a forgotten evidence but not a newly discovered evidence.

Grounds in Filing a Motion for Reconsideration

1) AID – award of excessive damages

2) insufficiency of evidence to justify the judgment

3) the decision is contrary to law and evidence

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Q: In what form should the motion be?

It must be in writing. As to form, it follows the form of a pleading (caption, title, etc.)

If the motion for new trial is based on FAME, the motion must be supported by an affidavit of
merit. The affidavit of merit should state facts constituting the fraud, accident, mistake, or
excusable negligence.

If the motion for new trial is based on newly discovered evidence, the motion must be supported
by affidavits of witnesses by whom such evidence is expected to be given, or duly authenticated
documents which are proposed to be introduced in evidence. If the evidence is testimonial, it is
affidavit of witness(es) by whom testimonial such evidence is expected to be given. If the evidence
is documentary evidence, then by duly authenticated copy of this document.

If it is a motion for reconsideration, it should point out specifically the findings or the conclusions
which are not supported by evidence or which are alleged to be contrary to law, etc.

If you file a motion for reconsideration and the court grants it, then the court will simply modify
its judgment. If the court finds that, indeed, the amount of damages is excessive, it may simply
reduce the amount.

If it is a motion for new trial, the court may grant or deny the motion.

If the motion for new trial is granted, what are the effects of the order granting new
trial?

1) The judgment is vacated (set aside).

2) The action shall stand for trial de novo. – there will be a new trial

3) The recorded evidence shall be used at the new trial without need for it to be retaken anymore.

(the recorded evidence taken upon the former trial, in so far as the same is material and
competent to establish the issues, shall be used at the new trial without retaking the same)

But if, let us say, the motion is on the ground of extrinsic fraud, etc., the evidence that is affected
by the extrinsic fraud will simply be set aside.

(I have received a text message from Anton that there are no classes today. So if there
are no classes today, this video lecture will be uploaded for next time. We just complete
the presentation so that we will not repeat it anymore.)

If a motion for reconsideration is filed, what comes/happens next?

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The court may deny or grant the motion by amending its judgment if it finds that excessive
damages are awarded or that the decision is contrary to law or the evidence. If denied, there can
be no second motion for reconsideration. A second motion for reconsideration is not allowed.

But take note: No second motion for reconsideration is allowed if the motion for reconsideration
is asking for the reconsideration of a judgment or final order. A second motion for reconsideration
of a judgment or final order is a prohibited motion.

Suppose the motion for reconsideration is directed against an interlocutory order, is a

second motion for reconsideration allowed?

If it is a motion asking for the reconsideration of an interlocutory order, yes.

What is prohibited is a second motion for reconsideration of a judgment or final order.

Example: The court renders a judgment, and the judgment is adverse to the defendant. The
defendant files a motion for reconsideration of that judgment. It was denied. Can he file another
motion for reconsideration of that judgment? No.

But suppose it is an interlocutory order, like: defendant files a motion to dismiss; it was denied.
He files a motion for reconsideration of the order denying his motion. It was denied. He files as
second motion. Is that allowed? Yes, because that is an interlocutory order.

Within how many days should the court resolve the motion for reconsideration?

If it is the MTC or the RTC, the MTC or RTC has 30 days from the time it is submitted for
resolution to resolve the motion.

If it is the Court of Appeals, the Court of Appeals has 60 days after it declares the motion
submitted for resolution.

If it is the Supreme Court, there is no period prescribed.

Take note of this: For you to be able to appeal from a judgment, should you first file a motion
for reconsideration or a motion for new trial?

No, you cannot appeal from a judgment or a final order without filing a motion for new trial or a
motion for reconsideration. But, in four instances, the filing of a motion for reconsideration or a
motion for new trial is a precondition to the perfection of an appeal. In these four instances, you
cannot appeal unless you first file a motion for new trial or a motion for reconsideration. These
are the instances/cases:

1) In habeas corpus in relation to custody of minors

2) Annulment of marriage
3) Declaration of nullity of marriage
4) Legal separation

(Remember these four instances.)

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That concludes our lesson on New Trial or Reconsideration. There is also a Motion for
Reopening of Trial. A Motion for Reopening of Trial is not the same as a motion for new
trial, although they have same time frame and the same time for perfecting an appeal.
But in a Motion for Reopening of Trial, the ground is to prevent a miscarriage of justice.

That is all for today. I hope you got the highest score in the midterm exam. If you have
questions regarding the past lessons or the lesson today, you write them down and you
ask them in the video meeting. That’s all for today.

– Nothing Follows –

Rule 38 (Relief from judgments, Orders, or Other Proceedings)

You don’t have a module in this class. IT IS YOUR DAY OFF but you should listen carefully
because it is a very important topic and I’d like you to take note that this petition for relief from
judgment is one of the remedies against a judgment that has become final.

Q: So if a judgment become final may there be still a remedy?

A: Yes, and one of them is a petition for relief from judgment the two others are action for
annulment and petition for certiorari.

Q: What are the grounds upon which a petition for relief from judgment may be file?

1. Fraud
2. Accident
3. Mistake
4. Excusable Negligence

These are the only grounds that you can set up in a petition for relief from judgment.

Q: But if you would be asked in the bar exam the question of upon what grounds a petition for
relief from judgment be file?

A: The grounds would be that a judgment or a final order is entered or a proceeding thereafter
taken through fraud, accident, mistake or excusable negligence.

But take note class that a petition for relief from judgment is a remedy in equity (equitable
remedy).

Q: What does that mean? It means that a party may resort to these remedy a petition for relief
from judgment only if there is no other available remedy. Like if the remedy of appeal is still
available or the remedy for motion of new trail is available, then this petition may not be
available as a remedy.

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Also I’d like you to know that this petition for relief from judgment is not a substitute for
appeal.

Q: What does that mean? It means that if a party has lost the remedy of appeal through his
own neglect/fault then he can not take advantage of this petition for relief from judgment.

So this is an equitable remedy or remedy in equity available only if there are no other remedies
available to him. Meaning he has lost the remedy of appeal not because of his own neglect but
because of some circumstances not attributable to him.

If the case is govern by the rules on summary procedure then this petition for relief from
judgment is not allowed. It is prohibited.

Q: When may a party file a petition for relief from judgment? Within 60 days from the time he
learns the judgment but not more than 6 months from entry of judgment. So meaning the 60
days must be within 6 months from the entry of judgment.

When we say “after he learns the judgment”

Q: what do we mean? It means after notice of the judgment or final order.

So a judgment will be served and the moment the service is complete and that is the notice of
judgment. Then that is the time he learns judgment and that is the time you start counting 60
days but take note that the 60 days must not be beyond 6 months from entry of judgment.

What does that mean? It means that the 60 days must be within 6 months from entry of
judgment.

So we have two periods 60 days and 6 months. The 60 days is counted from the time the party
(petitioner) learns of the judgment but the 60 days should not be beyond the 6 months from
entry of judgment. (When we were talking about judgment one time that the moment the
judgment becomes final it becomes the duty of the clerk of court to enter the judgment in the
entries of judgment and the date of finality of the judgment is presumed to be the date of entry
of judgment.)

Example: So let us say a party receives a judgment October 19 then the judgment is not yet
final on October 19 the judgment become final after 15 days usually 15 days but it is not 15
days all the time but in most instances 15 days, so use 15 days in our example. If he does not
do anything about it, he does not file a motion for new trail, reconsideration, notice of appeal
then after 15 days the judgment becomes final. So before the finality of the judgment he cannot
file a petition for relief from judgment yet because this petition is available as a remedy only if

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the judgment has become final. but take note there is a period for filing the petition and the
period is within 60 days from the time he learns of the judgment but should not be beyond 6
months from entry of judgment.

Although in some decisions of the Supreme Court it was held that a few days after 60 days is
not really fatal as long as the petition is filed within 6 months from entry of judgment.

But if the judgment you are looking at is a judgment upon a compromise. The parties have
finally decided to come to a settlement, they entered into an amicable settlement or a
compromise agreement and then they submitted that to the court and then the court approved
the compromised agreement. The court will render a judgment based on that compromise
agreement. You call that judgment upon a compromise.

Q: Is that appealable? No, a judgment upon a compromise is not appealable because it is based
on a compromise agreement between the parties and so the moment the judgment upon a
compromise agreement is rendered it is final immediately and therefore it is not appeallable.
The 60 days and the 6 months should be reckoned/ counted from the rendition of the
judgment upon a compromise because a judgment upon a compromise is final immediately
final upon rendition.

So you are filing a petition for relief from judgment.

Q: In what case and in what court should the petition be filed? The petition for relief from
judgment should be filed in the same case and in the same court.

(If you might come across to a case where the petition from relief from judgment that was filed
not in the same court that was the rule then. The rule then was that if a judgment is a
judgment of the MTC the petition from relief from judgment should be filed with the RTC and if
the judgment is the subject of a petition is the judgment of the RTC in those days in the past
the petition should be filed in the same court in the same case but now the rule is uniform
whether the petition is involving the judgment of an MTC or a petition involving the judgment
of an RTC the rule now is the same. The petition for relief from judgment should be filed in the
same case and in the same court.)

Example: Case between X and Y, filed in the MTC and then there was judgment that was
rendered in this case and the judgment is adverse to the defendant. And then the defendant
failed to file his appeal and the reason for his failure to file his appeal is not attributable to
him, it was not his fault. Then the judgment now become final and he would like to file a
petition for relief from judgment. It is still within the period of filing it, then he will file his
petition within the same court and within the same case. So the case has a docket number, he
will follow that docket number. So Y the one filing the petition will not file another case; He will
file the petition in the same court and in the same case.

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A petition for relief from judgment may only be filed if the judgment of an MTC or a judgment of
RTC. It is not available as a remedy against a judgment or decision or resolution of the
Court of Appeals or The Supreme Court. So if the Court of Appeals let us say or the Supreme
Court renders a decision or a judgment and then the judgment became final, you cannot file
within the Supreme Court, you cannot file within the Court of Appeals a petition for relief from
judgment. That is not allowed.

If you look at Section 2 of Rule 38 you will see the words “in any court” that is why it has
become a source of a confusion because it says in any court.

Section 2, Rule 38. When a judgment or final order is rendered by any court in a case, and a
party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented from
taking an appeal, he may file a petition in such court and in the same case praying that the
appeal be given due course.

Same with Section 1. When a judgment or final order is entered, or any other proceeding is
thereafter taken against a party in any court through fraud, accident, mistake, or excusable
negligence, he may file a petition in such court and in the same case praying that the
judgment, order or proceeding be set aside.

But I told you that the words “in any court” does not include the Court of Appeals or the
Supreme Court. Notwithstanding the use of the words “in any court” a petition for relief from
judgment is not available as a remedy before the court of appeals or the supreme court.

Q: What is the relief that a petitioner would be asking the court if he files a petition for relief
from judgment? That the judgment be set aside. (Section 1)

Q: Who may file a petition for relief from judgment? It may be filed by the plaintiff; it may also
be filed by the defendant.

As when, let us say the judgment is against the plaintiff, the judgment rendered by the MTC is
against the plaintiff and then he fail to appeal from the judgment, the judgment became final
because of circumstances beyond his control and so the judgment become final.

Q: may he also file a petition for relief from judgment? Yes, the rules do not limit the filing of
this petition to the defendant alone. So it may be filed by the plaintiff or by the defendant. But
this is not available as a remedy before the Court of Appeals and before the Supreme Court.

The petition must be a verified petition.

Q: What are the steps in filing petition for relief from judgment?

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1. Filing of a verified petition in the same court and in the same case.
Petition should be accompanied by an affidavit of merit and the affidavit of merit should
state facts and circumstances surrounding the fraud, accident, mistake, or excusable
negligence and that the petitioner has a meritorious defense or a cause of action.

2. Court will issue an order directing the respondent to file his answer within 15days from
receipt of the order.
What will be issued by the Court is not summons it is an order.

3. Filing of an answer but if the respondent does not file for an answer he cannot be declared in
default, there is no default here, even if the respondent does not file an answer there is no
default.
4. With or without an answer, the court will hear the petition. Hearing on the petition. To
determine if the allegations in the petition regarding the fraud, or accident, or mistake, or
excusable negligence are true and so there would be presentation of evidence. If the court finds
the allegation of fraud, etc., To be not true then it will issue an order denying the petition.
Q: Is the order denying the petition appeallable? No, it is not appealable but if there is a
clear indication that the court acted with grave abuse of discretion in issuing the order
denying the petition then a petition for certiorari may be filed. You do not go to the next
step if the order is one that denies the petition.

If the court finds the allegations in the petition to be true, then the court will issue an
order granting the petition, and so if the court issues an order granting the petition then
you go to the next step.

5. Hearing on the case.

There are two hearings the first one a hearing on the petition the purpose is to determine if
the allegations in the petition are true. The next one is the hearing on the case itself on the
merits of the case. So the case will be heard.

Q: what is the effect of the order granting the petition? The effect is that, as if a new trial has
been granted. Therefore the judgment is vacated or set aside and then the case will stand for
trial de novo that is why there is a hearing of the case.

6. The Court will render a judgment.

Why render a judgment? What happened to the first judgment? It was vacated, it was set
aside and so after the hearing the court will render a judgment and then that judgment is
appealable.

Judgment was rendered against a party it can be the plaintiff it can be the defendant. The
party wanted to appeal but he was not able to appeal due to some circumstances beyond his
control. So when he file his notice of appeal it was too late. (If an appeal is an ordinary appeal
you can appeal the judgment simply by filing a notice of appeal and a paying the required
appellate court docket fees.) He filed his notice of appeal let us say 6days late beyond 15 days
so the judgment become final and so the court denied the appeal. it dismissed the appeal.

Q: What is the remedy of this party? Whose appeal was denied because it was filed out of time?
If he can show that he was prevented from perfecting his appeal on time by fraud, by accident,
by mistake, or by excusable negligence then his remedy is to file a petition for relief asking the
court to give due course to his appeal and if the courts finds that indeed he was prevented by
fraud, etc. From perfecting his appeal on time then the court will grant the petition it will give

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due course to the appeal, it will order the record of the case to be elevated to the appellate
court.

But suppose the notice of appeal and the appellate court docket fees were filed and paid on
time but those notwithstanding the court dismissed the appeal.

Q: what is the remedy of the appellant? Not petition for relief from judgment. It is a petition
for certiorari because the denial of his appeal is indeed a grave abuse of discretion. It can even
be mandamus because appeal is a right provided, it is exercise within the ascertain period. If
file a notice of appeal, you are filing an appeal within the same court that rendered the
judgment being appealed from. If the court who rendered the judgment is MTC and you are
appealing to the RTC you file your notice of appeal with the MTC.

Distinctions of Motion for new trial and petition for relief from judgment

1. A motion for new trial must be filed before the judgment become final; On the other
hand you file a petition for relief from judgment after the judgment has become final.
2. A motion for new trial is filed if a judgment or final order has been rendered; On the
other hand a petition for relief from judgment is filed if a judgment or final order has been
rendered or has become final or a proceeding has thereafter been taken.
3. In a motion for new trial the grounds are not only FAME you also include newly-
discovered evidence; but in a petition for relief from judgment the grounds are only FAME.
4. Motion for new trial is filed during the period for perfecting an appeal; but a petition for
relief from judgment is filed within 60 days after he learns the judgment but not beyond 6
months from entry of judgment.
5. Motion for new trial if denied, there can be an appeal from the judgment; but a petition
for relief from judgment if denied, the order denying it is not appealable.
6. Motion for new trial is a legal remedy; while petition for relief from judgment is an
equitable remedy.
7. Motion for new trial must be verified; a petition for relief from judgment need not be
verified (Nabaliktad ata si Sir to.)

Lecture 24/10/2020

RULE 39
Execution of judgment

Execution - enforcement of a judgment / execution of a judgment.

2 kinds of execution
1. Compulsory execution – also known as execution as a matter of right.
2. Execution pending appeal – also known as discretionary execution or also known as
exceptional execution. (it goes with so many names and it might be well for us to know
all the names or terms being used)

Q: what may be executed? what is the subject of an execution? What can you execute?
A: what we can execute is a judgment or a final order. When we say final order, this is used in
the sense that the order is an order that puts an end to a case. The opposite of a final order used
in this sense is interlocutory order. So what we can execute is a judgment or a final order.

NOTE: Q: May an interlocutory order be the subject of an execution?

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A: No because what you can only execute is only a judgment or final order. You cannot execute
an interlocutory order. But with the single exception of an order for support pendent lite.

Q: What is support pendent lite?

DEAN: You file an action for support for example. Your main action is action for support. An
action for legal separation and in the same action you asked that you may be given support. In
the meantime, that the case is undergoing litigation or pending, the plaintiff or claimant may ask
for support pendente lite. It is a support that should be given while the case is pending litigation.

If the court issues an order directing the defendant to give support pendente lite, that order is
interlocutory because it does not put an end to the case, it does not terminate the case. There
still be presentation of evidence but in the meantime the defendant is directed by an order to
give support pendent lite. That order for support pendente lite is an interlocutory order but it
can be enforced by execution. That is the only interlocutory order that can be the enforced by
execution.

Q: give an example of an interlocutory order that can be the subject of execution.

A: An order for support pendente lite

Question ni classmate: what if in partition of properties, say legal separation of properties, in

order to grant support for the child, can the court execute the partition before granting the
support?
Dean: No. Because if you already order a partition you are now going into the merit of the case.
When we say Interlocutory the case is still pending litigation. It may be still in its initial stage.

Compulsory execution
- also known as execution as a matter of right.
- The judgment is a judgment that has attained finality.
- Q: what is the kind of judgment that can be enforced in this kind of execution? Judgment
that has attained finality. Final order can be understood in two senses. A final order
because it puts an end to the case but that final order may attain finality if it is not
appealed it can become final like a judgment. A judgment, let us say, is served on the
parties, the defendant receives a copy of the judgment on a particular day, he has so
many days to appeal usually 15 days. But it is not 15 days all the time, if he does not
appeal in the period of perfecting an appeal, the judgment becomes final. And that is the
subject of execution in the first kind of execution.

Execution pending appeal/ discretionary execution

- The judgment being enforced is a judgment that has not attained finality yet. That is why
it is called execution pending appeal and execution pending appeal is not a matter of
right. The judgment obligee cannot demand as a matter of right. It is subject to the sound
discretion of the court.

Question ni Classmate: May the adverse party raise the issue of due process in this case since
this is discretionary execution?
DEAN: no because that depends on the discretion of the court. It cannot be demanded as a
matter of right but if there is abuse of discretion there can be another remedy and we will take
that up in due time.

Execution of judgment that has become final

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 - By the way class, you have the plaintiff (X) and Y as the defendant. The one entitled to
execution is the prevailing party. The one who is entitled to execution is the party who
prevailed in the action, not the plaintiff all the time. This complaint may be dismissed
and there may be a counterclaim awarded in favor of the defendants so winning party is
not the plaintiff all the time. it can also be the defendant. That is why the party who is
entitled to an execution is called the judgment obligee. You don’t say plaintiff all the time.
The party against whom the judgment is to be enforced is referred to as the judgment
obligor.
- In the past, the terms used are judgment creditor instead of judgment obligee and
judgment debtor instead of judgment obligor.
- The one entitled to the execution id the judgment obligee and the other party, the party
against whom execution is directed is judgment obligor.

Q: In compulsory execution, how may the judgment be executed?

A: Two ways,
1. By means of a motion
2. By means of an action

By means of a motion

- When you say motion, you just file a motion. You call it a Motion for issuance of a writ of
execution. Simply, motion for execution but in the bar exam you have to complete the
phrase. You say motion for issuance of a writ of execution. (although in practice I simply
say “motion for execution” mas magandang pakinggan. Dito ung KISS. Dko na nilagay
dto. Debale memorized niyo ^_^ hehe)
Q: when can you enforce a judgment by means of a motion?
A: within 5 years from entry of judgment.
Entry of judgment. When a judgment becomes final, the clerk of court shall enter the
judgment in the book of entries of judgment. That’s what you call entry of judgment.
The rule tells us, rule 36 tells us, that the date of finality of the judgment is presumed to
be the date of its entry. The date of entry is the date of finality of judgment.

Let’s say you are the defendant in the case, you received the judgment on July1 and you
did not do anything about it,you did not appeal, you did not file a motion for new trial,
you did not file a motion for reconsideration, you simply did not do anything about it,
and then after 15 days, the judgment becomes final (July 16). That is the date of finality
and date of entry. So you can execute the judgment by means of a motion within 5 years
from the date of its entry

So entry of judgment, 5 years, you enforce the judgment by means of a motion. You file
a motion for execution and then the court will issue a writ of execution.

Q: what is the lifetime of a writ of execution?

In the Past: the lifetime of a writ of execution is 60 days from date of issue. And then
after 60 days and the judgment has not yet been enforced yet, then you again file for the
issuance of another writ of execution, you call it Alias writ of execution.

But now, the rules have been changed.

Now: the writ of execution shall be made in effect during all the time that the judgment
can be enforced by a motion. The writ of execution shall remain in effect during all the
time that the judgment can be enforced by a motion. Meaning, if you have 5 years from
entry of judgment and not anymore 60 days.

Whiteboard 

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 Entry of After 5
judgment years

Within 10 years
This is what the rule says, after 5 years but within 10 years from entry of judgment. It means
the next 5 years. Then the judgment can be enforced by means of an action. You cannot enforce
it anymore by means of a motion. You have to file a complaint in court to revive the judgment.
Action to revive the judgment. Why revive? Because the judgment has become dormant after 5
years.

Look at the whiteboard  . after 10 years, the judgment becomes stale. Can you still file an action
to revive? No. if you do, the defendant will file a motion to dismiss on the ground that the
judgment has prescribed. Judgment prescribes after 10 years from entry of judgment.

Date 1st 5 2nd 5

of yrs yrs
entry

Within 10 years

In the 1st 5 years you simply file a motion for execution. After 5 years but within 10 years, you
file an action. the action is an action to revive the judgment. You will not be litigating the issues.
You simply revive the judgment. In this action, the court will render a judgment reviving the
judgment. This judgment that revived the judgment may also be enforced by means of a motion
within the 1st 5 years and by means of an action within the next 5 years.
Q: how will you enforce the judgment that revived the judgment? In the same way. By means of
a motion and by means of an action.

Execution by means of a motion.

You simply file a motion. RTC is the court who rendered the judgment.

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The judgment of the RTC became final and then you want it executed. Then you file a motion
within the 1st 5 years.

A motion for the issuance of a writ of execution is a non-litigious motion. If a motion is non-
litigious, you file the motion in court then the rule now tells us that the court will resolve the
non-litigious motion within 5 days from the date of its filing.

Q: Suppose the RTC refuses to issue the writ of execution, what is the remedy? The remedy is
file a petition for mandamus with the higher court. If the trial court is the RTC, in our example,
and the judgment of the RTC becomes final, you file the motion for execution with the same RTC
that rendered the judgment but suppose the RTC refuses to issue the writ of execution? What is
the remedy of the judgment obligee? Go to the higher court(CA) and file a petition for mandamus
to compel the court of origin to issue the writ of execution. Petition for Mandamus is available as
a remedy if a lower court refuses to perform a ministerial act. If the execution is compulsory, the
judgment obligee is entitled to an execution as a matter of right. Therefore, the trial court has
the duty to issue the writ of execution and that is a ministerial duty and his refusal may be
compelled by mandamus.

I’ll explain another one.

The RTC renders a judgment. The judgment was appealed to the CA, the party who was adversely
affected by the judgment appealed from the judgment. The appeal was taken to the CA. the CA
rendered a judgment and the judgment became final.

Q: what court will issue the writ of execution? The court of origin.
The motion for execution will be filed in the court of origin, the RTC in this example. So you file
motion for execution and then the motion should be accompanied by a certified copy of the
judgment of the appellate court and certificate of entry of judgment.
Let us say, the motion was filed and all of these accompanying documents are attached to it, all
requirements complied with, but that notwithstanding, the RTC refused to issue the writ of
execution. What is the remedy? The remedy is to file a motion with the appellate court in the
same case. Asking for an order directing the court of origin to issue the writ of execution.

If the court of origin or the trial court refuses to issue the writ of execution, what is the remedy
of the judgment obligee. Then you have to qualify your answer. You have to give these two parts
of your answer. Your answer will have 2 parts.

By means of an action
- What do you mean by action? a civil action. a case. You file a case. Imagine you file a
case just to enforce the judgment.
These are the 2 ways to enforce a judgment.

Module 39

Last time we were talking about the kinds of execution of a judgment in a civil case. We are still
in Rule 39. Last time we said that there two kinds of execution. One is called compulsory
execution also known as execution as a matter of right. Second one is discretionary
execution or execution pending appeal or also known as exceptional execution.

When it comes to a compulsory execution, what is to be executed is a judgment or final order

that has become final ad executor. That is the subject of a compulsory execution.

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So how will you execute this judgment that has become final and executor?

Well by means of a motion or by means of an action. And we mentioned last time that it is by
means of a motion within 5 years from the entry of judgment. So the 5 years is to be reckoned
or computed from the date of entry of judgment.

What is the date of entry of judgment?

The date of finality of the judgment is presumed to be the date of its entry. And after 5 years
but within 10 years from the date of its finality, the judgment should be enforced by means of
an action.

What do you call the action?

An action to revive judgment. Because after 5 years the judgment becomes dormant.

How do you enforce a revived judgment?

Also by means of a motion or by means of an action.

Suppose the writ of execution is issued and it varies the judgment. The judgment may consist
of many pages but on the last page or almost towards the end of the decision or judgment,
there is now this dispositive portion. It usually starts with the word “wherefore”. Or the phrase
“premises considered” but when you become judges, do not say “wherefore premises
considered” that will be redundant. So that is the dispositive portion or what is known as fallo.
It is the dispositive portion that can be the subject of execution. So you execute that part - the
dispositive portion (judgment).

What happens if let us say the writ of execution varies the judgment or the dispositive
portion?

Well, the writ of execution is void if it varies the judgment.

What is the remedy?

File a motion to quash the writ of execution.

Now I told you class that within 5 years from entry of judgment, the judgment may be executed
by means of a motion. In one case class, what happened was there was this judgment and the
dispositive portion reads as follows “wherefore, judgment is hereby rendered ordering the
defendant to pay the plaintiff the following etc.” then you have the amount and the last part of
the dispositive portion states the following: let a writ of execution issue for the enforcement of
this judgment.

So the court included in the judgment an order for the issuance of the writ of execution. Is
that valid? Suppose the clerk of court issued the writ of execution pursuant to that part of the
dispositive portion because the dispositive portion says “let a writ of execution be issued for the
enforcement of the judgment”

Would that be a valid writ of execution?

No. Why not? - Because the court cannot order the issuance of a writ of execution in the
judgment itself. So the reason is because the court cannot order the issuance of a writ of
execution in the judgment itself. You might ask “why not?” because if the court can order the
issuance of a writ of execution in the judgment itself, then that will now violate the rule that a
judgment may be enforced by means of a motion within 5 years from the date of entry of
judgment. You need to file a motion if the issuance of a writ of execution is the order for the

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issuance of a writ of execution is already included in the judgment then that will now do away
with the requirement that you need to file a motion.

I hope you understand what we are talking about here.

Now last time we talked about in what court may the motion for execution be filed? We said
class that it must be filed with the court of origin.

What is the remedy if the court refuses without any justifiable reason to issue the writ of
execution because there might be a justifiable reason?

If there is no justifiable reason for the refusal of the court to issue the writ of execution then
the remedy is a petition for mandamus with the higher court to compel the court below, the
court of origin to issue the writ of execution. But if the judgment was appealed to the higher
court and the higher court (Appellate Court) now has finally resolved the appeal and the
judgment of the appellate court in the appealed case has become final then the motion for the
issuance of the writ of execution must be filed with the court of origin - Because it is the court of
origin that will issue the writ of execution. But suppose the court of origin refuses to issue the
writ of execution, the remedy is to file a motion with the appellate court in the same case
asking for an order directing the court of origin to issue the writ of execution.

But I’d like you to know that if let us say, that the trial court is the RTC, the judgment was
appealed to the CA and the CA rendered a judgment in the appealed case and the judgment of
the CA became final then you now file a motion for the issuance of writ of execution with the
RTC, then what you need to do class is your motion must be accompanied by a certified copy of
the judgment of the appellate court and then certificate of entry of judgment. So you attach to
the motion a certified copy of the judgment of the appellate court and the certificate of finality
or entry of judgment to show that the judgment has become final. Then the RTC may now issue
the writ of execution. But if the RTC, the court of origin, refuses to issue the writ of execution -
then you file a motion with the appellate court in the same case asking that an order be issued
to compel the RTC to issue the writ of execution.

Now class, in the past, if a judgment is appealed to the CA, for example, the CA has rendered
its judgment in the appealed case and you want to execute the judgment of the appellate court,
you cannot file a motion with the court of origin, the trial court, unless the record of the case is
remanded to the court of origin. You have to wait until the record of the case is remanded to
the court of origin. In those days, it would take a long time before the record would be returned
to the court of origin. That problem has become a thing of the past because you don’t have to
wait until the record is remanded to the court of origin because now all you need to do is
attach to your motion or your motion should be accompanied by a certified copy of the
judgment of the appellate court and a certificate of entry of judgment.

I told you class that there is a remedy if the court of entry refuses to issue the writ of execution
but then take note that there may be instances when the court is justified in refusing to issue
the writ of execution as when a supervening event occurs after finality of the judgment that
makes execution unjust or inequitable. Alright, and then the second one is, if the judgment has
become dormant for failure to execute it within 5 years from entry of judgment then you
cannot ask for a writ of execution anymore. If you file a motion, then the court may deny your
motion.

Take note class, that the execution of judgment within 5 years of after 5 years but within 10
years this rule does not apply in land registration cases. It is only applicable in civil action.

Now let’s go to another topic now. This time let’s talk about execution pending appeal.

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In execution pending appeal, the judgment has not become final yet. That is why you call it
discretionary execution. The execution depends on the sound discretion of the court that is
why we call it also exceptional execution because this is a kind of execution that do not happen
every day, exceptional in the sense that it will be issued only if there is a good reason for
execution pending appeal.

What are the requisites of execution pending appeal?

1. There must be a motion for execution pending appeal. You have to file a motion.
And I’d like you to know that in Rule 15, there is a long list of what motions are non-
litigious and another long list of motions that are litigious. If the motion is litigious, the
other party has the right to file his opposition. I’d like you to know that a motion for
execution pending appeal is a litigious motion.

2. There must be a good reason for execution pending appeal.

3. The good reason for execution pending appeal must be stated in a special order.

Suppose the good reason is not stated in a special order - then the execution pending
appeal is not valid. That’s why we have a special order because it will state the good reason
for execution pending appeal.

What could be examples of good reason for execution pending appeal?

Well, old age of the judgment obligee may be a good reason - because if the judgment is
not executed, then the judgment obligee may not live long enough to enjoy the fruit of the
litigation.

The possible law of the subject of the litigation is deterioration - maybe a good reason for
execution pending appeal.

What about if the judgment obligee will post a bond, will the posting of a bond may be
considered a good reason for execution pending appeal?
No. because if an execution pending appeal can be had if a bond is posted then execution
pending appeal will no longer be exceptional – it can be had anytime provided you post a
bond then it will not anymore be exceptional. It will become just a matter of routine if you
can have execution pending appeal by mere posting of a bond.

What court may issue execution pending appeal?

A while ago we said that if it is a compulsory execution, it is the court of origin. What about
if it is an execution pending appeal? It is the trial court. But if the trial court has already
lost jurisdiction over the case, then it is the appellate court that can issue the writ of
execution pending appeal.

Let us say:
1. Trial court
2. If the trial court lost jurisdiction over the case – appellate court
3. Although the trial court may have lost jurisdiction over the case, it may still issue the
writ of execution pending appeal provided the record of the case has not yet been
transmitted to the appellate court. The trial court can do and exercise its residual
jurisdiction.

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What does that mean class?

The trial court has lost jurisdiction over the case. But the record of the case is still in its
possession, it has not yet been transmitted to the appellate court then it can still issue the writ
of execution in the exercise of its residual jurisdiction.

Now when we go to appeals class, we will learn, discuss the topic when will the trial court lose
jurisdiction over the case. We will take that up when we discuss appeals.

Suppose the court issues a writ of execution pending appeal, may the other party, the
judgment obligor do something? What is the remedy of the judgment obligor so S to have
a stay of execution pending appeal? Well, what he can do to secure a stay of execution
pending appeal is to file a sufficient supersedeas bond. He will post a supersedeas bond. And
there will be a stay of execution pending appeal upon the approval by the court of a sufficient
supersedeas bond.

What is the amount of the supersedeas bond? What is the purpose?

It is conditioned upon the performance of the judgment. In case the judgment is sustained on
appeal.

I’ll give you an example class.

So you have X versus Y. RTC renders a judgment in this case, the judgment is not yet final and
let us say that the judgment obligee is X because the judgment is favorable to him and Y is the
judgment obligor, Y was the one who appealed from the judgment. So although the judgment is
not yet final, X was able to obtain a writ of execution pending appeal. So the judgment is now
to be enforced notwithstanding that it is not final yet although it is the subject of an appeal.
Now, Y would like to have a stay of execution. What can Y do to have a stay of execution?
He will post a supersedeas bond. This supersedeas bond, that the judgment will be satisfied in
case it is affirmed by the appellate court. It is conditioned upon the performance of the
judgment in case the judgment is sustained on appeal by the appellate court.

Now, I’d like you to know however that there are judgments that are not stayed by appeal. The
reason, they are enforceable upon repetition. That is why they are not stayed by appeal
because they are enforceable upon repetition. The moment the judgment is rendered, it is
immediately enforceable. It is subject to execution notwithstanding that they are not final yet.
If you appeal, the appeal will not stay the judgment. These are judgments in (1) action for
support. Also (2) judgments in an injunction and then (3) receiver’s check and (3)
accounting. And the you add the following: in an action for (5) forcible entry or (6) unalwful
detainer if the judgment is against the defendant, the judgment is subject to immediate
execution. In forcible entry or unlawful detainer, if the judgment is against the defendant, the
judgment is subject to immediate execution. Take note, that forcible entry and unlawful
detainer, these are the 2 ejectment cases. You call them action interdicta. And in these 2
ejectment cases, if the judgment is against the defendant, it is subject to immediate execution.

And then another one is judgment upon a compromise.

Why is it subject to immediate execution?

Is a judgment upon a compromise appealable?

No. because it is final upon rendition. Why? Because it is based upon the compromise arrived
at by the parties themselves. The parties will submit a compromise agreement to the court and
they will ask the court to render a judgment based on the compromise agreement, if the court

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approves the compromise agreement, it will render a judgment based on that agreement and
then you call it a judgment upon a compromise. It is subject to immediate execution because it
is not appealable.

We have also properties excempt from execution. You cannot execute on these properties
because they are excempt from execution. You need to take note of what properties are exempt
from execution. One of them is family home. Another one is, my favorite, it is called a lettered
gravestone. That is section 13 J. If you go to sec 13 J, you will see a long list of properties
exempt from execution. You just have to take note of some of them and then if you go to letter
J, you have lettered gravestones. You have also the right to receive legal support or money or
property such as support and any pension or gratuity from the government like my pension
from the SSS. I’d like you to go to letter C. Three horses or cows, carabaos or other beasts of
burden. So If you have 5 horses, only 3 of them are exempt from execution. Every time I get
down to this part, I remember Noah in the bible when he was commanded to bring into the arc
animals two of each kind male and female, so only two. Here, three. So this one is not even
biblical.

Now, problem in the bar exam, so let us say that this sheriff is armed with a writ of
execution, he will now levy on the property of the judgment obligor. And then the sheriff
levies on what appears to be a family home. So he levies on that family home, is the levy
valid? When you enforce the writ of execution, you will make a levy on the property belonging
to the judgment obligor. Suppose that is the only thing stated in the bar exam. Is the levy
valid? Yes, because it is not for the sheriff to claim the exemption. The one who should claim
the exemption is the judgment obligor himself. So if the judgment obligor will not claim
exemption, then the levy is valid.

Question, when may the judgment obligor claim the exemption? At the time of the levy or
if he was not able to claim the exemption at the time of the levy, at least he must claim the
exemption at the time of the sale. But if he fails to do that, then the levy would be valid and the
sale would also be valid.

Like they will give you a problem in the bar: The sheriff levies on a family home and what will
follow the levy? - Sale on execution. And then the family home was sold in an execution. And
let us say that the property was sold in that execution sale to someone else, like X for example.
Then years later, the judgment obligor filed an action to annul the sale of the family home
alleging that the sale is void because the family home is exempt from execution. He filed a case
against the sheriff and the buyer of the family home at the execution sale. May the sale be
nullified on the allegation that it is a family home assuming that indeed the judgment obligor
now plaintiff in the present case can prove that it is a family home, may the sale be nullified?
No, because he did not claim exemption. It is not for the sheriff to claim the exemption. If the
judgment obligor believes that that is exempt form execution and the rule itself states what are
exempt from execution then he must claim the exemption. If he allows the levy without
claiming the exemption then the levy is valid and the sale that is conducted pursuant to the
levy would also be valid. That’s why class it is important that you will take note of what are
exempt from execution. Read sec 13, and not only that, you have to memorize them.

Next time we will continue from here. We will still be talking about execution next meeting.
That’s all for today.

Rule 39 Lec 2

Recap:

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We are still in rule 39 and last time we talked about execution pending appeal. We mentioned
the requisites for execution pending appeal and also we mentioned last time judgment not state
by appeal and these are judgment in an action for support, in an action for injunction, in action
for receivership, in an action for accounting and also forcible entry and unlawful detainer cases
if the judgement is against the defendant. If the judgment is against defendant, the judgment is
subject to immediate execution.

We also said last time class, that the judgment upon a compromise is immediately executory.
We will continue from there.

Removal of improvements of property subject of execution.

I would like us to get your rules of court, you should have a book and go to Rule 39, Sec. 10
and go to paragraph d. It tells us something about removal of improvements of property subject
of execution.

Let us say the property subject to execution has improvements thereon.

There is a writ of execution and it commands the sheriff to eject the defendant from the property
and to put the plaintiff in possession but there is an improvement in the property.

Q: What is needed to remove or dismantle this property?

A: Rule 39, par. d tells us what to do.

When the property subject of the execution contains improvements, constructed or planted by
the judgement obligor or his agent, the officer shall NOT destroy, demolish, or remove said
improvements except upon special order of the court issued upon the motion of the judgment
obligee after due hearing and after the former have failed to remove the same within a reasonable
time fixed by the court.

Discussion:

The writ of execution will not be sufficient to remove the improvements, building constructed
in the property. The rule says that the officer shall not destroy, demolish, or remove said
improvements.

Q: May the officer destroy, demolish, or remove the improvements?

A: Yes, but there must be a special order issued by the court for the demolition or removal of
the improvement.

The special order may be obtained by the judgment obligee by means of a motion. There must
be hearing on the motion and the judgment obligor has failed to remove it within a reasonable
time fixed by court.

If you are going to be asked in the bar exam:

What is to be done so that the improvement constructed on the land subject to the execution
can be removed?

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A special order of demolition or a special order to remove improvement and this special order will
be issued by the court upon the motion of the judgment obligee.

Effect of a levy

Sec.12, Rule 39

BarQ: What is the effect of levy on execution as to third person.

A: Sec. 12, Rule 39. It says that the levy on execution shall create lien in favor of the judgment
obligee over the right, title and interest of the judgment obligor in such property at the time of
the levy, subject to liens and encumbrances then existing.

Discussion:

Here is a piece of land and it is the subject of a levy. It was levied upon on execution by the
sheriff or his deputy.

Q: what is the effect of the levy on the property?

A: It creates a lien over the property.

Third Party Claimant.

Example of a Third Party Claimant

X as plaintiff versus Y as defendant. The case was decided in plaintiff’s favor and so X is the
judgment obligee and Y is the judgment obligor. Here is a property and there was a writ of
execution issued and the sheriff now levies on the property. The sheriff was of the belief that the
property is owned by the judgment obligor but the truth is the judgment obligor is not the owner
of the property. He is only a caretaker of the property. The owner is Z.

Now if the sheriff levies on this property which is not owned by Y but owned by Z (although the
sheriff believed that the property belonged to Y, but that belief is not correct) then Z is what
you called a third party claimant.

Q: Who is a third party claimant?

A: A third party claimant is a person who has title to or right of possession over the property
being levied upon.

He is not a party to the case, he is not a judgment obligor and his property is about to be levied
upon by the sheriff or has been levied upon by the sheriff. But that property does not belong to
the defendant r judgment obligor. It belongs to someone else who can show title to (ownership)
or right of possession.

Now, Y is the owner of the property. Before the issuance of the writ of execution or before the
case was instituted Y had mortgaged the property to Z. Z is the mortgagee. There is a contract of
real estate mortgage between Y and Z. Later the case between X and Y was decided and the
judgment became final. The judgment was in favor of X and so the sheriff is bout to enforce the
judgment. There is now a writ of execution and the sheriff levies on this property that was earlier
mortgaged to Z.

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Q: Is Z a mortgagee, a third party claimant?

A: No, because the property is owned by Y, it was only mortgaged to Z. The rule on mortgage:
The mortgagee will not be in possession of the property mortgaged to him. The mortgagor will
continue in possession of the property. And so Z is not a third party claimant because he is not
the possessor or the owner of the property.

Go back to the firs example:

Z is a third party claimant. If Z is a third party claimant because the property being levied upon
belongs to him. He owns it and he has the right of possession over it.

*By the way, the third party claimant is either the person the person who owns the property or
the person who has right of possession over the property.

Q: What are the rights of a third party claimant or what are the remedies of a third party claimant.

A: The following are his remedies (I would like you take note of these class):

1. To file a third party claim.

Take note class that the word is “claim”, so that in the examination instead of writing
“claim” you wrote complaint, you are wrong. Because a third party complaint is not
the same as a third party claim. I would like you to take note of that and I would like
to emphasize that point. A third party claim is not the same as a third party complaint.

A third party claim is also known “terceria”. So if in the bar exam, you say bar exam you say “file
a terceria” then you are correct

Although I (Dean) rather you say “file a third party claim”. If you want to include the word terceria
you place it in a parenthesis.

Q: How does the third party claimant file for a third party claim?

A: He will execute or make an affidavit of third party claim. In that affidavit of third party claim,
he will state facts showing his title to or right of ownership over the property being levied upon
and attached to his affidavit pertinent documents showing his title or ownership or right of
possession over the property levied upon. Then he will serve his affidavit of third party claim on
the sheriff and on the judgment obligee. If the sheriff is served with a copy of the third party
claim, then the sheriff must stop his proceedings. The sheriff is not bound to proceed with the
levy.

Q: If you are the judgement obligee and you want the sheriff to proceed with the levy or to go to
the next step of the proceedings, what should the judgment obligee do if he wants the sheriff to
proceed with his levy.

A: The judgement obligee must file an indemnity bond.

Q: What is the purpose of the indemnity bond?

A: To protect the sheriff from any liability in the event the third party claim is found to be tenable.

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 2. If an indemnity bond has been filed by the judgment obligee then on remedy to the
third party claimant is to file an action against the bond within 120 days from the
filing of the bond.

3. File a separate action to vindicate his claim to the property.

In this action he will litigate his right over the property.

There is also a third party claim and there may also be a third party claimant in
attachment or replevin. (If you do not know attachment or replevin you just write it down
because we will talk about them in our lessons in the future.)

That in attachment or replevin the third party claimant has also a remedy of intervention.
But take note that what we are talking about is a third party claimant in execution.

Q: The third party claimant has the remedy of intervention in attachment or replevin, is
this also available as remedy in a third party claimant in execution.

A: No. It is only available as a remedy of the third party claimant in attachment or replevin
but not in execution.

Why so? Because as we have pointed out when we where talking about intervention that
the time to intervene is at any time before rendition of judgment by the trial court.

Meaning, if there is now an execution there is a judgment already rendered by the trial
court. Otherwise, there will he no execution, because what you execute is judgement or
final order.

Next point you need to know is that these remedies are cumulative.

Meaning, if you are the third party claimant, you may resort to any of this remedies. You are not
compelled to first avail yourself of the first party claim and if denied you go to the next remedy,
No. You may file or institute an action to vindicate your claim over the property without first
filing a third party claim. You are bot bound to follow the order of remedies that we have
presented.

Q: Suppose the third party claimant files a third party claim, what will the court do with the
third party claim?

A: The court will conduct a summary hearing on the third party claim. The third party claim to
determine if the claim is tenable or not. After the summary hearing if the court finds that the
claim is valid somehow, that the property levied upon does not belong to the judgment obligor,
it really belongs to the third party claimant.

The third party claimant was able to prove his claim by certificate of title, etc. (there are many
ways in proving) and after the summary hearing the court finds that the claim is valid, then the
court may order the release of the property to the third party claimant because the levy is a
mistaken levy. The court will order the release of the mistaken levy and restore it to the third
party claimant.

But suppose, after a summary hearing, the court finds that the claim is not tenable, no validity
to it. Then the court will deny the third party claim.

Q: Is appeal the remedy against the denial of the third party claim?

A: No, because the third party claimant is not a party to the action.

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If you have questions, you will ask your questions in our next zoom meeting.

Redemption

So here, the property is levied upon. After the levy, there will be a sale on execution. Although,
if the property to be sold in execution is a real property, there will be notices of sale that will be
published. We will talk about this later class.

Property is sold in a sale on execution. Is there a right of redemption? And who can exercise the
right of redemption?

A: If what is levied upon and what is sold in the execution sale is a movable or a personal property
then there is no right of redemption.

But if what is sold is a real property or an immovable then there is a right of redemption.

Q: Who can redeem?

A: The following can redeem:

1. The judgment obligor; and

2. The redemptioner

Q: There is a land and it was sold in an execution sale. You have A, B, C and D. A is the
judgment obligor. B, C and D are the redemptioner as defined in the rules. Who can
redeem?

A: Any one of them can redeem. If B redeems, then C can also redeem it from B. And D
can redeem it from C. There can be a redemption even among redemptioners within a
certain time.

If the one who redeems is A, then there can be no further redemption from him.
Meaning, if the only or last person to redeem is the judgment obligor there can be no
further redemption from him.

In our example, if A was the first to redeem, then B, C, D cannot redeem from him. But
if the first to redeem it is B, can A redeem it from B? Yes, A can redeem it from B.

Q: Can C redeem it from A?

A: No.

Q: Who is redemptioner?
A: A redemptioner is a creditor who has a lien by virtue of a judgment, attachment or
mortgage on the property sold subsequent to the lien under which the property was
sold.

Example:
There is a property which belongs to Y and Y is the defendant in the case X v. Y. Before
the action was instituted against Y, Y already mortgaged the land to Z. Z had registered
the mortgage with the registry of deeds. Now Z has a lien (1st lien) by virtue of a mortgage.
This lien was recorded in the Registry of Deeds as early as 2017 and then the case was
instituted. X was able to take judgment against Y in 2019. The judgment became final in

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 2019 and now it is being enforced by means of execution (The levy on the execution is
the 2nd lien). Then the property was sold in an execution sale in 2020.

Q: Under what lien was the property sold in the execution sale?

A: Under the levy on execution that was made in 2020. A levy creates a lien (as mentioned
in the early part of the presentation today Sec. 12).

Q: Can Z redeem the property that was sold in an execution sale pursuant to this lien?
Is Z a redemptioner?

*answer will be based whether the lien is subsequent to the lien (it follows and not prior)
to the 2020 lien.

A: No. Because his lien (first lien in the example) by virtue of his mortgage is recorded in
2017 and still subsisting. So his lien is not subsequent to the levy (second lien in the
example) which created the lien.

Q: Does it mean that Z does not have a remedy?

A: No. Because if a property is mortgaged to someone else and it is recorded the
registration will constitute a notice to the whole world that the property is subject to a
mortgage. It will bind everyone else. Meaning, the sale that was conducted in 2020 is
subject to the right of Z as a mortgagee. So he can foreclose the mortgage the property at
a proper time, notwithstanding it is now owned by another person.

Next time we will explain right of redemption as opposed to equity of redemption. And it is a very
complicated topic to discuss.

RULE 39 – LECTURE 3

We are still in RULE 39: EXECUTION OF JUDGEMENT

Last time class we talked about the remedies of a person who is not a party to the action
and yet the property belonging to him is the subject of a levy, and we refer to him or we call him
a third party claimant. And we mentioned last time that a third party claimant is a person who
has title to or right of possession over the property being levied upon by the sheriff or his deputy.

And so, we talk about the remedies of a third party claimant, one of them is to file a third
party claim. And I told you last time, I emphasized it last time, that a third party claim is not the
same as a third party complaint, so that if there is going to be a problem in the bar exams
regarding the remedies of a third party claimant, be sure you do not say third party complaint
because if you say third party complaint, that is not correct. And then, we mentioned last time
that these remedies available to a third party claimant are not cumulative. And we explained last
time what is meant by cumulative. And went on to discuss redemption.

So, question is, if a property is sold in an execution sale, is there a right of redemption?
And who can exercise the right of redemption? And within what time may the right of redemption
be exercised?

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 Alright, and so, last time, we said that the following can, we said last time that if what is
sold is a personal property, or a movable, there is no right of redemption. But if what is sold in
an execution sale is real property or an immovable, the there is a right of redemption. And who
can exercise this right of redemption? Well, judgement obligor or a redemptioner. I told you last
time class that a redemptioner is a creditor who has a lien by virtue of a judgement, attachment,
or mortgage on the property sold subsequent to the lien under which the property was sold. And
I mentioned to you that a levy creates a lien on the property.

Now, when we go to attachment, you will see that when a property is attached, the
attachment also creates a lien on a property. And so is a mortgage. A mortgage also creates a
lien on the property.

Alright, I gave you an example last time of who can redeem. For a person to be a
redemptioner, he has a lien on the property. His lien should be by virtue of a judgement,
attachment or mortgage. And his lien should be subsequent to the lien under which the property
was sold.

EXAMPLE:

If let us say here is levy –levy on execution. So, the levy was let us say that a levy of
execution was made in the year 2018, that was let us say June of 2018 when the levy was made.
Alright and then the property was mortgaged, the same property was attached. Let us say in
another case, and the attaching creditor let’s just say was X. The attachment happened in 2018
that was let us say September of 2018. And then the property was sold, there was a sale on
execution on let us just say on November 2018 right. The sale on execution was pursuant to this
levy. So, the sale was pursuant to this levy and a levy is a lien as we mentioned last time.

Okay question, is X a redemptioner? Yes, because his lien which was by virtue of
attachment which happened September 2018 is subsequent to this lien under which the property
was sold. Okay so the property was sold in November 2018 pursuant to this lien. This is the lien
under which the property was sold. And the X here is subsequent to the lien. I hope you
understand the example class. If you did not understand the example, then make your own
example and be sure that in your example of who a redemptioner is, his lien should be by virtue
of a judgement, attachment, or mortgage subsequent to the lien under which the property was
sold.

Okay, Now let us just say that a real property was sold in an execution sale, a real
property was sold in an execution sale, then the sheriff or his deputy, the one who conducted
the sale will issue a certificate of sale. He will issue a certificate known as certificate of sale. The
certificate of sale states the description of property, the price paid, and it also contains a
statement that the right of redemption will expire within 1 year from the date of the registration
of the sale, of the certificate of sale. So, the certificate of sale, alright will contain a statement

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that the right of redemption will expire 1 year from the date the certificate of sale is registered in
the office of the register of deeds.

Alright, now I told you last time class, that the judgement obligor may redeem. If the
judgement obligor redeems it within 1 year from the date the certificate of sale is registered in
the office of the register of deeds of the province or city where the property is situated, then there
can be no further redemption from him. Nobody can redeem it from him.

But if the one who redeems is a redemptioner, alright, then there can be a redemption
from him, and if the one who redeems it from a redemptioner is another redemptioner, then there
can be another redemption from him. Alright, now take note that the properties redeemed may
be redeemed within 60 days after the last redemption.

Okay, so first class, the redemption should be within 1 year from the date the certificate
of sale is registered in the office of the register of deeds. Okay, within one year from the date the
certificate of sale is registered. Alright, now let us say that within 1 year, a redemptioner redeems.
I told you that there can be further redemption from him and the redemption from the
redemptioner may be made within 60 days after the last redemption and then, another
redemption can be made from that redemptioner provided it is done within 60 days. Suppose if
you count this 60 days, it will now go beyond 1 year from the date the certificate of sale is
registered. Would that still be alright? Yes, provided the redemption from another redemption
would be within 60 days. I hope you understand. Okay now, we will explain further this topic on
redemption when we will get to mortgage, real estate mortgage, judicial foreclosure of mortgage
because then we will talk about equity of redemption. And we will explain class that equity of
redemption is not the same as right of redemption. What we are talking about is right of
redemption.

Okay then, we now discuss other topics that we have not explained before. For example,
I will tell you class that the Court of Appeals has no, no authority to issue execution pending
appeal of its own decision. So, the Court of Appeals has no authority to issue execution pending
appeal or writ of execution pending appeal of its own decision. Execution pending appeal applies
only to judgement or final order of the trial court. When we say trial court, what court are we
referring to? The municipal trial court and the regional trial court.

Okay, and then we explained one time that the subject of execution is a judgement or
final order. Take note class that when we say final order, the final order may become final and
executory. Okay now, take note that the term final order as used in our lesson now okay, would
refer to a final order that terminates a case as opposed to interlocutory order. Now that final
order if the parties do nothing about it may become final and executory and if it becomes final
and executory, it can be the subject of execution.

Okay, and then one time, I told you that a levy made beyond 5 years from entry of
adjustment is void because the lifetime of a writ of execution is 5 years from date of entry of
judgement.

Okay now class, have you heard about Petition for Issuance of a Writ of Possession?
Let us say that no redemption is made within 1 year from the date the certificate of sale is
registered. Alright and so, the right of the purchaser over the property will now become absolute.
So, within the period of redemption, the right of the purchaser at the execution sale is subjected
to what the right of the judgement obligor or a redemptioner to redeem the property. And I hope
you understand what we’re talking about. Okay, but if 1 year has expired and no redemption is
made, then his right as a purchaser becomes absolute and he is now entitled to what, the
possession of the property that was sold to him in the execution sale.

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 Okay, now supposed the judgement obligor is still in possession. What is the remedy of
the purchaser? To file a petition for issuance of a writ of possession. That is his remedy and I
like you to know that although this is called a petition, it is in fact a motion. Alright, if you go to
Rule 15 this Motion for Writ of Possession is what, is a non-litigious motion. So, let me just show
you the book. Rule 15 class lists down non-litigious motion and litigious motion. And if we go to
Section 4, I’m holding this book and you should have a book like this. This book now
incorporates the new rules so it tells us non-litigious motions and if you go to D alright then you
will find the following motion for the issuance of E. You go to E motion for the issuance of F. My
goodness, we’ll go to F (Rule 15, Section 4, F), it says motion for the issuance of a writ of
possession. So, I told you that this is a motion although 90% of the time it is called a petition.
But although it is called a petition, it is in fact a motion.

Alright, question supposed the judgement is now satisfied, the judgement is now satisfied
because the execution is successful. Alright, what is to be done after the judgement is
satisfied? Well, there will be what you call entry of satisfaction of judgement by the clerk of court
in the court docket and execution book. So, there is the court docket and execution book, and the
clerk of court will make an entry of satisfaction of judgement. Alright, so upon a return of the
writ indicating satisfaction or admission of satisfaction by the judgement obligee or counsel so
that the judgement obligee or his counsel admits that there’s now already a satisfaction of
judgement then the clerk of court has the duty to make an entry of satisfaction of judgement in
the court docket and execution book.

Alright now, let’s go to effects of judgements or final orders. Well the moment the
judgement or final order becomes final and executory, then the judgement or final order may
now constitute res judicata and so if another action involving the same parties, same subject
matter, same cause of action, then that second action may be dismissed on ground of res judicata
or bar by prior judgement.

What you do mean by res judicata? What is the English equivalent of res judicata?
Well, you can say bar by prior judgement but, really, what is meant by res judicata? Well, res
judicata simply means a matter adjudged. Let me write that on the board. A matter adjudged.
That is the meaning of res judicata.

And then I like you to take note, it might be asked in the bar exams, what are the two
aspects of res judicata? Well, you have 1) Bar by prior judgement and you also have 2)
Conclusiveness of judgement. Bar by prior judgement or conclusiveness of judgement.

What is bar by prior judgement? Well, bar by prior judgement simply means that parties
should not be permitted to litigate the same issue more than once. So, parties will not be allowed
to litigate again on issues that were litigated or could have been litigated. So, let us say that this
issue was not litigated but it could have been litigated in the same action, then you cannot bring
a second action to litigate that issue that could have been litigated.

In res judicata class, the cause of action in the two cases should be the same, alright. So,
the causes of action in bar by prior judgement, the cause of action in the two cases should be
the same, alright.

Now, what about this conclusiveness of Judgement? Conclusiveness of judgement also

known as “Preclusion of Issues” or “Collateral Estoppel” or “Immutability of Judgements”. So,
when you say Conclusiveness of judgement, alright, this is another aspect of res judicata,
conclusiveness of judgement it also means, what? Preclusion of issues. I will write that on the
board, alright, or it can also refer to what? Collateral estoppel or immutability of judgement. So,
what does it mean? What does conclusiveness of judgement mean? Well, the issues actually

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and directly resolved in a former suit cannot again be raised in any future case between the same
parties involving a different cause of action. So here, same parties, different cause of action.

Alright, in bar by prior judgement or res judicata, alright, same parties same cause of
action. In conclusiveness of judgement, same parties but the cause of action may be different,
involving a different cause of action. So, it means what? Once a case is decided with finality, the
controversy is settled, and the matter is laid to rest. So that is what we mean by conclusiveness
of judgement.

Alright, now if you have questions on execution, you just write them class, and then we
will discuss your questions in our next zoom meeting, which will be announced next week, so
we will not have any zoom meeting this week, it will be next week so that you can what? You can
write down your questions, alright.

HOW TO ANSWER BAR QUESTIONS?

What I would like you to do class, if you have, if you are not, if you’re not very busy, what
I would like you to do is train yourselves how to answer bar problems or bar questions in not
less than 8 sentences, make it 6 sentences. But if let us say, 6 sentences is not, would not be
enough, 6 sentences would not be sufficient. Then, you can make it 8 but don’t make it more
than 8 sentences, alright.

Your sentences should be simple and short. Simple sentences, short sentences are always
elegant, and they are not complicated, very easy to understand. So that is what you do if you are
not doing anything, you practice how to write short, simple sentences. You have the subject, you
have the verb, you have the noun. I know you can understand what I’m talking about, okay. So
that is what you do because the next bar examinations, there will be plenty of bar takers and if
you write long answers, the examiner may not have time to read your answers, so make it short.
The ideal answer would be 6 sentences but as I mentioned to you if 6 sentences would not be
sufficient because of what is being asked in the problem presented alright then you can add 2
more sentences but do not go beyond 8 sentences, alright. So that ends our discussion on
execution.

We don’t have any module, even for the next lesson, we don’t have a module, we will have
a module some other time but not this time and not also for the next lesson so that you have
plenty of time to rest and you can practice on writing short, simple sentences.

RULE 40 – 56 APPEALS

So, we go to Appeals. This one is Rule 40 to Rule 56, appeals. I hope you know how to
write the word appeal or appeals. The word appeal can be understood in another sense. But as
we use it in our lesson, when we say appeal, this is the remedy to obtain a reversal of a judgement
of a lower court. So, if a lower court renders a judgement, alright, and then you asked a party,
let us say, believed that a judgement is not correct, it is not in accordance with law, or
jurisprudence so you would like to make a reversal, okay, then your remedy is to appeal from
the judgement. You bring it to a higher court by way of an appeal. So that is the context in which
we are using the word appeal because you might understand it in another sense, okay.

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 As when, well there was this old man, I’m not sure if I, if I have mentioned this to you.
There was this soldier who said, “Old soldiers never die, they just fade away”, the soldier who
said that is the same one who also said “I shall return”, you know who said that phrase “I shall
return”? But there was this old man who also said, “Old lawyers never die, they just lose their
appeal”. That is what? The word appeal there can be understood in many ways. But that is not
our lesson, our lesson is appeal as a remedy to obtain a reversal of a judgement of a lower court.

I’d like you to know class, first of all, that the right to appeal is not a part of due process,
the right to appeal is not a part of due process, it is a mere statutory privilege. It is a privilege
granted by law. And because it is a mere privilege, it must therefore be exercised in a manner
and in accordance with the requirements of the rules. And so you have to comply with the modes
of appeal, okay. So that if you take the wrong mode of appeal or if you go to the wrong court in
your appeal, alright. Then your appeal will be dismissed. You cannot say that your right to due
process has been violated because as I have told you, the right to appeal is not part of due
process. It is a mere statutory privilege and therefore it must be exercised in a manner and in
accordance with the requirements of the rule, okay.

Now class, when you appeal from a judgement of a lower court, alright. The moment you
have perfected your appeal, then in due time, you will receive a notice from the appellate court,
directing you to file your memorandum of appeal or what is known as “Appellant’s Brief”. If your
appeal is from the MTC to the RTC, then the RTC will notify you and will direct you to submit
within 15 days your memorandum. It is called memorandum of appeal or sometimes it is simply
referred to as appeal memorandum. If the appeal is from the RTC to the CA, then in due time
also the CA will notify you that the record of the case has been received by the CA and you will
now have to submit what is known as “Appellant’s Brief”. Appellant’s Brief. Okay. That is one
brief that could be very long, alright. It is called Appellant’s Brief. In an appeal from the MTC to
the RTC, it is called appeal memorandum or memorandum of appeal. But what I would like you
to know class is that, in your appellant’s brief or appeal memorandum, you’re the appellant for
example, you have to what? Your appellant’s brief or appeal memorandum must contain what is
known as “Assignment of Errors” assignment... assignment of errors.

Alright, now. So, you have to make what is known as Assignment of Errors. The basic
appellate rule is that the court shall not consider any error unless stated in the assignment of
errors. So, the appellate court shall not consider an error unless it is, it is stated in the
assignment of errors, alright. I am not sure if you know what I’m talking about, perhaps next
time when we will have a zoom meeting, I will show you an example of an assignment of errors
or what you can do is you can go to some law offices and you can ask them to show you a copy
of an appellant’s brief. If you come to my, to our law office, and if I am there, I can show you a
sample of a, of an appellant’s brief, okay.

So let me say it one more time, the rule is that, the rule in an appeal is that, the appellate
court, appellate court shall consider no error unless it is stated in the assignment of errors,
except the following, so we have the following exceptions:

1. An error that affects the jurisdiction of the lower court over the subject matter of the
action. Even if that is not assigned, the appellate court should consider it, an error
affecting the jurisdiction of the trial court over the subject matter of the action. Now listen
class, be careful when you are writing your answers, you refer to the higher court as an
appellate court and you refer to the lower court as a trial court. Trial court, that (raise
arms) is the appellate court, this (lowers arms) is the trial court, okay.

2. An error that affects the validity of the judgement appealed from –the judgement being
appealed from. By the way, what is your preposition? You say appeal from a judgment,

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 appeal from a judgment, appeal from a judgment, and you appeal to the higher court,
okay.

3. An error that affects the proceedings or trial itself, okay.

4. An error closely related or, an error closely related to, or dependent on, an assigned error,
okay. So, the error is closely related to or dependent on an assigned, on an assigned error.

5. Plain and lyrical errors.

But I like you to know class that when it comes to the supreme court, the supreme court,
even if the error is not assigned, if it finds that, the consideration of the unassigned error is
necessary in arriving at the just decision of the case, then the supreme court may consider it
even if it is not assigned, alright.

So, I’d like you to what? To be able to remember all these exceptions, you have to
remember them, and be able to explain them, okay.

Now, so let’s say you appeal, later we will talk about modes of appeal or how to appeal,
but right now, I will tell you class, that aside from what? From filing your petition, if the appeal
is by means of a petition, or a notice of appeal, if the appeal is by means of a notice of appeal,
aside from that, within the time for perfecting the appeal, the appellant must pay the appellate
court docket fees, payment of the appellate court docket fees is mandatory to the perfection of
an appeal, okay. Now the failure to pay the appellate court’s docket fee is a ground for the
dismissal of the appeal, although the dismissal is not automatic, it depends on the sound
discretion of the court. If the appellate court docket fee is not paid, the dismissal of the case will
depend on the discretion of the court, alright. So, it is a ground for dismissal, but dismissal is
not automatic it is still discretionary. The appellate court might give you an opportunity to pay
the correct amount of appellate court docket fees, alright.

Now let’s go to other points, but I think we will discuss them in our next presentation
class, the other topics on appeals we will discuss them on our next presentation. As I mentioned
to you, you just write down your questions, alright. So that’s all for this presentation, we will
continue from here next meeting.

Rule 40-56

Lecture 1 &2

(This is a continuation of the lecture that we had last time.)

Our lesson covers Rule 40 up to Rule 56.

We said that within the time for perfecting the appeal the appellant must also pay the appellate
court docket fee. And the non-payment of the appellate court docket fee is a ground for the
dismissal of the appeal. Although the dismissal is not automatic, it depends on the sound
discretion of the court but the point that I’d like to emphasize is the failure of the appellant to
pay appellate court docket fee is ground for the dismissal of appeal.

What I’d like you to do is to go to Section 1 of Rule 41 because Section 1, Rule 41 tells you
two things:

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 1. What is the proper subject of an appeal?
2. What cannot be the subject of an appeal?

(Let’s go to Section 1, Rule 41. I told you that you need to have this book all the time, the Rules
of Court so that every time you encounter a section or a rule you can open it, it is available all
the time for your use.)

Section 1. Subject of appeal. – An appeal may be taken from a judgment or from a final
order that completely disposes of the case, or of a particular matter therein when
declared by these Rules to be appealable.

So, what you can appeal from is a judgment or a final order.

The next part of the section tells you the following:

No appeal may be taken from: (so the following are not appealable)

a.) An order denying a petition for relief or any similar motion seeking relief from
judgment. (I mentioned this to you one time, class, that you file a petition for relief
from judgment - that is a verified petition. You file with the same court and in the same
case. That is the first step – the filing of a verified petition and then the court will issue
an order directing the respondent to file his answer within 15 days from notice of the
order. And then the 3rd step is the filing of the answer but if no answer is filed, the
respondent cannot be declared in default. The 4th step is hearing on the petition. The 4th
step happens whether an answer has been filed or an answer has not been filed.
Whether an answer is filed or not you go to the next step, which is hearing on the
petition to determine if the allegations in the petition are true. If the court finds that the
allegations in the petition are true, then you go to the next step but if the court finds
based on the evidence presented that the allegations in the petition are not true, then it
will issue an order denying the petition. This order denying the petition is not
appealable. An order denying a petition for relief from judgment is not appealable.)
b.) An interlocutory order. (It is not appealable.)
c.) An order disallowing or dismissing an appeal. (If an order is issued dismissing an
appeal, what is the remedy? If the appeal is filed out of time, and therefore, the court
dismisses the appeal because it was filed out of time, then if the appellant can show
that he was prevented by fraud, accident, mistake or excusable negligence from
perfecting his appeal on time, then his remedy is to file a petition for relief asking the
court to give due course to his appeal. But if the appeal was filed on time but
notwithstanding that it was filed on time, the court dismisses it just the same, then the
remedy is a petition for certiorari.)
d.) An order denying a motion to set aside a judgment by consent, confession or
compromise on the ground of fraud, mistake or duress, or any other ground
vitiating consent. (because the remedy here could annulment of judgment based on
compromise, it can even be a petition for relief or a petition for certiorari.)
e.) An order of execution. (If the order for execution varies the judgment, then a writ of
execution is issued and the writ also varies the judgment, then the remedy is a motion
to quash the writ of execution.)
f.) A judgment or final order for or against one or more of several parties or in
separate claims, counterclaims, cross-claims and third party complaints, (watch
this one:) while the main case is pending, unless the court allows an appeal
therefrom. (So, while the main case is pending, you cannot appeal, exception is unless
the court allows an appeal from that judgment. Where can there be a separate
judgment? If there is a judgment on a claim, there are so many claims and then there is

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 s judgment rendered in one of these separate claims or cross-claim or third party
complaint, while the main case is pending, that is not appealable. You have to wait
until there is a judgment rendered in the entire case but is there an exception? Yes, it
says, “unless the court allows an appeal therefrom)
g.) An order dismissing an action without prejudice (because if a complaint or an action
is dismissed without prejudice, the remedy is to refile the complaint.)

The rule tells us: In any of the foregoing circumstances, the aggrieved party may file
an appropriate special civil action as provided in Rule 65.

Rule 65 is about Certiorari, Prohibition and Mandamus.

Q: Supposed the court renders a partial summary judgment, is that appealable?

A: NO, because a partial summary judgment is interlocutory.

Supposed the court dismisses a complaint like it is under Rule 17, Section 3. If you recall,
class, the dismissal of the action is because of the fault of the plaintiff in Section 3 of Rule
17. Without any justifiable cause, the plaintiff fails to prosecute his action within a
reasonable time or the plaintiff fails to obey an order of the court, etc. or the plaintiff fails to
appear on the date for presentation of evidence in chief on the complaint.

Q: If the court dismisses the complaint on any of these grounds that we have mentioned,
what is the nature of the dismissal?

A: The dismissal is with prejudice, meaning the dismissal amounts to an adjudication of

the case on its merits. Therefore, the remedy is appeal. The remedy of a plaintiff whose
complaint is dismissed with prejudice is appeal.

What about if it is the third party complaint that is dismissed, and the dismissal is also
with prejudice? Then, the remedy is also appeal.

But I’d like you to take note the case of Palma vs. Galvez, and this one decided in March
2010. X filed a case against Y and Z. Y filed a motion to dismiss. Z did not saw the
defendants are represented by two different lawyers. They have set up defenses that are not
common to both of them. So Y filed a motion to dismiss, Z filed an answer. The court
granted the motion to dismiss. (By the way, I’d like you to be reminded that a motion to
dismiss is a prohibited motion except in some instances. Let us say that this motion to
dismiss is not a prohibited motion.) The court granted the motion to dismiss and dismissed
the complaint as against Y. the case was dismissed as against Y. what about the case as
against Z? It was not dismissed.

Q: What is the remedy of plaintiff X against the order of the court dismissing the complaint
as against Y? Is it also appeal?

A: NO, it is not appeal because you cannot appeal while the main case is pending. We go
back to Section 1 (f), Rule 41, it says that appeal cannot be taken while the main case is
pending, unless the court allows an appeal therefrom. The remedy of plaintiff X is not
appeal because the main case is still pending unless the court will allow an appeal
therefrom. His remedy if the court does not allow an appeal therefrom would be a petition
for certiorari.

If they would ask you in the bar exam, is the remedy of plaintiff X appeal?

A: NO unless the court will allow an appeal. His remedy is a petition for certiorari because
the main case is still pending.

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Appeal is not available as a remedy if the judgment is final and executory. Let us say it was
issued today but the judgment is final and executory upon its rendition or issuance. Once
issued, it is final and executory. Do we have a judgment like that – that it is final and
executory upon rendition and therefore, it is not appealable? YES, one example is a
judgment upon a compromise.

Let us say the plaintiff and the defendant eventually agreed to settle their dispute and so
they submitted a written compromise agreement to the court and they asked the court to
render a judgment based on the compromise agreement. So, the court renders a judgment
based on the compromise agreement. What do you call that judgment? You call it
JUDGMENT UPON A COMPROMISE.

Q: Is that appealable?

A: NO, it is not appealable because it is final immediately, final upon rendition.

We also have these cases governed by the Family Code. If you go to Article 247 of the
Family Code, then you will see that a judgment of the court in a summary judicial
proceedings under the Family Code is immediately final and executory. If the judgment is
rendered in a summary judicial proceedings under the Family Code, then, as stated under
Article 247 of the Family Code, such a judgment is final and executory immediately.
Therefore, it is not appealable. (TAKE NOTE OF ARTICLE 247 AND THE SUMMARY
JUDICIAL PROCEEDINGS IN THE FAMILY CODE.)

What is an example of that?

An example is found in Article 239 of the Family Code – that when a husband and a wife
are separated in fact and then there is a need to obtain the consent of one spouse for a
conveyance of a property belonging to the community or conjugal partnership but the
consent of the other party cannot be obtained then you can file a petition in court. (You
talked about this in you Persons and Family Relations)

Appeal from MTC, where should it be taken? To the RTC.

If the appeal is from the MTC, the appeal should be taken to the RTC. Is that all that you
would say if they ask you in the bar exam? You say: THE RTC EXERCISING JURISDICTION
OVER THE AREA TO WHICH THE MTC BELONGS. (You don’t simply say “RTC”)

If the MTC is in La Trinidad, then appeal is in the RTC of La Trinidad. You cannot bring the
appeal to the RTC in Baguio or in La Union because the RTC in Baguio does not have
jurisdiction over the area to which the MTC of La Trinidad belongs.

(These are just preliminaries. The title of the case in the court below remains but there will
be an additional designation that the party bringing the appeal shall be further designated
as an appellant and the other party as an appellee. If it is the plaintiff who appeals, the
same title X vs. Y – the title would be the same but with the additional designation as
follows: X, plaintiff – appellant, vs. Y, defendant – appellee. If the party appealing is the
defendant, then you say: X, plaintiff – appellee, vs. Y, defendant – appellant.)

The one appealing is known as the appellant and the other party is an appellee.

Q: When can an appeal be taken? Or within what time? Period for perfecting an appeal.

A: If the appeal is an ordinary appeal

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 It is 15 days from notice of the judgment or final order being appealed from, but if a record
on appeal is required the time of appeal is 30 days from notice of the judgment or final
order being appealed from.

If the appeal is by a notice of appeal this is an ordinary appeal. It can also be by a notice of
appeal and record on appeal.

If the appeal is by a notice of appeal, then the appeal is to be taken within 15 days from
notice of the judgment or final order being appealed from. But if the appeal is by notice of
appeal and record on appeal, the period to appeal is 30 days from notice of the judgment or
final order being appealed from.

When you say “notice of the judgment or final order being appealed from” what does it
mean?

It mean the time, the date the appellant receives a copy of the judgment. Like if you
received a copy of the judgment on July 1, then you have 15 days from July 1 to perfect
your appeal if your appeal is by notice of appeal. But if the appeal is by notice of appeal and
record on appeal, then it is 30 days from July 1.

But it is not as simple as that one. It is not as simple as how we put it a while ago because
you have to take into account the ruling laid down by the Supreme Court in a Neypes vs.
CA. This is a 2005 case.

(By the way, before we go to Neypes, I’d like you to take note that an ordinary appeal is
perfected by filing a notice of appeal. Record on appeal is not required except in the
following instances: (1) in special proceedings involving settlement of estate of a
deceased person; (2) you also need record on appeal in separate appeals (when
permitted by the court) like the one we mentioned a while ago in a f of Section 1 of Rule
41 - you cannot appeal from a separate judgment while the main case is pending unless the
court allows an appeal therefrom. If the case allows an appeal therefrom you need a record
on appeal because the main case is still pending. I hope you understand but if you don’t
understand that’s okay, you will understand it as we move along just take down notes and
then put a mark of the topics that you do not understand fully; and (3) when the case
involves multiple appeal.)

Appeal by notice of appeal – this is an ordinary appeal also known as Appeal By Writ of
Error.

In ordinary appeal, you just notice of appeal within 15 days, record of appeal not required.

But record on appeal is required in the following instances:

1. In special proceedings (involving settlement of estate of a deceased person)

2. Separate appeals if permitted by the court. (because you need the permission of the
court.)
3. In multiple appeals. Multiple appeals apply in the following case:
a. In expropriation proceedings
b. In judicial foreclosure of mortgage (you say “judicial” because there is also an
extra-judicial foreclosure and that is not included, only judicial foreclosure.)
c. Judicial partition

Notice of appeal is just a notice, it can be very short or, at most, 2 pages.

Caption:

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The name of the court
The title of the case, the docket number
Then you say:

Caption

(Title of the case) (docket number)

(Names of the parties)

NOTICE OF APPEAL

If it is the defendant who is appealing you say: defendant – appellant, by counsel, respectfully
gives notice that he is appealing from the judgment rendered by this honourable court a copy of
which was received by defendant- appellant on July 1, 2020 to the Court of Appeals on the
ground that the decision is contrary to law and the evidence. (date, signed, copy furnished) – that
is a complete notice of appeal.

Q: What must a notice of appeal state?

A: If the appeal is from the MTC to the RTC, the appeal should state the following:

1. The names of the parties

2. Judgment or final order or part thereof which is the subject of the appeal
3. Statement of material dates to show that the appeal is being perfected on time (like if
you file a motion for reconsideration you state the date when you filed it, etc.)

If the appeal is from the RTC to a higher court:

1. The names of the parties

2. Judgment or final order or part thereof which is the subject of the appeal
3. Statement of material dates to show that the appeal is being perfected on time
4. Specify the court to which the appeal is being taken (example: to the Court of Appeals
or to the Sandiganbayan, because there can be an appeal from an RTC to the Court of
Appeals or to the Sandiganbayan, in fact, it can even be to the Supreme Court. But if
we are talking about notice of appeal, the appeal to the Supreme Court cannot be by
notice of appeal (we will talk about that in due time, that is very complicated topic and it
is my hope that you are paying attention, you are giving full attention to the presentation
and to the discussion, and if there is anything that you don’t understand you just write it
down or you go to your textbooks and find out for yourself what is the answer to your
question.)).

If you are appealing a judgment from the MTC the appeal is always to the RTC exercising
jurisdiction over the area to which the MTC belongs or pertains.

Q: Where do you file the notice of appeal?

A: You file it with the same court and in the same case.

If you are appealing from the judgment of MTC to the RTC, then you file your notice of appeal
to the MTC. If you are appealing from RTC to a higher court, you file your notice of appeal with
the RTC. If your appeal is to the CA, then you have to specify the name of the court to which
the appeal is being taken, you cannot just leave it blank, you have to specify the name of the
court, but you file the notice of appeal to the RTC, you do not file it with the appellate court.

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NOTE:

In due time, the clerk of court will assemble the record of the case, it will have subject index
with the corresponding pages from page 1 up to the last page, and then the record of the case
will transmitted to the appellate court. What is left with the trial court is simply a copy of the
transmittal letter, nothing else because the record is transmitted or sent to the appellate court.

That is not possible if the case allows multiple appeals or in a separate appeals or in special
proceedings. The record of the case cannot be transmitted to the appellate court. What will be
sent/ transmitted to the appellate court in a special proceedings, in appeals involving multiple
appeals, etc., will not be the record of the case but the record on appeal.

Example:

Let’s talk about expropriation. I will show you a multiple appeal and I will give you an example
involving expropriation. Here is the plaintiff versus the defendant, the case is filed with the RTC
even when the assessed value of the land being expropriated is below P20,000.00 you filed the
complaint in the RTC just the same because this is incapable of pecuniary estimation. Then,
you go to trial, if the court finds that the plaintiff is entitled to expropriate, then it will issue an
order of expropriation. But that is not the end of the case yet, the order of expropriation is
appealable. So, you can appeal the order of expropriation to the CA. But it is not the end of the
case yet because the moment the court issues an order of expropriation, the case will go to the
second stage, which is the determination of just compensation. Then, the court will appoint
Commissioners to determine just compensation. Then, in due time, the court will issue an
order fixing just compensation – that order is also appealable.

Here, class, if you appeal from the order of expropriation, what will be transmitted to the
appellate court is not the record of the case because the RTC will need the record of the case to
be able to go to the second stage, which is the determination of just compensation. So, what it
will transmit to the appellate court is not the record of the case but the record on appeal. The
same thing can be said in settlement of estate of the deceased person in multiple or separate
appeals.

You submit a record on appeal to the trial court for its approval because the record on appeal
will simply reproduce the record of the case. So that the trial court will be satisfied that the
record on appeal faithfully reproduces the record of the case.

I think you need to go to a court room one of these days and then you ask to be shown a
record of a case.

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 RULES 40-56
Lecture 3

We are still on Appeals and last time class we were talking about when to appeal from a
judgment or final order or within what time may appeal be taken and we mentioned last time
the ruling laid down by the Supreme Court in Napes vs Court of Appeals and I’d like us once
again to take note of this case of Napes. This case of napes laid down what came to be known
as the fresh 15-day period to appeal.

So which means class that if the party adversely affected by the judgment files a motion for
new trial or a motion for reconsideration but his motion is denied, then he will have another 15
days from receipt of the order denying his motion so that if let us say in this example judgment
was rendered by the trial court and let us say that the defendant received his copy of the
judgement on July 1 and the defendant would like to appeal from that judgment because the
judgment is adverse to him, then he has 15 days from July 1 or up to July 16 to appeal from
the judgment so 15 days from July 1 or until July 16. But if let say on July 15 a day before the
deadline the defendant files a motion for reconsideration and his motion is denied and the
defendant let us say in this example received a copy of the order denying is motion on August
1, that is the date when he received a copy of the order denying his motion. then he will have
another 15 days from August 1 to appeal from the judgment. That is the Napes ruling. This is a
2005 case. All right, it lays down what is now known us fresh 15 day period to appeal.

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Q: Is the filing of a motion for new trial or a motion for reconsideration a precondition to the
perfection of an appeal? or stated differently or put another way if a party would like to appeal
from a judgment is he required to first file a motion for reconsideration or a motion for new
trial?

A: No, so he is not required to file a motion for new trial or a motion for reconsideration. In
which case, he will have 15 days from July 1 in the example given a while ago to perfect his
appeal. But he may file a motion for new trial or a motion for reconsideration. He is not
required to file that motion, but he may and if he does and his motion is denied, then he will
have another 15 days from receipt of the order denying his motion.

Q: Is the filing of a motion for new trial or a motion for reconsideration a precondition to the
perfection of an appeal?

A: No, it is not except in four cases namely:

 Action for annulment of Marriage;

 Action for Declaration of Nullity of Marriage;
 Action for Legal Separation; and
 Habeas corpus involving custody of a minor

In these cases, the party adversely affected by the judgment cannot appeal unless he will first
file a motion for new trial or a motion for reconsideration.

I'd like you to take note that the in ordinary appeal the period for perfecting an appeal is 15
days from notice of the judgment being appealed from 15 days subject to the ruling in Napes vs
Court of Appeals. but if the appeal requires a record on appeal then the period to appeal is 30
days from notice of the judgment being appealed from and this 30 days is also subject to the
ruling laid down in Napes vs court of appeals.

Q: So what does that mean?

A: Well, it means that you have 30 days if the appeal requires a record on appeal.

You have 30 days. So let us say that on the 29th day a day before your deadline, you file a
motion for new trial or a motion for reconsideration. Your motion however is denied and you
receive a notice of the denial of your motion, then you will have you will have another 30 days
from notice of the denial of your motion for new trial or a motion for reconsideration.

MODES OF APPEAL

1. Ordinary appeal (Writ of Error)

a. Notice of appeal
b. Notice of appeal and record on appeal
2. Petition for review
3. Petition for review on Certiorari

I hope you're writing them down now.

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I'd like you to know class that you need a record on appeal only in the following instances a
record on appeal.

Q: When is a record on appeal required or what are the instances when a record on appeal is
required?

A:

1. Special proceedings (settlement of a state of a deceased person).

2. Separate appeals.
3. Multiple appeals.

when you say separate appeal as when the court renders a judgment on one claim leaving
the other claims for trial. Okay, so there is what you call a separate judgment. That is not
appealable. Unless the court allows an appeal therefrom

You will also need a record on appeal in multiple appeals and I’d like you to know that multiple
appeals are allowed in the following cases. You have multiple appeals in the following cases:

1. Expropriation
2. Partition when you say partition, this is a Judicial partition.
3. Judicial foreclosures of mortgage.

In these cases you have multiple appeals and you will need a record on appeal in these
cases. I hope you understand what we are talking about, but for you to be able to
understand. What we are talking about class, I'd like you to know that when an appeal is
taken from a judgment. For example, the trial court is the RTC. There's a judgment
rendered by the RTC, Appeal let us say is to the court of appeals, when the appeal is
perfected then the RTC will submit records of the case to the CA. What remains in the
trial court is the transmittal letter.

In expropriation cases or judicial partition or foreclosure what will be transmitted to the

appellate court is not the record of the case but the record on appeal.

Why? Because the case is not yet finish, the trial court has still to try other aspects of the case.

Expropriation will undergo 2 stages. You have plaintiff and the defendant

1st Stage: Concerned with the determination of the right of the Plaintiff to expropriate the
property owned by the Defendant.

So there will be presentation of evidence and then after the evidence is presented by both
parties, the court will issue an order if the court finds that indeed the plaintiff has the right to
expropriate then the court will issue an order called an order of expiration.

If the defendant believes that the plaintiff is not entitled to expropriate then the defendant can
appeal from this order. The appeal will be to the CA, but the case is not yet finished because
the moment the RTC issues this order of the expiration then the case goes into the

2nd Stage: Determination of just compensation.

The court will appoint Commissioners and we will talk about that in due time and then the
Commissioners will submit the report to the court, the court may adopt or reject it or adopt it
in part and reject it in part, but eventually the court will have to issue an order fixing just
compensation that is also a appealable. So let us say that the defendant appeals from the order

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of expropriation. The defendant will have to file a record on appeal. A record on appeal so aside
from filing a notice of appeal the defendant will also file a record on appeal. The record on
appeal requires the approval of the court. So if you would be asked in the bar exam.

Q: Does a notice of appeal require the approval of the Court?

A: No, a notice of appeal does not require an approval of the court.

Q: What about the record on appeal? Does it require the approval of the Court?

A: Yes, the record on appeal must be approved by the trial court before it is transmitted to the
appellate court. Why is that because it may not reflect accurately the pleadings filed in the
case.

Last time I remember I showed you a notice of appeal and we mentioned what should be stated
in a notice of appeal. We gave an example. But how does a record on appeal look like how does
it look like well record on appeal is not very complicated to prepare.

It merely states the pleadings and the proceedings taken or had in the case where the appeal is
being taken.

For example class if let us say the defendant files a record on appeal. He will caption it as
record of an appeal. Okay, so you have the title, then this is the designation: record on appeal
and then it says defendant –appellant by counsel respectfully submits the following record on
appeal.

1. That on July 1 2011 the plaintiff filed a complaint quoted as follows, then you quote
the complaint you can omit the caption, title and you reproduce the body of the
complaint;
2. In due time summons was issued and served upon the defendant who filed his answer
quoted as follows. Then you quote the answer; and
3. Preliminary Conference was held on such-and-such today and in due time the court
issued a pre-trial order quoted as follows then you quote again the pre-trial order.

Now and then all the way up to the last proceeding. So here as I mentioned to you, the record
on appeal will have to be submitted to the court for its approval. Why? Because some
proceedings which are very important might not have been included. In fact the other party
may object or file his comment on the record on appeal. Now take note class that if both parties
appeal. From the order both are not satisfied For example, then they can file a joint record on
appeal.

Let's go back to the modes of appeal.

Here class the case originates from the MTC, the judgment of the MTC is appealable to the
RTC, the mode is by notice of appeal or notice of appeal and record on appeal in the instances
we mentioned a while ago if applicable, take note class that you file the notice on appeal with
the court that rendered the judgment being appealed from, so it is now in the RTC, if the RTC
renders a judgment in the appealed case then the judgment of the RTC is appealable to the CA
and the mode of appeal is petition for review.

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FIRST SITUATION:

MTC-RTC=Rule 40

RTC-CA = Rule 42

CA-SC by a petition for review on certiorari=Rule 45.

If the appeal is from the CA to the SC, this is governed by rule 45. It is a petition for review on
certiorari but here class the only questions that can be raised are pure questions of law.

Q: What about in rule 42 petition from RTC to CA what questions can be raised?

A: Petitioner can raise in his appeal before the CA would be questions of fact or questions of
law or mixed questions of Law and fact

But In rule 45 petition before The Supreme Court, the only questions that can be raised are
pure question of law subject to some exceptions that we will mention later.

SECOND SITUATION

The case originates from the RTC. Appeal from the Judgment of the RTC is to the CA by notice
of appeal or notice of appeal and record on appeal in those cases that we have mentioned.

This appeal from the RTC to CA is governed by rule 41

Q: If the appeal is taken from the RTC to the CA under Rule 41 this is an ordinary appeal what
are the questions that can be raised?

A:Well, you can raise questions of fact or mixed questions of fact and law. You cannot raise
questions of law.

SUMMARY:

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RULE 43-quasi-judicial agencies(like office of the Pres) to the CA

RULE 44-procedure in the CA in the ordinary appealed case

Okay. Well before we go back to rule 40.

I'd like us to look at the following questions. What are the modes of appeal from a judgment of
the RTC?

1. ordinary appeal from RTC to the CAa under rule 41. This is by notice of appeal or notice
of appeal and record on appeal. The what questions can you raise: questions of fact or
mixed questions of fact and of law.

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 2. As you can see the case came from the MTC it was appealed to the RTC—renders a
judgment in the exercise of its of appellate jurisdiction the appeal to the CA is by
petition for review. This is a verified petition and this is governed by rule 42. And what
are the questions that you can raise? In your rule 42 petition you can raise what can
raise questions of fact. Questions of law or mix questions of fact and of law.
3. RTC has original jurisdiction and the question you are raising is pure question of law so

it is direct appeal to the SC governed by rule 45(Pet for review on certitorari)

Rule 40 is appeal from the MTC to the RTC

Q:What if the MTC dismisses the case without trial and the ground for dismissal is lack of
jurisdiction. May the order of dismissal be appealed to the RTC?

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A: Yes

Q: What will the RTC do?

A: It may either reverse the dismissal or affirm the dismissal if the RTC reverses the dismissal
because in his opinion the MTC has jurisdiction, RTC will remand the case to the MTC, but if it
affirms the dismissal the MTC, if the RTC has jurisdiction it shall try the case as if the case has
been originally filed with

Continue from here next meeting.

Rule 40-56 Lecture 5

Our lesson is ANNULMENT OF JUDGMENT. This is one of the remedies against a judgment
that has become final and executory. So the judgment that is to be annulled is a judgment that
has become final and executory.

The Remedies against a judgment that has become final and executory are:

(1) Petition for relief from judgment

(2) Annulment of judgment
(3) Petition for certiorari

Take note that this annulment of judgment is available as a remedy only if the remedies of new
trial, appeal, petition for relief or other appropriate remedies are no longer available through
no fault of the petitioner. So that if let us say, appeal could have been availed of but because of
neglect or fault of the petitioner he was not able to appeal from the the judgment and then
later the judgment became final and then he files a petition for annulment of judgment then
this remedy of this annulment will not be available to him because annulment of judgment
may be resorted to only if the ordinary remedies of new trial, appeal, petition for relief or other
appropriate remedies are no longer available through no fault of the petitioner.

In annulment of judgment, the correctness of the judgment is not an issue. This remedy of an
annulment of judgment may also be resorted to by a person who was not a party to the action.

Q: What are the grounds? And within what time may a petition be filed?

(1) Extrinsic Fraud (as oppose to Intrinsic) - Fraud committed outside the trial/court and
the fraud prevented a party from presenting his cause of action or defense. Fraud that
denied a party his day in court. Take note this is not a valid ground if it was availed of or
could have been availed of in a motion of new trial or a petition for relief.
(2) Lack of jurisdiction - Lack of jurisdiction over the subject matter of the action, over the
nature of the action, or over the person of the defendant. Jurisdiction over the subject
matter cannot be waived and it cannot depend on the agreement of the parties, on the
other hand jurisdiction over the person of the defendant may be waived by the defendant
himself.

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 Q: When may the petition for annulment of judgment be filed if the ground is lack of
jurisdiction? It may be filed at any time before it is barred by laches or estoppel.

Case: Diona v. Balangue(2013) It was held that aside from extrinsic fraud and lack of
jurisdiction another ground for annulment of judgment is (3) lack of due process. You include
that as a third ground.

Q: Where do we file this petition for annulment of judgment? What court has jurisdiction over
an action for annulment of judgment?

 Then if the judgment to be annulled is the judgment of the RTC then the court that can
take cognizance of this action is the Court of Appeals; So the petition should be filed with the
court of appeals.
 If the judgment to be annulled is the judgment of the Municipal Trial Court, the first
level court, then it is the RTC that has jurisdiction; So the petition should be filed with the
RTC.
Why is that? Suppose the amount of the judgment is only let us say P250,000. that’s the
judgment of the MTC. The petition should be filed with the RTC. Because the action is
incapable of pecuniary estimation.

The petition should be a verified petition and you attached to the petition a certified copy of the
judgment or final order or resolution sought to be annulled.

So here what will the court do upon the filing of the petition?

 If the court finds that there is no substantial merit in the petition, then the court will
dismiss the petition outright but the court should give a specific reason(s) for such
dismissal.
 If the court finds that there is a merit in the petition, then the petition shall be given due
course and then summons will be served on the respondents and then the procedure in
ordinary civil cases will be followed. But I’d like you to take note, that the reception of
evidence may be referred to a member of the court or it may be referred to the court of
origin.
So if this is the Court of Appeals and the case will be assigned to a division and the
division has members then the reception of evidence may be assigned to a member or it may be
referred to the RTC.

RTC, rendered a judgment, judgment became final and executory and then a petition for
annulment of this judgment is filed with the court of appeals, there would be trial, reception of
evidence, the reception of evidence may be referred to a member of the court or it may be
referred to the RTC. Let us say the RTC rendered a judgment, and this judgment annulled this
judgment.
the reception of evidence may
be referred to a member of the
Judgment became final and executory and court or it may be referred to
then a petition for annulment of this
the court of origin.
judgment is filed with the court of appeals

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RTC rendered reception of evidence (in RTC)
judgment

RTC rendered a judgment, and this

judgment annulled this judgment.

Q: What is the effect of the judgment in a petition for annulment of judgment?

 If the ground upon which the judgment is annulled is lack of jurisdiction, then the entire
proceeding (including the judgment) in the court before is set aside without prejudice to
the original action being filed with the proper court. Original action may be refiled with the
court that has jurisdiction.

If the judgment is the judgment of the MTC

Example: MTC rendered a judgment, judgment became final and executory and then the
party adversely affected filed with the RTC an action for annulment of the judgment and
then RTC renders a judgment and it annulled the judgment of the MTC on the ground of
lack of jurisdiction, the effect of this judgment is the entire proceeding before the MTC
including its judgment will have to be set aside and then without prejudice to the
original action being filed with the proper court. The proper court is the RTC. Because
the MTC was found to be without jurisdiction.

 If the ground is extrinsic fraud, then the trial will simply be ordered to conduct a new trial,
as if a timely motion of new trial has been granted.Case will be tried again.
Example: RTC, rendered a judgment, judgment became final and executory and then a
petition for annulment of this judgment is filed with the court of appeals, CA renders a
judgment, and it annulled the judgment of the RTC. If the ground for annulment is
extrinsic fraud then the RTC may be ordered to try the case as if a timely motion for new
trial has been granted.

If a court issues an order granting for new trial the effects are: (1) the judgment is
vacated or set aside (2) case will stand for trial de novo (3) recorded evidence not affected
by extrinsic fraud shall be deemed reproduced without prejudice to the party presenting
additional evidence.

Case: Santos v. Santos (October 2014) The husband filed a petition in court to declare the wife
as presumptively dead but the truth is the wife is only in another town. But the husband was
able to present evidence in court showing that the wife has been absent for so many years and
there is no information about her whereabouts. On the basis presented by the husband the
court rendered a judgment declaring the wife presumptively dead. The husband married
another woman. The wife reappeared.

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 Q: What is the remedy of the wife? The remedy of the wife is to file a petition with the Court
of Appeals for the annulment of the judgment on the ground of fraud, because the judgment
was obtained by fraud. And so the remedy of the wife is to file a petition for the annulment of
judgment declaring her presumptively dead because she was never absent in the first place.
The fraud that was committed prevented the spouse from having his day in court.

But let us say the wife was really absent, no fraud in the part of the husband in filing the
petition to declare the wife presumptively dead. Then here, the remedy of the wife if she
reappears is to file an affidavit of reappearance under Article 42 of the Family Code.

There are differences because if there was fraud in obtaining the judgment because the wife
really was not absent but the evidence that was presented showed her to be absent but in
fact she was not, then the children in the second marriage would be illegitimate and the
second marriage would be a bigamous marriage.

Problem: X went to court and he filed a petition for the issuance of a new certificate of title
alleging in his petition that the certificate of title has been lost. What is the remedy if your
certificate of title the owner’s copy is lost? Then you file a petition for the issuance of a new
certificate of title in lieu of the one that was lost. So she filed this petition although all along
she knew that the certificate of title was not lost so she went to court she gave a false
testimony and on the basis of the false testimony the court granted her petition and ordered
the issuance of a new certificate of title in lieu of the one that was lost.

Q: The judgment declaring the owner’s certificate of title to had been lost and directing the
issuance of a new certificate of title in lieu of the one that was allegedly lost became final and
then certificate of title that was alleged to had been lost was presented in court. What is the
remedy against this judgment? The remedy is an action for annulment of the judgment or a
petition for annulment of the judgment on the ground of lack of jurisdiction not extrinsic fraud
because the giving of false testimony in court is an intrinsic fraud. The fact of lost of the
certificate of title is jurisdictional.

Q: In an action for annulment of judgment or a petition for annulment of judgment is

extraneous evidence admissible? (meaning of extraneous evidence- evidence not found in the
record of the case)

 If the ground is lack of jurisdiction, only evidence found in the record will be considered.
Extraneous evidence will not be admissible.
 If the ground is extrinsic fraud, extraneous evidence is admissible.

The RTC renders a judgment, the judgment became final and then there was a petition for the
annulment of the judgment that was filed with the CA, and the CA renders a judgment, the
judgment of the CA annulled the judgment of the RTC. The action/petition for annulment that
was filed with the CA was an original action to annul the judgment of the RTC. The case went
to the CA not by way of an appeal because the judgment already became final so there a
petition for annulment of the judgment.

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Q: Suppose CA renders a judgment and it annulled the judgment of the RTC and a party
claims that he had been adversely affected by the judgment. What is his remedy? The remedy
is appeal to the Supreme Court.

Q: What is the mode of appeal? It will be a petition for review on certiorari before the Supreme
Court.

That terminates our discussion on appeals and that includes annulment of judgment. Now the
next time we will go to new areas and we will be taking up next meeting provisional remedies
and this are ancillary remedies. The remedy of preliminary attachment, preliminary injunction,
receivership, replevin, support pendente lite.

Before we leave appeals, I’m not sure if I had taken up with you appellant’s brief and you need
to file appellant’s brief in ordinary appeals and the Appellate Court, the Court of Appeals, will
notify the appellant to file his appellant’s brief within 45 days from receipt of the notice.

If it is the appeal from the MTC to the RTC, the RTC will notify the appellant to file his
memorandum of appeal within 15days.

Failure to file this appellant’s brief or memorandum of appeal is a ground for dismissal.

The nature of a Provisional remedies, it is only ancillary, ancillary in the sense that there must
be a main action.

 So you cannot file an action merely for the attachment of a property. There must be a main
action and then in that main action you will asked for the attachment of a property
belonging to the defendant.
 You cannot file a petition merely to ask for preliminary injunction because a preliminary
injunction is merely ancillary to a main action, although take note that the main action
may also be an injunction. Is there a main action called Injunction? Yes but there is no
main action called attachment.
 In the same way that support pendente lite is an ancillary remedy, there must be a main
action, the main action can be support, and in the meantime while the main action for
support is pending, the plaintiff may asked that there would be a support pendente lite.
Although support pendente lite may also be demanded in any proper action like a legal
separation or acknowledgement of a child, etc.

These are provisional remedies but they are also ancillary remedies. Why ancillary? Because
there must be a main action.

The first one that we will talk about is preliminary attachment which is found in Rule 57. Next
time class I’d like you to memorize or take note of Section 1 because these are the
grounds of which a writ of preliminary attachment may be issued.

Q: may a writ of preliminary attachment be issued ex parte? Yes the writ of preliminary
attachment may be issued ex parte (ex parte means without notice to the defendant; without

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notice to the party with whose property is to attached) or it may also be issued upon notice
(meaning there would be a notice and hearing in court for the issuance of a writ of preliminary
attachment), so either.

Problem: X filed a complaint against Y, the court direct the issuance of summons to defendant
Y but incorporated in the complaint is an application for the issuance of a writ of preliminary
attachment, before the summons could be served on Y, the court granted the application for
the issuance of a writ of preliminary attachment, and in due time and still without summons
being served upon the defendant Y, the court issued the writ of preliminary attachment.

Q: Is the issuance of the writ of attachment valid? Yes, because the writ of preliminary
attachment may be issued ex parte. But in the course of our discussion on the issuance of a
writ of preliminary attachment we will also discuss prior or contemporaneous rule and so for
next time class you need to know what is meant by prior or contemporaneous rule.

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