CIVIL PROCEDURE [LAGGUI REVIEWER] TRANSCRIBED GALLY NOTES WITH RENE NOTES BY:RENE CALLANTA RULE I Q.

When does an action deemed commenced? A. An action is deemed commenced upon the filing of the complaint. This is the provision of the old rule. But this old rule that an action is deemed commenced as of the date the complaint is filed has been amended to include a provision which envisions a case when the action is already filed and is amended to include an additional defendant. Example: The case was filed Dec.2, 1997 by A against B only. Under this rule, the action is deemed commenced on Dec. 2, 1997 in so far as only A and B are concerned. On Dec. 3, 1997 A filed an amended complaint including now C. Q. When is this action deemed commenced? A. Insofar as A and B are concerned; the action is deemed commenced on Dec. 2, 1997. But insofar as it concerns A and C, the action is deemed commenced on Dec. 3, 1997 (as to C).

Q. Why do we distinguish the date of commencement of an action in this situation where there is
an additional defendant? A. Because we have the law on prescription. At the time the case was filed on Dec. 1, 1997, the action against B may not yet have prescribed. But when the complaint was amended on Dec. 3, 1997, the action of A against B and C may have already prescribed. That is why it is necessary to consider the situation like this when the action is being commenced with respect to an additional defendant. RENE NOTES: 1) An action is commenced by the filing of the complaint and the payment of the requisite docket fees within the prescriptive period; this notwithstanding that summons was served on the defendant after the prescriptive period. 2) An action can be commenced by filing the complaint by registered mail. It is the date of the mailing that is considered as the date of filing and not the date of the receipt thereof by the clerk of court. 3) The amount of damages in the body of prayer of the pleading must enable the clerk of court to compute the docket fees required. 4) The court may allow the payment of the deficient docket fee within a reasonable period but not beyond the applicable prescriptive period. With respect to actions, we have retained the provisions of the old code. With respect to some subject matter under the old rule, a party plaintiff can file only one complaint based on one single cause of action. He cannot split its cause of action. And when he splits his cause of action, the subsequent actions maybe the subject of a motion to dismiss. This rule has been retained in the New Rules in Civil Procedure. Example: (Splitting of causes of action which have been retained) Note: Same parties A is a resident of Sulu, B is of Batanes. There is a piece of land located in Sorsogon. The causes of action of A against B are as follows: 1) sum of money involving P200,000.00 2) reindivicacion over the lot valued at P50,000.00 Q. Can A file a complaint against B joining in one complaint the action for sum of money and the action for reinvidicacion (if it can, with what court and place)? A. Let us vary the facts, the claim for money is P201,000.00. The value of the property is P19,000.00 Q. Can A file only one complaint incorporating therein the sum of money of P201,000.00 and reindivicacion of lot valued at P19,000.00?

A.

Sec. 5 Rule 2(rules on joinder of causes of action ) A party may in one pleading assert, in the alternatives or otherwise, as many causes of action as he may have against an opposing party, subject to the following

conditions: a. the party joining the causes of action shall comply with the rules on joinder of parties; b. the joinder shall not include special civil action or actions governed by special rules; c. where the causes of action are between the same parties but pertain to different venue of jurisdictions, the joinder may be allowed in the RTC provided one of the cases of action falls within the jurisdiction of said court and the venue lies herein; and d. where the claims in all the causes of action are principally for recovery of money the aggregate amount claimed shall be the test of jurisdiction.

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The rule on joinder is as follows: A party may join two or more causes of action which he has in his favor in only one complaint. So if A has 10 causes of action against B, instead of A filing 10 separate action against B, he may be allowed to file only one complaint, and incorporating therein all the 10 causes of action. Q. A. Supposing his causes of action pertain to different venues or jurisdiction where will A, the plaintiff, file his 10 causes of action embodied only one complaint? The rule is, if these 10 causes of action pertain to different venues, the action may be filed in the appropriate RTC provided that the venue of the action lies therein.

In the former example, the first action was the sum of money involving P200,000.00 only and the second cause of action is reinvidicacion involving P50,000.00. Since A is not obliged to allege all causes of action in one complaint, he may elect to file two separate actions: 1) A vs. B for sum of money 2) A vs. B for reindivicacion. Q. If he were to file this action for sum of money only, in what court of what place may A file the complaint? A. You apply Rule 4 venue Since this is a personal action for sum of money, the venue could be the residence of plaintiff A, or the residence of the defendant B at the election of A. So this case can be filed either in Sulu or Batanes. Q. A. Q. A. Q. A. In what court in Sulu or in Batanes may this action of A be filed? Considering the amount which is only P200,000.00, this is within the jurisdiction of MTC. So this case can be filed either in the MTC of Sulu or in the MTC of Batanes. If A were to file an action for reindivicacion, over this lot located is Sorsogon, in what place should A file the case? We apply again Rule 4 Venue and that would be Sorsogon. In what court in Sorsogon should the action be filed? Considering the value P50,000.00, this action should be filed only in RTC of Sorsogon.

Let us assume however that A elected to file only one complaint involving these sum of money of P200,000.00 and this property involving P500,000.00. The court that has the jurisdiction over the sum of money of P200,000.00 is the MTC. The court that has the jurisdiction over reindivicacion is the RTC of Sorsogon. Q. A. Where can these two actions be filed? Only in the RTC of Sorsogon. It cannot be filed in Sulu or Batanes. It can be filed only in Sorsogon.

Let us get the reverse… The value of sum of money is P200,000.00 and so this is within the jurisdiction of the RTC. The value of the property here is P19,000.00, this is within the jurisdiction of the MTC. Q. A. Can you now join these two? Yes, in the RTC of Sorsogon. Not in Sulu or Batanes, but in the RTC of Sorsogon.

Example: A resident of Sulu, sued B a resident of Batanes, in only one complaint alleging therein these two causes of action: 1. For recovery of P200,001.00 sum of money, 2. For forcible entry over a piece of land located in Sorsogon valued at P19,999.99. Q. Can A join only in one complaint on these two (2) causes of action? A. These two cannot be joined because one is an ordinary civil action (sum of money) and the other is a special civil action (forcible entry). This is one of the limitation of joinder of causes of action. A special civil action cannot be joined with another action which is ordinary.

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Example: A is a resident of Sulu, B of Batanes, C of Zamboanga. A loaned 1M to B, and the loan is evidenced by a promissory note which B signed. The promissory note matured without B paying the money notwithstanding. A has another cause of action against B and C for another 1M pesos, a promissory note was also executed and signed by B and C. The promissory note also matured but they did not pay. Q. Can A file only one complaint against both B and C incorporating therein these two causes of action? (The action against B for 1M pesos and another action against B and C for P1M) A. No, A cannot file only one complaint against B and C, otherwise, A will violate one of the limitations (Sec. 5 (a)) provided for in joinder of Causes of Action under Rule 2 Section 5. If A is permitted to do so, it will be a violation of the provision on Rules on Joinder of Parties under Rule 3 Sec. 6. C has nothing to do with the first promissory note executed by B. C has no interest on the first cause of action of A against B alone. Example: A has the following causes of action for recovery of money against B, all in the promissory notes that matured on: 1. Jan. 10, 1998 P 20,000.00 2. Jan. 20, 1998 30,000.00 3. Jan. 30, 1998 40,000.00 4. Feb. 10, 1998 50,000.00 5. Feb. 15, 1998 60,000.00 6. Feb. 20, 1998 70,000.00 ========= P270,000.00 A is a resident of Sulu and B of Batanes. B did not pay on Jan. 10, B did not pay on each and every maturity. But A waited for the maturity on this loan due on Feb. 20, 1998. Since he was not paid on Feb. 20, 1998, he now decided to file an action involving all these sum of money. Q. Should he (A) decide to file a case on Feb. 25, 1998, against B, in what court should the action be filed? A. It should be filed in the RTC of Sulu or in Batanes. Where all the causes of action are principally for money, the type of jurisdiction is the totality of the amounts in all the cases. If you were A and you want to file only an action for the recovery of P20,000.00 you will file this with the MTC. This is the same with respect to other causes of action. Individually, they are triable by the MTC. But if all these causes of action are joined in only one complaint, the totality or the language of the rule, “the aggregate,” of the amount furnish the jurisdictional test. So, since the amount is P270,000.00, this is an action triable by the RTC. So you file the action not in the MTC but in the RTC. RENE NOTES 1) In case the obligation is by installments, each installment constitute a cause of action HOWEVER, if at the time of bringing of the suit, several installments are already due, all must be included otherwise, others not included will be barred. Before April 9, 1999, the jurisdiction of the MTC was limited to P100,000.00 and the RTC’s in the amount in excess of P100,000.00. So under the old rule, before April 9, 1999, all claims (money claims) not exceeding P100,000.00 was triable by the MTC. All claims exceeding P100,000.00 were triable by the RTC. This is the provinces. Under the old rules, where the claim was for the money and the parties thereto was the residents of Metro Manila, the jurisdiction of the RTC’s in Metro Manila was in excess of P200,000.00. Beginning, however April 9, 1999, the jurisdiction of the MTC were expanded as follows: In areas outside Metro Manila, the jurisdiction of the MTC’s extended up to P200,000.00. But in Metro Manila, Beginning April 9, 1999, the jurisdiction of the MTC’s was P400,000.00 So, as of now the jurisdiction of the Metro Manila MTC’s is P400,000.00. But in areas outside Metro Manila, the jurisdiction of the MTC’s is up to P200,000.00 only. This now the new rule which implemented Sec. 5 of RA 7691. RA 7691 expanded the jurisdiction of the MTC’s. Q.state the rule on permissive joinder of parties A. Sec. 6 Rule 3 All persons in whom or against whom any right to relief in respect to or arising out of the same transactions is alleged to exist, whether jointly, severally, or in the alternative, may except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise

in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connections with any proceedings in which he may have no interest.

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The rule contemplates a situation where there are two or more persons in whom a right to relief exist or against whom a right to relief exist. These two or more persons can join in one complaint or can be joined as defendants in one complaint provided that there exist between them a question of law common to both of them. As the term suggests, joinder is not mandatory. It may be availed of by parties as plaintiffs if they want to. If they do not want to join as parties, they cannot be compelled. Example: A, B and C are owners of adjoining houses. X is a driver of a gasoline tanker. Because of the manner X drove the tanker, the driver struck a Meralco Post. As a result, the tanker turned turtle (naging pagong ang tanker…) in the process, it exploded. The fire burned the houses of A, B, and C. A can sue X for the loss of his house. B can sue X for the loss of his own house. C can sue X for the burning of his own house. If these were so, there will be now, three (3) complaints against X. On the other hand, A, B and C or A and B alone, or A and C, or B and C, sued X in one complaint. A and C sued X in one complaint, B and C sued X in one complaint, or better still, they joined in one complaint against X. Q. Can they validly do that? A. Yes, they have each a separate cause of action against X. Under the rule on joinder of parties, all of them can join in only one complaint. Q. Why? A. Right to relief exists in favor of all of them, A, B and C. Q. What is the basis of their right to relief of A against X? A. The basis of the right of A against X is the negligent act of X in driving. Q. A. Q. A. What is the basis of the right of B against X? The same. The negligent act of X. What is the basis of the right of relief of C against X? The same, the negligent act of X in driving.

If these were to be tried separately, if the parties A, B and C filed separately the case, there will be only one issue that the court will resolve, which is common to all of them. So they can join as parties. This is the rule on permissive joinder of parties. Q. Can A, B and C be required or compelled to join in one complaint? A. No. whether they will join or they will not join is a matter of them alone to decide. They cannot be forced to join. Rene Notes: Compulsory Joinder-in the case of: 1) indispensable parties 2) necessary parties * The non-joinder of an indispensable or a necessary party is NOT by itself ipso-fato a ground for the dismissal of an action.  the court shall order joinder  non-compliance-ground for dismissal * If the court does not order the joinder of an indispensable party, the validity of the judgment may be questioned on appeal or certiorari. Permissive Joinder-parties can either be joined in a single complaint or may themselves maintained or be sued in separate suits. This rule also applies to counterclaims. Requisites of Persmissive joinder of parties. 1) right to relief arises out of the same transactions or series of transactions; 2) there is a question of law or fact common to all the plaintiffs or defendants; and 3) such joinder is not otherwise prescribed by the provisions of the Rules on jurisdiction and venue. Series of Transcations-separate dealings with the parties but all of which dealings are directly connected with the same type of subject matter of the suit. Parties to an Action

Q. A.

Who can be parties to an action? Only natural persons or persons with judicial personality or entities authorized by law.

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Q. Is it enough that a person is a natural person or juridical person to entitle him to sue and be sued? A. No. It is necessary that the party, natural or judicial be likewise a party in interest. Where the person who sues is not the real party in interest, or where the party sued is not the real party in interest, the complaint or suit cannot be maintained. Q. Who is considered a real party in interest? A. It is defined in Sec. 2 Rule 3 Sec. 2 Rule 3 A real party in interest is the party who stands to be benefited or injured by the judgment in the suit. A real party in interest is the one who is benefited by the judgment. He is one who may be prejudiced by the judgment or it is he who may avail of the judgment. Example: So, if A, a tenant of B sues to recover his land from C. Q. Is A the real party in interest? A. No. He is not, because whatever judgment that he may be rendered in this case affect the real owner. A is not a real party in interest. will not at all

Supposing A is claiming ownership of a lot and he sues C, the tenant of B, to recover the ownership of the lot. Q. Is C the real party in interest? A. No, because whatever judgment that may be rendered in favor of A cannot bind the owner B. C is not the real party in interest. Q. Is it enough that a party be a natural or judicial and a real party in interest to be entitled to sue or be sued? A. No. The party must likewise have the legal capacity to sue. Meaning, he has the representation that he claims to have. So if the person does not have the capacity which he alleges he has, he cannot sue or he cannot be sued. These are 1. 2. 3. 4. Q. A. the requirements for suing or being sued: Natural person or judicial person; Entity authorized by law to sue and be sued; Must be the real party in interest; and Must have the capacity to sue or be sued.

What are the classes of parties to a suit? We have the: 1. Indispensable Parties; 2. Necessary Parties. What is the distinction between the two? In the case of an indispensable party, he must always be impleaded because without his being impleaded as a party, whether a plaintiff or defendant, the subject matter of the suit cannot be terminated. He must always be there because without him, whatever judgment rendered do not terminate the subject matter of the suit.

Q. A.

Example: (Indispensable Party) Testator X was survived by three (3) children A, B and C. A sued B alone for a partition of alleging in fact the court declared A, B and C the owners of the estate and ordered the estate to be divided into three equal parts. So A and B agreed on how the estate be divided. They agreed that the estate shall be divided into three equal parts as follows: A B C

Q.

Is the judgment in the partition case binding on C?

A.

No, it is not binding.

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When A and B showed C the 1/3 portion allotted to him, C said “I do not like that, I like this part.” “No, this is mine.” Q. What can C now do? A. C can file a case for the partition of the same estate asking that this be divided into three (3) equal parts. But A and B said, “It is pointless, there is already a declaration that this property be divided into 3 and it was already divided into three (3). What else do you like? Q. Is the reasoning of A and B correct? A. No, it is not correct. It is true that there was a division. But C does not like his part. Q. Can C be compelled to accept his part? A. No, because he was not a party to the case. He is not bound by the judgment. Why? Because he has a right to be heard when A and B divided this property in the manner they want. As a co-owner he has the right to be heard on how the division should be made. Since, he was not heard, he can file a case. This is what we meant when we say that “an indispensable party ought to be impleaded either as a plaintiff or defendant in order to terminate the subject of the case.” So, you see here, the first case did not terminate the question. It is only when all the parties A, B and C have been impleaded in the case may it terminate. So, when an indispensable party is not impleaded, in violation of that order of the court, the complaint may be dismissed. Q. Who is the necessary party? A. A necessary party is one who ought to be impleaded in order to accord complete relief to all the parties or in order that the claim respecting the subject matter of the case can be fully adjudicated, nevertheless, his absence from the court as a plaintiff or a defendant does not prevent the case from being settled insofar as the parties thereto are concerned. If a case is filed and the necessary party is omitted, the case filed can be terminated. But only partially. But if this omitted party could have been impleaded, the subject matter of the case would be fully adjudicated.

EXAMPLE: A is the creditor of B and C based in the promissory note signed by B and C for P1M. The liability of B and C are merely joint not solidary. A sued B only. He did not sue C because at that time when the case was filed C was no longer in the Philippines. He for left abroad. Q. Can this case between A and B be finally settled? A. Yes. Even without C. But you will know that the better judgment will be rendered in favor of A will cover only the part of B in the P1M. So the court will decide the case awarding A only P500,000. The claim of A against C remain pending, so that where C is already within the jurisdiction of the court, A can file a case against him to recover from him his share in the P1M. C here is merely a necessary party because even without him, this claim of A against B can be settled. In order, however, to settle the entire P1M, if C was with the jurisdiction of the court at the time when the complaint was filed, A should have filed a complaint against both B and C. Q. What will be the effect of filing by A of his claim against B and C at the same time? A. His claim of P1M will be entirely settled in only one procedure. Whereas, in alternative form, the case will be settled insofar as the parties are concerned. That is why, when a party is a necessary party, but he is not impleaded, the reason why he is not impleaded should be stated in the complaint. Q. A. What for is the need to state why C was not impleaded? So that the court could determine whether the reason for the non-inclusion of C is valid or not. Should the court find the reason why C was not impleaded to benefit the merit, the court will now order A to amend his complaint and implead C. Should A fail to comply in the order of the court. Q. What is the effect of such non-compliance on the right of A to recover from the

claim filed? A. Such failure on the part of A to comply operates as a waiver of his claim against C, so that should A eventually file a case against C, C can file a motion to dismiss the complaint on the ground of “waiver of the claim of A against C on the failure of A to implead C in violation of the order of the court.” Rene Notes: 1) spouses as parties G.R. - spouses sued jointly Exceptions: 1) Abandons or fails to comply with marital obligations 2) Spouse disposes exclusive property 3) Regime of complete separation of property 2) class suit Requisites of a class/representative suit 1) subject matter of the controversy is one of the common or general interest to many persons; 2) persons affected are so numerous that it is impracticable to bring them all before the court; 3) parties bringing the class suit are sufficiently numerous or representative of the class and can fully protect the interests of the concerned. Concept of Alternative Defendants

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Q. When may a party plaintiff sue defendants in the alternative? A. The rule is this: A plaintiff may have the right but he is not certain or sure against whom that right should be asserted. He knows he has the right. There are two or more persons who may be liable to him in connection with his right. But he does not know who of them is liable under this rule, he is entitled to sue all these persons in the alternative. Example: A bought a machine from US. The carrier X brought this machine to the Phils. for delivery to A. this machine did not reach A. He does not know who has custody of this machine at the time it was lost. The fact is, there was supposed to be an arrastre operator who should have taken upon its being unloaded in the port of Manila. Was it lost while this machine was in the custody of the arrestre? He does not know, but he has the right to recover the value of the machine. But who of them is responsible, he does not know. Q. What can A do? A. A can sue X and Y (arrestre) at the same time. If it is not X who is liable, it must be Y. If Y is not liable, it must be X. This is the concept of alternative defendants. Rene notes: Unknown Identity or Name of Defendant * Service of summons is by publication Requisites: 1) there is a defendant 2) his identity or name is unknown 3) fictitious name may be used because of ignorance of defendant’s true name and such ignorance is alleged in the complaint 4) identifying description may be used: sued as unknown owner, heir, devisee, or other designation 5) amendment to a pleading when identity or true name is discovered 6) defendant is the defendant being sued, not a mere additional defendant Death of a Party Duty of counsel- inform court within 30 days * The death of a client will require his substitution by his legal representative to be ordered by the court wherein the case is pending, or even the appointment of an executor or administrator, but this time, by a court of probate jurisdiction. In the case of incapacity or incompetency of the party, this fact will merely entail the appointment of a guardian ad litem by the court trying the case upon being informed thereof by counsel of the parties, the parties themselves, or other reliable sources. * No summons is required to be served on the substituted defendants. Instead, the order of substitution shall be served upon the parties substituted in the action, otherwise, the court does not acquire jurisdiction over the substitute party. * The continuance of a proceeding when a party dies without a valid substitution amounted to lack of jurisdiction and that the need of substitution is base on the right of a party to due process.

HOWEVER, if there is no notice of death of party and the court has no knowledge thereof, the proceedings are not set aside.

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* If there is failure to notify the fact of death: the case may continue and the proceedings will be held valid, and judgment will bind the successors in interest. * The court cannot compel the lawyer to continue with the trial after the lawyer has notified the court of the death of his client. Otherwise, the entire proceeding is null and void; the court would have no jurisdiction over the estate, the heirs and the executors or administrators. Transfer of Interest * Substitution of parties is not mandatory. Unless the substitution by or the joinder of the transferee is required by the court, failure to do so does not w arrant the dismissal of the case. * A transferee pendente lite is a proper and not an indispensable party. Sec. 20 Rule 3 When the action is for recovery of money arising from contract, express or implied, and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these rules for prosecuting claims against the estate of the deceased person. This is a situation where a contract involving money was entered into: This contract gave rise to the filing of a complaint against the debtor. When the case is pending against the debtor, the debtor dies. Q. What now will be the status of this case filed upon the death of the debtor, the case not having been determined with finality? Can it continue or must be dismissed? A: Example: A the creditor sued B to recover the loan, he extended. While this case was pending, B died. Under the old rule, upon the death of B, this case will be dismissed. How could A protect his right over his claim, if it was already dismissed in this case? He can now file his claim as an ordinary creditor in the proceeding, (estate or intestate proceeding) for the settlement of estate of B. This rule presuppose that the estate of B is under administration either in a testate proceeding or intestate proceeding. So under RA 86 A should file his claim in this proceeding. So if there was a special proceeding under #SP 34 for the settlement of estate, then A must file his claim in this case. Q. Is that so now? A. No. The death of the debtor B does not extinguish the action. This will continue. Of course with proper substitution of B by the administrator or executor if there is any. If there is none, by his heirs. This case will continue litigation until finality. In the event A wins the case and the judgment becomes final Q. How will A enforce his right as adjudged by the court? A. He will file the case where the settlement of B’s estate is pending, his claim based on this judgment. Q. Can the administrator or executor contest in that special proceeding this claim now of A? A. No, because it has already been settled by final judgment in that civil case. This is the innovation under the new rules. RENE NOTES: Action on Contractual Money Claims Requisites: 1) The action must primarily be for recovery of money, debt, or interest thereon, and not where the money sought therein is merely incidental thereto. 2) The claim subject of the action, arose from a contract, express or implied, entered into by the decedent in his lifetime or the liability for which had been assumed by or is imputable to him. * If the defendant dies before entering a final judgment in the court where it was pending at that time, the action shall not be dismissed but shall be allowed to continue until entry of final judgment thereon.

* Once a final judgment is entered against the estate of the deceased it shall be enforced as a money claim without the need of proving the same. Indigent Party

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* The amount of docket and other lawful fees shall be a lien on any favorable judgment upon the indigent party. Rule 4: Venue of Actions The rules on venue are now simplified. Why? Because the rules in venue likewise involve inferior court and under the RTC. For purposes of venue, actions may either be real or personal. Q. What are the rules on venue involving real property? A. When a suit involves title to, possession of or interest in real property, the venue of the action lie in the proper court of the place where the real or a part of the real property is located. This is true in cases involving title to, possession of or interest in, real property. In forcible entry cases, however, the venue of the action is the inferior court of the place where real property or part of the real property is located. (MTC) Take note that when it comes to the venue of the property suits involving title to, possession of or interest in, real property, the venue is the proper court of the place where the real property is located. But when it comes to forcible entry, the court where the action must be filed is specified and that is the inferior court. It does not say proper court. Q. Why the difference in the case involving title to, possession of or interest in real property, venue is the proper court? A. Because under the new law, even the inferior court have jurisdiction cases depending on the value of the property. Where the value of the property involved in the reindivicacion cases does not exceed P20,000.00, in areas outside Metro Manila, that action for reindivicacion is tried by the inferior (MTC) not the regional trial court. Where the value of the property exceeds P20,000.00, the action for reindivicacion lands with the RTC. In Metro Manila where the action is for reindivicacion for instance, and the value of the property does not exceed P50,000.00, the venue is the inferior court. This is the reason why the law does not specify what particular court the case must filed when it involves title to, possession of or interest in real properties. But when it comes to forcible entry, the rule is specific, “only on MTC of the place where the property or any part of the property is located.” In case of personal actions, the venue is the residence of the plaintiff or any of the principal plaintiffs or the residence of the defendant or any of the residence of the principal defendants at the option of the plaintiff. However, where the defendant is a non-resident, the venue may also be the place where he can be found. In this last case, the venue could not be the residence of the non-resident defendant for a simple reason that, a non-resident defendant does not reside in the Phils. (as the term suggested, “non-resident”). That is why you cannot sue him in a place where he is not a resident, but he may be found in the Phils. So, it is that place where he may be found, that may be one of the venue. Example: If A file a complaint against B, for recovery of money and A is a resident of Sulu and B is from Batanes. Whether the case is tried by the inferior court or by RTC, A can file action either in Sulu or Batanes at his option. Q. But if B is not a resident of the Philippines, but came to the Philippines for a vacation and could be found in Bulan, Sorsogon, where may A, who is a resident of Sulu file the case? A. He may file the case in Sulu or in Bulan, Sorsogon. Where real property is located partly in one place and partly in another, whether the action involves forcible entry or detainer, or an action for reindivicacion its venue should be any of these places where property is located. Example: A vs. B for forcible entry or reindivicacion, the property was located in Manila in part, Caloocan in part, Q.C. in part. So A can file the case in Manila, Caloocan, in Q.C. Example:

A vs. B, an action for declaration of nullity of the marraige of A and B. B the husband is a non-resident defendant of the Philippines whose permanent address is U.S.A., on the other hand, the wife is a resident of Manila. Q. What will be the venue of this action? A. Manila. Example: The action between A and B involved let us say, the recovery of a lot which A claims as his but which B claims is his. This lot is partly located in Pampanga, Bataan or Batangas. While A is a resident of Manila. The value of this property is P19,999.99.

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Q. What court has jurisdiction and a court of what place will be the venue? A. MTC of Pampanga, or of Batanes or of Bataan. Example: A sued B, a non-resident of the Philippines. But at the time the action was filed, B was found in Tawi-Tawi. A is a resident of Batanes. B is a permanent resident U.S. Q. If this action is filed, what will be the venue? A. The venue is Batanes, or Tawi-Tawi at the election of the plaintiff. Where the action involves title to, possession of or interest in real property, the action may be filed in the appropriate or proper court of the place where the property or part of the property is located, except where the action is one for forcible entry, in which case, the action may be filed in the MTC of the place where the property or part of the property is located. If the action is personal, the venue of the action may be the residence of the plaintiff or it there are two or more plaintiffs, the residence of the plaintiff or the residence of the defendant or in case there are two or more defendants, the residence of the principal defendant, at the option of the plaintiff. Where the defendant is a non-resident defendant, but is found in the Philippines, and the action is personal, the venue of the action may either be the residence of the plaintiff or the place where the defendant is found. In our example, the action was one for money, against the defendant B who is a resident of U.S. But at the time the action was filed, he was found in Tawi-Tawi, the action by A can be filed in Batanes, A’s residence or in Tawi-Tawi at the option of A. Q. Where the subject matter of a case is real property, is the rule that the venue of the action involving it should be the place where the property is located or where any part of the property is located absolute? So that in all cases, this rule must be followed? A. It is not absolute. Q. The action involves possession of, interest or in title to real property but the action is not forcible entry. Must the venue of this action be the place where the property is located or where any part thereof is located or may there be a case where what is located or may there be a case where what is involved in a suit is a real property and yet the venue need not necessarily be the place where that property is found or where any part thereof is found. Example: A and B are litigating who has the better right to timber concession located in Cotabato. A is a resident of Manila and B of Batangas. The action by A against B was filed with the Secretary of DENR. The Secretary awarded the right to the timber land to A. B now contested the action of the Secretary in awarding the right to A. B sued as well as the Secretary of DENR. This action was filed by B in his residence which is Batangas RTC. The Secretary now files a motion to dismiss on the ground that the venue is improperly laid. The venue should be Cotabato. If you are the judge, what will your correct ruling on the motion to dismiss filed by the Secretary of DENR? Issue: What is involved here is a motion to dismiss filed by the Secretary, he said “any action contesting my decision should be filed in the court of the place where the property is located.” “Since the property is located in Cotabato, the venue should be Cotabato, not the residence of B in Batangas.” Example: The PHHC awarded the lot in Q.C. to a resident of Bacolod City. After A paid so many installments on their lot, the PHHC unilaterally cancelled this award and awarded the same lot to B. To annul that order of PHHC canceling the award to A, A now sued PHHC which has its office in Q.C. and B, a resident of Manila in the RTC of Bacolod City.

The prayer of A is for the cancellation of the resolution of PHHC canceling the prior award to A and awarding the same lot to B.

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PHHC and B now file a motion to dismiss on the ground of improper venue. They contended that the proper venue of the action is Q.C., the location of the property, not Bacolod City, the resident of plaintiff A. you are the judge, what will be your correct resolution to the motion? Example: A and B agreed in 1990 that any action between them involving this lot in Tawi-Tawi, be filed in Batanes. A being a resident of Manila and B of Bulan, Sorsogon. The agreement was oral. For a violation of Forcible Entry, A now sued B in Batanes although, we say, that the lot is in Tawi-Tawi. B now filed a motion to dismiss, on the ground of improper venue. He said that the action should be filed in the inferior court of Tawi-Tawi, not in Batanes. Q. You are the judge, what will be the correct ruling on the motion to dismiss? A. Deny the motion to dismiss under Sec. 4 (b) Rule 4, the rule on venue shall not apply where parties have not validly agreed in writing before the filing of the action on the exclusive venue thereof. In the above case, the agreement of A and B was an oral agreement. Therefore the agreement is not enforceable. 1. The agreement between A and B is “that any action arising from this lot located in Tawi-Tawi must be filed only in MTC of Batanes.” A now sued B in Batanes. B now filed a motion to dismiss on the ground of improper venue being the property located in Tawi-Tawi and therefore Tawi-Tawi should be the venue.” Rule on themotion to dismiss filed by B. 2. Agreement in writing between A and B provided as follows:: “Any action arising from this land in Taw—Tawi, may be filed in Batanes.” Contrary to this writing, A filed the action in Tawa-Tawi. B now filed a motion to dismiss on the ground that the venue is improperly laid because the agreement called for the venue to be in Batanes. Rule on the motion. A. Deny the motion to dismiss because the agreement used the word “may”. Under the rule, the agreement to be valid must be one which is in writing and the agreement on the venue must be “exclusive venue.” Where the action involving real property concerns the title to the property, or possession of real property or interest in real property, the venue is the place where the property is located or where a part of the property is located. Therefore where the action involving real property does not concern title to the property or it does not concern the possession of real property or does not concern an interest in real property, the rule that the action should be filed in the place where the property is located does not apply. There are, therefore, cases when what is involve is real property and yet the venue of the action need not be the place where the property or a part of the property is located. Example: The action is filed by B against A and Secretary of DENR. The action filed by B here is an action for certiorari against the Secretary of DENR and A. The subject matter although involving real property is actually the judgment of the Secretary. This is not an action involving title to, possession or interest in real property. The action in effect is a personal action. So venue would be the residence of plaintiff B or the residence of the Secretary, not Cotabato, the place where the lot is located. In the case of the annulment of the award made by the PHHC, the venue need not necessarily be Q.C. where the property is located. Since the action was filed in Q.C. where the defendant PHHC reside. So the motion to dismiss filed in Bacolod City is not proper because Bacolod City could be a venue. Unlike jurisdiction which cannot be the subject of stipulation, venue can be the subject of stipulation and therefore the parties can agree that the venue of a particular action as filed and provided the agreement provides for an exclusive venue. So if the property is located in Twi-Tawi, but A and B agreed before any suit is filed that the venue of the action arising therefrom be in Batanes and this agreement was in writing before the action was filed, the action can be filed where the property is located or in Batanes. Why? Because the wording of the agreement, Batanes would merely be an additional venue, the venue agreement controls. So in our example, A and B agreed in writing before any suit arise, that any action involving this property located in Tawi-Tawi can be filed “only” in Batanes. In violation of that written agreement, A filed suit in Tawi-Tawi where the property is located. B now files a motion to dismiss for improper venue. Is the motion to dismiss proper? Yes, because although the property is located in Tawi-Tawi, the agreement called for an exclusive venue, i.e.”only Batanes.” The motion to dismiss of B here should be granted.

The rules on venue mentioned in Rule 4 do not apply in certain cases, in addition to these cases that i.e. an agreement in writing.

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Q. Is there another situation when the rule on venue does not apply other than the ground that there is an agreement is writing providing for a particular venue? The Rules on venue do not apply when there is an agreement in writing providing for an exclusive venue. In addition to this, is there another situation where the rules on venue mentioned in Rule 4 does apply because in this case, we do not file the action, for instance, in the place where the property or a part of the property is located or in the place where the plaintiff or the defendant is residing at the option of the plaintiff. Is there such a situation? Example: A published a libel in Manila. B is a resident of Ilocos Norte. However, A was a resident of Manila. People vs. A filed in Manila. B, subsequently filed in the RTC of Ilocos Norte, his residence, an action for damages against A in manila. A now filed a motion to dismiss this action in Ilocos Norte. His ground is that the venue of the action should not be in Ilocos Norte, it should be in Manila where the libel cases is filed but B countered this argument, the recovery of damages is a personal action, therefore, under Rule 4, sec 2 (B) has the option to file any action either in my residence or the residence of the defendant A at my (B) option. My option is to file my action in Ilocos Norte. So, the motion to dismiss is not proper Rule on the merits of the motion to dismiss Ans. The rules on venue found in Rule 4 do not apply in two cases: 1. When the parties agreed in writing before any action is filed the venue of the action be in a particular place. Meaning, when the agreement calls for an exclusive venue 2. where the law provides for a specific venue. In the first case, where the agreement in writing does not provide for an exclusive venue, but merely an additional venue, the action may be filed in the proper venue according to Rule 4, or in the venue stated in the agreement. If the written agreement on venue provides for a specific and exclusive venue, only the venue specified in the agreement can be the venue. In the second case, the law itself provides, for a specific venue, then it should be that venue provided for by law. The libel law provides that where a criminal action is filed in a particular venue, the civil action for damages arising form that libel should likewise be filed in the same court where the criminal case is pending. In our example, the libel case was filed in Manila. Any action for damages arising form the libel filed must be filed in the place where the libel case was filed. Although B, in this case, is a resident of Ilocos Norte, he cannot file the action in Ilocos Norte because the criminal case was filed in Manila. RENE NOTES: Venue of Actions Real actions - place where real property located Personal actions 1) residence of the plaintiff 2) residence of the defendant * Choice of the plaintiff Real actions 1) action for the annulment or recision of a sale and the return of realty 2) to compel the vendor to accept payment of the purchased piece of land 3) to compel the vendor to deliver the certificate of title of the land Personal actions 1) action to recover the purchased price of the land 2) an action to compel the mortgagee to accept payment and for the consequent cancellation of a real estate mortgage 3) action to annul the cancellation of award of land in favor of the plaintiff Requisites for venue to be exclusive: 1) A valid written agreement 2) Executed by the parties before the filing of the action; and 3) Agreement to the exclusive nature of the venue. * In the absence of qualifying or restrictive words, venue stipulation is merely permissive meaning that the stipulated venue is in addition to the venue provided for in the rule. When rules on venue NOT applicable 1) when parties agreed in writing for an exclusive venue before any action is filed 2) where the law provides for exclusive venue

ex. Libel

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Libel Law - where a criminal action is filed in a particular venue, the civil action for damages arising from that libel should likewise be filed in the SAME COURT where the criminal case is pending. Means of Waiving venue: [FO, AR, VS, L] 1) failure to object by means of motion to dismiss 2) affirmative relief sought in the court where the case is filed 3) voluntary submission to the court where the case is filed 4) laches IF PROPERTY IS LOCATED AT THE BOUNDARIES OF TWO PLACES: file one case in either place at the option of the plaintiff IF CASE INVOLVES TWO PROPERTIES LOCATED IN TWO DIFFERENT PLACES: a) if the properties are the object of the same transaction, file in any of the two places. b) if they are the subjects of two distinct transactions, separate actions should be filed in each place. WHEN ALTERNATIVE RELIEF IS SOUGHT – venue would depend on the primary object of the action. VENUE 1. place where the action is instituted 2. may be waived 3. procedural 4. may be changed by the written agreement of the parties JURISDICTION 1. power of the court to hear and decide a case 2. jurisdiction over the subject matter and over the nature of the action is conferred by law and cannot be waived 3. substantive 4. cannot be the subject of the agreement of the parties

Rule 6: Pleadings Q. What are pleadings? What are the kinds of pleadings? A. Sec.1 Rule 6 Pleadings are written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment.

Sec.2 Rule 6 (Pleadings Allowed) 1. complaint The claims of a party are asserted in a: 2. counterclaim 3. cross-claim 4. third (fourth, etc.) party complaint, or 5. complaint-in-intervention The defenses of a party are alleged in the answer to the pleading asserting a claim against him. An answer may be responded to by a reply. RENE NOTES: 2 kinds of defenses that may be set forth in the answer A. NEGATIVE a. b. 1) 2) DEFENSES Specific denials Insufficient denial or denial amounting to admissions General Denial in the form of a negative pregnant

B. Affirmative Defenses in the Nature of Confession or Avoidance * Unlike the Complaint which alleges only ultimate facts, the Answer may cite legal provisions relied upon for defense

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Q. A. What is the compulsory counterclaim? Sec. 7 Rule 6 A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication, the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be with jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the Regional Trial Court the counterclaim may be considered compulsory regardless of the amount. Q. What is a counterclaim? A. Sec. 6 Rule 6 A counterclaim is any claim which a defending party may have against an opposing party. Example: If A filed a case against B. Any claim by B against A is a counterclaim. It is a claim by a party defending himself against a party who files a case against him. Two KINDS of counterclaims: 1. Compulsory Counterclaim 2. Permissive Counterclaim These two are different for in their component elements and the effect of their not being pleaded. In the language of the rule, a counterclaim is compulsory when it is one which is cognizable by the court and arises out or is connected with the transaction or series of transactions which constitutes the basis of the action against him and does not require for its adjudication the presence of the third person over whom the court cannot acquire jurisdiction. However, where the counterclaim is a money claim and the court in which the case is pending is the Regional Trial Court, the money claim irrespective of the amount is a compulsory counterclaim. On the other hand, a permissive counterclaim is one which does not arise out of or is connected with the transaction which is the basis of the subject of the action. Example: A files an action against B for collection for sum of money. B, however, has an action against A for recovery of lot. This action of B against A for recovery of a lot is a permissive counterclaim. Why? Because it is not in any way related. Q. Why is this permissive? A. Because if B wants to he can file his counterclaim against A in the same action. If he does not file it as a claim, this case filed against him. Q. Can he file it separately, so that if he can file it separately there are now two cases, A vs. B for recovery of lot. A. Yes. Q. Supposing he (B) does not file his counterclaim in this case against him, and subsequently, B files a separate action, can A now file an action to dismiss a second action on the ground that this action of B against A should not be pleaded as a claim counter in nature in the civil case? A. No, because this is a permissive counterclaim. B can file if he wants in to this main action, he may not file if he does not want to file. Q. When is counterclaim compulsory? A. 1) A compulsory counterclaim is one which is cognizable by the court of justice. 2) A counterclaim should be connected with the transaction which constitutes the basis of the action of the plaintiff against the defendant. 3) This counterclaim does not require for its adjudication the presence of a third person over whom the court does not require jurisdiction. 4) This counterclaim is within the jurisdiction of the court except that where the counterclaim is a money claim and the action is filed in the RTC irrespective of the amount whether within or not within the jurisdiction of the court, the counterclaim is compulsory. Example: This is an action of A against B for the recovery of a lot. The counterclaim of B against A is for the recovery of money which represents the unpaid wages of B payable by A and the wages being the result of a contract of employer-employee relationship. Q. Is this money claim of B arising from the employer-employee relationship is not cognizable by the court? A. No, because the money claimed arising from the employer-employee relationship is not cognizable by the courts of justice. This is cognizable by the DOLE Labor Arbiter or the NLRC.

So, if A files his complaint and B pleads his money claim arising from the employeremployee relationship, that counterclaim is not a compulsory counterclaim. It cannot be filed in this case. The counterclaim must be one which arises from the transaction which is the basis of the action of the plaintiff against the defendant. Example: The action of B is for recovery of lot. The claim of B is for money arising from a contract of loan being B the lender and A the borrower. Should B interpose as a counterclaim this action for recovery of money here. Q. Can that be validly done? A. On the assumption that all the other elements are present, this is allowed.

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Supposing, this is the MTC, the action is for reindivicacion because the value of the property is only P200,000. This an action filed outside Manila. Q. A. Is this counterclaim here allowed to be filed by B as a counterclaim in this case? Yes, because this is a claim that is compulsory.

But supposing B does not file a separate case against A for a recovery of money such that if this is done, there will be now two (2) actions Q. Can A validly file a motion to dismiss this complaint on the ground that since this is a counterclaim, that should have been impleaded by B in the main case? A. No, because this amount does not arise from the transaction constituting the claim by A against B, this is a recovery of money. This is a permissive counterclaim the fact that it is not pleaded in the answer in the main case, is not a ground to dismiss it. In this case, B’s counterclaim is not compulsory, but merely permissive. Example: The counterclaim of B consists of P200,000.00 but the counterclaim of B is against A and C over this amount is solidary. B does not plead in his answer in the main case claim and after B files his separate action against A and C to recover his P200,000.00. A filed motion to dismiss on the ground that this should have been impleaded in the main case because it arose from this main case. Q. Is the motion to dismiss proper? A. No, because the presence of C is required in their litigation on this P200,000.00 and C is in U.S. and the Court does not acquire jurisdiction over him. So, this counterclaim although arising from that action is merely a permissive counterclaim not compulsory counterclaim because it requires for its adjudication the presence of a third person over whom the court does not acquire jurisdiction. This is an action in the MTC. The counterclaim of B arising from this, let’s say, the value of the improvements which B introduced in this lot is P201,000.00. He does not plead his counterclaim in this action. Instead, he files a separate action on the recovery of P201,000.00. Now he files a motion to dismiss on the ground that this counterclaim being connected in the claim of A against B should be pleaded. Q. Is the motion to dismiss proper? A. No, because the amount claimed though arising from the action exceeds the jurisdiction of the MTC. The jurisdiction being only up to P200,000.00. So, it is not. Supposing, however, that this case is filed in the RTC. And on the assumption that the counterclaim of B against A arises out of this action of A against B, and the counterclaim is only P50,000.00 Q. Is this counterclaim compulsory or permissive? A. Compulsory. In the RTC, as long as the counterclaim is money, irrespective of the amount, it is always compulsory. Let us now take a case where the counterclaim is compulsory. Example: Compulsory Counterclaim This is an action for the recovery of a lot. The counterclaim of B is for recovery of the value of the property improvements which B introduced. Q. Is it money claim by nature cognizable by a court whether MTC or RTC?

A. Yes.

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Q. Is it connected with the case filed by A against B for recovery of the land? A. Yes, because the amount being claimed represents the value of the improvements introduced by B in this lot, which is the subject of the main case. So, it is connected. Q. Does this action for recovery requires the presence of C, a third person over whom the court cannot acquire jurisdiction? A. No. Q. Is an action for recovery of a P201,000.00 one with the jurisdiction of the RTC? A. Yes. So, in all these cases therefore, the elements of a compulsory counterclaim are present. Q. What is the rule? A. When a counterclaim is compulsory it must be pleaded in the answer, otherwise, that counterclaim is barred. Example: In the example that B sues to recover P201,000.00 representing the value of improvements introduced on the lot which is the subject matter of the complaint of A. What B did was to institute separate action against A for recovery of the improvements. He did not plead this as a counterclaim in the action of A. A now files a motion to dismiss on the ground that, the counterclaim is a compulsory counterclaim, the fact that it not was pleaded in the main case, is a ground to dismiss it. Q. You are the judge, what will be your correct ruling on this motion of A to dismiss the case? A. Grant the motion, bec. a compulsory counterclaim not pleaded in the answer is considered barred. RENE NOTES: Rules on Counterclaim 1) A counterclaim before the MTC must be within the jurisdiction of said court, both as to the amount and nature thereof. 2) In an original action before the RTC, a counterclaim may be considered compulsory regardless of the amount. 3) If a counterclaim if filed in the MTC in excess of its jurisdictional amount, the excess is considered waived. 4) The remedy where a counterclaim is beyond the jurisdiction of the MTC is to set of the claims and file a separate action to collect the balance. COMPULSORY COUNTERCLAIM (1) one of which 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 third parties of whom the court cannot acquire jurisdiction. (3) It is barred if not set up in the action. (4) Need not be answered; no default. PERMISSIVE COUNTERCLAIM (1) It does not arise out of nor is it necessarily connected with the subject matter of the opposing party’s claim. (2) It may require for its adjudication presence of third parties over whom court cannot acquire jurisdiction. (3) It is NOT barred even if not set up in action. (4) Must be answered, otherwise, defendant can be declared in default. the the the the

Cross-claim * filed against a co-party * always arises out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. * If it is not set up in the action, it is barred, except when it is outside the jurisdiction of the court or if the court cannot acquire jurisdiction over third parties whose presence is necessary for the adjudication of said cross-claim. * The dismissal of the complaint carries with it the dismissal of a cross-claim which is purely defensive, but not a cross-claim seeking affirmative relief. Reply Effect of Failure to Reply: new facts that were alleged in the answers are deemed converted. Hence, the filing of the reply is optional except for the denial of the genuineness and due execution of an actionable document used as defense in the answer.

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Third (fourth, etc) – party complaint THIRD-PARTY COMPLAINT * seeks to recover form a non-litigant some relief in respect to the opposing party’s claim. * Third party is not yet impleaded. THIRD-PARTY COMPLAINT * brings into the action a third person who was not originally a party. * initiative is with the person already a party to the action. CROSS-CLAIM * claim by a party against a co-party. * Cross-defendant is a co-party. COMPLAINT IN INTERVENTION *same * initiative is with a non-party who seeks to join the action.

* TEST to determine whether the third-party complaint is in respect of plaintiff’s claim: (a) Where it arises out of the same transaction on which the plaintiff’s claim is based, or although arising out of another or different transaction, is connected with the plaintiff’s claim; (b) Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or party of the plaintiff’s claim against the original defendant; and (c) Whether the third-party defendant may assert any defenses which the third-party plaintiff has or may have to the plaintiff’s claim. Rule in non-FORUM SHOPPING ( Under SEC. 5 RULE 7 ) The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously file therewith: a) That he has not thereto commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and to the best of his knowledge, no such other action or claim is pending therein; b) If there is such other pending action or claim, a complete statement of the present status thereof; and c) If he should thereafter learn the same or similar action or claim has been filed or is pending, he shall report the fact within five (5) days therefrom in the court wherein his aforesaid complaint or initiatory pleading has been filed Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. Example: A filed an action against B for forcible entry of a particular lot. While this case was pending, A filed against B for reindivicacion involving the same lot. Q. Is there a forum shopping on the part of A? A. No, the two cases are different. One is for forcible entry and the other for reindivicacion. Example: A filed an action against B in the RTC for reindivicacion. Branch 1 RTC of Manila. In their action, A filed a petition for receivership. In Branch II of Manila, A filed another action against B also for reindivicacion, for issuance of an injunction. Q. Is there forum shopping on the part of A? A. No, there is none because the two cases involves different issues. Q. What is forum shopping? A. Forum shopping takes two forms: 1) Where a party files the same action involving the same issues either simultaneously or successively in more than one court. 2) Where a party files two or more actions in different courts, the other action filed in another court not being the result of an appeal or a petition for certiorari. Forum shopping is not allowed because this would be constituting to the judicial process making mockery out of the rules. This is the reason why whenever the party files a complaint or an initiatory pleading, he is required to accompany that complaint or initiatory pleading with a certificate. We call the certificate the certificate of non-forum shopping.

The certificate is signed by the plaintiff and if there are two or more plaintiffs and one is a principal plaintiff and the other is not, the certificate must be signed by the principal plaintiff. The contents of the certificate, the plaintiff or in the proper case, the principal plaintiffs, certifies the following: a) That he has not previously filed in another court, tribunal, quasi-judicial body or any other agency, the same action involving the same issues. b) That there is no pending action in any other court, tribunal, quasi-judicial body or any other agency involving the same issues,and if there is pending action in any other court, the status of this action pending in the other tribunal agency or quasi-judicial agaency; c) Should at the time he filed the pleading, he did not know of the existence of pending of another action involving the same issues in another tribunal court, agency or quasijudicial body, but that he subsequently learns that there is such a pending action involving the same issues, he undertakes to notify the court of that fact that there is a pending action, within five (5) days from his receipt or acquisition of knowledge of the pendency of that action. These are the three (3) matters certified by the plaintiff or the principal plaintiff. Q. What are the sanctions against violations of this certificate? A. Violations rule may consist of the following: 1) Failure to attach to the initiatory pleading in the complaint the required certificate of nonforum shopping; 2) Statement in that certificate of non-forum shopping of a false certificate. These are the forms of violation, either you do not accompany or you accompanied the pleading but the certificate contains a falsehood. 3) The violation consists in the failure of the party to comply with his undertaking thereafter. Q. What is the undertaking there? A. To notify the court to the fact that another action is pending in another court. Therefore, the violations consists of three (3), i.e. non-submission, submitting a false certificate and failure to comply with the undertaking to inform the court of the pending case in another court. Q. What are the sanctions? A. The failure to accompany the pleading with a certificate results in a dismissal without prejudice of the complaint or initiatory pleading upon a prior motion and a prior hearing. In other words, where the pleading require a certificate is not attached at, the court may not motu proprio dismiss the complaint. There should first be a hearing either a motion of the defendant. In this case, the court may dismiss it without prejudice.

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Q. Is this all the sanction? A. No,The counsel or the defendant may be held in contempt. And in the case of the lawyer, he may be administratively proceeded against: When there is a false certification, for instance, the certification stated that there was no pending case involving the same issue in another court, when the truth is there is. Q. What is the sanction? A. Not only the pleading be dismissed, not only may the lawyer be proceeded against administratively, he may be proceeded against criminally. Where the forum-shopping is deliberate. Q. What are the sanctions? A. The pleading will be dismissed with prejudice and the offending lawyer may be held in direct contempt without prejudice to administrative proceeding against. Take note that the party on whom the sanctions may be enforced is one who does not comply with this certificate of non-forum shopping, only in a case where the pleading which is not accompanied with the certificate is a complaint or an initiatory pleading. Where the pleading is other than the complaint, or an initiatory pleading, the rule does not require that the pleading be accompanied by a certificate of non-forum shopping. Consequently, where the counterclaim is compulsory, it does not have to be accompanied by a certificate of nonforum shopping. Where the counterclaim however, is permissive than the pleading must be accompanied by a certificate of non-forum shopping. In the case of UST vs. Zula G.R.#129718 August 17, 1998 (294 S 380). “Only a complaint” or an initiatory pleading. A compulsory counterclaim is not an initiatory pleading. Why? Q. When is a pleading initiatory?

A. As the term suggests, it is one, which is filed for the first time. Where a counterclaim is compulsory it is not an initiatory pleading. Why? Because, you cannot file a compulsory counterclaim unless there is a first complaint. That is why a counterclaim is a reaction to the complaint. So, it is all again initiatory, because you cannot file an independent action involving a compulsory counterclaim.

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Where a counterclaim is compulsory, it must be pleaded in the answer, otherwise, it is barred if it is filed in a separate action. But when it comes to a permissive counterclaim, this is an initiatory pleading because it can be filed even without a prior complaint having been filed against a permissive counter claimant. So, in our example for instance, if A filed a complaint against B for recovery of a lot B files a counterclaim for the value of the improvements over the land. So you call this a compulsory counterclaim. Q. Do you have to accompany this compulsory counterclaim of B with a certificate of B with a certificate of non-forum shopping? A. No, because this compulsory counterclaim is not an initiatory pleading. It is a reaction. Without this complaint of A, there is no compulsory. But supposing this were a counterclaim for recovery of money which B loaned to A and B pleaded this claim of money as a counterclaim, you call this permissive counterclaim. Q. Do you have to accompany this permissive counterclaim with a certificate of non-forum shopping? A. (U.S.T. vs. Zula.) Yes. Q. State the rule on Alternative causes of action or defenses. A. Rule 8 Sec. 2 A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. 1) Where a person has one claim or one defense he can state that one claim or one defense in two or more statements either hypothetically or in the alternative. 2) Where two or more statements of a claim or a defense are made and one is made independently of the other which is sufficient, the pleading is not made insufficient by the insufficiency of the other statement of the claim or the other defense. Example: A vs. B, this is an action for recovery of a piece of land. The defense of B is that he (B) is the owner, because 1) he bought the land from A; 2) he inherited the land from C; 3) this lot was donated to him by D; 4) he acquired this by prescription. Q. Could this be validly alleged as B’s defense? A. Analysis: The defenses are inconsistent with each other. B can allege these as his defenses in his answer. The statement of B’s defense that he is the owner is made up of 4 inconsistent statements. The rule says that if the statement of the claim or defense is sufficient in itself, if made independently of the other, the pleading is not made insufficient by the insufficiency of the statement. RENE NOTES: Facts that may be averred generally: (a) conditions precedent (BUT there must still be an allegation that the specific condition precedent has been complied with, otherwise, it will be dismissed for failure to state cause of action; (b) malice, intent, knowledge, or other condition of the mind (c) judgment of foreign courts, tribunals, boards, or officers (no need to show jurisdiction) Facts that must be averred particularly: (a) circumstances showing fraud or mistake in all averments of fraud or mistake (b) capacity * Two permissible ways of pleading an actionable document: (a) By setting forth the substance of such document in the pleading and attaching said thereto as an annex (b) By setting forth said document verbatim in the pleading

* Where the actionable document is properly alleged, the failure to deny under oath the same results in: 1) The implied admission of the genuineness and due execution of said document except: (a) when the adverse party was not a party to the instrument; and (b) when an order for the inspection of the document was not complied with. 2) The document need not be formally offered in evidence. * Defenses that the opposing party may set up even after failure to deny under oath: (a) mistake; (b) fraud; (c) compromise; (d) payment; (e) prescription; (f) want or illegality of consideration; or (g) estoppel. * BUT the following defenses are waived: (a) forgery in the signature; (b) want of authority of an agent or corporation; (c) want of delivery; or (d) the party charged signed the instrument in some other capacity. SPECIFIC DENIAL

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THREE WAYS OF MAKING A SPECIFIC DENIAL: (a) BY specifically denying each material allegation of the party and of the other party and whenever possible, setting forth the substance of the matters relied upon for such denial; (b) past admissions or past denial; (c) By an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing party’s pleading. * A denial cannot be general, a general denial is regarded as admission on the facts stated in the complaint. * A negative defense must be a specific denial. Otherwise, the denial will be deemed as an admission and entitles plaintiff to a judgment on the pleadings Averments in the complaint NOT deemed admitted even if NOT specifically denied: (a) Allegations as to the amount of damages (unliquidated); (b) Immaterial allegations; (c) Incorrect conclusions of fact; and Averments deemed admitted if not specifically denied under oath: (a) Allegations as to usury in the complaint (b) The authenticity and due execution of actionable documents thereto. Rule 9: Effect of Failure to Plead General Rule: All of actions and defenses available at the time the pleading is filed, if not raised in the motion to dismiss or as affirmative defense in an answer are deemed waived or abandoned. So the general rule therefore is, if you have defenses or objections, if you will file, allege all them either in a motion to dismiss or alternative defenses in an answer. All those defenses, all those objections available but not so raised are deemed waived and abandoned. There are certain defenses or grounds of objections however which may not be abandoned, either if they were not initially raised in a motion to dismiss or as an affirmative defense. EXCEPTIONS to the G.R of FAILURE TO PLEAD For instance, the court has no jurisdiction over the subject matter of the case. Suppose the case is already barred by the rule on res judicata. Suppose the action has already, one that has prescribed. Suppose there is a lis pendencia and all these four are redeemed either on the basis of the pleadings themselves or under the basis of the evidence, the court can dismiss this action based on lack of jurisdiction, res judicata, lis pendencia or prescription, or statue of limitation. Example: A vs. B, this is an action for forcible entry. The allegations are filed. This case was filed in the RTC. So B did not file a motion to dismiss for lack of jurisdiction. Neither this lack of jurisdiction of the court to try the forcible entry case alleged as an affirmative defense.

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Q. Is jurisdiction here waived? A. No. Although not raised in the motion to dismiss, or although not raised as an affirmative defense, the court can still dismiss the case although lack of jurisdiction was not so alleged. Or where the evidence shows, if proceeded to trial, lack of jurisdiction or where the evidence shows res judicata already, or where the evidence shows that the action has already prescribed or the evidence shows that there is lis pendencia, then the court can dismiss the action. Default. Default Used to be covered by Rule 18. Rule 18 was limited to default, but Rule 18 now which covered default, there is another subject of Rule 9. Q. What is the rule of default? A. Default here means, the failure of the defendant who was validly served a summons to file the answer within the reglamentary period. So, if for instance, A vs. B was summoned on Dec. 10, 1999. He has only a period until Dec. 25, 1999 or Dec. 26, 1999 assuming that Dec. 26, 1999 is a working day within which to file the answer or only appropriate pleading. If B was validly served under Rule 14, and fails to file the answer within that period or fails to file any appropriate pleading within that period, we may say that B has already incurred in default. ALTERNATIVE AND SUCCESSIVE REMEDIES OF A PRTY DECLARED IN DEFAULT a) file a verified motion in set aside the order of default of any time after discovery of the FAME and before judgment b) if he did not file one or the same was denied, he would file a motion for a new trial at any time after service of judgment by default and within 30 days therefrom c) if he fail to file said motion or the same was denied, he could perfect his appeal from and on merits of said judgment by default within the balance of said 30-day period d) if he failed to take any of said steps, he could file a petition from relief of judgment within 60 days from notice of the judgment but within 6 months from entry thereof. Where the defendant has not been validly summoned, under Rule 14, he cannot be declared in default. Q. How will A here secure the default of B? A. He must file a motion in court. Q. Can the court moto proprio declare B in default? A. No. Even if B has not filed an answer, the court cannot moto proprio declare the defendant in default. A must file a motion. Q. Is B, under the new rules, entitled to a notice of the hearing of the motion to declare in default? A. Yes. This is now the amendment to the old Rule 18. Under the old Rule 18, the jurisprudence thereunder, a motion to declare a defendant in default could be validly heard without notice to the defendant. He was not under the same rules and jurisprudence entitled to a notice of the hearing on the motion. It means therefore, that a default motion, under the old rule, will be held ex parte. This is not now the rule. A here, the plaintiff, must file a motion, furnish B with a copy of the motion and furnish B with a notice of hearing on the motion. Ruling of the court on the motion… The court may deny or grant the motion. Q. What are the effects of a declaration of default on the defendant? A. There are many. In substance B loses many rights which pertain to a defendant who has not been declared in default: 1) he cannot file an answer; 2) he cannot participate in the proceedings; 3) he cannot present evidence on his behalf; 4) he cannot cross-examine, (the witness of the plaintiff) until he regains his standing as a defendant, because the order declaring him in default is set aside, he is in effect outside the ring, looking at A doing his thing. So, a case where a defendant is not declared in default, is likened to a boxing fight where both opponents are in the ring slugging it out. But in the case of a defendant who has been declared in default, the only person in the ring, is the plaintiff A and B, here the defendant is outside the ring looking at what A is doing. Q. What follows after the court has validly declared the defendant in default? A. 1) The court may now render a judgment. The judgment may be either what is solely in the allegations in the complaint without the court receiving evidence from A, the plaintiff in support of the allegations.

2) The court may receive evidence and therafter render a judgment on the basis of evidence presented by A.

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Q. Are there limitations on the judgment that the court may render where the defendant is declared in default? A. Yes. The limitations are: 1) The judgment cannot award an amount to the plaintiff in excess of what was claimed in complaint; 2) The judgment that the court may render can never be different from the judgment prayed in the complaint. Where a judgment is rendered without the defendant having been declared in default, the judgment may be different from what has been prayed provided that judgment is sustained by the evidence. Example: If B was not declared in default and the claim of A in his complaint for damages is P1M, but what A proved was P1,000,000.01, the court may award A P1,000,000.01 though it exceeds by one (1) centavo they are valid. But in a default case, No!! even though the evidence of the plaintiff proved that sustained damages P1,000,000.01, the court cannot award an amount in excess of P1M (the amount claimed in the complaint). Q. How may the defendant regain his standing as a defendant? A. He must file a motion to set aside the order of default at any time before the judgment has become final. In other words, if the judgment has already become final, a motion to set aside the order of default is no longer proper. Q. What are the grounds of a motion to set aside a default order? A. Since the default is by reason of failure of the defendant to file the answer, there must be a reason why he failed to file the answer. And this must be the reason he must alleged when he filed a motion to set aside the order of default. Q. What are these? A. You will say: "I fail to file my answer because of the following: 1) Fraud was committed against me, so I did not file the answer. 2) An accident befell me. This accident prevented me from filing the answer on time. 3) I committed a mistake and this mistake prevented me from filing the answer” If he said “ I was negligent in not filing, but my negligence is excusable because: 1) 2) 3) These are the grounds, fraud, accident, mistake or excusable negligence, which prevented the defendant of filing the answer. (FAME) Q. Is it enough that these grounds be alleged in the motion to entitle the defendant to a restoration to his status as a defendant? A. No. The motion must be accompanied by the so-called affidavit of merit. The affidavit of merit is composed of two (2) facts: 1) The facts constituting the fraud, the accident, the mistake, the excusable negligence which prevented the defendant from filing the answer. So, the defendant here must recite the facts constituting the fraud, mistake, negligence or accident. He cannot simply say, “ I failed to file my answer because there was fraud committed against me or that an accident befell me or that I committed a mistake or that I was negligent and that negligence is excusable.” Why? Because these are merely conclusions. So you must state here, “Fraud was committed against me,” In what did consist of? State there! Same thing with the accident, mistake or negligence. 2) The good defenses of the defendant to the action So, in the affidavit of merits, the defendant must state there the facts constituting his defense. He cannot simply say there, “I have a good defense.” No! State there what are your good defenses.

Q. What is the reason why the affidavit of merit indicates therein the good defense of the defendant is required? A. The rule is based on this supposition. The court must first examine the defenses of the defendant. To determine whether it is proper or not proper to set aside the order of default and allow the defendant to file his answer and adduced his evidence. Why? Because if the affidavit of merit does not show that the defendant has good defenses so that even if all those defenses alleged in the affidavit of merit were proven, but notwithstanding he will not be still entitled to a judgment in his person, it would be pointless to allow him to go to trial and prove to state which do not entitle him anyway to any favorable ruling. But if after the court has examined the proposed evidence as stated in the affidavit of merit, and finds that if this evidence are established, the judgment may be favorable to defendant, then the court will have a basis of allowing B (defendant) to reacquire his status as a legitimate defendant.(This is the purpose.) Q. Although a defendant has been validly summoned, can he nevertheless be declared invalidly in default even if he did not file the answer? A. YES. When the declaration of default is premature because at the time he was declared B in default, the period of the filing of the answer has not yet expire. Example: The last day for B to file the answer is Dec. 26. The court declared B in default on Dec. 24, 1999. Q. Is the declaration in default proper? A. No. B was not yet in default. Why? Because he has until Dec. 26, 1999 within which to file the answer. So, when he was declared default on Dec. 24, 1999, he has still an additional two (2) days within which to file the answer. So B now files a motion to set aside this default order. Q. Does he need to accompany his motion with an affidavit of merit? A. No, not necessarily. Why> because the default order is illegal. You cannot declare a defendant in default ahead of the expiration of the period of the filing of the answer. Q. Is the failure of the defendant to file the answer within the reglementary period a ground to declare him in default in all cases? A. No. There are certain cases where a defendant cannot be validly declared in default even though he has not filed an answer within the reglementary period. Q. What are these cases? A. The cases are the following: 1) An action for a declaration of nullity or annulment of a marriage; 2) An action on legal separation. In these cases where the defendant does not file the answer, the procedure to be followed by the court is this, the court must require the prosecutor to intervene and determine whether there was collusion between and among the parties, and that if such prosecutor finds that there was no such collusions, to direct the prosecutor to intervene for the purpose of seeing t it that the evidence of the plaintiff they adduced is not manufactured or a product of a concoction, the fiscal should determine. Where there are two or more defendants, some of whom answered and some do not, but the cause of action against the defendants is common to all, meaning, the complaint alleges the cause of action common to all the defendants. Q. What procedure should the court follow in determining the case? Example: A vs. B, C and D. A has a cause of action against B, C, and D. The cause of action is common to all. Only B answered. Q. How will the court proceed to try the case? Is C and D declared in default? Yes. A. Trial… Q. Does this mean therefore that the trial will no longer affect C and D? A. The Rule is, the court will try the case on the basis of the answer filed by B. The answer filed by B inures to the benefit of C and D. It is as if this answer filed by B was filed not only for B but also for C and D. This means to say therefore, that a judgment rendered binds all the defendants. So, if B wins for instance, C and D might also win. If B looses, C and D also loose.

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This rule, however, presuppose that the action of A is against all these defendants is common to them. So, you can declare C and D in default for their failure to file the answer but the case shall be rendered against them on the basis of B’s answer. This is the essence of Rule 9. Rule 10 : Amended Pleadings Amendment may be a matter of right or not a matter of right, one that is rest on the discretion of the court. Amendment may also be of substantial matter or only on formal matters Q. What are the rules of amendment? A. They are as follows: At any time before a responsive leading has been filed, the plaintiff may file an amendment pleading once, as a matter of right. Meaning, the plaintiff does not have to get a prior authority from the court to amend. He can amend without getting a court order authorizing him to amend. The plaintiff A filed his complaint against B on Dec. 1, 1998. The defendant B was summoned on Dec. 7, 1998. So, he has a period ending Dec. 22,1998 within which to file the answer in conformity of Sec. 1 Rule 11. Sec. 1 Rule 11 The defendant shall file his answer to the complaint within fifteen (15) days after service of summons, unless a different period is fixed by court. Let us say that B filed the answer on Dec. 20 but served the copy of the answer on A on Dec. 22, 1998. On Dec. 21, however, A now filed any motion authorizing him to amend his complaint. So, there was no order for A to amend. B moved that this amended complaint be stricken off the record on the ground that its filing was not authorized because A did not have the authority of the counsel to amend. Q. Is the motion to strike by B, legally proper? A. No. When A file the amended complaint on Dec. 21, the answer of B which was filed on Dec. 20 was not yet served on A. It was served only on Dec. 22. The rule is, “at any time before a responsive pleading is served, the party filing the pleading can amend once, as a matter of right.” The right can be exercised only once, not twice. When the amended complaint was filed on Dec. 21, it is a matter of right, meaning it can be exercise without a court order. When the answer of B was already filed a day ahead or on Dec. 20. But because the rule is very clear, there is a difference between filing and serving under Rule 13, and under Rule 10, the starting point of the right to amend a pleading is not the date of filing but the date of serving a copy of the pleading to the adverse party. The rule says, the right to amend before the responsive pleading is served can be exercised only once. When a party therefore seeks to amend for the second or subsequent times, his pleading, he can no longer do so as a matter of right. For him to amend again for the second time or any subsequent time, he must obtain prior leave of court.

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Illustration: January 10, 1999 A examined his amended complaint and found some deficiencies thereunder which he now wanted to correct. And so the only way for his correction would be to file a second amendment complaint. Let us say that the last day for B to file his answer to this amended complaint is January 15, 1999. B here filed his answer on January 13, 1999 and served A a copy of the answer on January 15, 1999. A filed his second amended complaint without leave of court. Q. Could A validly file without leave of court that second amended complaint? A. No. Q. Why could A not since the answer for the amended complaint was not yet served on him when he filed his second amended complaint? A. Because the right to amend without leave of court can be exercised only once. Q. Give us the instances when the pleading may be amended to conform with the Evidence? Sec. 5 Rule 10 When issues raised by the pleadings are tried with the expressed or implied consent of the parties they shall be treated in all respects as if they had been raised in the pleadings. Such amendments of the pleadings as may be necessary to cause them to conform to the evidence and

to raise these issues may be made upon motion of any party at any time, even after judgment: but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby.

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There are two situations where a pleading may be amended to conform to the evidence: Instances when pleadings may be amended to conform to the evidence 1) when issues not raised in the pleading or in the trial order are tried expressly or implicitly with the consent of the parties thereto; 2) when an issue not raised in the pleading or in the pre-trial order to be proven by a party and objected to be tried if the presentation of the merits of the case and substantial ends of justice are subserved thereby. Example: A vs. B. The complaint of A, he alleged among others that he gave a loan to B. The loan is already overdue. Demands notwithstanding, B refused to pay. The prayer of A is that judgment be rendered: 1) ordering B to pay A the amount loaned; 2) ordering B to pay damages to A. The answer of B that he denies that he obtained from A. He likewise denies that he was asked to pay A, no demand whatsoever having made. As B’s defenses, he raised the following: 1) the action has already prescribed. This is the only defense that B alleged. During the trial A presented his evidence and the allegations. B presented his evidence to prove his denial. He now tries to prove prescription. In addition, he now tries to prove payment. In other words, B said that he already paid. Q. Is payment an issue? A. No. Because it was not raised in the pleading. Nothing was said in the answer of B that he paid. The rule is you cannot prove a defense not alleged, you are limited of proving only which you have alleged. Provided of course that, that is disputed. So, our rule here, under the ordinary rules of pleading particularly under Rule 13 there having been no issue raised in the pleading with respect to payment, then this payment cannot be proven. However, when B tried to prove this, A did not object. On the other hand, A adduced evidence showing that there was no payment. Q. May the court now in deciding the case consider the evidence of payment under this rule on amendments of pleadings to conform to the evidence? A. The court may. It can consider it although there was no issue. Q. In order to justify the court ruling or deciding what is allowed to do under Rule 10? A. The court may now order A and B to amend their respective pleadings to conform to the evidence on payment. So, B here will be allowed to amend the answer to allege therein payment. A may now be allowed to amend his complaint to allege non-payment to conform to the evidence. Supposing the court did not order the amendment. Q. Can it pass on the issue of payment? A. Yes. The rule is, whether the pleadings have been amended or not to conform with the evidence, the court can still rule on the issue that was impliedly or expressly agreed upon to be tried by the parties. So, the non-amendment of the pleading will not justify the court from refusing to resolve this issue of payment. If there was already evidence of payment because there was objection in this case, on the part of A that issue of payment can be resolved by the court with or without the amendment of the pleading. B now introduces his evidence of payment. However, A objected on the ground that there was no allegation of payment under the cardinal rule on pleading, “you cannot prove what you have not allege”. The court will say B is allowed to prove and if A cannot show that the reception of the evidence of payment would prejudice him. On the contrary, the court believes that presentation of evidence on this issue of payment will be served the merits of the case or in the language of the law, the ends of justice are subserved by the amendments. RENE NOTES: * When the complaint is amended, 2 situations may arise: 1) If the complaint merely corrects or modifies the original complaint, then the action is deemed commenced upon the filing of the original complaint;

2) If the amended complaint alleges a new cause of action, then the new allegedly cause of action is deemed commenced upon the filing of the amended complaint. * Instances when amendment by leave of court not allowed: 1) when cause of action, defense or theory of the case is changed; 2) amendment is intended to confer jurisdiction to the court; 3) amendment to cure a premature or non-existing cause of action; 4) amendment for purposes of delay Supplemental Pleading

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Sec. 6 Rule 10 Upon motion of a party the court may, upon reasonable notice and upon such terms are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days form notice of the order admitting the supplemental pleading. Example: A vs. B. When A file this case on Dec. 1, 1995, he could have allege only facts that occurred before or until Dec. 1, 1995. He could not have ascertained in that complaint of his dated Dec. 1,1995 facts which would have occurred Dec. 1, 1996. Why? Because he is not Nostradamus. He does not know what is tomorrow. So, you cannot allege facts not yet existing at the time the pleading is filed. Supposing there were facts already existing on Dec. 1 or before that, but which A forgot to allege and which facts are material to his case. Q. Can he change his pleadings? How? A. Yes, by amended pleading to incorporate therein facts already existing at the time of the filing of the pleading or at the time before the pleading is filed. Q. What is a supplemental pleading? A. A supplemental pleading is one embodying therein occurrences, facts and events that transpired after the original pleading was filed. So, in the example, where the suppose offer of B to settle was made on Dec.1, 1996 and A wants to aver this in a supplemental pleading. Q. Why supplemental? A. Because this matter could not have been alleged on Dec. 1, 1995 because it did not yet occurred. You will notice that the supplemental pleading is intended, as the term suggest, to supplement or to add to the original pleading. Unlike the amendment pleading, which supersedes the original pleading, a supplemental pleading does not put out of existence the original pleading. Example: In an amended pleading of B, the moment this is filed and this is accepted, the original pleading or complaint ceases to exist. It is no longer legally a part of the record although it is there. It is there, but legally it is not there. It is non-existent. You can physically see it but legally you are blind to it because an amended pleading supersedes the original pleading. Q. How about a supplemental pleading? A. No, it does not supersedes. It is merely an additional. So that when a supplemental pleading is filed, there are actually two pleadings now, the original pleading and the supplemental pleading. Example: Dec. 1, 1995 A sued B the MERALCO in an action to enjoin it from cutting off the electrical connection of A. A prayed that a restraining order be issued while the case is going on. B, the MERALCO, alleged that A stole electricity by installing in its electrical connections a jumper. The event which is that electricity passing through the jumper is not recorded in the meter amounting to thousand of pesos. A now filed an urgent motion asking the court to resolve the application for restraining order. The court denied the TRO, so MERALCO now threatened to carry out its original desire of cutting of the electricity. To avoid the cutting of the electricity, A paid under protest. The contention of A is that he did not steal it, and therefore he is now entitled to the return of his money. Q. Does he have to file a separate complaint to recover what he paid? A. What he can do is file supplemental pleading alleging therein what happened.

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Q. A. to Q. A. What happened here? After he filed the complaint, the court denied his application for TRO, MERALCO now threatened cutoff his, electricity to avoid the cutting of the electricity, he paid under protest. What is now A’s prayer? A’s prayer is that MERALCO be ordered to return to him the amount he paid.

Q. Could he pray for that in his original complaint? A. For obvious reasons, he could not have set forth that fact because it did not have occurred when he filed the original complaint. A supplemental pleading should be answered. Q. When should it be answered? A. A supplemental pleading should be answered within ten (10) days from the notice of the order admitting supplemental pleading. Q. What would be the basis now of B in filing the answer to the supplemental pleading? How would B know the contents of the supplemental pleading? A. The court furnishes B with a copy of supplemental pleading of A. Under Rule 15, when a motion is filed, the pleadings sought to be admitted are already attached to the motion, so the motion now carries the copy of the supplemental pleading a complaint. A now furnished B, when B received the order admitting the pleading of A, he already had with him a copy. That is why, the ten (10) day period is counted from the receipt of the order admitting the supplemental pleading. B in this example, did not file the answer to the supplemental pleading. A now filed a motion to declare him in default with respect to the supplemental pleading. B now engaged Atty. Marte as his counsel. Q. What legal procedure are you (Vanny) allowed to involve in order that this motion of A to declare your client in default may be thwarted? A. While it is true that the rule require a supplemental pleading to be answered, the failure of the party to answer is not a ground to declare him in default. Why? Because the answer he already filed to the original complaint serves as his answer to supplemental pleading. RENE NOTES: AMENDED PLEADING * refers to facts existing at the time of the commencement of the action. * take the place of the original pleading * can be made as a matter of right as when no responsive pleading has yet been filed SUPPLEMENTAL PLEADING * refers to facts arising after the filing of the original pleading. * taken together with the original pleading. * always with leave of court

Effects of Amendment Pleading (a) Admissions in the superseded pleading can still be received in evidence against the pleader; (b) Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived. RULE 11:WHEN TO FILE RESPONSIVE PLEADINGS Q. Give us the period within which a pleading may be answered: 1) Complaint – 15 days after service of summons: 30 if foreign corp.; 60 days if done thru extraterritorial service 2) Counterclaim – 10 days form service 3) Cross-Claim - 10 days form service 4) Third Party Complaint – 15 days after service of summons 5) A Complaint-in-Intervention – 15 days form notice of the order admitting it 6) Answer-in a case where the motion to dismiss it is denied – balance of period required but not less than 5 days from receipt of notice of denial 7)Bill of particulars-within 10 days from the notice of the order 8)Supplemental pleading- within 10 days from service Sec. 1 Rule 11 Complaint The defendant shall file his answer to the complaint within fifteen (15) days after service of summons, unless a different period is fixed by the court. Sec. 4 Rule 11 (Counter-claim and Cross-claim) A Counter-claim or cross-claim must be answered within ten (10) days from service

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Sec. 6 Rule 11 (Third-Party Complaint) The time to answer a third (fourth, etc.) party complaint shall be governed by the same rule as the answer to the complaint. Sec. 4 Rule 15 (Complaint in Intervention) The complaint of intervention shall be filed within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the court. Sec. 4 Rule 16 (Motion to Dismiss) If the motion is denied, the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any event, completed from his receipt of the notice of the denial. If the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading, unless the court provides a longer period. In a case of a bill of particulars where the motion was denied or where the motion is granted, when the bill of particulars was filed. Q. What is the period to file the answer? A. Sec. 3 Rule 12 Bill of Particulars If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten (10) days from notice of the order, unless a different period is fixed by the court. The bill of particulars or a more definite statement ordered by the court may be filed either in a separate or in an amended pleading, sending a copy thereof on the adverse party. Q. Where the defendant is a foreign corporation doing business in the Philippines. Within what period must it file its answer? A. Sec. 2 Rule 11 Where the defendant is a foreign private judicial entity and service of summons is made on the government official designated by law to receive the same, the answer shall be filed within thirty (30) days after receipt of summons by such entity. Q. Complaint, when should it be answered? A. Within fifteen (15) days from service of summons to the defendant. Q. How about a counter-claim, within what period should it be answered? A. Within ten (10) days from service of the counter-claim on the defendant with respect to the counter-claim. The defendant in a counter-claim is the plaintiff. Q. How about the cross-claim? A. Cross-claim must be answered within ten (10) days from service of this cross-claim to the proper party answering is the cross-defendant. A third-party complaint or a fourth-party complaint or any complaint for that matter must be answered within fifteen (15) days from service of the summons. Complaint in intervention must be answered within fifteen (15) days from receipt by the defendants in intervention of the order admitting the complaint-in intervention. In a case of a complaint which was the subject of a motion to dismiss which was denied. The defendant has a period representing the balance of the original period he has.But in no event should the period be less than five (5) days. In the case of a bill of particulars, the defendant whose motion for bill of particulars, is denied or where the bill of particulars was granted, the period within which the defendant must file the answer would be the balance of the 15-days period within which he should have filed the answer but in no event less than five (5) days. In the case of the supplemental pleading, the answer must be filed within ten (10) days from service of the notice admitting the supplemental pleading. Pleadings to be amended shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant the continuance to enable the amendments to be made. RENE NOTES: * The granting of additional time to the defendant to file an answer is a matter largely addressed to the sound discretion of the court. They may extend the time to file the pleadings but may not shorten them.

* If the filing of an amended complaint is a matter of right, the 15-day period to answer is counted from the service of the amended complaint.

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* If the filing of an amended complaint is not a matter of right, then leave of court is required, hence, the 10-day period to answer runs from notice of the court order granting the same. *If no new answer is filed by the defendant in case an amendment has been made after he has filed his answer, the original answer of the defendant may serve as the answer to the amended complaint and hence, cannot be declared in default. Rule 12: Bill of Particulars Q. What is the concept of Bill of Particulars? A. The complaint or a pleading may be vague or ambiguous. This being so, the defendant may not possibly be in a position to file an answer. Before he files the answer, he has a remedy to secure from the plaintiff a clear allegation of the facts, the defendant considers as vague. Example: This is an action filed by A against B for recovery of a lot. The allegation in the complaint alleges that A is the owner of the lot in QC. Which he has always been in possession of, for a number of years until B ejected him (A) therfrom. Q. You are B, do you know what is this lot in QC? A. In an action for recovery, the identity of the property must be stated. So the owner itself requires that the identity by its boundaries (technical description). A should have described in his complaint the boundaries, area etc. of the lot in question. If you were B, unless you know the description of this lot A is talking about. Q. So what are you allowed to do before you file the answer? A. You want that land to be identified, so you file a motion to require A to submit a bill of particulars. Q. What is the purpose in asking the court to order A to submit a bill of particulars? A. Your purpose is to allow you to properly file your answer, because unless you know the lot A talking about, you cannot possibly file an intelligent answer. So the purpose therefore is to clarify an ambiguity in order to answer the complaint intelligently. Q. When may a motion for Bill of Particulars be filed? A. At any time within the period for the filing of the answer. In this example, within the period of the filing of the pleading, B can file a motion to require A to submit a Bill of Particulars. Q. What is the effect of the filing of the motion for Bill of Particulars on the running of the period of the filing of the answer? A. When a motion for Bill of Particulars is filed, the period for the filing of the answer is suspended. Q. What does it starts to run again? A. It starts to run again when a motion for Bill of Particulars is denied and the defendant received a copy of the order of denial or it starts to run again when, after the motion has been granted, the plaintiff has filed a motion for Bill of Particulars and the defendant receives a copy of the Bill of Particulars. Within what period should an answer be filed following the denial of the motion or following the receipt of the Bill of Particulars? The rule says that: The defendant is entitled to the balance of the period he was entitled to, at the time he filed the motion, but in no event should the period be less than five (5) days. So, if for instance, A filed the action against B. B received the summons on Jan. 2, 1999. He filed a motion for a Bill of Particulars on Jan. 9, 1999, so that when he filed the motion for a bill of particulars, he already consumed seven (7) days of the original 15-day period. So, therefore he has eight (8) days. If B received on Jan. 10, 1999 the order denying the motion or he received on this day a copy of a bill of particulars submitted by A. B has eight(8) days counted from Jan. 10, 1999. Therefore, his last day for the filing of the answer would be on Jan. 18, 1999. On the other hand, if B filed a motion for a bill of particulars on Jan. 15, 1999 and therefore he has already consumed thirteen days of the original 15 days period, consequently he has only two (2) receiving days. When he received the order of denial on Jan. 10, 1999, he received on this day a copy of a bill of particulars, he has still five (5) day period until Jan. 15, 1999 within which to file the answer. Q. Why not Jan. 12, 1999, because that is the balance to which he is entitled to at that time? A. Because the rule says, “in no event shall the period be less than five (5) days.”

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Q. What are the sanctions against the failure of the plaintiff to comply with the order of the court directing him to file a bill of particulars? A. Should A be directed by the court to file a bill of particulars, he must do so within the period fixed in the order, but in no event should the period be less than ten (10) days. So, if the court does not fix the period within which A must file the bill, it is understood that he has a 10-day period. That period cannot be shortened, it can be extended, but never shortened. The sanctions against the failure of a party plaintiff to file the bill of particulars when ordered by the court, is, the court may order the stricking out of the pleading to which the motion for bill of particulars refers. Or the court under Sec. 3 Rule 17 may dismiss the action for failure to comply with an order. Under the old rules, a motion for a bill of particular was a litigated motion because thereunder, the court must set for hearing a motion for bill of particulars. This is no longer the case. Under the new rules, the court can resolve the motion for a bill of particulars ex parte or with notice to the adverse party. This is why we have a provision that upon the filing of a motion for bill of particulars, the clerk of court should refer the motion immediately to the court, unless the court desires that that motion be heard with due notice with the adverse party. RENE NOTES: * If the defendant files an answer but fails to obey an order relating to a bill of particulars or in case of insufficient compliance thereof, the answer may be stricken off the records and the defendant be declared in default upon the motion of the plaintiff. Rule 13: Service and Filing of Pleadings Q. Give the desticntions between Service and Filing. A. Sec. 2 Rule 13 Filing is the act of presenting the pleading or other paper to the clerk of court. Service is the act of providing a party with a copy of the pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side. Filing (Manner) 1) personally to clerk of court 2) registered mail, not ordinary mail Example: Suppose a pleading is filed by JRS Express or LBC Jan. 1, 1990 – the pleading was delivered to JRS Express Jan. 15, 1990 – JRS Express delivered it to the court The date it is considered filed is on Jan. 15, which is the date it is delivered and received by the clerk of court and not on the date of deposit to JRS Express. Example: A vs. B 1) A resides in Sulu, B in Batanes. In Sulu, there is no registered mail service, then a copy of the pleading can be served only by ordinary mail. 2) There is a registered service in Sulu, but there is none in Batanes. Service can be effected by ordinary mail. 3) There is a registered service in Sulu, and there is also a registered mail service in Batanes, service can be done only by registered mail Q. How about final order, judgment, resolution, how can they be served? 1) Only by personal service and 2) By registered mail. It can never be done by ordinary mail. Reason: There is such a thing as a period of appeal or for the performance of some legal acts. There must be a definite starting point Where the service is by ordinary mail, there will be no definite starting point for the period to appeal or to that other legal acts. Why? There is no record. But when it is a registered mail, there is a record or whether it is a personal service, there is a record. But in the case of ordinary mail, there is none.

Q. Where a party wants to serve a copy of his pleading or other papers, either by personal service or by registered mail for that matter, how can such pleading or other papers be served? (You cannot serve it personally because, let us say, the office the adverse party is not known, his residence is not known, he cannot be served by registered mail or by ordinary mail, for the simple reason that, you do not know where he is. How can he be served? The party serving must serve his pleading or other papers on the clerk of court by proving to the clerk of court, “failure to serve personally or by mail.”

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Example: B files a motion (this is litigated). So he has to notify A of the motion, because a litigated motion cannot be resolved by the court unless there is proof of service of a copy thereof to the adverse party. B cannot serve a copy of the motion to A because the office of A is not known. His residence is not known also. He cannot be furnished by mail (registered or ordinary). The hearing is set on Dec. 10, 1998. So, if B cannot prove that he served a copy of his motion to A, the hearing on Dec. 10, 1998 cannot proceed because this is a litigated motion. Q. What is the remedy available to B even if A was not personally served with the notice of the motion, this motion can be heard on Dec. 10, 1998? A. All that B does is to serve a copy of his motion to the clerk of court. But of course, B has to prove that B could not serve it on A’s office or residence either personally or by mail, registered or ordinary. This is a remedy which does not appear to be appreciated – by many lawyers. The service on the clerk of court on that day it was served to him is equivalent to a service of to B. Service by registered mail. Q. When is service by registered mail deemed complete? A. Example: A vs. B. A judgment was rendered against B. A copy of that decision was sent to him by registered mail on Dec. 1, 1998. The postmaster sent to B on Dec. 5, 1998 a notice to the effect that this mail is pending in the post office. So, B received it on Dec. 5. B withdrew this mail on Dec. 20, 1998. So, within the fifteen (15) days period for the filing of the notice on appeal, B filed a notice of appeal on Jan. 4, 1999. Jan. 5, 1999 after receiving the copy of this notice of appeal of B, A now filed a motion to dismiss the appeal on the ground that it was filed late beyond the reglementery period. A contented that under Rule 13, B is deemed to have received the copy of the decision on Dec. 5, 1998. And since he has only a 15 day period from Dec. 5, 1998 within which to file the notice of appeal, this period expired on Dec. 20, 1998. Therefore, when it was filed on Jan. 5, 1998, 16 days already passed. On the other hand, B in opposing this motion of A argued that he (B) actually received from the mail on Dec. 20, 1998 the judgment. Therefore, B has a period of 15 days counted from Dec. 20, 1998, within which to file his notice of appeal and the last day of this 15-day period is Jan. 4, 1999. So the motion of A is not legally tenable. Q. What would be the correct ruling on the motion of A? A. Sec. 10 Rule 13 Emphasis on Last sentence Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever date is earlier. B was deemed to have received it legally five (5) days after Dec. 5, 1998, although he physically received it on Dec. 20, 1998. For purposes therefore of the appeal, the 15-day period is counted from Dec. 10, 1998 not on Dec. 20, 1998. Q. What rule will apply if we now consider that he received it legally and physically on Dec. 20? A. If there was no notice from the postmaster that he has a pending mail, per Sec. 10 of Rule 13, he has deemed to have receive it when he physically received it on Dec. 20 in which case the appeal on Jan. 4 was deemed complied. So, in the absence of a notice given by a postmaster, to the addressee, the service is deemed complete upon actual receipt, but if there is a first notice and the mail is not received within five (5) days from first notice, the service is deemed complete upon the expiration of five (5) days from the first notice. Priority in the Service of Pleadings – Personal Service

Pleadings and other papers should be served whenever practicable by personal service. Where service other than personal is resorted to, there must be an accompanying explanation why the pleading was served by means other than personal service. Q. What will be the effect of failure to comply with Sec. 11 Rule 13? A. Sec. 11 Rule 13 Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court. When a pleading is served other than personal service, and there is no accompanying explanation of this, then this pleading is deemed not to have been filed. This sec. 11 Rule 13 is mandatory and this is exemplified in the case of Solar Theme Entertainment Inc. vs. CA# 3200 August 5, 1998, 290 SCRA 605. Effective June 1, 1999, this rule must be strictly followed. So whenever you serve, you serve personally. If you do not serve personally, then you have to state why you furnish by means other than personal service. An omission of this explanation is fatal because this pleading shall be considered as not having been filed. RENE NOTES: * Modes of Service A. JUDGMENTS, FINAL ORDERS AND RESOLUTIONS (a) By personal service; or (b) By service by mail; (c) By service by publication, if party is summoned by publication and has failed to appear in the action, judgment, final order or resolution. - They can be served only under the three modes. * - They CANNOT be served by substituted service. B. PLEADINGS 1. personal service (a) Delivering personally a copy to the party or his counsel or; (b) Leaving a copy in counsel’s office with his clerk or with a person having charge thereof or; (c) Leaving the copy between 8 a.m. and 6 p.m. at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion residing therein – if no person found in his office, or if his office is unknown, or if he has no office. 2. service by mail (a) If no registry service is available in the locality, of either sender or addresses, service may be done by ordinary mail. (b) With proof of failure of both personal and service by mail.

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Completeness of a Service 1. Personal Service - by handing a copy to defendant; or - tendering him a copy if he refuses - complete upon actual delivery 2. Service by ordinary mail: Complete upon expiration of 10 days after mailing, unless the court provides otherwise. 3. Service by registered mail: (a) Complete upon actual receipt by the addressee; or (b) After 5 days from the date he received the first notice of the postmaster, whichever date is earlier. Proof of Filing * Filing is proved by its existence in the record of the case. If it is not in the record, and: - if filed personally: proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same; or - if filed by registered mail: proved by – (a) the registry receipt and (b) The affidavit of the person who did the mailing. Proof of Service

* Proof of personal service: (a) Written admission of the party served; or (b) Official return of the server; or (c) Affidavit of the party serving Rule 14: Summons

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Summons is the compulsory process issued by the court notifying the defendant that a case been filed against him and requiring him to file the answer within the period stated in the summons with a warning that should he fail to answer within the reglementary period, a judgment may be rendered against him on the basis of the evidence that the plaintiff may advance. Q. What is the purpose of summons? A. 1. Summons is intended to vest in the court the jurisdiction over the person of the defendant. Unless a defendant is within the jurisdiction of the court, the court cannot validly render a judgment in the case. This is similar in the case of an accused who has not been arrested and has not been arraigned. The court cannot render judgment against on accused who has not been brought under its jurisdiction. The purpose of the summons therefore is, to confer to the court jurisdiction over his (defendant) person. Just to show you that the jurisdiction of a court to the person of the defendant is a must, is the fact that Sec. 1 Rule 16 includes in its enumeration grounds of a motion to dismiss the fact that the court has not acquired jurisdiction over the person of the defendant. So, when the court has no jurisdiction over the person of the defendant, the court cannot validly render judgment. Q. How is summons served? A. Summons is served either by 1) personal service: 2)by substituted service,3) service by publication or4) by any other means which the court finds it proper. There are four (4) means: Personal service – which is preferred. Q. What does personal service consist? A. It consist of actually giving to the defendant a copy of the summons, the complaint and all other documents accompanying the complaint. Q. Supposing the defendant said, “Ayaw ko, I will not receive,” the person serving it kick it towards the defendant, is it served? A. Yes, even though the defendant did not sign. Whether he signs or not in the acknowledgment of his receipt of the summons, he’s deemed to have already been served. If you cannot serve it to him personally because you cannot find him in the place where you thought you could find him. Then you resort to a substituted service. Q. In what way may substituted service be effected? A. The sheriff or process server must leave the summons, the complaint and all the other documents attached thereto with a person living in the house of the defendant. Q. With any person? A. No, only a person of sufficient age and discretion. Q. So, the process server goes to the house of the defendant but does not find the defendant there because he is out but finds a neighbor who is visiting in that house and leaves the summons with the visitor, is there a valid substituted service? A. No, because that visitor is not a person living in that house. You go the house of the defendant, nobody is there. Then you go to his office, if the defendant is not there, leave that summons with the person in charge of the office. Q. What is the jurisprudence of substituted service? A. Substituted service is the interrogation of the rights of the defendant. Therefore, substituted service can be effected only when the defendant cannot be served personally within a reasonable time. Q. What time will it be reasonable? Supposing the sheriff or process server went to the house of the defendant once and did not find him there… Q. What is required of a sheriff or process server to do when he resorts to substituted service?

A. He must state in his return of service, a return of service is the report that the server, sheriff or process server renders to the court on what he did with that summons (or sheriff’s return- other term for return of service). The server, whether he is the sheriff or the deputy sheriff or the process server, is required to render a report on what he did. Where the service is substituted, the sheriff, the process server or whoever was commissioned to serve it must state in his report the following: 1. the impossibility of serving the summons personally; 2. the reason for such impossibility; 3. how the summons was effected; meaning therein the particulars such as the date of service, on whom it was served and how it was served. Unless all this data appear on the return, the substituted service is null. Q. When may summons by publication be effected? A. In the following cases, summons by publication may be effected: 1. where the defendant is sued as an unknown defendant; 2. where the whereabouts of the defendant is unknown; they could not be ascertained notwithstanding diligence in ascertaining such whereabouts; 3. when the defendant is a resident defendant but is temporarily out of the Philippines; 4. when the defendant is a non-resident defendant and the actions against him be any of the following: a. an action which involves the personal status of the plaintiff; b. the subject matter of the suit is real property

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The reliefs prayed for respecting the real property are as follows: 1. to exclude the defendant from any claim that he may have over that property; or 2. where the property is a property of the defendant and this property has been attached. Q. How may a non-resident defendant be summoned when the case against him is any of the case above-mentioned (action involving the civil status of the plaintiff or an action involving real property in the plaintiff? A. There are several ways of serving: 1. by personal service This means to say that the court in the Philippines can send somebody abroad to serve personally the summons. 2. by publication in a newspaper of general circulation for such period of time that the court may deem proper. But in this case, a copy of summons and the complaint and all the other papers attached to the complaint must be sent by registered mail to the last known address of the defendant. 3. by any means that the court may find proper. In the Cariaga vs. Malaya case, the then Judge Antonio Malaya of CFI Manila ordered the defendant residing in USA summoned by registered mail. The defendants received the registered summons. So they file a motion to dismiss the complaint on the ground of lack of jurisdiction of the court over their persons. They argued that the summons effected then by means of registered mail was not a valid summons. They contented, in short, that summons cannot be served by registered mail. Supreme Court overruled this contention. Supreme Court holding that under Sec. 15 of Rule 14, service of a summons by registered mail is covered by the phrase, “any other means that the court may find proper.” In the case of a foreign corporation doing business in the Philippines, the period depends on whom was the summons served. If the summons was served on its agent or representative in the Philippines, the period is fifteen days. If on the other hand, the summons was served on a government officer, the defendant has a period of thirty (30) days from receipt of the summons within which to file an answer. Where a defendant is summoned under Rule 14 under Sec. 15 thereof, the defendant has a period of sixty (60) days from notice within which to file the answer. Sec. 15 Rule 14 When the defendant does not reside and is not found in the Philippines and the action affects the personal status of the plaintiff or relates to, or the subject matter of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or on which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or

by publication in a newspaper of a general circulation in such places and for such time as the court may order, in which case, a copy of summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. RENE NOTES:

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* Where the defendant has already been served with summons on the original complaint, no further summons is required on the amended complaint IF it does not introduce new causes of action. * BUT where the defendant was declared in default to the original complaint and the plaintiff subsequently filed an amended complaint, new summons must be served on the defendant on the amended complaint, as the original complaint was deemed withdrawn upon such amendment. * Service of Summons on Different Entities A. SERVICE ON ENTITY WITHOUT JURIDICAL PERSONALITY B. SERVICE UPON MINORS AND INCOMPETENTS upon any or all defendants being sued under common name; or - person in charge of office - serve personally and on guardian or any person exercising parental authority over him; - in case of minors: by serving upon the minor, regardless of age, AND upon his legal guardian, or also upon either of his parents. - In case of incompetents: by serving on him personally AND upon his legal guardian, but not upon his parents, unless when they are his legal guardians - IN ANY EVENT, if the minor or incompetent has no legal guardian, the plaintiff must obtain the appointment of a guardian ad item for him. - Serve an officer having management of the jail or prison - To the president, managing partner, general manager, corporate secretary, treasurer or in-house counsel - Service upon a person other than those mentioned is invalid and does not bind the corporation. - Serve on (15) resident agent; or if none; - Gov’t official (30) designated by law; or - On any officer or agent of the corporation within the Philippines - In case defendant is the Republic of the Philippines – by serving upon the Solicitor General - In case of a province, city or municipality, or like public corporations – by serving on its executive head, or on such other officer or officers as the law or the court may direct. 1. Requisites a) defendant does not reside or is not found within the Philippines b) the action either: * affects the status of the plaintiff; * relates to or the subject of which is property within the Philippines on which defendant has a lien or interest; * demands a relief which consists wholly or in part in excluding the defendant from any interest in any property within the Philippines; * property of defendant has been attached to the Philippines 2. Mode of Service a) with leave of court served outside the Phil. By personal service; or b) with leave of court served by publication in a newspaper of general circulation, in which case copy of the summons and order of court must also be sent by registered mail to the last known address of defendant; or c) any other manner the court deem sufficient. Substituted service or with leave of court, personal service out of the Philippines as under extraterritorial service.

C. SERVICE UPON PRISONER D. SERVICE UPON DOMESTIC PRIVATE JURIDICAL ENTITY E. SERVICE UPON FOREIGN PRIVATE JURIDICAL ENTITY F. SERVICE UPON PUBLIC CORPORATIONS

G. EXTRA-TERRITORIAL SERVICE

H. SERVICE UPON RESIDENT TEMPORARILY OUT OF THE PHILIPPINES

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* Where the defendant is a resident and the action is personam, summons by publication is invalid as being violative of the due process clause. * Any form of appearance in court, by the defendant, by his agent authorized to do so, or by attorney, is equivalent to service except WHERE such appearance is precisely to object to the jurisdiction o the court over the person of the defendant. * Inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant5 shall not bee deemed a voluntary appearance. Rule 15: Motions Motion is defined as an application for a relief not embodied in the pleading. Q. What are pleadings? A. They are the complaint, counterclaim, cross-claim, third party complaint, complaint in intervention, or answer Sec. 1 Rule 15 A motion is an application for relief other than by a pleading. Example: A vs. B. You have a complaint then an answer and after trial you have the judgment or decision. The relief prayed for by A is that a judgment be rendered against B declaring A owner of the land and ordering B to turn over to A the possession of the land, ordering B to pay him damages. In so far as B is concerned, the relief prayed for by B is the dismissal of the complaint of A. A prayed that he (B) declared the owner of the land. May either of the parties secures any relief other than a judgment, between the tie this case is pending and times this case is decided. A. Yes, in between the course of the proceedings, there be many relief a party may prayed for but not a judgment. There are many incidents while a case is pending, incidents in connection with which a party may want to secure a particular relief. Example: A vs. B. After this complaint was filed on Jan. 2, 1999, B now files a motion to dismiss. Q. What does B want as a relief? A. Dismissal of the complaint. Q. Will there be a trial on the merits of the case when this case will be dismissed/ A. None. Example: Trial is set. Either A or B is not ready to go to the trial. So A or B wants the trial to be cancelled. So that if the trial was set on Jan. 24, 1999, either A or B will file with the court a paper asking therein that this date of hearing be cancelled. So, whatever relief you want to obtain from the court before the judgment, you can obtain that only by means of a motion. Why? Because you cannot incorporate in your complaint or complaints in intervention this reliefs which will not constitute a judgment on the merits of the case. So whatever you want to get from the court, you get that through a pleading called motion. That is why Sec. 1 Rule 15 defines a motion as an application for a relief not included in a pleading. But if you want to obtain a judgment on the merit, you can prove that by means of a complaint, answer, counterclaim, etc. A. Q. What are the kinds of motions? There are two (2) kinds of motion: 1. Non-Litigated motion 2. Litigated motion

A non-litigated motion is one, which a court can act upon without hearing the adverse party because the adverse party does not have the right to oppose application for relief and should the court resolve this motion without hearing the adverse party is nevertheless not prejudiced. Example: (Non-litigated Motion)

B the defendant files a motion for extension of time within which to file the answer.

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Q. Does A, the plaintiff have the right to resist this motion such that if he has, this motion cannot be heard unless he (A) be first notified. A. A motion for extension of this is one, which the court can resolve ex parte. Meaning, without the presence of the adverse party. Why? Because even though the court acts on the motion, it will not in anyway prejudice the right of A. So, A may resist the motion. It is non-litigated. It can be heard without notice of A. Where, however, the motion is litigated, the court cannot validly act on the motion, without the previous notice on the adverse party, without giving the adverse party the opportunity to object therein. Why? Because a litigated motion adversely affects the right of the adverse party. Consequently, unless the adverse party is notified of the hearing of that motion, the court cannot hear it, and if the court hears it, the hearing is void. Example: (Litigated Motion) A vs. B. B files a motion to dismiss. The court resolves his motion to dismiss without a prior notice given, the plaintiff A. Q. Is the action of the court in resolving the motions without giving notice to A proper? A. No, because this is a litigated motion. Q. Why is it litigated? What would be the effect if the court would now grant the motion to dismiss? A. The complaint will be dismissed even without being heard. This is not proper. The hearing without notice of A, the plaintiff, will prejudice A. Why? Because had he been notified and would have objected and his objection may be considered by the court, then therefore, the motion to dismiss may be denied. So we say that in a motion to dismiss, A the plaintiff has the right to be heard or to resist the motion and unless the motion is heard in accordance with Rule 15, the court cannot validly rule on the motion. When a party files a motion for the admission of a pleading, that party must attach to the motion the pleading desired to be admitted. Example: A vs. B. B files a motion to amend the complaint. The amendment not being a matter of right so in this motion, A should already attach the copy of the amended pleading. The advantage is this, the period for the filing of responsive pleading is shortened, unlike the old rule, under the old rule, if a party wanted to file a motion for the admission of an amended complaint, he could file the amended complaint only after the court has already granted the motion. So, there will be considerable delay. Under the new rule now, no more, if you want the pleading to be admitted, attach that to your motion. A motion must be set for hearing not later than ten (10) days from the date of its filing. So if the motion is filed Dec. 1, 1998, the latest date this motion will be set for hearing is Dec. 11, 1998. It could not be set Dec. 12, because it exceeds already. This is if you follow strictly the rule. There is one exception however to this rule, and that is a motion for summary judgment. Under the rule on summary judgment, the motion should be set for hearing in such a manner that a ten 10-day period must elapse between the services of the motion to the adverse party and the date of the hearing. In other words, under the rule on summary procedure, you cannot set your motion for hearing earlier than ten days. It must done so within 10 days. RENE NOTES: Kinds of Motions a) Motion ex parte – made without the presence of a notification to the other party because the question generally presented is not debatable b) Motion of course – where the movant is entitled to relief or remedy sought as a matter of discretion on the part of the court c) Litigated Motion – one made with notice to the adverse party to give an opportunity to oppose d) Special motion – motion addressed to the discretion of the court General Rule: A motion cannot pray for judgment Exceptions: 1. Motion for judgment on the pleadings 2. Motion for summary judgment 3. Motion for judgment on demurrer to evidence General Rule:

3-day notice rule-service of the copy of motions should be made in such a manner as shall ensure its receipt at least three days before the hearing Exceptions: 1. Ex parte motions 2. Urgent motions 3. Motions agreed upon by the parties to be heard on shorter notice or jointly submitted by the parties 4. Motions for summary judgment which must be served at least ten days before its hearing * Any motion that does not comply with sections 4, 5 and 6 of Rule 15 is a mere scrap of paper, should not be accepted for filing, and if filed, is not entitled to judicial cognizance and does not affect any reglamentary period involved for the filing of the requisite pleading. Rule 16: Motion to Dismiss Q. When should a motion to dismiss be filed? A. At anytime within the period for pleading but before the answer has been filed. Grounds of Motion to Dismiss are specifically mentioned on Sec. 1 1. lack of jurisdiction of the court over the person of the defendant 2. lack of jurisdiction of the court over the subject matter of the case 3. improper venue 4. lack of legal capacity of the plaintiff to sue 5. Litis pendentia 6. extinction of claim by reason of payment, abandonment, waiver or any other ground of extinction of the obligation 7. the claim is barred by statute of fraud or barred by res judicata 8. the action is barred by prescription 9. No cause of action 10. failure to comply with certain conditions precedents

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With respect to jurisdiction over the person of the defendant, you know very well that, unless the court acquire jurisdiction over the person of the defendant, the court cannot validly render a judgment. There are two (2) ways the court may acquire jurisdiction over the person of the defendant: 1. By the issuance of the summons and its valid service on the defendant; 2. By the voluntary appearance of the defendant before the court. With respect to voluntary appearances the voluntarines of the appearance may be manifested by the filing of the pleading with which a party seeks a relief other than the dismissal of the complaint based on lack of jurisdiction of the court over the persons of the defendant. Example: A sued B. B was not summoned. Upon hearing, however, he was sued. So, he filed in court a motion for extension of time to file the answer. The court granted the motion; B did not file the answer. The plaintiff now moves that B declared in default. B opposes the motion saying that the court has not acquired jurisdiction over his erson because he was not summoned. Q. Is the contention of B correct? A. No, because when B filed a motion for extension of time to file the answer, he prayed for a relief and that is the extension of the time. By so filing the motion, he voluntarily recognized the jurisdiction of the court over his person. Example: B, the defendant was not validly summoned. He nevertheless filed a motion to dismiss on the ground that the court has not acquired jurisdiction over his person. He prayed for the dismissal of the complaint. The motion was denied. Q. Is B deemed to have voluntarily submitted himself to the jurisdiction of the court by filing this motion to dismiss? A. No, because precisely he contested the jurisdiction of the court over his person. Let us assume in this example that B files a motion to dismiss on several grounds, the foremost of these is that, the court did not acquire jurisdiction over his person because no valid summons was served on him. In addition to this ground, he also invoke the following: 1) the venue is improperly laid; 2) the facts alleged in the complaint do not constitute a cause of action. Q. The motion was denied, is B deemed to have submitted himself to the jurisdiction of the court?

A. No, where the motion to dismiss is based on lack of jurisdiction of the court over the person of the defendant, because he was not validly summoned, but in addition to this ground he adds other grounds, the filing of the motion does not amount to a submission of himself to the jurisdiction of the court.

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Under the old rule, if a defendant files a motion to dismiss, on the ground that he was not validly summoned and therefore the court has never acquired jurisdiction over his person, and in addition, added other grounds such as improper venue or failure of the complaint to state the cause of action, he is deemed to have submitted himself to the jurisdiction of the court. Q. What is meant by, “lack of jurisdiction of the court over subject matter of the case”? A. Jurisdiction of the court over the subject matter of the case simply means that the court has under the law the authority to decide that particular case. Jurisdiction is conferred by law. See B.P. Blg. 129 The Judiciary Reorganization Act of 1980 as amended. Sec. 19 Enumerates the cases triable by RTC Sec. 33 Enumerates the cases triable by inferior court Where, therefore a court tries a case which is not among those enumerated under the law as within the competence to try, we say that the court has no jurisdiction over the subject matter and therefore that is a ground to dismiss. Example: Under B.P. 129 Sec. 33 as well as under Rule 17 and under the Rule on Summary Procedure, an action for forcible entry and detains is triable exclusively by the MTC. A sued B for forcible entry. He files this in the RTC. Q. Is B here within his rights to file a motion to dismiss based on the ground of lack of jurisdiction of the court to try the case? A. yes Q. A vs. B, filed a suit for declaration of nullity of marriage. This was filed in the MTC. But an action for declaration of nullity of marriage is one triable by the RTC. B, now can file a motion to dismiss. A. Yes Q. May there be a situation when a court does not have jurisdiction over the subject matter of the case and yet the court can validly try and decide the case? A. Yes, there is such a thing as “estoppel by laches in jurisdiction”. When does the court not have jurisdiction but it can decide validly the case. This is best illustrated in the case of Tijam vs. Sibunghanay. This case, A suit was filed by A against B in CFI of Manila to recover an amount. The amount sought to recover was one within the jurisdiction of the MTC, but the parties went to trial. No one raised the question of lack of jurisdiction of the court. So the case was decided in favor of A. The judgment became final. The judgment sought to be against C was acted as surety of B. C resisted the action. He went to trial never raising the question of lack of jurisdiction of then CFI of Manila. C allowed the case to be tried as against him to enforce his liability as a surety of B. C elevated the matter to the CA. CA affirmed the judgment of CFI against C. C filed a motion for reconsideration. Denied! It was only thereafter that he now files a motion questioning the jurisdiction of the court to decide the case. Reason: CFI of Manila did not have jurisdiction to render a judgment because the subject matter was within the jurisdiction of the MTC not the CFI. Therefore, C argued that jurisdiction can be raised at anytime on appeal. CA denied. The matter reaches the SC. Issue: Whether the judgment of CFI affirmed by CA is valid? SC ruled that the judgment is valid. Reason: While it is true CFI has no jurisdiction to try the case, the parties went to trial without raising the question of jurisdiction and because of the long passage of time between the rendition of the judgment and the time the motion questioning the lack of jurisdiction was raised, was already too long. C is estopped already to question the lack of jurisdiction of the CFI. In another case, judgment was rendered by the trial court. The amount involved is more than P200,000. B appealed to CA. A, the prevailing party, went to CA have this appeal litigated. At the time of the appeal, jurisdiction over cases involving more than P200,000. is lodged with SC. A now contented that the appeal of B would not be entertained by CA for lack of jurisdiction of CA. SC ruled that because of the doctrine of estopped by laches, A by agreeing that that this appeal be litigated in CA is estopped to question the appellate jurisdiction of CA. Here is now the motion to dismiss by B filed in this case of A. B here is the movant. Q. What are the requirements? A. All the grounds enumerated under Rule 16 as grounds for motion to dismiss must be averred in the motion to dismiss. On the strength of the omnibus motion rule.

So, if you have five (5),you must allege all of them, because if you do not allege all the others already available but not raised are deemed waived. So, if you have five (5) grounds and you raised only three (3), the remaining two (2) are deemed waived. Therefore, they cannot be proceeded after the motion is filed. Of course A has a right to oppose. He can file his opposition. The trial of the motion to dismiss may require the presentation of the evidence of the movant. So, B may present his evidence to support his motion. A may also adduce his evidence. Therefore, the court will resolve the case. The court may either order the amendment of the complaint or dismiss the complaint. If he dismisses, it means it grants the motion to dismiss. It cannot defer ruling on a motion to dismiss on the ground of the motion is not indubitable.

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Under the old rules, the court could defer ruling on a motion to dismiss of the ground that the basis therefore is not indubitable. This is not now. The court must, take positive stand to order amendment, grant the motion or deny the motion. Let us assume however that instead of filing a motion to dismiss, the defendant files an answer. Q. What is the defendant allowed to do if he files an answer with respect to the grounds of a motion to dismiss? A. The rule is, the defendant may allege in his answer as defenses all the grounds of a motion to dismiss. In our example B, instead of filing a motion to dismiss, he filed an answer. If in the answer he alleges as defenses the grounds for a motion to dismiss, for instance, improper venue, or lack of legal capacity. Q. Can B prove this ground alleged in his defenses even before A presented evidence? A. Under Rule 30 on Trial, it is the plaintiff who starts presenting the evidence. It is not the defendant. Unless for some valid reasons the court may order the trial to be reversed. Q. But in this case, without reverse order of trial under Rule 30, may B be allowed to prove his defenses even before A has proven his case? A. Yes. B after filing the answer, he may now file a motion for a preliminary hearing on the defenses. It is as if he filed a motion to dismiss. If the motion for preliminary hearing the evidence of A can now receive the evidence of B with respect to those defenses. However, the court will grant the motion for a preliminary hearing on the defenses is a matter of discretion on the part of the court. It is not a right of the defendant. It is a matter governed by the discretion of the court. Therefore, the court can grant the motion and in this case, it will receive evidence on the defenses or it may deny hearing. Supposing the motion to dismiss was heard during which the parties presented their evidence and the motion to dismiss is denied. Q. the For the What is the effect of the denial on the evidence of the parties adduced during the hearing of motion? instance, during the hearing of the motion, B presented X, Y and Z and A presented C, D and E, motion to dismiss was denied. What becomes now the testimony of X, Y and Z, C, D and E?

The rule is their testimonies will be deemed reproduced automatically during the trial on the merits of the case. Let us assume in this example, the court have the defenses founded to be established, the case will dismissed even without A having presented his evidence. Let us suppose that in the answer, B pleaded a counterclaim against A. Q. What becomes the counterclaim with the dismissal of the complaint of A? A. Where a complaint is dismissed, the counterclaim is automatically dismissed. On the theory that a counterclaim derives its life from the complaint. This means if the complaint no longer exist, there is no longer any legal basis, which a counterclaim is supposed to stand. This is the old rule. The new rule now is,where the defendant alleged as defenses in his answer grounds for a motion to dismiss is granted , the counterclaim pleaded in the answer is not dismissed. The dismissal is limited to the complaint. This means therefore that, even though there is no longer any complaint, which will serve as the basis of a counterclaim, the counterclaim survives the dismissal.

Q. If the counterclaim can subsist, in what proceeding can it be prosecuted considering that the main case is already been dismissed? A. Don’t worry, because the law has given the defendant two (2) options: 1. he can move the counterclaim be litigated in the same case; or 2. B may file an independent civil case based on that counterclaim. Q. If the motion to dismiss is granted, can the plaintiff re-file the case?

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Supposing the complaint was dismissed on the ground of improper venue, the complaint does not state the facts constituting a cause of action. Q. Can the case be re-filed? A. The rule is, depending on the ground of the motion to quash, that where the dismissal of complaint arising from a grant of a motion to dismiss may bar the re-filing of that case in the following cases: 1. res judicata 2. unenforceability of the contract to the bond based on the Statute of frauds 3. the claim has been paid, abandoned or waived or otherwise extinguished 4. Prescription In all these cases, the order of dismissal is res judicata. It becomes final. The action cannot be revived. On the other hand, if the ground of the motion to dismiss is other than any of these grounds already mentioned, the order dismissing is not res judicata, therefore, the same complaint may be re-filed. Q. When the motion to dismiss has been denied, within what period should the defendant filed the answer? A. Under the old rule, the defendant was given anew 15 days from receipt of the order denying the motion to dismiss. In other words, he was given a new period of 15 days. This is not the rule now. Under the new rules, he shall be granted a period representing the balance of the period following the “service” of the motion. You no longer count the period from the day you filed the motion to dismiss. You count now the period from the date the motion to dismiss was served. (Judge Lagui was wondering whether this could have been an error. This word “service” could have been meant “filing” because it is the usual period. Look at Rule 12, when motion of a Bill of Particulars is denied and that the defendant is to answer, the remaining period is counted from the balance of the pleadings counted from the day he “filed” the moiton. Look at Sec. 4 Rule 16 If the motion is denied, the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of “serving” his motion, but not less than five (5) days in any event, computed from his receipt of the notice of the denial. If the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading, unless the court provides a longer period. Would not this word “serving” meant “filing”. If we apply literally this provision, the situation would be like this… Example: A vs. B. B was summoned Dec. 8, 1998. Under Rule 11 Sec. 1, B has a period ending Dec. 23, 1998 within which to file the answer. He (B) filed his motion to dismiss on Dec. 15, 1998 but served a copy of that motion on A on Dec. 17, 1998. The motion to dismiss was denied in an order dated Jan. 10, 1999. B served this order on Jan. 15, 1999. Q. So, within what period should B file the answer? A. If you apply Rule 16, Sec. 4, you count the period from Dec. 17, 1998. So, if that is the case, he would have only 6 days counted from Jan. 15, 1999 so the end would be on Jan. 21, 1999. But if you’re counting on the date of filing of the motion, he had eight (8) days. So 8 days would give you until Jan. 23, 1999. (Judge Laggui is still wondering up to this very moment you are reading this note whether this word “serving” would have been an error. It could have meant “filing” because the usual counting of the period starts from the date of filing, not the date of serving. All other provision of the Rules make the “filing” the basis, not “serving”. This is only the provision which makes the starting point “the date of service”. But we have to follow because there is no reason why we should not follow.) But in all events, irrespective of the number of days left, the minimum is five (5).

So that in our example, if we apply this rule, he (B) furnished a copy on A Dec. 23, 1998, there was no day anymore left of the original 15-day period. So, when he received the order of denial on Jan. 15, 1999, he (B) can still file the answer within five (5) days from Jan. 15, 1999 or on Jan. 20, 1999. Where the evidence of the parties is received in support of the motion to dismiss and/or support of the position to the motion and the motion is denied, and the trial should thereafter proceed. Q. What now becomes of the evidence received during the hearing? A. Evidence will be automatically reproduced as evidence of the parties during the trial of the merits of the case. That means to say therefore, X, Y and Z, who testified on the motion to dismiss, when court decides the case on the merits, the court can consider the testimonies of X, Y and Z even though X, Y and Z no longer appear during the trial on the merits of the case. RENE NOTES: MOTION TO DISMISS UNDER RULE 16 * grounded on preliminary objections * may be filed by any defending party against whom a claim is asserted in the action. * should be filed within the time for but prior to the filing of the answer of the defending party to the pleading asserting the claim against him. MOTION TO DISMISS UNDER RULE 33 (demurrer to evidence) * based on insufficiency of evidence. * may be filed only by the defendant against the complaint of the plaintiff. * may be filed only after the plaintiff has completed the presentation of his evidence.

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Effect of motion to dismiss: - A motion to dismiss hypothetically admits the truth of the facts alleged in the complaint. However, such admission is limited only to all material and relevant facts which are well pleaded in the complaint. * An action cannot be dismissed on the ground that the complaint is vague or indefinite. The remedy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery. EFFECTS OF ACTION OF MTD 1. ORDER GRANTING motion to dismiss is a final order 2. ORDER DENYING the motion to dismiss is interlocutory Rule 17: Dismissal of Actions Q. What are the situations covered by Sec. 1, 2, 3, and 4? A. The situations covered by Rule 17 are dismissal of a complaint or a counterclaim or a crossclaim or of a complaint in intervention or of a third-party complaint. Sec. 1 contemplates a situation where the plaintiff initiates the dismissal of the action. Sec. 2 covers the situation where the plaintiff still initiates the dismissal of the action, which is different, whereas under Sec. 1, he can dismiss as a matter of right without court authority. In Sec. 2, he cannot dismiss without court authority. In Sec. 3, it is a dismissal of the action of the plaintiff either at the instance of the defendant or at the instance of the court. In Sec. 4, it is the dismissal of the counterclaim or cross-claim. Q. How does Sec. 1 operate? A. There are two (2) situations covered: The rule says, that anytime before an answer or a motion for summary judgment has been served on the plaintiff, the plaintiff may dismiss his action by filing a notice of dismissal. Q. What is the effect of this notice of dismissal? A. The notice of dismissal produces a dismissal without prejudice. This means that plaintiff can refile the case. Q. When can he not re-file the case by reason by his having filed a motion of dismissal? A. When in his notice of dismissal he started that the dismissal is with prejudice. REMEDY 1. appeal from the order of dismissal 2. certiorari and prohibition if there is grave abuse of discretion amounting to lack or excess of jurisdiction

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However, the rule says, where the plaintiff has filed a notice of dismissal but he previously filed a notice of dismissal. This means to say that he filed a notice of dismissal for the second time. Q. What does the rule say? A. The dismissal filed for the second time produces a dismissal with prejudice. It means to say that, where the complaint is dismissed for the second time because of a notice of dismissal filed the second time, the dismissal is with prejudice. This means to say therefore that the plaintiff cannot re-file the action for the third time.(TWO DISMISSAL RULE) Q. What is the action that the court must take when a notice of dismissal is filed? Will it order the dismissal of the complaint? A. No. All that it does is to issue an order confirming the fact that the plaintiff dismissed the complaint. Under the old rules, the court was not required to do anything upon the filing of the notice of dismissal. Why? Because the filing of the notice of dismissal automatically dismisses the complaint. And so, if you did not know Rule 17 and you went over the record of the case where a notice of dismissal was filed, you would not know what is the status of the case. But in this innovation now requiring the court to issue an order confirming the dismissal. A person goes over the record will now know what happened with his case. Because with that confirmation, it would now be clear that the case was dismissed. Example: Dec. 1, 1997, A filed an action against B who was summoned Dec. 5, 1997. Under Sec. 1 Rule 11, B has until Dec. 20, 1997 within which to file the answer. Let us assume that B filed the answer on Dec. 15, 1997. However, on Dec. 16, 1997, A filed a notice of dismissal. Q. Could A file his notice of dismissal on Dec. 16 considering that the answer was filed on Dec. 15? A. Yes, because it (answer) was not yet served. It was served only on Dec. 17. Q. What is the effect of this dismissal of A? A. It is a dismissal without prejudice except when the notice of dismissal stated that it is with prejudice. Q. On Dec. 16 when the notice of dismissal was filed, what happened now with the complaint filed on Dec. 1? A. It is automatically dismissed. Q. Does the court have to the order the dismissal? A. No. All that the court has to do is to confirm the dismissal. But there will be no legal objection if the court issues an order not only confirming the dismissal but also an order of dismissal. It is unnecessary. Dec. 20, 1997, A re-filed the same case. B was summoned on Jan. 10, 1998. B now filed the answer Jan. 20, 1998. B has a period until Jan. 25, 1998. However, B served on A, a copy of the answer on Jan. 25, 1998. On Jan. 22, 1998, A filed the second notice of dismissal. Q. What is the effect of the second notice of dismissal? A. It is a dismissal with prejudice. Q. Supposing in the notice of dismissal filed on Jan. 22, A said it is with prejudice, will the resulting dismissal be also without prejudice? A. NO, because it is not for the plaintiff to characterize the effect of the dismissal as provided by law. Q. Why is the dismissal with prejudice now? A. Because Sec. 1 says, a dismissal produces a dismissal with prejudice if filed by a person who previously filed a notice of dismissal. This is now a dismissal with prejudice regardless of what A stated in the notice of dismissal. Q. Supposing the court issued the order saying that the dismissal is without prejudice, is that order valid? A. No, because the court cannot characterize the effect of the second dismissal. The law provides the effect. It is always a dismissal with prejudice. March 10, 1998, A filed a case against B. B now files a motion to dismiss on the ground of res judicata. He now says “this third complaint is barred by res judicata. The second dismissal produced by the filing on Jan. 22, 1998 is a dismissal with prejudice. Q. Is the contention of B correct?

A. Yes. This must be now dismissed because this is barred by the second dismissal. This section embodies the so-called “Two Dismissal Rule”.

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Sec. 2 Rule 17 is still a dismissal at the instance of the plaintiff, however its dismissal is no longer a matter of right. If ever any dismissal is granted, it must be on application of the plaintiff and upon approval of the court. Q. When may a plaintiff dismiss his action with leave of court? A. After a responsive pleading have already been served on the plaintiff or after a motion for summary judgment has already been served on the plaintiff. He can no longer dismiss as a matter of right. He can dismiss it only upon application of the plaintiff and upon approval by the court of the motion. But the dismissal under Sec. 2 Rule 17 even if granted by the court, maybe subject to certain conditions that the court may impose. Q. What is the effect of the dismissal under Sec. 2 Rule 17? A. It is still a dismissal without prejudice unless the court provides otherwise. Q. Should a compulsory counter-claim be pleaded in the answer, what would be the effect of the dismissal under Sec. 2 Rule 17 on the counterclaim? A. The counterclaim is not dismissed. Q. In what proceeding may it therefore be prosecuted? A. It may be prosecuted in the same case provided that within 15 days from receipt of motion to dismiss, the plaintiff manifest to the court that he desires that the counterclaim be litigated in the same case, otherwise, the counterclaim maybe litigated in a separate action. Example: Q. B either serve on A his answer or his motion for summary judgment on Dec. 10, 1998. On Dec. 15, 1998, A now files a motion of dismissal without leave of court. Can he validly do that? A. No. Q. But can he still file it? A. Yes, but with a proper motion that he be allowed to dismiss. That motion maybe granted by the court. If the court grants it, the court may impose a condition for the dismissal. Q. Why is it no longer a matter of right on the part of the plaintiff to file a notice of dismissal after he has been served the answer or a motion for summary judgment? A. Where B has a counterclaim, B has a right to have that counterclaim be litigated and resolved. So, if he (B) objects, the court may grant the motion but subject now to the dismissal of the action. Q. What would be the effect of a motion of A to dismiss his complaint? A. If the motion is granted on the counterclaim the dismissal of the action is limited to the complaint. The counterclaim is unaffected. B, therefore, can litigate the counterclaim either in the same case or B may file in a separate action to enforce the counterclaim. Q. When may B prosecute his counterclaim in the same case? A. If within 15 days from receiving the notice of dismissal, he manifests to the court that he desires that his counterclaim be litigated in the same case, otherwise, the counterclaim must be litigated in a separate action. This Sec. 2 Rule 17, with respect to the effect of the dismissal on the counterclaim traces its rules to the case of B.A. Finance vs. CA Facts: A, the corporation sued B. On pre-trial, A failed to appear. On motion of B, A was declared non-suited and the complaint dismissed. After the dismissal of the complaint, B now moved that a date is set on the reception of his evidence on the counterclaim. (Motion for Hearing on the Counterclaim) A opposed the motion on the ground that, under the rules and jurisprudence then obtaining, the dismissal of the complaint carries with it automatically the dismissal of the counterclaim. The theory being that, a compulsory counterclaim derives its life from the complaint. If the complaint therefore no longer exist, there is no longer any basis for the counterclaim to subsist. The RTC sustained the opposition applying the rule then. B now elevated the matter to CA, questioning the order of the RTC. CA ruled that the order was wrong. Meaning in substance, that the dismissal of the complaint of A and B could no longer litigate and prove his counterclaim. So the dilemma cause by this ruling is this… What then would be the remedy of a defendant with respect to his counterclaim if the complaint is dismissed? There can be no way by which the defendantcounterclaimant can prosecute his counterclaim. This was an obiter dictum. (This is not the ruling of the court, it’s a side issue.)

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Justice Bellosillo, the ponente suggested this remedy. Where the complaint is dismissed, and the defendant has a counterclaim, this should be the procedure to be adopted by the defendant. So that he can prosecute his counterclaim. Simply, that the plaintiff be declared “non-suited.” Q. What is the effect of a non-suit? A. The plaintiff cannot prove his complaint. But the complaint subsists. It is there but it cannot be proven. Do not move for the dismissal of the complaint. Q. What next should be done by B following the declaration of non-suit of the plaintiff? A. He should now move that A, the plaintiff be declared as in default with respect to the counterclaim. Under the old rule then (Sec. 2 Rule 20), the failure of a defendant to appear for a pre-trial may be a ground to declare him as in default with respect to the counterclaim. So, the defendant with respect to the counterclaim is A. Since A did not appear for the pre-trial, he may now be considered as having failed to appear for the pre-trial on the counterclaim. What B should do here is to move that A be declared as in default with respect to the counterclaim. If A now be declared as in default with respect to the counterclaim, the next move of B now is to prove with his evidence his counterclaim. Why? Because A is merely non-suited, the complaint is there, it is not dismissed. A cannot only prove it, but it is there. So, with the complaint still subsisting although it can no longer be proven, there would still be a basis for the counterclaim. This is the basis of this rule now that the dismissal under Sec. 2 Rule 17 of the complaint does not operate as a dismissal without prejudice unless either the plaintiff manifest in his motion that the dismissal be with prejudice or that the court orders that the dismissal is with prejudice. When you say “with prejudice”, it means that the complaint cannot be received or re-filed. This is the concept of dismissal under Sec. 2 Rule 17. Q. What is the dismissal under Sec. 3 Rule 17? A. This time, the dismissal is no longer at the instance of the plaintiff. It is now at the instance either of the defendant or of the court itself. There are three (3) grounds for a dismissal under Sec. 3 Rule 17: 1. the failure of the plaintiff to appear for hearing on a day during which he is supposed to present his evidence in chief on his complaint; 2. the failure of the plaintiff to prosecute for an unreasonably period of time his action; 3. the failure of the plaintiff to comply with this Rules or with the order of the court. Q. What is the nature of dismissal under this case? A. A dismissal under Sec.3 Rule 17 is a dismissal with prejudice unless the court provides otherwise. When the dismissal order is not qualified, it simply says that the complaint be dismissed pursuant to Sec. 3 Rule 17, the dismissal is with prejudice. Take note that the absence of the plaintiff for a hearing is not in itself a ground for a dismissal under Sec. 3 Rule 17. It is an absence during the hearing during which he is supposed to present his evidence in chief on his complaint. His absence on any other hearing is not a ground for dismissal under Sec. 3 Rule 17. Example: Following the pre-trial, the case was set for hearing on Dec. 10, 1998. A received the notice of hearing. On this day (Dec. 10), he is supposed to present his evidence in chief, meaning, his initial evidence on his complaint. He does not appear for the hearing on this day without valid reason. Under Sec. 3 Rule 17, the court can dismiss the action of A, or on motion of B, the court may dismiss the action. Q. Supposing on the hearing on Dec. 10, 1998 is for the reception of evidence of B or the reception of the rebuttal evidence of A, but A was not present on this day, may the complaint of A be dismissed under Sec. 3 Rule 17? A. No; for the simple reason that it was no longer his turn to present the evidence in chief on this day. It was the turn of B. The complaint cannot be dismissed because this situation presupposes that A already presented his main evidence, or his evidence in chief, or part of his evidence in chief. Because let us assume that A did not finish his presentation of his initial evidence in chief. Subsequently, he was absent and the motion of the defendant the court ordered that the presentation of the evidences of the plaintiff so he was unable to complete, but he had partially produced his evidence. Q. Can the action now be dismissed?

A. No.

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Supposing on Dec. 10, 1998 A was supposed to present his rebuttal evidence, but he did not appear. Q. May his action now be dismissed? A. No, because his absence amounts merely to a waiver of the presentation of his rebuttal evidence. He already produced his evidence in chief, which will be the basis of that judgment The failure of plaintiff to prosecute for an unreasonably long period of time. Remember that under Rule 18, after the last pleading has already been filed, it is the duty of the plaintiff to move ex parte for a pre-trial to be held. It is no longer the duty of the clerk of court under the new rules to set the case for pre-trial. It is now the duty of the plaintiff to see to it that after the last pleading has been filed, a pre-trial be held. If the plaintiff does not move to set for pre-trial case following the filing and service of the last pleading and the intervening period between the filing and service of the last pleading and the inaction of the plaintiff and in the view of the court unreasonable, then the court motu proprio may dismiss the action, or on motion of the defendant, the action may be dismissed. Or, a trial has been set following a pre-trial, but the trial on the merits is postponed, no fixed date was set in the order of the court, A simply waits for the court to set the case for hearing. He does not reset it but still remain unconcern the action may be dismissed. Q. How long a period of time should elapse following the filing of the complaint in order that the inaction of the plaintiff to prosecute it may be considered an inaction for an unreasonably long period of time? A. There is no fix period considered as reasonable. Each case must have to be determined according to the peculiar circumstances of the case. So, in some cases of an inaction for a year would be unreasonable. There is no fix period. It depends upon the appreciation of the court according to its peculiar circumstances. court. The failure of the plaintiff to comply with the rules (Rules of Court) and with the order of the

You don’t realize how potent a weapon is this in the hands of the court because orders are meant to be carried out, or to be implemented. They are commands from the court and therefore should not be taken lightly. Q. So, what are the penalties? A. Take for instance this actionable documents. Under the rule, where an action or defense is placed in an actionable document, a copy of that document must always be attached to the pleading or the text of the document should be quoted verbatim in the pleading without the necessity of attaching to the pleading a copy thereof or an action based on an actionable documents. When there is no compliance with this rule such that neither is the text of the document quoted in the pleading nor a copy of the document is attached to the pleading, this is a plain violation of the rule on actionable documents. So, under Sec. 3 of Rule 17, this failure of the plaintiff to comply with the order of the court may give rise to dismissal. Take note, however, that the order referred to it must be a lawful order. One that is authorized by the Rules. But this is not a requirement. RENE NOTES: Two Dismissal Rule * The second notice of dismissal operates as an adjudication on the merits, when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim - also applicable to special proceedings * The court is not required to issue an order of dismissal but is required only to issue an order confirming the fact that the plaintiff dismissed the complaint. -When voluntary dismissal applicable: 1. Before a responsive pleading is served 2. Before a motion of summary judgment is served 3. If none, before introduction of evidence at trial or hearing SECTION 2 1. dismissal is at the instance of the plaintiff; 2. dismissal is a matter of procedure, without prejudice unless otherwise stated in the order of the court or on plaintiff’s motion to dismiss his own complaint; SECTION 3 1. dismissal is not procured by plaintiff though justified by causes imputable to him; 2. dismissal is a matter of evidence, an adjudication on the merits;

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3. dismissal is without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless 15 days from notice of the motion he manifests his intention to have his counterclaim resolved in the same action. RULE 18: PRE-TRIAL Example: A B 1. Complaint 1. Answer to A’s complaint 2. Counterclaim against A 3. Cross-claim against C 4. Third party against D (After these, the pleadings are filed.) 2. Answer to 5. Reply to A’s counterclaim of B answer to counterclaim 3. Answer to C’s 6. Reply to C’s counterclaim answer to crossclaim 7. Answer to counterclaim of D 3. dismissal is without prejudice to the right of the defendant to prosecute his counterclaim on the same or separate action.

C 1. Answer to A’s complaint 2. Counterclaim against A 3. Answer to B’s cross-claim

D 1. Answer to B’s third party complaint 2. Answer to C’s third party complaint 3. Counterclaim against B

5. Reply to answer counterclaim 6. Answer to cross-claim

A’s to B’s

4. Reply to answer of counterclaim

the the

Q. Is there any other pleading required to be filed after these pleadings have been filed? A. None. So, the case is now ready for pre-trial. Q. Supposing the last pleadings required are not filed, with the period of filing thereof already expired, may the pre-trial be held? A. Yes. The rule is this, pre-trial may be held upon the filing of the last pleading without the last pleading having been filed. Where the last pleading has not yet been filed, and the period for filing thereof does not yet expire, pre-trial is premature. Q. What things shall be considered in pre-trial? A. They are specified in the rules. Under the Old Rule, it was the duty of the Clerk of Court to set the case for pre-trial upon the filing of the last pleading or the expiration of the period for the filing thereof. This rule is no longer obtains. The rule now is, the duty to move that the pre-trial be set, is now lodged with the plaintiff. Q. What are the things to be considered during the pre-trial? A. There is a enumeration in the Code. Substantially, they are as follows: • to consider the possibility of a settlement of the case; • to consider the possibility of stipulations of facts to be arrived at; • the possibility of the rendition of a judgment on the pleading or of a summary judgment • the limitation of the issues; • the marking of the exhibits; • stipulations of as to waiver of objections to documentary exhibits that may be presented; • and all other matters that may lead to speedy disposition of the case. The preliminary purpose of pre-trial is to terminate as soon as possible a case so that if a case can be settled during the pre-trial, so much the better, but there is no such settlement, that stipulations that may be agreed upon, the marking of exhibits, the waiver of objections to the admissibility of exhibits, the limitations of the issues will all contribute towards the early disposition of the case. Notice: For purposes of the pre-trial, the parties must be notified of the pre-trial date. If they are represented by a counsel, there is no need for the parties to be notified. Why? Because in this case, their respective counsel will be the one to be notified of the pre-trial and it is now the duty of the counsel to notify their respective clients of the pre-trial.

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Q. Why is there a need for the presence of the parties during a pre-trial? A. Because, among the many purposes of a pre-trial is to allow the parties to sit down together and enter into a settlement if they can. Normally, a lawyer cannot enter a settlement on behalf of their clients unless they are specifically armed with written authority. So, only the parties can agree on the settlement. This is the reason why they must be present. Q. Supposing a party is notified of a pre-trial but does not attend the pre-trial, but his lawyer does, will the action now of the plaintiff or defendant for that matter during the pre-trial carry with it a sanction against the absent party? A. Example: A vs. B. A was notified of the pre-trial. A was not present during the pre-trial, but lawyer, Atty. X, was. Q. What is the sanction against A? A. His complaint may be dismissed with prejudice. Supposing it is B who was absent, his lawyer, Atty., Y was present. Q. What is the sanction against B? A. The plaintiff A will now be allowed to present his evidence ex parte, meaning in the absent of defendant B. Let us reverse. A was present during the pre-trial, but his counsel, Atty. Y was not. Q. Will the absence of the counsel now entitle B to present his evidence? A. No. Q. Supposing B was present, Atty. Y was not, will that now allow A to present his evidence? A. No. It is the absence of the parties, not their respective counsels that may give rise to the imposition of the corresponding sanction against the absent party. Q. May there be a situation, however, where a party can be absent from a pre-trial and yet the absence will not give rise to the corresponding sanctions? A. Yes. When the absence of the party is justified or when the absent party is represented by a person who is duly authorized in writing to act for the party for purposes of pre-trial. So, if A cannot personally appear, he may commission another person to appear for him for purposes of the pre-trial. For instance, his lawyer may appear for him provided that Atty. X carries with him a written authority. In the same way if B is not present, he can appoint a third person. He may appoint his lawyer, Atty. Y to act for him, provided Atty. Y carries with him a written authority. Q. Is it enough that the person authorized carries with him a written authority in order that he can validly appear for the litigant for purposes of pre-trial? A. No. Because the written authority must specify these three (3) specific powers of the agent. So if A appointed Atty. X as his agent for purposes of pre-trial or if B appoint Atty. Y as his agent for purposes of pre-trial, the power of attorney of Atty. X or Atty. Y, must state the following:  that X or Y is authorized to the following (X for A or Y for B):  1. the authority to settle the case by way of a compromise;  2. the authority to enter into stipulations of facts or admission of documents  3. the authority to submit the case to other alternative modes of disputes resolution. The written authority must specify these three (3) authorities, otherwise, the written authority is incomplete for purposes of pre-trial. So, if an agent appears for the plaintiff or a defendant with a written authority, but the written authority does not specify all these three (3) authorities, this written authority is incomplete and he cannot legally appear for the plaintiff or defendant, as the case may be. Q. What is the sanction against the failure of a party to appear a pre-trial? A. If it is the plaintiff who is absent and the absence is unjustified or that he has no authorized agent, the sanction is this his complaint is dismissed with prejudice.

If it is the defendant who is absent, the sanction is, the plaintiff is allowed to present his evidence ex parte, meaning in the absence of A. The natural consequence of this is… if B has any counterclaim, then the counterclaim, will be dismissed because of his (B) action. Take note that during the pre-trial, the rendition of a judgment, summary in character or the rendition of a judgment on the pleadings may be proper.

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Q. Can the court immediately following the pre-trial render a summary judgment or a judgment on the pleadings? A. Take note that what the Rules authorized to be done during the pre-trial is only to consider the possibility, not that the court will immediately render a summary judgment or that the court will render a judgment on the pleading. Why? Because there are requirements before a judgment summary in nature or a judgment on the pleadings can be rendered to be complied with. For instance, in the case of a judgment on the pleading, there must be a motion filed for the rendition of a judgment. Likewise in the case of a summary judgment under Rule 35, there must be a motion for the rendition of a summary judgment. So, the court cannot immediately following a pre-trial, render a judgment on the pleading for a judgment summary in nature. There must first be a hearing in accordance with the pertinent rules. Pre-trial Brief The rule requires that the parties must file a pre-trial brief. Q. What is the sanction against the failure of a party to file a pre-trial brief? A. The rule says that, the failure to file a pre-trial brief may be given the effect the failure of a party to appear for a pre-trial. So, when the plaintiff for instance does not file its pre-trial brief, his complaint may be dismissed. If the defendant does not file his pre-trial brief, the plaintiff will be allowed to present his evidence ex parte. This is the sanction. Q. When must the pre-trial brief be filed? A. A pre-trial brief must be filed at least three (3) days before the pre-trial. Meaning that, at least three (3) days before the pre-trial, the pre-trial brief must have already been filed and served on the adverse party. Take note also that a pre-trial brief requires certain matters to be specified therein. Among others, the following are required to be stated in a pre-trial brief: 1. the numbers of witnesses of a party; 2. the gist of the proposed testimony of a witness; 3. copies of documents that may be offered for admissions; 4. the pre-trial brief must state the purpose for which the documents are offered. This requires that the gist of the testimony of a witness or that copies of documents intended to be submitted in evidence attached to the pre-trial brief is requirement that finds the justification in Rule 132. Rule 132 requires that before a witness testify, the purpose of the offer must be specified and that no evidence shall be admitted unless it is formally offered and the purpose of the offer is justified. This is the basis of this requirement. So, the pre-trial brief must include the gist of the testimony of a witness or the purpose for which the documents are offered in evidence. Following the inclusion of a pre-trial, the court is required to issue a corresponding pre-trial order. Q. What is a pre-trial order? What is its importance? A. The pre-trial order is a resumé of what transpired during the pre-trial. In effect, it is a summary of what happened. If there are stipulations in the pre-trial, those stipulations are reflected in the pre-trial order. Q. What is the importance of a pre-trial order? A. The pre-trial order governs the subsequent course of the trial so that, the trial will be limited only to those issues that have been raised in the pre-trial order. While this Rule 18 does not expressly state that the pre-trial must specify the issues, Rule 30 implies that the pre-trial order must specify the issues. Why? Because under Rule 30, the presentation of evidence of the party is limited to the issues raised in the pre-trial order. So that if there are only two (2) issues mentioned in the pre-trial order, no party is allowed to introduce evidence on any matter other than on these two (2) issues. If there is a third issue, any party cannot prove it as a matter of right because they are limited only to prove the issues raised in the pre-trial order. Of course we take into account also another rule that is the rule on amendment of the pleadings to conform to the evidence. Issues that may not have been raised during the pre-trial may be tried during the trial under these two (2) situations:

1. a party tries the issue and the other does not object; as a matter of fact he conforms, and in the case this issue can be tried 2. a party seeks to prove an issue which is not incorporated in the pre-trial order, the adverse party objects but the court finds that the presentation of that merits of the case would best be sub-served by allowing this issue to be proven, subject to the amendment of the pleading to conform with the evidence. These are the exceptions to the rule that unless otherwise specified in the pre-trial order, no issue can be tried.

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Q. What is the significance of this rule that the pre-trial order governs the subsequent course of the trial and the pre-trial order cannot be amended unless necessary, to avoid injustice being committed? A. Where a pre-trial order has already been issued, that pre-trial order cannot be changed, so the trial will now be governed in accordance with the pre-trial order. However, this pre-trial order may be modified, if necessary to avoid injustice being committed if trial is limited to what is stated in the pre-trial order. RENE NOTES: What are considered at pre-trial 1. possibility of an amicable settlement 2. submission to alternative modes of dispute resolution a. arbitration b. mediation c. conciliation 3. simplification of the issues 4. amendment to the pleadings 5. possibility of obtaining stipulation of facts or admissions of facts 6. limitation of the number of witnesses 7. reference to a commissioner 8. possibility of judgment of the pleading - need for motion 9. possibility of summary judgment - need for motion 10. dismissal of action 11. suspending the proceedings 12. other matters that may aid in the prompt disposition of the action * The pre-trial and trial on the merits of the case must be held on a separate dates. Rule 19 :Intervention A vs. B. They are litigating for a piece of land. A says, “I am the owner”. B says, “I am the owner”. So, the issue is, “who is the owner?” However, a third person, claims that he is the owner of the lot in question. Q. How can C protect his right over this land? A. C may come in to the picture as an intervenor. Unless, he (C) is allowed to intervene in this case, his right will be adversely affected and he has no way of protecting himself because he is “outside the kulambo”. Q. What is the remedy? A. File a motion for intervention. Q. Can anybody just file a motion for intervention? A. No. Q. What would be the justification for an intervention? A. The party intervening may have an interest against the plaintiff in this case. He may be interested in the success of B or he may have an interest adverse to A, and therefore he has an interest against for A and B or he may be so situated that any disposition of the property in the hands of the court affect him. So, he can now intervene in this case. So that he can protect whatever rights he alleges he has. Q. When will C in our example file a motion for intervention? A. At any time before a judgment has been rendered in the case. The motion for intervention will have to be heard in accordance with Rule 15 (Motions). This means to say therefore, that C will notify both A and B of the hearing of this motion for intervention. Q. What may the pleading (intervention) that he (C) can file? A. It may be a pleading in intervention called a “complaint in intervention”.

If he (C) joins A against B or if he has an interest against both A and B, so he will file a complaint in intervention. Or he may file an answer in intervention if he joins B as against A, he will file an answer in intervention. Whatever pleading he will file, when a complaint in intervention or an answer in intervention, that pleading must be attached to the motion for intervention. So, the motion for intervention is accompanied either by the complaint in intervention or by the answer in intervention. This will now be heard by the court. Q. Will the court grant or deny the motion for intervention? A. The answer depends on the answer to the following questions: 1. will the intervention delay the case between A and B? 2. may the right of C, C protected in a proceeding other than in this case between A and B? If the answer to the first question is “yes”, meaning, the intervention will delay the disposition of the case, then the court may deny the motion. If the answer to the second question is “yes”, then the court may deny the motion for intervention. If the answer to both questions is “no”, meaning, the intervention will not delay the right of C cannot be protected in another proceeding, then the court may grant the motion for intervention. Q. If the intervention filed by C is a complaint in intervention require an answer? A. Yes. A and B if they are the defendants in the intervention may file an answer to the complaint in intervention. Q. Within what period must they file? A. They must file the answer to the complaint in intervention within fifteen (15) days from receipt of the order of the court admitting the motion for intervention. Q. How will A and B know what the allegations are in the complaint in intervention since they are not summoned under Rule 14 with respect to the complaint in intervention? A. Remember what we said earlier when C filed the motion for intervention, attached to the motion was already a copy of the complaint in intervention. So, even before they receive the order granting the motion for intervention, A and B already have with them the copy of the complaint in intervention. Remember that the complaint in intervention is not served on A and B by summons. It was served to them by C, by furnishing them a copy. After the intervention is allowed, then the court can hear the case, the case is between A and B and thereafter, the intervention. Q. In an intervention and an independent action in the sense that if the complaint is dismissed, the complaint in intervention may likewise be dismissed or is a complaint in intervention one that can be treated independently of the main case so that regardless of the outcome of the main case, the intervention remains unaffected? A. (Unanswered… Judge Lagui became ill…) When he returned… We have two (2) cases of this: 1. Expropriation case Municipality of Norzagaray filed an action against X, Y and Z for expropriation of lot. While this case was pending, the mayor of Norzagaray manifested his intention to withdraw the complaint. Why? Because the municipality was unable to procure the presidential approval of the exercise of the municipality of the right to expropriate. The law at that time require a presidential approval on the exercise by the municipality of the right to expropriate. The people of certain barrio of Norzagaray, Matictic, having heard of the intention of the mayor to withdraw filed now an intervention motion. Why did this Matictic people want to file an intervention motion? Because through this lot sought to be appropriated was a road, which the people of Matictic used in going to the highway. But they had to pay the owners passage fee. So, it was to their interest therefore that this property be expropriated so that they would be relieved of the burden of paying. The Mayor however, did not file formally a motion to withdraw the complaint. Because of this, the court motu proprio dismissed the complaint for failure to prosecute and of course for lack of presidential authority. The dismissal took place before the court could rule on this motion for intervention. He dismissed the case outrightly. The matter reached the SC. Issue: Whether the intervention of Matictic people could still survive because of the dismissal. Rule: The intervention could no longer be entertained because of the dismissal of the case. Years later… another case involving the foreclosure of mortgages, of real and chattel. X obtained various loans from different mortgages and to guarantee the payment, X constituted real estate mortgages and chattel mortgages. Among the many assets of X subject of the mortgages was a building (GEA Building).

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On this building where installed were aircon units which subject of a chattel mortgage in favor of Y. This building was eventually sold to C. Y now filed a suit against C for replevin for the recovery of this aircon units claiming that he (Y) furnished the aircon units to X, and which X gave Y by way of chattel mortgage. While this case was pending, A filed a motion for intervention on the ground that if he (A) supplied X the money with which X acquired these aircon units. The motion for intervention was granted and so A now filed the complaint in intervention which as a matter of fact was amended later on. In the meantime, Y and C entered into an amicable settlement. By reason of this settlement, this complaint of Y was dismissed. Later on Y questioned the propriety of the court having authorized the amendment of the complaint in intervention of A. With the dismissal of the case, this intervention of A can no longer subsist on the theory that an intervention is merely an adjunct of the main case. This is the theory. This contention was overruled. The matter reached the SC. Issue: Whether the trial court was correct in still maintaining this intervention of A notwithstanding the dismissal. SC said that this dismissal of the complaint of Y against C did not affect at all the intervention of A. In other words, the intervention of A still continue even if after the main case has already been dismissed. Reason: Since A was already allowed to intervene, he acquired a right to participate and therefore, that right cannot be adversely affected by the agreement between Y and C. Their agreement was binding only on themselves, it did not bind A.

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Q. What do you notice upon these two (2) cases? A. Apparently, they are contradictory, because in the first, with the dismissal of the complaint, the intervention could no longer be maintained. In the second, the dismissal of the main complaint notwithstanding, the intervention could be maintained. Q. But are they in fact conflicting? A. This is how Justice Regalado, our commentator in Remedial Law, tried to reconcile the two. And he came out with a conclusion that actually there is no contradiction between the two. Q. How did he reconcile? A. In the Matictic case, when the complaint was dismissed, there was as yet no intervention to speak of. Why? Because the court never ruled on the intervention; and therefore, the barrio people of Matictic never became intervenors. And so, they have no right whatsoever that could be affected by the dismissal. But in the case of Metrobank, there was already an intervention allowed at the time dismissal of the main complaint was effected. So, the right of the intervenor could no longer be adversely affected by whatever agreement the original parties have because it (Metrobank) was not a party to the agreement. The Rule is clear, an agreement or a contract binds only parties thereto, its heirs and successors in interest. So with these, it would seem that as long as an intervention has been allowed, it can be determined independently of the main case. The original comment on this rule is that a motion for intervention is merely an auxiliary proceeding giving risk to the implication that if the main case of which it is merely an auxiliary, ceases to exist because of the dismissal, the intervention would likewise be dismissed. In this Metrobank case, it would seem that it’s no longer correct. Going back to the last example… where C is interested, the court will hear the case of A and B and receive the evidence of the parties, then the court will also receive the evidence of C and thereafter decide the case. So, it is like a three-cornered flight like that of “KARAMBOLA.” RENE NOTES: Who may intervene a. one who has legal interest in the matter in litigation b. one who has legal interest in the success of either parties c. one who has interest against both parties d. one who is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof INTERVENTION * an ancillary action. * proper in any of the four situations mentioned in this Rule. INTERPLEADER * an original action * presupposes that plaintiff has no interest in the subject matter of the action or has an interest therein, which in whole or in part, is not disputed by the other parties to the action * defendants are being sued precisely to implead them. SUMMONS

* defendants are already original parties to the pending suit Rule 21: SUBPOENA SUBPOENA

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* an order to appear and testify or to * order to answer complaint produce books and documents * may be served to a non-party * served on the defendant * needs tender of kilometrage, attendance * does not need tender of kilometrage and fee and reasonable cost of production fee other fees SUBPOENA AD TESTIFICANDUM – a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. SUBPOENA DUCES TECUM – a process directed to a person requiring him to bring with him books, documents or other things under his control. Who may issue subpoenas: a. Court before whom the witness is required to attend b. Court of the place where the deposition is to be taken c. Officer or body authorized by law to do so in connection with investigations conducted by said officer or body d. Any Justice of the SC or of the CA in any case or investigation pending within the Philippines * The clerk of court shall issue under the authority of the judge. * No prisoner sentenced to DEATH, reclusion perpetua or life improsonment shall be brought out of a penal institution UNLESS authorized by the Supreme Court. Subpoena duces tecum may be quashed upon proof that: a. It is reasonable and oppressive; b. The articles sought to be produced do not appear prima facie to be relevant to the issues; c. The person asking for the subpoena does not advance the cost of production of the articles desired. Subpoena ad testificandum may be quashed: 1. if the witness is not bound thereby 2. no tender of witness fee or kilometrage Consequences of an Unjustifiable refusal to obey subpoena: a. The court which issued the subpoena may issue a warrant for the arrest of the witness and make him pay the cost of such warrant and seizure, IF the court should determine that this disobedience was willful and without just cause; b. The refusal to obey the subpoena shall be deemed a contempt of the court issuing it. Rule 22:Computation of time Rule 22 refers to the computation of a period fixed by the law, by the rules, or by an order of the court. Sec. 1 says: In computing any period of time prescribed or allowed by these Rules, or by order of the court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included. If the last day of the period, as thus computed, falls on a Saturday, a Sunday or a legal holiday, the time shall not run until the next working day. Just know what Article 13 of the Civil Code says on the matter. Article 13 of the New Civil Code When the law speak of years, months, days or nights, it shall be understood that years are of three hundred sixty five days each; months of thirty days; days, of twenty-four hours; and nights, from sunset to sunrise. If months are designated by their name, they shall be computed by the number of days, which they respectively have. In computing a period, the first day shall be excluded, and the last day included. Example: A vs. B. A was summoned Dec. 16, 1999. Under Sec. 1 of Rule 11, B has a period of fifteen (15) days from service of summons on him. Under the provisions of Article 13 of the New Civil Code. “exclude the first and include the last” rule, you compute this 15-day period from Dec. 17, 1999. So you will have up to Dec. 31, 1999. But Dec. 31 is usually a legal holiday, so the next day will be Jan. 1, but Jan. 1 is also a holiday, so the 15-day period will expire on the following day, assuming that Jan. 2 is not a Saturday or is not a Sunday or is not a legal holiday in the place where the court sits. Q. What does Sec. 1 of Rule 22 say? A. In computing a period, the day of the act or event from which the period starts to run is excluded. This is what actually Article 13 of Civil Code is saying: “The day of performance is included.”

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Q. What is “the day of performance” here? A. The filing of the answer. But under Article 13, the day of performance here is the last day. “Exclude the first, include the last.” Where an act effectively interrupts the running of a period, the allowable period shall start to run the day following the receipt of the notice of the cessation of the cause thereof. Q. What does this mean? (This provision is very complicated.) A. Sec. 2 Rule 22 Should an act be done which effectively interrupts the running of the period, the allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof. The day of the act that caused the interruption shall be included in the computation of the period. Example: B was summoned Jan. 2, 1999. Under Sec. 1 of Rule 11, B has a period ending Jan. 17, 1999. This is the day of performance (Jan.17, 1999). Let us assume however that B filed on Jan. 7, 1999, a motion to dismiss. Q. What is the effect of the filing on Jan. 7, 1999 on the running of this period starting Jan. 3 and ending Jan. 17? A. It suspended the running of the period. Since there were five (5) days of the 15-day period under Sec. 1 Rule 11, there were ten (10) days remaining because between Jan. 2 and Jan. 7, a 5day period has already elapsed. There was a period of ten (10) days remaining. This10-day period remaining of the original 15-day period is the so-called “allowable period” referred to in Sec. 2 Rule 22. On the assumption that this motion to dismiss is denied, Q. What is the effect of the denial of the motion to dismiss on the remaining period within which to file the answer? A. It will start to run. It will resume its running. Why? Because it started but when the motion to dismiss was filed, the running was interrupted but when the motion to dismiss was denied, the running must resume. (Hinto! …tapos… Takbo!) Q. When will this “allowable period” start to run? A. Let us assume that B received the order of denial on March 10, 1999. We say that when the order of denial the period of 10-day starts to run. Why? What interrupts it? The period was interrupted by this order March 10, 1999. This is the cause of the cessation of the stopping of the running. Q. What is the allowable period that starts to run after this order denying the motion to dismiss was issued? A. The law says, “this allowable period shall start to run the day following the receipt of the notice of the cessation of the period.” So, in our example, this allowable period starts to run the day following the receipt. So, this starts to run March 11, 1999 (10 days starting March 11 is March 21, 1999). This is still an application of Article 13 which is “exclude the first, include the last day.” (The committee wanted to be different, probably) Conclusion: Rule 22 did not actually amend Art. 13 of NCC, except in one respect, there is now an expressed provision in the rules that when the last day of performance is a Saturday, a Sunday, or a legal holiday in the place where the court sits, the date of performance is moved to the next working day. Take note that the legal holiday referred to here is the legal holiday in the place where the court sits. So if the court sits in Manila, and the last day in Manila is Dec. 20, which is not a holiday, but in Q.C., Dec. 20 is a holiday. Q. Will the last day of performance be moved to the next working day? A. No, because the holiday is not in the place where the court sits, which is in Manila. Modes of Discovery Rules 23, 24, 25, 26, 27 and 28. Q. What are the modes of discovery? A. As the term suggests, these modes of discovery are remedies the law allows a party to a case to avail of for the purpose of getting in advance knowledge of facts related to a case which the

adverse party may have knowledge of so that when trial proceeds, a party to a case already knows what the adverse party may have. Actually therefore, these modes of discovery are intended to allow a party to discover what the other party has, because if these rules on discovery were not allowed, a party to a case would know nothing about the adverse party’s case except those which are alleged in the pleading. So, if A, the plaintiff and B, the defendant, all that A would normally know about the case in so far as he is concerned is what appears in the answer or pleading of B. In the case of B, all that he could know in so far as A is concerned is what appears in the complaint or pleading of A. So, rules of relevant facts would be limited to what is disclosed only in the pleadings. But with the modes of discovery we mentioned, A may be able to know facts that B may have; B may be able to know facts that A has, so that when the trial proceeds, each party already know what the other party has. This is the concept of discovery. This practice is widely used in U.S. So, if A and B are litigants, before trial, A could already know all the facts about A; B could already know all the facts about A. So that when the trial comes, there is nothing that is not known to the adverse party. This is how extensively these remedies are utilized in U.S. While these rules have been with us, for decades, they were never appreciated. Why? Very few avail of it. This is why, to compel the resort to modes of discovery, there are certain sanctions that the court may impose on a party who fails to comply with the rules written interrogatories; with the rules on request for admission. Rule 23: Deposition Pending Action

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This is denominated as Deposition Pending Action. This contemplates a situation where a case is already pending in court. While the case is pending in court, the party may now discover facts either from the adverse party or from any other persons. Example: A vs. B (They are litigating a piece of land) A suspects that B may present as his (B) witness X against him (A). A would want to know in advance what X is going to say. Q. What is the remedy available to A; so that even before trial A will already know what X will say so, when he will be called upon to testify? A. A can resort to Rule 23 (Deposition Pending Action) Q. Is it necessary for A to obtain leave of court in order that he can take the deposition of X? A. The rule is this: If no answer has as yet been served on A, then A must file first a motion asking for leave to take the deposition of X. If an answer has already been served on A, A can now take the deposition of X without leave of court. So, whether leave of court is required on that would depend on an answer to a question “was an answer already serve on the plaintiff?” If there was none, leave of court is required; if there was, no leave of court. Q. If A now were to take the deposition of X, what can be the subject matter of the inquiries made by A? A. The rule is: A can take deposition of X on any matter related to the claim of A or related to the defense of B, provided these matters are not privilege in character. Meaning, that where the matter sought to be inquired by A from X are privilege, they cannot be the subject of inquiry, and therefore X may not answer that. Q. Supposing it is B who suspects that A will present Y as his witness, can B also take the deposition of Y? A. Yes. Q. So, what do we conclude on from this? A. The right to take a deposition belongs to both parties. It does not belong only to one. Q. If you were A now, how will you proceed taking the deposition of X? A. The first is for A to send B a notice to take depositions. The deposition may either be on oral examination or on written interrogations. Q. Let us assume that A would want to take the deposition of X, what will this notice to take deposition contain? A. The notice will be worded this way: To B, defendant, Greetings…

Pls. Be notified that the undersigned plaintiff A will take deposition on oral examination of X before the notary public Z at his office at 123 Timog Ave., Q. C. on Jan. 10, 1999 at 8:00 AM Signed A B received the notice. Q. What will happen on Jan. 10, 1999 at 8:00 AM? A. X and the lawyer of A, if he has any, or A will appear before the notary public.

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Q. How about B? A. He may appear if he wants to. He may disappear if he wants to. In other words, he may appear if he likes, he may not appear if he does not like. Whatever his wishes are, the plaintiff A can proceed with the deposition of X as long as B was notified. Q. How will A compel the presence of X before the notary public on Jan. 10, 1999 at 8:00 AM? A. A can file with the court in Q.C. a motion for the issuance of subpoena to X so that X will be subpoena. The rule in a subpoena to a witness in deposition taking may be issued by the court in the place where his deposition is taken. Q. What happens on Jan. 10, 1999 in the office of the notary public Z? A. A will now question X on anything related to the claim of A or related to the defense of B provided they are not privileges. Q. How about B? A. If B were present or his lawyer is present, B or the lawyer can cross-examine X, then X may again be questioned by A or by A’s lawyer. This is the second examination called the re-direct examination. After he (A) finished the re-direct examination, X may again be examined by B or his (B’s) lawyer, we called this word examination the re-cross examination. Q. What do you notice? A. In examination of “deponent, X in our example, is the same examination that may be conducted as if he were actually before the court in which the case is pending. Let us assume in our example that B received the notice but did not appear either personally or through counsel. So that in our example, X testified in the absence of B or the counsel of B. Q. May B be allowed nevertheless to question X after X finished his direct testimony? A. Yes. Q. But how about if B is not there? A. Its no problem because of personally appearing in court, B can send his written questions to the notary public. The notary public will now read these questions to X one by one and X will answer them also one by one. Let us assume that the deposition is going on. Let us assume also that B’s counsel is present while A’s counsel is questioning X, a question appears to be objectionable to B. Q. Can he (B’s counsel) object? A. Yes. Q. Will the notary public however, rule on the objections? A. No, he will simply record the objection. Unlike the judge, the notary public or whoever is the deposition officer, is not allowed to rule on the objection. Q. Following the conclusion of examination of X, what shall be done now? A. The testimony of X as stenographically recorded during the proceedings, will now be transcribed. After its transcription, the transcript is shown to X for him to read or for that transcript to be read to him. If there are parts in the transcript which he desires to change, then he can change them out in this case, the deposition officer or a notary public or a judge for that matter will have to indicate in the records the reason why X changed his answers. X may sign or may not sign the transcripts. He may not sign if, for instance, let’s say he agree that there is no need, or X himself for any reason may refuse to sign. In any event when X refuses or fails to sign, the notary public or the judge who acted as the deposition officer, must have to sign the transcript. After the signing of the transcript or if the deponent refused to sign, that is therefore, after the certification by the notary public or the deposition officer, the proceedings are concluded, the deposition officer forwards now the records of the deposition taking to the court where the case is pending.

So, if I were the deposition officer, I will now forward to the court the entire records. If there were exhibits presented during the deposition taking the deposition officer should also forward it to the court.

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Q. Is there a duty on the part of the deposition officer to notify the parties of the fact that he has forwarded the records to the court? A. Yes. The law requires that the deposition officer must notify the parties of the fact that he already sent the copies of the deposition record to the court. Q. Are the parties entitled to receive a copy of the transcript of the testimony of the witness, in the example of X? (Is A entitled to receive a copy? Is B entitled to receive a copy of the branch record?) A. Yes, provided he pays for the cost thereof. This is only by way of deposition through oral examination. Under the Rule, A can take also the deposition of X by written interrogations. Q. How would this be done? A. A takes the deposition of X by written interrogations. Q. How will this notice to take deposition of X by written interrogatories be worded? A. This is how it will be done: B, defendant Greetings! You are hereby notified that the undersigned plaintiff A will take the deposition of X by means of written interrogatories. Attached herewith is the direct written interrogatories. Signed by A Q. What is this “direct written interrogatories”? A. It is that document that X has asked all the questions on direct examination. You call this the “direct interrogatories”. So attached now to the notice is a copy of the direct interrogatories by A. This is now furnished to B. Q. What is he (B) authorized to do following his receipt of the notice and of the direct interrogatories? A. If B desires, he may within ten (10) days from his receipt of the notice and the direct interrogatories also furnish A a so-called cross-interrogatories. He will give this cross-interrogatories to A. Q. What are these “cross-interrogatories”? A. They are the questions, which B would have asked to be answered by X on cross-examination. A now has with him the cross-examination interrogatories of B. Q. What is A now allow to do, following his receipt of the cross-interrogatories? A. Within five (5) days from his receipt of the cross-interrogatories, A may serve on B another set of interrogatories, the so-called re-direct interrogatories. This would have been the question which A would ask X have had been personally questioned by A. So, A will serve on B a copy of his re-direct interrogatories. Q. What is the right of B upon receipt of this re-direct interrogatories of A? A. Within three (3) days of his (B) receipt of the re-direct interrogatories, B may serve on A a set of questions again, you called the re-cross interrogatories. Q. So, what do you notice now? A. A has with him all sets of interrogatories: 1. Direct-Interrogatories (A) 2. Cross-Interrogatories (B) 3. Re-Direct Interrogatories (A) 4. Re-Cross Interrogatories (B) Q. What shall A do with all these sets of interrogatories? A. He will now proceed to the deposition officer together with X. What for? So that the notary public will now question X or the notary public or the judge who acted as a deposition officer. So, X is there now… he is now sworn by the notary public or the judge. Q. What will the notary public or the judge do? A. This is what the notary public or the judge will do: He will now take the first set, the so-called direct-interrogatories. He will now read question no. 1 to X. Then X will answer. So, the deposition

officer or notary public will read one-by-one the questions and X will answer them one-by-one. This is what the notary public will do. The proceeding after X finished answering the four (4) sets of interrogatories will be the same as if X testified on oral interrogatories. This means to say that the testimonies of X will be transcribed. The transcript will be given to him to read or to be read to him. He will sign, if he wants to sign. He will make corrections, if he wants to make corrections. Thereafter, the deposition officer will forward to the clerk of court where the case is pending the entire records of the case. This is how he deposition is taken. Q. How will the deposition of X be used? A. It will be used in accordance with Sec. 4 Rule 23. Introduce all of it which is relevant to the part introduced and any party may introduce any other part. Let us assume that the deposition of X was already taken. This was already received in the clerk of court, Dec. 1, 1998. Trial is on Dec. 15, 1998. On this day (trial), A and B are supposed to present their evidence. A said, “Your Honor, my witness is X, he already had given his deposition. His deposition is now here in court, which I now asked to be marked as exhibit A. I will not present X anymore. Your Honor, I will now present his deposition, in lieu of his personally testifying in court.” Court: “What does B said on the manifestation of A? B: Your Honor, A does not know Rule 23. Notwithstanding that he (A) claimed that he has been a lawyer for fifty (50) years, he does not know Rule 23. Court: “Why?” B: “Your, Honor, the law is clear, this deposition can be used, only under the conditions mentioned in Sec. 4 of Rule 23 as evidence.” Court: “Right, You’re correct.” Ruling: “The manifestation is out-of-order. Exhibit A cannot be used.” Q. Is the observation of the court correct? A. Yes. As long as a deponent is alive and kicking, his deposition cannot be used in court. Why? Because a deposition is used only in anticipation of the inability of the deponent to testify in court. But as long as he is alive, he cannot use his deposition, except for purposes under Sec. 4 of Rule 23. Q. For what use will the deposition of X be utilized? A. Let us assume that B presented as his witness X. In our premise, the deposition of X was taken by A. So, X is a witness of A for purposes of that deposition. Sec. 4 Rule 23 At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with anyone of the following provisions: a. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness; b. The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership or association which is a party may be used by any adverse party for any purpose; c. The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: 1. that the witness is dead; or 2. that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or 3. that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or 4. that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or 5. upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally, in open court, to allow the deposition to be used; and d. If only part of the deposition is offered in evidence by a party, the adverse party may require him to utilize X as his witness. Q. Can that be done? A. Yes, it can be done. Why? Because the rule says, “a party who takes the deposition of another does not make that party his witness.” So, X is not a witness for purposes of the trial of the merits of the case. He is now a witness of B.

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Q. How may this deposition of X be utilized by A? A. Take note that under Sec. 4 of Rule 23 par.(a), “Any deposition may be used by any party for the purpose of contracting or impeaching the testimony of deponent as witness.” The deposition of a party may be used by anyone. A can use that deposition of X but only for one purpose to impeach X. Q. Can A utilize the contents of the deposition of X to prove the truth of what is stated there? A. No, he cannot do that unless the exceptions will apply (Sec. 4 Rule 23). In our example, the only use of deposition of X in the hands of A is to impeach X, nothing more. Q. What is impeachment? A. Impeachment is the process whereby a party tries to make evidence against him worthless by showing that the witness or the evidence is not credible. In our example, the only use by A of the deposition of X is to show that X is not a credible witness. Supposing the issue is: “What is the color of the dog of B?” A said,“The dog is blue.” B said, “The dog is red.” X said while testifying for B. “The dog of B is red.” But in his deposition, he said the dog of B is blue.” Q. Will this statement now prove that the dog is blue and that there A can introduce that in evidence to prove that the dog is blue? A. No. This is usable only in the hands of A to contradict the statement of X in court that the dog is red. This is only to show that X is not telling the truth. But by this showing, A does not concede that the dog is blue. He simply said that X is telling a lie. Remember how a witness may be impeached or recall by a party against whom the evidence is given may impeached a witness giving the evidence by any of the following means: 1. by contrary evidence; 2. by evidence that the reputation of the witness for honesty, integrity and truth is bad; 3. by evidence that a witness has given statements contrary to what he said in court prior inconsistent statements; 4. that a witness has been previously convicted of a crime. Q. When, however, may a deposition be used, not only for purposes of impeachment, but for any other purpose? A. Let us assume in our example that the deponent is no longer X, but B himself. Q. Can A take the deposition of his adverse party? A. Yes, that can be done. Q. In the hands of A, for what use may this deposition of B be taken? A. The rule says, “for impeaching and any other purposes.” Let us assume now that B testified. A now examines him on cross-examination. Q. How can A use the deposition of B? A. 1. to impeach B; 2. for any and all other purposes. For instance, there is something said in the deposition of B favorable to A. Q. Can A introduce in evidence this deposition of B even if he (B) is alive? A. Yes. Supposing in the deposition of B, he said, “This land used to be the property of C, the father of A.” So, this statement may be favorable to A because it will give credence to his claim that he inherited this lot from C. This would be favorable to him. So in this case, A may introduce this deposition even if B is alive. Q. What then is the difference, if there is any, between the use of a deposition of an ordinary witness and the use of the deposition of a party to a case? A. In the case of an ordinary witness, it is used only for one purpose, that is to impeach. In a case of a party, for two (2) purposes: (1) to impeach; and (2) for any other purpose. Q. When can the deposition of witness either an ordinary witness or a party to a case to be used to prove the truth of what is said there? In other words, our proponent here is X. When can this deposition of X be introduced as evidence to prove the truth of what is stated there?

A. 1) when X is already dead; or if alive, cannot testify 2) he lives in a place more than 100 km away from the court where he is supposed to be summoned to testify.

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Under the rules of summons, a party who resides in a place more than 100 km away from the court to which he is summoned, he is not obliged to obey the summons. In this case, X resides more than 100 km away from the court room, he cannot be compelled to appear and so his deposition may be used to prove the truth of what is stated there or if X cannot be subpoena unless the failure to subpoena X was the result of the manipulation on the part of A himself (if he is the one presenting) or there are some circumstances that may be established which would make the presentation of the deposition justified. Rule 23 Sec. 4 (C) says: …the deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: 1. that the witness is dead; or 2. that the witness resides at a distance more than 100 km away from the trial or hearing or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or 3. that the witness is unable to attend or testify because of age, sickness, infirmity or imprisonment; or 4. that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or 5. upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and… Under this section, even though the witness is alive, deposition may be used under any of these circumstances: Our example here presupposes that the witness is in the Philippines. Supposing now, A wants to take the deposition of X who is in the US. Q. Can that be done? A. Yes, it can be done. The deposition can be done. Procedure: A will give notice to B that he will take a deposition of X in the US. The deposition of X must be taken before the Secretary of the Embassy. Legation or the consul general or the consul or a vice consul or any other officer in the foreign service of the Republic of the Philippines in the US. Supposing we have no consular officers, or we have no embassy in the US. Q. How may the deposition of X be taken by the so-called commission? How will A go about securities commission? A. He will file a motion in court asking that the commissioner be authorized to receive the testimony of X. The court will name the particular person who will take the deposition in the US of X. In one case, Dasmariñas Garments vs. Reyes (1988), the plaintiff wanted to take the testimony of his witness residing in Taiwan. So, he filed an application with the trial court in Manila where the case was pending for the appointment of the commissioner. Why? Because at that time we did not have, as we do not now have, any diplomatic relation with Taiwan as we recognize the One-China Policy, and there is only one China i.e. Red China. Taiwan is a mere province of, according to Red China, of Red China. So, since we have diplomatic relation with Red China, we cannot, for obvious reason, recognize, Taiwan as another state. So, we did not have an embassy or a consular office in Taiwan. But we have an office there euphemistically called MECO. This is supposed to be an office taking charge of the commercial interest of the Philippines in Taiwan. So, Dasmariñas filed a motion asking that the deposition of his witness be taken. The Manila Trial Court granted the motion. So, the defendant elevated the matter to the SC. Issue: Whether the Manila court can order the MECO to take the deposition of X, (witness of Dasmariñas). Held: Under this rule (Rule 23), the SC sustained the ruling of the Manila Trial Court. So, as distinguished from a situation where we have a consular officer or when we have diplomatic relations, where the deposition of a witness have been taken before those persons already named, even without prior leave of court. In the case of a commission, the deposition cannot be taken by the commissioner unless there is an authority from the court. Letters Rogatory Q. What is meant by letters rogatory?

A. Example: A wants to take the deposition of X in Timbuktu. We do not have any consular office there. We do not have diplomatic relation there. We have no nothing. Q. How can the deposition of X be taken in Timbuktu? A. By letters rogatory, the deposition of X may be taken.

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Q. What is letters rogatory? A. In our example, A now will file a motion in court asking that letters rogatory be issued for the purpose of having the testimony of X taken on written interrogatories. The court grants the motion. This letters rogatory are letters to the court. The court where the case is pending, say RTC of Manila, will now address a letter to, let’s say, the Chief Justice of Timbuktu. Greetings!!! You are hereby requested to take the deposition or written interrogatories of X who lives within your territorial jurisdiction. Attached are the interrogatories. We shall render to you the same assistance when requested. Letters rogatory is a letter from one court to another court, requesting the court of the place to take the deposition of X. This is how Rule 23 works! RENE NOTES: Persons before whom depositions may be taken: - Within the Philippines: (a) judge (b) notary public (c) any person authorized to administer oaths, as stipulated by the parties in writing - Outside the Philippines (a) on notice, before a secretary of embassy or legation, consul general, consul , vice consul, or consular agent of the phil. (b) before such person or officer as may be appointed by commission or letters rogatory (c) any person authorized to administer oaths, as stipulated by the parties in writing COMMISSION LETTERS ROGATORY * issued to a non-judicial foreign officer who * issued to the appropriate judicial officer of will directly take the testimony the foreign country who will direct somebody in said foreign country to take down testimony * applicable rules of procedure are those of * applicable rules of procedure are those of the requesting court foreign court requested to act * resorted to IF permission of the foreign * resorted to IF the execution of the country is given commission is refused in the foreign country * leave of court is not necessary * leave of court is necessary Rule 24: Depositions before Action A party before any action has been instituted in court may take the deposition of himself or of a third person for the purpose of preserving that testimony for use in the event a case would later be filed.(Depositions in Perpetuam Rei Memoriam ) Example: A has a piece of land. B has a piece of land too joining A’s lot. A and B are neighbors. Their respective properties are divided by fence. The only trouble is, A and B did not believe that good fences makes good divide. Why? They first put up a bamboo fence. So, here comes a typhoon. B now puts up this fence but intrudes 1 ft. into the property of A. Another typhoon truck, the typhoon went down. B again put up another fence, this time intruding another 1 ft. Imagine how many typhoons we have in one year. So, A anticipates that if all these expected typhoon will materialize, there will be a time when he will no longer have any inch of land to stay on. By that time he will already be fenced out of the property. Q. What is the remedy? A. To file a case. Q. But who will file the case? A. A said, “I may file the case. But I don’t have the money right now. How can I file a case?” So, he is waiting for B to file a case. But B is not going to file a case because he is still waiting for the many typhoons to come. So, he cannot compel B to file a case.

In the meantime, he expects that by that time a case is filed, either by himself against B or by B against himself, he may already be six ft. under the ground, or if he is alive, his expected witness X may also be already six ft. under the ground. Q. What is the remedy? So that when the case shall have been filed, and X is already gone, that testimony of X can still be used as evidence? (because it was preserved). How will this preservation be made? A. A lives in Sulu; B resides in Batanes. A Sulu B Batanes

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Q. What is the remedy now available to A, so that his testimony or the testimony of X will be preserved? A. He will now file a case against B in the places where he (B) resides i.e. Batanes. (But A is from Sulu? Never mind that is what the law says.) Q. In what court will this case be filed by A? A. The rule does not say. It simply says “court”. Q. MTC? RTC? A. An action of this nature to preserve the testimony is an action, which is incapable of pecuniary estimation. Remenber Sec. 19 of B.P. # 129, an action incapable of pecuniary estimation is within the jurisdiction of the RTC. So, while this rule does not specifically state that the action should be filed in the RTC, the action by reason of its nature should be filed in the RTC. Q. What will be the allegations? A. Well principally A will allege the reason why he wants his testimony or that of his witness X be preserved. He would state in the petition the facts which he wants to prove. Q. What is his prayer? A. His prayer is that the court may authorize him to take his deposition or to take the deposition of X. Q. How will B know that a petition against him has been filed? A. Well, the rule requires A to furnish B with a copy of his petition and the notice of hearing thereof. The hearing must be set by A on a date which is not earlier than 20 days from service by A on B of the copy of the petition and of the copies of hearing. Q. Once the petition is filed, what will the court do? A. The court will now issue a summons to B notifying him of the date of hearing as set in the notice of B. This will be served on B in the manner that the summons is served to a defendant under Rule 14. So while the rule does not specifically state the summons should be issued and served in accordance with Rule 15. Q. What will happen on the day set for hearing? Will there be a trial, in the sense that evidence may be received by the court for A and B? A. Look at the provision, there is nothing said on the following: 1. That B has the right to file an answer for an opposition. There is nothing said. The rule does not say that B or A will be allowed to present evidence. The rule says that the court will hear the petition and if granting the petition will avoid failure of justice court will grant the petition. Q. What is the meaning of that? A. The court in granting the petition will now authorize A to take his deposition or to take the deposition of X or any witness for that matter in accordance with the rule either by means of oral pending appeal, examination or written interrogatories. This is how Rule 24 works. Q. How will the deposition of either A or X be used? A. In the same manner a deposition is taken under Rule 23, in other words, Sec. 4 of Rule 23 will apply in so far as the deposition of A or his witness is concerned. This is the gist of Rule 24. Q. Why do you call it “deposition before action”? A. Because at the time it was taken there was yet no case. This was only taken in anticipation that a case may later on be filed. RENE NOTES:

* Depositions under this Rule are also taken conditionally, to be used at the trial only in case the deponent is not available.

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* Depositions under the Rule do not prove the existence of any right and the testimony perpetuated is not in itself conclusive proof, either of the existence of any right nor even of the facts to which they relate, as it can be controverted at the trial in the same manner as though no perpetuation of testimony was ever had. However, in the absence of any objection to its taking, and even if the deponent did not testify at the hearing, the perpetuated testimony constitutes prima facie proof of facts referred to in the deposition. * If deposition is taken under this Rule, it may be used in any action involving the same subject matter subsequently brought. Rule 25: Written Interrogatories to Parties Q. What are interrogatories? (written) A. Questions (Nakasulat) Q. Is there an oral interrogatories? A. Naturally. If you examine a court witness, the interrogation is oral. (questioning) Q. When may a party address written interrogatories to the adverse party? A. Sec. 1 of Rule 23 applies to Sec. 1 of Rule 25 Sec. 1 of Rule 23 By leave of court after jurisdiction has been obtained over the defendant or over property which is the subject of the action, or without such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken at the instance of any party, by deposition upon oral examination or written interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21, depositions shall be taken only in accordance with these rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. Sec. 1 Rule 25 Under the same conditions specified in Sec. 1 of Rule 23, any party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served; or if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf. Example: A vs. B. Let us say that A wants to address written interrogatories to B. A can address this written interrogatories to B either with or without leave of court. If no answer has yet been served by B on A, the written interrogatories may be taken only with leave of court. If an answer has already been served on A, written interrogatories may be served without leave of court. Q. What can be the subject of the written interrogatories? A. The subject may be one that relates to the claim of the plaintiff or one that relates to the defense of the defendant, provided that these matters are not privileged. Q. How many questions may be addressed in written interrogatories? A. There is no limit. The only limitation is that the question relate to the claim of the plaintiff or to the defense of the defendant and they are not privileged. Q. So, if you have 1,000 questions to ask, ask the 1, 000 questions. If you have only 999 questions, can you again send another written interrogatories consisting only of one question? A. No. The rule is, a party can send only one set of written interrogatories. The number of questions is not limited. It could be as many questions as a party can conceive of as long as his questions are related to the claim of the plaintiff or to the defense of the defendant provided they are not privileged. Q. Is there an exception to this rule that only one set of written interrogatories may be sent? A. The general rule is, only one set of written interrogatories may be sent. However, in the discretion of the court, another set of written interrogatories may be sent. Q. When must a party reply to written interrogatories? A. The party to whom the written interrogatories were sent must answer then within 15 days from service to him of the interrogatories. Supposing the written interrogatories include questions that are improper, for instance those are questions for the ownership of the land. A vs. B. The questions asked by A is in his interrogatories relevant to the matters concerning the claim of A and defenses of B. But here comes another question, “How many wives do you have?”

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Q. Is the number of wives relevant to the matter on issue? A. Of course not because they are not litigating in the number of wives. Q. What is the remedy available to B here? A. File a motion to strike out that question. A motion praying therein that B, be not require answer. Q. What is the effect of that motion on the part of B to strike out that improper question to the running of the period for the filing of the reply? A. The period is suspended. RENE NOTES: * A judgment by default may be rendered against a party who fails to answer written interrogatories. * General Rule: Unless a party had been served written interrogatories, he may not be compelled by the adverse party: a) to give testimony in open court b) give a deposition pending appeal Exception: When the court allows it for good cause shown and to prevent a failure of justice. Depositions upon Written Interrogatories to Parties under Rule 25 Interrogatories to Parties under Rule 23 Sec. 25 As to Deponent 1. party only 1. a party or ordinary witness As to procedure 2. no intervention. Written interrogatories 2. with intervention of the officer authorized are directed to the party himself by the Court to take deposition As to scope 3. only one set of interrogatories 3. direct, cross, redirect, re-cross Interrogatories 4. 15 days to answer unless extended or 4. no fixed time reduced by the court RULE 26: Admission By Adverse Party Example: Let us say that A and B are litigating over a piece of land. The claim of A is that he bought this lot from D. The claim of A is that this sale is evidenced by a deed of sale purportedly signed by D. This document however, is a private document. A may also have declared this lot for tax purposes (tax declaration) and A have paid the taxes on this land. Under the rules on request for admission, the rules said after the issues have been joined, any of the parties may now address to the adverse party a request for admission. In this request, the party sending the request ask the party to whom the request is sent, to admit the truth of the matters of fact stated in the request or the genuineness of the document the copy of which is attached to the request. This is how it is done… Let us assume that the answer of B has already been served. In his answer, B denied the material allegations of the complaint. So, issues are now joined. Q. When is an issue joined? A. When the parties are certained and it is disputed Example: If A said, “the color of the dog is blue.” B said, “the color of the dog is red.” This is an issue because they dispute on the color of the dog. So, in our example, the issue is, “who is the owner of the land.” Why? Because A says, “I am the owner.” B said, “No, you are not the owner.” A will have to prove that he is the owner. So, he will have to prove that he is the owner. If he (A) follows the rules in evidence, he has to prove every facts in accordance with the rules in evidence. For instance, we have a rule on how to prove a private document. The Rule says, Sec. 20, Rule 138, “No document offered as authentic document shall be admitted in evidence unless the genuineness and due execution of that document is proven. Q. How will these rules on discovery have shortened the time for proving facts in accordance with these rules in Evidence? A. After A have already received for instance, the answer and issues having been joined, this is what he will do, he will address a request for admission, B defendant.

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Greetings!! You are hereby requested to admit under oath within 15 days from receipt thereof the truth of the following facts: 1) A declared a lot for tax purposes per tax declaration #1234, City of Manila. 2) A has been paying the taxes of his lot as evidenced by tax receipts, copies of which are annexes A, B and C. 3) The genuineness of the document, copy of which is attached as annex “D” Copies of these private documents are now attached for admission. More particularly this is what A ask B in that request for admission. “You are hereby requested to admit that the signature over the name B in Annex B is the genuine signature of B.” A now is in possesion of these documents (The request for admission to which was attached a copy of the documents.) Q. What is the duty of B upon receipt of the request? A. Within the period granted to him under the written request, but no less than 15 days, B, if he denies the truth of these facts, he denies that A has declared his land for tax purposes, if he denies that the signature over the name of B is his signature, he will say there, “B denies the truth of the matters stated in the written request an denies that the signature over the name B in annex “D” is his signature. B serves his answer to A. Q. What will B do with that copy of answer? A. He must file it in court. (This is an innovation now, it was not so under the old rule) So, B will file his answer to the request and serve a copy thereof on A. Q. What would be the effect of the failure of B? A. To deny under oath the truth of these matters of facts, (the genuineness of the signature), He is cleared to have admitted the truth of those matters of facts. He is cleared to have admitted that the signature over the name of B is the genuine signature of him. Q. What would be the effect now of the failure of B to answer in demand within the period mentioned in the request? A. The truth of the matters of facts, the genuineness of that signature is cleared to have admitted them consequently. Q. Will A still have to prove during the trial that he declared the land for tax purposes, that he paid the taxes, will he (A) still prove the signature over the name of B is the genuine signature of B? A. No more. Why? Because these are admissions of facts judicially made. The rule is, facts judicially admitted do not require proof and cannot be contradicted, under the party making the admission is allowed to withdraw the admission because he can show that the admission that he made was a result of a palpable mistake or that he did not actually make an admission. Let us assume that B after he failed to deny made oath the genuineness of that document. Q. Can he (B) now prove during the trial that the signature is a forgery, that he did not affix that signature? A. No, why? Because you are not allowed to contradict your admission. So you will now appreciate how this request for admission can help discover the facts. This request for admission will shorten the proceedings. Why? Because if there is no denial under oath of the genuineness of that signature, there is no need for A to prove it, if there is no denial of he truth that A has declared the lot for tax purposes, there is no denial of the truth of the fact that A paid the taxes, A does not have to prove these facts anymore. They are deemed proven. Take note however, that there is a limited use for an admission. This admission of B is only for the purpose, in this case (A vs. B). It cannot be used as evidence against B in another proceeding. Under the rules on evidence, A cannot present B as his witness. This is allowed but this right of a party to utilize the adverse party as a witness is no longer absolute in the sense that there may be instances when a party cannot call on the adverse party as his witness. For instance in our example, A called on B as his witness, B objected. Reason: A did not send me any request for admission. B said, “Under Rule 26, I cannot be compelled to be a witness of A. I can only be compelled to be a witness of A if A sent one request for admission on matters of facts of which I have of personal knowledge.” Ruling object of B is sustained. He cannot be compelled. Q. Is the ruling correct?

A. Yes. Why? Because under the new rule now modifying the rules on evidence, before A can call on B as his witness, A should have first addressed to B request for admission of matters in issue of which B has personal knowledge. So A cannot call B to prove these matters within the knowledge of B unless A previously sent a request for admission to B on this matter. RENE NOTES:

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* The effect of a failure to make a reply to a request for admission is that each of the matters of which n admission is requested is deemed admitted. * each matter must be denied SPECIFICALLY under oath setting forth in detail the reason why he cannot truthfully admit or deny. USE: An admission under this section is for the purpose of the pending action only and cannot be used in any other proceedings. Rule 27 : Production or Inspection of Documents or Things Supposing in our example, A alleges in his complaint that he brought this lot in question from C, the father of B. B wants to see this supposed deed referred to in the complaint of A has evidence of his claim that he bought this lot from C. B said, “A can you kindly lend me for my securing this document you mention.” Q. Do you think A will agree? A. Of course, in all probability A will refuse. He will say, “You will have the opportunity to see this document in court when I present it as evidence. In the meantime, you (B) doubt that your father C sold this property. Since this is a document material to the claim of A. Q. Does A have the duty to produce this document even before the trial for the scrutiny of B, so that before the trial B can now have an idea whether this is a genuine document or not? A. Remedy, Rule 27 Under this rule, a party to a case for good reason shown may file a motion requesting the adverse party to produce a document or object under the control or custody of the adverse party. For what purpose? So that the party asking for the production of document may examine the document, may copy the document may photograph the document. Q. Is there a particular time when this motion on the part of B may be filed? A. No, unlike a deposition pending action or written interrogatories or request for admission, which fix a period within which his remedies may be amended of, Rule 27 does not specify the period when a party can avail of this remedy. Q. If you were B in this example, how would you avail of the benefits of Rule 27? A. This is what you will do: File a motion that A be required to produce that deed of sale he referred to. State in your motion the fact that this document referred to in the complaint contains evidence material to the case that this document is under the custody or control of A. State the reason why you want to examine it, and therefore pray that A be ordered to produce the document. Of course, the motion must be filed in accordance with Rule 15, it must be heard, i.e with due notice of A. On the day of the hearing, the court will hear the parties and thereafter will rule on the motion whether to deny the motion in which case A will not be ordered to produce the document or grant the motion, in which case the court will require A to do the following: 1. to produce the document before a specified person on a specific time, so that B can examine the document, photograph the document, copy the document if he (B) wants. Normally, when an order is issued by the court directing a party to produce the document, the document specifies the officer before whom the document should be produced. Normally, it is the clerk of court who is designated as the officer before the document should be produced. So in our example, the court may report A to produce that document before its clerk of court on a particular date and hour. The order will direct A to allow B to go over the document, copy the document, photograph the document. When? On the date and hour mentioned in the order. Where? Before the person named in the order. Q. Can B however take hold of this document and bring it home for scrutiny? A. No, he is only authorized to examine it before the clerk of court. Q. What will be the advantage of this examining?

A. If after B examining the document believes that that is a forgery, he can take steps to have this matter inquired into. So he can now, for instance, move that A be required to submit this document for examination by a handwriting expert. This rule equally applies within respect to real property or an object for that matter. Let us assume that A wants to see the land in question, which is now in the possession of B, for what purpose? To determine, for instance, how big is the area thereof developed or planted by B so that A can estimate the damages, that he may have sustained by reason of his having been deprived of the fruits of the property. Q. If you were A, you would approach B to allow you enter and see the land and have it surveyed. Do you think B will allow you? A. He will not. Q. A. Q. A. What is the remedy? A will file a motion. What is the prayer in the motion? That B be ordered to allow A to enter upon the land survey, etc.

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So with the entry now of A upon the land, he will be able to determine the extent of the cultivation of B. See, how their discovery will help A!!! RENE NOTES: PRODUCTION OR INSPECTION DOCUMENTS OR THINGS * essentially a mode of discovery OF SUBPOENA DUCES TECUM * means of compelling production of evidence * may be directed to a person whether a party or not * may be issued upon an ex parte application.

* the Rules is limited to the parties to the action * the order under this Rule is issued only upon motion with notice to the adverse party

Rule 28: Physical and Mental examination of Persons Rule 28 contemplates a situation where the mental condition or physical condition of a party is an issue. And the determination of that issue is required in order that a proper judgment can be rendered. Example: W sued the husband H for declaration of nullity of marriage on the ground of fraud. Why? Because whereas before marriage, H represented himself to be more than able to perform what is expected of a husband to the effect and dismay of W. The representation turned otherwise. Why? Because what was represented to be a “deadly weapon” turned out to be a “dead weapon”. So the answer of H is “Anong sinasabi ng asawa ko sa complaint ay hindi naman totoo.” So W moved, by filing a motion that H be directed to submit himself to an examination of his physical condition before Dr. X. Of course this motion must be with due notice to H. The examination was conducted out of curiosity, H obtained the copy of the report of Dr. X. Upon reading it, he has almost fainted. Why? Because the result confirmed the allegation of the wife. But H is one who is easily daunted by this adverse report, he said, “Tarantadong doktor ito. Saan kaya nag-aral ito hindi marunong. Kaya ko! Kaya ni Mister!” So he wanted to disprove. So what did he do? He engaged Dr. Y. What for? To examine him also on the matter in connection with which Dr. X examine him. The examination was finished. He got also a copy of the report, you could just imagine what happen now! Whereas when he got a copy of the report of Dr. X, he nearly fainted, now that he received the copy of the report of Dr. Y, he actually fainted! Why? Because the result of Dr. Y’s examination confirmed the findings of Dr. X. Trial………………….. W now called on Dr. Y. So in announcing the purpose for which she offered the testimony of Dr. Y, W said “W your honor, offers the testimony of Dr. Y to prove that H cannot do it.” H said “I object to Dr. Y’s testifying, I have not given him my consent to testify, so under the rules on evidence, he cannot.” The court overruled the objection and allowed Dr. y to testify on his findings. Q. Is the ruling of the court correct? A. Yes. Because by obtaining the copy of the report of Dr. X, H waived the benefit that he may have over the testimony of Dr. Y. So this is therefore a rule (Rule 28), which should be taken into account in relation to the rule on the confidentiality of the communication between a patient and a doctor. You remember the rule that a doctor of medicine, an obstetrician, a surgeon cannot without the consent of his patient testify on the following:

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1. The advice that the doctor gave to the patient; 2. The treatment that the doctor administer to the patient; 3. The information that the doctor obtained in the course of attending professionally to the patient when information was necessary to enable the doctor to properly attend to the patient and which information if revealed, would embarrass the patient. So this rule does not apply when Rule 28 is involved. Rule 28 therefore, qualifies the provision. RENE NOTES: * Where the party examined requests and obtains a report on the results of the examination the consequences are: (a) he has to furnish the other party a copy of the report of any previous or subsequent examination of the same physical and mental condition; and (b) he waives any privilege that he may have in that action or any other involving the same controversy regarding the testimony of any other person who has so examined him or may thereafter examine him. Rule 29 : Refusal to Comply with Modes of Discovery Rule 29 enumerates the sanctions that may be imposed by the court where a party does not comply to any of these modes of discovery. For instance, under Rule 23, when a witness in a deposition refuses to be sworn to or refuses to answer, Q. What are the sanctions? A. Under Rule 25 (Written Interrogatories) when a party to whom written interrogatories are addressed refused to answer, what are the sanctions against him. Under Rule 26, when a party to whom the request for admission is sent, denies the truth of the matters stated therein and subsequently the party making the request proves it. Q. What are the sanctions against the party to whom the request was given? A. When a party refuses to allow, in disobedience to a court order, the adverse party to examine a document or and object or to permit an entry into premises. Q. When a party refuses to submit himself when ordered by a court to examination of his physical or mental condition, what are the sanctions? A. In gist, these are the sanctions: Under Rule 29, the party who refuses may be arrested, the only instance where a party refuses may not be arrested is the case of the party who is required to submit himself to physical or mental examination, under Rule 28 when he disobeys, he cannot be arrested; in all other cases the refusing party may be arrested. Second, a party may be declared in default; Third, a judgment may be immediately rendered; Fourth, a complaint may be dismissed; Fifth, a party may not be allowed to introduce evidence to support Support a fact; Sixth, a contention of a party in connection with certain matters would be deemed established in accordance with his claim; Seventh, the party who refuses may be ordered to pay the expenses Party including attorney’s fees. Rule 30: Trial Unless otherwise provided by the court the order of trial is as follows: The evidence of the parties is limited to the issues in the pre-trial order. The only issues which the parties are allowed to present their evidence are those specified in the pre-trial order. That is why the pre-trial order if there are only two issues the parties cannot present any evidence on any other issues except on the issues in the pre-trial order. However, you take into account Rule 10 which allows amendment on pleadings to conform to the evidence. Just a reminder: there are two instances where issues are not raised in the pleadings may be tried in the court: 1. where an issue is tried by a party without objection on the part of the adverse party; 2. when an issue is tried by a party with the objection of the adverse party, but the court finds that the presentation on that merits of the case would best be served by allowing evidence to be received in this case.

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So, in these two (2) cases, these issues though not raised in the pleading may be proven during the trial. We go now to Rule 30 proper. Unless otherwise stated by the order of the court, the order of trial is as follows: 1) the plaintiff presents his evidence in support of his compliant; 2) thereafter the defendants will present their evidence on: a) their answer to the complaint, if there is any; b) their counterclaim, if there is any; c) their cross-claim, if there is any; d) their third-party complaint, if there is any 3) thereafter, the parties against whom counterclaims or cross-claims were pleaded, they may have to adduce their evidence in support of their answer to these claims; 4) thereafter, rebuttal evidence; 5) it may be followed by sub-rebuttal evidence; 6) oral arguments; or 7) in addition thereto, memoranda; 8) thereafter, decision. This is the order of trial. Let us apply it. Example: A vs. B A. 1. Complaint – Evidence in Chief 2. Answer to reply to Counterclaim – Rebuttal 3. Answer to Reply to Counterclaim of B – rebuttal evidence of B B. 1. Answer to complaint counterclaim vs. A 2. B rebut evidence of A 3. Cross-claim vs. C 4. 3rd party complaint 5. Ans. – reply to counterclaim – claim of C C. 1. Answer to complaint of A 2. Counterclaim vs. A 3. Answer counterclaim of B D. 1. Answer 3rd party complaint of B 2. Counterclaim vs. B A – Answer to counterclaim of B and C B – Answer to counterclaim of D C – Answer to cross-claim of C Q. What are the pleadings of A? A. A has only his complaint. Q. What is the pleading of B? A. His answer to the complaint, his counterclaim against A. There being a counterclaim against him (A), the other pleading of A is his answer or reply to the counterclaim of B. Let us apply the order of trial. Unless otherwise ordered by the court, the initial presentation of the evidence in chief is commenced by A. So A now presents his evidence first on his complaint. You call this as his evidence in chief. In other words, A must produce evidence to support the factual allegations in his complaint, which are disputed in the answer of B. Q. Will A now prove his defenses to the counterclaim of B? A. No. He (A) will limit himself to only his complaint. There will be a time for him to adduce evidence on the second pleading. After A finished presenting his evidence on the complaint, B, if he wants to, may now adduce his evidence. Q. Why do we say “If B wants to, he may adduce his evidence”?

A. Because B is not compelled to present his evidence.

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If A failed to adduce the quantum of evidence required to present, which is preponderance of evidence, B does not have to introduce his evidence, and still he (B) will win. Let us assume that B elects to present his evidence. Q. On what manners will he now present his evidence? A. He will adduce his evidence first with respect to his defense in his answer. So whatever defenses he alleges in the answer will be the subject matter of his evidence. After he has presented his evidence on these matters alleged in his answer, he may now adduce evidence on his counterclaim. After he has finished presenting his evidence on his counterclaim, he will now rest his case, in so far as the answer to a complaint is concerned. Q. Will this end now the trial? A. No, not yet. Why? Because A may present now his evidence on these matters (Answer or reply to B’s counterclaim because if B did not, then we say, there is no need for A to present his evidence in support of his answer to reply to the counterclaim. So the evidence in-chief now of B has also been terminated. Q. What follows next? A. Under the order…… Rebuttal evidence meaning A can rebut the evidence of B. B can rebut the rebuttal evidence of A. In actual practice, this is how it is done… you will note that, per rule 30, there is a separate stage for the presentation of evidence against the counterclaim, or evidence against the crossclaim. There is another stage for the presentation of the rebuttal evidence. So, if we follow the order, there will be three (3) stages when A would present his evidence. 1. When he present his evidence on his complaint. 2. When he present his evidence in support of his answer to the counterclaim. 3. Later, his rebuttal to the evidence of B. But in the actual practice where the parties are only the plaintiff and the defendant, when A is proving his answer to the counterclaim of B, he may at the same time present his evidence of B. So, in actual practice, these two (A presents his evidence, and at the presents at the same time the rebuttal are held simultaneously). Q. What are these rebuttal evidence? A. There may be evidence taken up when he presented his own evidence. So those matters taken up in the evidence in-chief of B, may now be rebutted by A. There may also be new matters taken up in the rebuttal evidence of A, in which case B can rebut these rebutting evidence of A. You call these rebutting evidence of B the Sub-rebuttal Evidence. After the evidence is in, then the court may order the case submitted for decision unless the court require parties either to orally argue or file a memorandum or require both parties to do both (orally argue and submit a memoranda). In our example for instance, there are two(2) defendants (B and C). Let us assume that B filed a cross-claim against C. Q. What will be the pleading of C? A. The pleading of C will be his answer to the complaint of A, and he will have his answer to the cross-claim of B. Q. This being the case, what would be the added pleading of A? A. He will have his answer or reply to the counterclaim of C. Q. How about B, what are the pleadings will he have? A. He will have his answer or reply to the counterclaim of C. During the presentation of B of his evidence, since he has a cross-claim against C, he will also produce his evidence in support of his cross-claim. So you will notice if he (B) has a cross-claim, this is the order of presentation of his evidence. His (B) evidence on his answer to the complaint of A, his counterclaim against A, his cross-claim against C.

C now will also present his evidence. First he will adduce his evidence in support of his answer to the complaint of A. He will present his evidence in support of his counterclaim against A. Q. Will he (C) now adduce evidence in support of his answer to the cross claim of B? A. Not yet. There will be a time for that. Let us assume that B has likewise a third-party complaint against D. Q. What will be the added pleading of B? A. He will have his 3rd party complaint.

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Q. How about the pleading now of D? A. He will have his answer to the third party complaint of B. He will now have his counterclaim against B. Q. What then will be the added pleading of B? A. He will have his answer or reply to the counterclaim of D. Order of Trial……….. The same things still with A in the order he presents his evidence to support his complaint and nothing else. Q. How about B? A. B will now introduce evidence on the following: 1. Answer to the complaint of A. 2. Counterclaim against A. 3. His cross-claim against C. 4. His third-party complaint against D. Q. How about C? A. Same (as before) Q. How about D? A. He will present his evidence in support of his answer to the third party complaint of B. He will now present his evidence in support of his counterclaim against B. This terminates the presentation of the evidence in chief of A, B, C and D. Q. Following that, who now will present his evidence? A. The parties against whom a counterclaim or a cross-claim have been pleaded. In our example, there is a counterclaim pleaded against A by B and C. So A now will produce his evidence in support of his answer to the counterclaims of B and C. Q. How about B, is there a counterclaim pleaded against him? A. Yes, the counterclaim of D. Q. How about C, is there a counterclaim pleaded against him? A. None, but there is a cross-claim. So C will produce his evidence in support of his answer to the cross-claim. Q. How about D, is there a counterclaim pleaded against him? A. None. So, the only persons who will present their evidence in support of their answers to the counterclaim or cross-claim are A, B and C. Following this, we go again to the same order Rebuttal, Sub-Rebuttal then oral argument or memoranda or both, then decision. This is the order of trial under Rule 30. Under Rule 30, the court may delegate the reception of evidence to a clerk of court who is a lawyer. This settles the conflicting decisions of the SC on the question of whether or not a clerk of court can be commissioned to receive the evidence. In one line of decision held that the clerk of court have such authority. Another line of decision tells that the clerk of court have no such authority. This provision now settles the question. The clerk of court can receive the evidence provided the clerk of court is a member of the Philippine Bar.

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Q. May judgment be rendered by the court without a trial during, which the parties may not present their evidence anymore? A. Yes, this is possible when for instance the parties stipulate on facts and the facts stipulated upon are enough to serve as basis of a judgment. Q. May a judgment be rendered on the basis of the stipulations of facts? A. Yes, provided the facts are sufficient as basis of a judgment. Grounds of Postponement You will note that under Rule 30 that a trial may be postponed on these two (2) grounds: 1. absence of evidence 2. illness of party or illness of a counsel

Q. What is the requirement in order that a motion based on these grounds maybe validly acted upon and granted by the court? A. The rule requires that the motion must be supported by affidavit. In case the ground is absence of evidence, the affidavit must state the materiality of the evidence that is not produced and the efforts exerted to. But even then, if the adverse party states that he does not have any objection to the facts supposed to be established by the testimony of the absent witness, although he may later on object to their admissibility the rule says, the motion for postponement should not be granted. The only problem on this rule is, it has been interpreted to be merely directory. Sometime however, during the incumbency of Chief Justice Marcelo Fernan, SC issued a circular directing judges of the trial court to implement this rule on postponement strictly meaning postponement should be granted except when there is a compliance with this rule that any motion for postponement based on absence of evidence should be accompanied with its required affidavit. The same thing is true when the ground of postponement is the ailment of the lawyer or of the client such motion for postponement may be granted or acted upon if it is supported by an affidavit showing that the presence of a counsel or a party before the court is necessary and that the character of the ailment is such as to excuse the non-appearance of the ailing lawyer or litigant. Again, the only trouble with this is, it is more often honored in its break than in its compliance. So, where a lawyer does not feel like going to court, then he justifies it. He presents a medical certificate. Where did he get this medical certificate? From a doctor friend who will say “Anong sakit gusto mo?” these doctors are not realizing that for falsely certifying they incur criminal liability under RPC. The lawyer is not realizing that for introducing in evidence this fake medical certificate he can also be held criminally liable. And worst of all, is a situation where the lawyer himself becomes a doctor. For instance, he cannot find immediately a doctor friend, he makes his own medical certificate. These things that actually happen practice. These are unethical practices!!! Just stick to the rule and you’ll never go wrong!!! RENE NOTES: Notice of Trial - Upon entry of the case in the trial calendar, the clerk of court notifies the parties at least five (5) days before trial. Limitation on Adjournments - one month for each adjournment - three months over all Exception Authorized by the Supreme Court administrator General Rule: The judge must himself personally receive and resolve the evidence of the parties. However, the reception of such evidence may be delegated under the following conditions: (a) The delegation may be made only in defaults or ex parte hearings or an agreement in writing by the parties; (b) The reception of evidence shall be made only by the clerk of that court who is a member of the bar; (c) said clerk of court shall have no power to rule on objections to any question or to admission of evidence or exhibits; and (d) He shall submit his report and transcripts of the proceedings, together with the objections to be resolved by the court within ten (10) days from the termination of the hearing. Suspension of Actions Article 2030 NCC Every civil action or proceeding shall be suspended

1. if willingness to discuss a possible compromise is expressed by one or both parties; or 2. if it appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a possible compromise but the other party refused to offer. Rule 31: Consolidation or Severance

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Q. When does consolidation take place? A. If two or more cases have between or among them common questions of fact or of law, they may be consolidated in one court. Example: A collision took place between the vehicles driven by A and the vehicle driven by B. These were both passenger buses. As a result of the collision, damages were suffered by the buses and the passengers. So A now sued B in the RTC of Quezon. The passengers who were injured as a result of the collision, X, Y and Z, sued A and B in the RTC of Cavite. Q. What is the fact common to both cases? A. They originated from one and the same incident, i.e… the collision. Q. May the two cases be joined? A. Yes. Q. In what court? A. Either in the court of Quezon or in the court of Cavite. In this particular case, SC ordered the consolidation of these two cases in the RTC of Cavite. Why? For practical purposes to minimize expenses. Why? Those who filed the case in Cavite are residents of Cavite. If they were to go to Quezon, if these case is consolidated there, that would entail much expense to the party. On the other hand, these parties in the court of Quezon both being bus companies could afford the expenses of going to Cavite. If these cases were consolidated in Cavite. Q. What is the justification for the consolidation here? A. There is a common question of fact or of law common in both cases. See, what would happen if cases were tried separately. The possibility of a judgment rendered by Quezon RTC being different from the judgment rendered by the Cavite RTC insofar as the cause of the accident is concerned may be conflicting, so to avoid this (the possibility of conflict) it is better that these two cases be tried by only one court so that there will be no possibility of conflicting decisions. When cases are consolidated in one sala, Q. What would be the proper method for the court to adopt in resolving these cases? A. The court where the cases are consolidated may try all the cases at the same time and render only one judgment. In this example, the Cavite court could try the Quezon case and the Cavite case at the same time, render only one decision as if these two cases are only one. There is another method of consolidation. This presuppose that there are several cases of the same nature. Under this option, the court where the cases are consolidated may try only the principal case, to receive the evidence of the principal case leaving unheard the other cases. Say, if there are five (5), under the second mode of trying these cases, the first case (the principal of them) will be heard first, leaving untried the four (4) other cases. After the main case has already been tried, then the court will render only one judgment. Q. Is a court obliged to hear cases for consolidation? A. Under the old rule, if the Cavite Court did not want to hear Quezon case, the Cavite court cannot be compelled to try. The theory is that the court cannot be compelled to hear the case of another court. Under the present ruling, no more. As a matter of fact when consolidation is proper, consolidation is mandatory. This is the concept of consolidation. Q. What is severance? A. It is the opposite of consolidation. In a case of severance, there may be several claims or several reliefs in which case, instead of the court conducting a hearing on all the claims at the same time it will limit itself to the hearing of a particular claim. .

A vs. B. The complaint alleges three (3) causes of action. These different causes of actions and you know under the rule, a party can join all these causes of action against another in only one complaint subject only to the conditions of joinder. There is this complaint of A involving three (3) causes of action. Normally the trial would be conducted on all these causes of action and thereafter the court will render only one judgment. But under this severance, court may hear only one cause of action remaining unheard the other causes of action. In our cases here, B now has a counterclaim against A in respect to his first cause of action. Under this rule on severance, the court will try this first cause of action, including the counterclaim of B. After the reception of evidence in this first cause of action, the court will now render judgment leaving undecided these two cases (these two causes of action). Thereafter, the court again can hear these other causes of action. In other words, it is a trial by installments. In the meantime that this case is decided and these two other causes of action are not yet decided. Q. Can this be the subject of enforcement already on it, can be the subject of an appeal? A. Yes, but the court can suspend the enforcement pending the disposition of these two other causes of action. This is how the rule works. RENE NOTES: General Rule: Consolidation is discretionary with the trial court. Exception: When consolidation a matter of duty: 1. when tried before the same judge; 2. if filed with different branches of the same court having jurisdiction and one of such cases has not been partially tried. Three Ways of Consolidating Cases a) by recasting the cases already instituted, conducting only one hearing and rendering only one decision; b) by consolidating the existing cases and holding only one hearing and rendering only one decision; c) by hearing only the principal case and suspending the hearing on the others until judgment has been rendered in the principal case (Test-case method). Rule 32: Trial by Commissioner

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Q. What is the situation contemplated here? A. Take note that under Rule 30 the reception of the evidence is by the judge himself or the court may in case of a default case, delegate the reception of the evidence to the Clerk of Court, who is a member of the bar. Under Rule 32, the party who receives the evidence is other than the judge. It is a third person called the Commissioner. Q. When may the case be tried by a “Commissioner”? A. Where the parties agreed in writing that a commissioner be appointed. Supposing the parties did not agree in writing that a commissioner be appointed or that one wants a commissioner to be appointed, but the other refuses, or both refused to agree to a commissioner. Q. May a commissioner nevertheless be appointed? A. Yes. There are three (3) instances when the court can appoint a commissioner even without the written agreement of the parties or even over the objection of the parties. They are the following: 1. where there is a need for the reception of evidence consisting of a long accounts either from one or both of the parties; 2. when the taking of the accounts is necessary for the purpose of informing the court before judgment is rendered, or of purposes of carrying a judgment into effect; 3. when a question of fact other than upon the pleadings arises upon motion or otherwise in any of stage of a case. This last situation contemplates that a motion is filed based on facts not on record. Then in the hearing on this motion a commissioner may be appointed to receive the evidence. These are the three (3) situations where a commissioner may receive the evidence even over the objection of the parties. Q. What is the extent of the power of the commissioner? A. The general rule is, his powers are specified in the order appointing him. What he can do are specified.

Supposing, however, the order does not say anything with respect to the limits of his authority.

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Q. What then is the authority of the commissioner? A. In effect, the commissioner here would be acting as if he were a judge actually trying the case. As a matter of fact, he may even resolve the objections to the admissibility of evidence. That is why this is governed by this rule. When a reference is made, the clerk shall forthwith furnish the commissioner with the copy of the order of reference. The order of reference here is the order issued by the court appointing a commissioner and stating the commissioner what he is supposed to act on. So, if the specific issue for instance is the only matter in connection with which he is authorized to receive evidence, then it is only in respect to that issue he may receive the evidence. Example: A vs. B. The court may refer the reception of evidence with regard to the case in its entirety. Supposing there are three (3) issues raised. The court may refer this case to a commissioner for a trial of, let’s say only of issue #1. So, this issue is the one, which is referred to the commissioner. That is what referred to here as the “order of reference.” Sec. 3 Rule 32 When a reference is made, the clerk shall forthwith furnish the commissioner with a copy of the order of reference. The order may specify or limit the powers of the commissioner, and may direct him to report only upon particular issues, or to do or perform particular acts, or to receive and report evidence only, and may fix the date for beginning and closing the hearings, and for the filing of his report. Subject to the specifications and limitations stated in the order, the commissioner has and shall exercise the power to regulate the proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may issue subpoenas and subpoena duces tecum, swear witnesses and unless otherwise provided in the order of reference, he may rule upon the admissibility of evidence. The trial or hearing before him shall proceed in all aspects as it would if held before the court. So that in what he can do (underlined provision) if he is not restrained by the order, he can rule on the admissibility of evidence. In short, the commissioner conducts the hearing as if he were a judge. What the judge can do, generally, he can do. Q. What is the first then that the commissioner does when he receives the order of preference involving parties to a conference? A. Conference must be held not later than ten (10) days from his receipt from order of reference. Before the commissioner sets the date of the hearing, the parties will appear before him, so he will conduct the trial. So he finishes the trial. Q. What shall he now do? A. He will now prepare a report. Submit the report to the court. Q. A. the the What is this report all about? The report concerns the proceedings that were conducted before him. If he is not prohibited by order of preference, he can submit his findings of fact. It is as if he was the one who evaluates evidence. So, he forwards then to the court the entire records including the transcripts of the proceedings, the exhibits if there are any. Q. What is the duty of the Clerk of Court upon receipt of this report? A. The Clerk of Court is mandated to furnish to the parties A and B copies of the report. Q. What for? A. So that A and B can make their comments on the report of their objections to that report. They can do this within ten (10) days from their receipt of the copy of the report. Q. What shall be done with this report upon the filing of these comments/objections or upon the expiration of the period of the filing thereof? A. The court will now set the report for hearing. After the hearing, the court will resolve the report, either to approve the report or disapprove the report, recommit the report to the commissioner or require the parties to present their evidence either before the commissioner himself or before the court itself. Q. What is meant by this? A. The report is not binding on the court, it is merely recommendatory.

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Sec. 10 Rule 32 Upon the filing of the report, the parties shall be notified by the clerk, and they shall be allowed ten (10) days within which to signify grounds of objections to the findings of the report, if they so desire. Objections to the report based upon grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions therein set forth shall not be considered by the court unless they were made before the commissioner. Sec. 11 Rule 32 Upon the expiration of the period of ten (10) days referred to in the proceeding section, the report shall be set for hearing, after which the court shall issue an order adapting, modifying, or rejecting the report in whole or in part, or recommitting it with instructions, or requiring the parties to present further evidence before the commissioner or the court. (Thereafter the court will decide the case.) RENE NOTES: * Refusal of witness to testify or give evidence – deemed indirect contempt of the court which appointed the commissioner. Rule 33: Demurrer to Evidence Q. What is the situation contemplated by this rule? A. After the plaintiff has rested its case, it is now the turn of the defendant to present his evidence. In our example, A finished presenting his evidence. A said “I now rest my case, your Honor.” Meaning, A has no further evidence to adduce. So, for instance, his witnesses are X, Y and Z. Then he have exhibits “A”, “B” and “C”. So after these three (3) (X, Y and Z) finished testifying, he (A) will formally offer his documentary exhibits. A will say, “I have no more testimonial evidence to offer, I now present formally my documentary exhibits.” Court: What does B say? B: “I do not have any objection, Your honor.” Court: “Proceed A” A: “I offer, your honor, the following exhibits: “A”, to prove the following; “B”, to prove…; “C”………..” Court: What does B say? B: “I have no objection.” Or “I object to Exhibit “C”. (When you object always state the legal ground. You cannot say. “I object” and then sit down. Court: What is the ground? B: “Bahala na kayo judge!” You must state the ground for objections so that the court may rule on whether the objection is proper or not, because an objection may be proper but the ground is improper. It is proper to object, but the ground raised is improper. So the court will overrule the objection. This is the reason why the objection should always be stated with its respective ground. The objection can be ruled upon only on the basis of the ground relied. Court: “Exhibits “A”, “B” and “C” are admitted.” Q. What is now the next thing for B to do? A. It is now the turn of B to present his evidence if he wants to. Why “if he wants to”? Because he (B) may not like to present his evidence. You cannot compel him because a party has to choose the evidence he presents. He cannot be compelled. So, if he (B) does not want any evidence, no power on earth can compel him. But instead of immediately saying, “I will not present any evidence,” he wants to test whether the evidence of A is sufficient or not. Q. What legal device is he allowed to utilize? A. Demurrer to evidence. Q. What is the concept of demurrer to evidence? A. When B files a demurrer to evidence, he simply says in effect. The evidence of A consisting of the testimonies of X, Y and Z and the document exhibits “A”, “B” and “C” even if given all their weight they are utilized to is not simply sufficient to prove the case of A. Therefore, it is useless for me to present my evidence because under Rule 133, it is the duty of A to discharge the burden of proof and since he failed, it’s not my duty anymore to prove my defense. This is the assumption when B files the demurrer to evidence. The evidence of A is insufficient, therefore the complaint must be dismissed. The court has options in ruling on this demurrer to evidence. It may deny the demurrer to evidence.

Q. What is the implication of its denial of the demurrer to evidence? A. From the point of view of the court, the evidence of A is sufficient prima facie to support his case. The court may grant the demurrer. Q. What is the implication of the order of the court granting the demurrer? A. It is a pronouncement by the court that the evidence of A is not sufficient to prove his case. Q. What then would be the effect of grant? A. The complaint of A is dismissed. But this order of dismissal may be appealed by A.

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The possibilities are, the appellate court may affirm the order of dismissal or it may reverse the order of dismissal, it simply means that the appellate court agrees with the trial court that the evidence of the plaintiff is insufficient. And so, the complaint remains dismissed. The trouble arises when the order says, the order of dismissal is improper. Therefore, the order of dismissal is reversed. Q. What is the implication of that? A. The implication is, that the evidence of A is sufficient to prove his case. So, the order of dismissal is set aside. Q. What is the effect of the reversal order of dismissal on the right of B to present his evidence? Can he present his evidence or not? A. He cannot present his evidence, because by electing to file the demurrer to evidence, he in effect submitted the case for decision solely on the basis of the evidence of the plaintiff (A). But supposing in our example at the time B filed the demurrer to evidence, he said, “in the event the demurrer to evidence is granted and the order of dismissal is reversed, reserved the right to present my evidence.” Q. Will this reservation allow him to present his evidence? A. No. You cannot reserve the right to present evidence in the event the order of dismissal is reversed on the appeal. RENE NOTES: DEMURRER TO EVIDENCE * it is presented after the plaintiff has rested his case * the ground is based on insufficiency of evidence TWO KINDS OF DEMURRER TO EVIDENCE CIVIL CASES 1. defendant need not ask for leave of court 2. if the court finds the plaintiffs evidence insufficient, it will grant the demurrer by dismissing the complaint. The judgment of dismissal is appealable by the plaintiff. If the plaintiff appeals and judgment is reversed by the appellate court, it will decide the case on the basis of the plaintiff’s evidence with the consequence that the defendant already loses his right to present evidence. No res judicata in dismissal due to demurrer. 3. if court denies demurrer, defendant will present his evidence. MOTION TO DISMISS * presented before a responsive pleading (answer) is made by the defendant * it may be based on any of those enumerated in Rule 16 CRIMINAL CASES 1. leave of court is necessary so that the accused could present his evidence if the demurrer is denied. 2. if the court finds the prosecutions evidence insufficient, it will grant the demurrer by rendering judgment acquitting the accused. Judgment of acquittal is not appeallable; double jeopardy sets in.

3. if court denies the demurrer (a) if demurrer was with leave of court, accused may present his evidence; (b) if demurrer was without leave of court, accused can no longer present his evidence and submits the case for decision based on the prosecution’s evidence.

Rule 34: Judgment on the Pleadings

This rule presupposes that the answer of the defendant does not tender any issue. Before that, the answer against the material allegations in the complaint.

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Example: A vs. B. This is an action for recovery of sum of money. The complaint alleges in substance that A extended a loan to B as evidence by a promissory note signed by B. A copy of that promissory note is attached to complaint as Annex “A”. B has not paid the loan notwithstanding demand on him to do so, the period for the payment thereof having already become due. Q. What is now the prayer of A? A. That a judgment be rendered against B to pay the amount of promissory note. Q. What is the answer of B? A. B denies all the allegations in the complaint. Q. What is his (B) prayer now? A. That the complaint of A be dismissed. Q. Is there an issue tendered by the answer of B? A. Under the rule on denial, was there a specific denial of the allegations in the complaint? None. Why? Because for a specific denial, to be specific, the rule require the defendant to do any of the following: 1) specify the matters he denies; 2) allege the facts in support of his denial. If the allegation is made up of two or more facts, part of which he admits, part of which he denies, the rule requires him, specify so much of the allegation that he admits as true and deny the rest. 3) if he is not in a position to state whether he admits or denies the allegations, he is required to state that he has no knowledge sufficient to form a belief as to the truth of the allegation in the complaint. This kind of denial is the effect of the specific denial. This kind of denial is the effect of the specific denial. Q. Did B complied? A. No. This is a general denial. Q. What is the effect of a general denial? A. An admission of all the allegations. Since the promissory note is an actionable document because that is the basis of the action of A,… Q. What is the effect of failure of B to deny under oath the genuineness and due execution of this document? A. He is deemed to have admitted the genuineness of the note. So, he now admits for his failure to deny under oath the promissory note. So, there is nothing to be proven by A here, everything is already admitted. In this case, A may now file a motion that a judgment be rendered on the basis of only what is alleged in the complaint. Q. Will the court receive evidence either for A or B before judgment can be rendered? A. No more. There is no reception anymore. This is how the judgment on the pleading is rendered. There is one limitation, however, with respect to judgment of the pleading, where damages, which are not liquidated are alleged and attorneys fees are also asked to be paid, but there is no proof of this amount of the unliquidated damages. Q. Can there be a judgment including damages and attorneys fees done in which case if the plaintiff wants a judgment include attorneys fees and damages he must produce evidence? A. We have a rule with respect to attorneys fees that, not every litigant who prevails in the case is entitled to attorneys fees, because to do so would be to make prejudice on the right of A. For attorneys fees to be awarded, the basis thereof must be stated in the decision. In other words, the decision must always state attorneys fees awarded the basis thereof. In the absence of that justification, no award of attorneys fees can be rendered unless the attorneys fees is considered as liquidated damages. Again, in the case of unliquidated damages, you have to prove the amount thereof. In the absence thereof, you cannot render a judgment of the pleadings on damages. RENE NOTES: What cases not applicable: 1. nullity of marriage 2. annulment of marriage

3. legal separation - Material facts of the complaint shall always be proved. Rule 35: Summary Judgments

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Q. What is the concept of summary judgment? A. A summary judgment is one, which is rendered by the court on motion of a party, either of the plaintiff or the defendant where there is actually no genuine issue between the parties. In this case, a judgment is rendered on the basis of evidence which is not receive in the manner that evidence is received under Rule 30 (Trial) Remember that we took up in Rule 30, a plaintiff must present his evidence, the defendant must assert his evidence, thereafter, the court will decide the case. The reception of evidence is governed by Sec. 34 of Rule 1331 (Presentation of Evidence). In a summary judgment, when a judgment is rendered, there is evidence received but it is evidence, which is not formally offered in evidence. Q. Who is entitled to a summary judgment? A. Either the plaintiff or the defendant. In the case of the plaintiff, the defendant who has a counterclaim, the plaintiff who has a right to a declaratory relief may file a motion for summary judgment. When? After an answer to his claim has been served on him. Example: A vs. B (For Sum of Money) The allegations in the complaint are substantially as follows: A extended a loan to B. B signed a promissory note to evidence the loan. The period for payment of the loan has already expired and demands notwithstanding, B failed to pay the loan. Q. What is the prayer now of A? A. That judgment be rendered ordering B to pay him the amount of loan. Q. What is the answer of B? A. B denies the allegations in the complaint that he obtained money from A; that he signed the promissory note, Annex “A”. That the demand was made. Q. What is his (B) defense? A. If there was any loan extended to me (B), he already paid the loan. From the face of the pleadings, there are issues: 1) Did he (A) extend the loan? 2) Did he (B) sign the promissory note? 3) Did he (B) pay if there was a loan? Under Rule 30, a trial should be held during which A and B are to prove their respective sides of the issues. But the truth however is this: That A indeed gave a loan to B. That B indeed signed the promissory note. That B did not pay the loan. Q. What is the remedy available to A, so that even without a formal presentation in evidence by A and B, a judgment may now be rendered in favor of A? A. Under Rule 35, this is the remedy available to A… Let us say A takes the deposition of X under Rule 23. Q. What did X say in his deposition? “I was asked by A to go to B and collect from him the amount covered in the promissory.” B replied to me, “Tell A that I will pay him after I have sold the tobacco leaves I expect to harvest from my land.” I went back to B on the date he specified. B said, “I cannot pay A because I was not able to harvest any tobacco leaf. Why did I not harvest? Because I did not plant!” This is the deposition. A sent a request for admission to B. To B, (defendant) Greetings! You are hereby requested to admit the truth of the following statements: 1) That X went to you to demand in my name that you pay the promissory note;

2) That you told him that you will pay me after you shall have sold the tobacco leaves you expect to harvest from your farm; and 3) That he went back to you on the specified date and you told him that you cannot pay me because you have not planted any tobacco in your field 4) That you do not have any receipt showing that you paid any amount.

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Q. What do we learn about the request? A. That B did not send A within the time mentioned in the request any denial under oath of the matters referred to in the request. A now executed an affidavit. Q. What is the content of the affidavit? A. The matters related to the law, the failure of B to pay, execution by B of the promissory note, the fact that X went to B to demand payment and the answers of B to the demands of X. Q. What do you notice now? A. A now has in his hands the deposition of X, the request for admission, the affidavit of A. Q. What does A now do with these papers? A. He will attach them now to a motion in which he prays for a summary judgment. Q. What does A do with this motion to which are attached these documents? A. He will file them and serve a copy thereof on B at least ten (10) days before the hearing of the motion. It means to say, that a motion for summary judgment being litigated must be set for hearing strictly in accordance with Rule 15. Note that under Rule 15 (Motions), a motion should be heard not later than 10 days after it is filed. This Rule 35 is an exception to the Rule 15. Why? Because you cannot hear the motion for summary judgment within 10 days from its filing. Why? Because between the filing and the hearing, a period of not less than 10 days must first elapsed to allow the defendant to file his opposition if there is any to the motion. Q. What shall B do after he have been served? A. If he (B) so desires, he may also file an opposition to the motion for summary judgment. Like A, he may also support his opposition with his sworn affidavit, deposition, or other documents. Q. What will B do with the opposition? A. Naturally he must file it with the court and serve on A a copy later on. On the appointed day of hearing, which is not earlier than 10 days following the filing thereof… Q. What shall the court do? A. The court will now hear the motion. Q. How will the court proceed to hear the motion? A. This is what the court will do: It will examine the complaint, the answer, the motion for summary judgment and the documents attached thereto, the opposition if any and the documents attached thereto. The court will examine both and if the court find from the documents, the pleadings and the documents attached to the pleadings and motions and oppositions, the court finds that except to the amount of damages the plaintiff is entitled as a matter of law to a judgment because the issues raised are not substantial but they are merely sham, then the court will render a judgment in favor of the plaintiff. But if the court examined the pleadings, documents attached to the motions and oppositions and finds that they are disputed and therefore cannot render a judgment on the call of the motion, then the court will, in addition to examining the records shall determine what are the facts that are not substantially disputed, separate them and determine the facts which are not disputed, thereafter the court will conduct a trial on the matters that are disputed and thereafter render the judgment. See now why it is summary. Because there is no reception of evidence if the court finds from the pleadings that a judgment can properly be rendered in favor of the plaintiff. Q. What now would be the basis of the judgment? A. Only the pleadings and the documents attached to the motion and the documents attached to the opposition if there is any.

Q. Did you notice in our example whether these documents attached to the motion or to the opposition were personally offered? A. No, they were not formally offered. They are merely attached.

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Q. What do we learn about the “offer of exhibits”? A. No evidence shall be considered unless the offer is made and the purpose of the offer is specified. Here there was no purpose, here the purpose was not specified, but they were introduced. That is how summary judgment works. In our case, it was the plaintiff alone who filed it. Q. When will A file his motion for summary judgment? A. After B has served his answer on A. Q. Cannot B also file a motion for summary judgment? A. Yes, the rule says, “at any time.” Q. Does that (“at any time”) mean that even before B has served his answer on A, he can now file a motion for summary judgment? A. Yes. This is the distinction between a motion for summary judgment on the part of the plaintiff and the motion for summary judgment on the part of the defendant. In the case of the plaintiff, he cannot file the motion for summary judgment until he has been served the answer. And this is for obvious reason, how can A determine whether there are issues generally raised if there is no answer which have been filed. But in the case of the defendant, no! He does not have to file the answer, because on the basis only of the complaint, a summary judgment can be effected. A subject for a summary judgment on the part of the plaintiff is not limited to the claim he has against B (defendant). It may also include a claim arising from a right involving a declaratory relief. Summary judgment for claimant. A party seeking to recover upon a claim, counterclaim or cross-claim or to obtain a declaratory relief may any time after the pleading and answer thereto has been served, moved with supporting affidavit, depositions, admissions for summary judgments in his favor upon all or any party thereto. Q. How does this rule that a summary judgment may be obtained in case of a counterclaim or a cross-claim arise? A. In our example for instance, in this action for money, B has a counterclaim against A. Q. Can B file a motion for summary judgment on this counterclaim? A. Yes. Q. When? A. After A has served on B his answer to the counterclaim, then B can move a summary judgment on the counterclaim. Let us suppose that B has a cross-claim against C. Q. Can B file a motion for summary judgment on the cross-claim against C? A. Yes, after C has served on B his answer to the cross-claim. Q. What will be the procedure? A. The same procedure that may be adopted by A if he files a motion for summary judgment against B. The right to file a motion for summary judgment belongs both to the plaintiff and the defendant. The only difference being that, in the case of the plaintiff, he can file a motion only after he has been served with the answer to his claim. In the case of the defendant, he can file his motion for summary judgment at any time even before he serve his answer. A counterclaimant, a cross-claimant can likewise file a motion for summary judgment with respect to the counterclaim, with respect to the cross-claim at anytime after an answer thereto has been served on him. RENE NOTES: * Summary Judgment is especially applicable to special civil action for declaratory relief. * Proper only in actions 1. to recover a debt 2. for a liquidated sum of money 3. for declaratory relief

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SUMMARY JUDGMENT * based on the pleadings, depositions, admissions and affidavits * available to both plaintiff and defendant * there is no genuine issue between the parties, i.e. there may be issues but these are irrelevant * 10-day notice required * may be interlocutory or on the merits JUDGMENT ON THE PLEADINGS * based solely on the pleadings * generally available only on the plaintiff, unless the defendant presents a counterclaim. * there is no issue or there is an admission of the material allegations. * 3-day notice required * on the merits JUDGEMENT BY DEFAULT (Rule 9) * based on the complaint and evidence, if presentation is required * available to plaintiff

* no issues as no answer is filed by the defending party. * 3-day notice rule applies * on the merits

Rule 36: Judgments, Final Orders and Entry Thereof Section 1. A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly, the facts and the law on which it is based, signed by him and filed with the clerk of court. Section 1 of Rule 36 provides that the court must render a judgment. The rule requires that the judge himself must personally prepare the judgment. Q. Does this mean that the rule requires the judge to be a typist or stenographer? A. No. Why? The requirement that the judge must personally prepare the judgment simply says that the judge must be the one to ascertain the facts that are established by the evidence. The judge for instance, cannot commission the clerk of court to study records of the case, evaluate the evidence and then write the decision. The rule requires the court to examine the records and evaluate the evidence, come up with the conclusion and thereafter make the decision. The mechanical act of writing a decision can be delegated to a third person. So, this is how it is done. The judge examines the evidence hereafter arrives at a conclusion. Q. So what does he (judge) do? A. He now calls on his secretary or his stenographer and dictate to the stenographer. The stenographer thus writes the decision. Thereafter the judge signs it. Q. Is this a decision that must be personally prepared by the judge? A. Yes, because the rule does not require he (judge) would be the typist or stenographer, otherwise he would not have devoted so many years of his life studying law only to become a typist or a stenographer. The rule further requires that the judge must make in his decision the complete findings of fact. Q. What is meant by this (complete findings of fact) ? A. A complete finding of fact presupposes that the court has studied the evidence and found out what the facts that have been established in by the evidence. What the law requires him to do is to make a finding of facts. The rule does not require him to make a conclusion of facts. For instance, the issue is whether A is the owner of the land in question. The court now assesses the evidence of A consisting of the testimonies of X, Y and Z. Evidence of B consisting of the testimonies of C, D and E. Exhibits of A are Exhibits “A”, “B” and “C”. Exhibits of B are Exhibits “1”, “2” and “3”. This is what the court wrote in the decision… “After going over the evidence presented by A and B, the court finds that A is the owner of the land. Wherefore, judgment is rendered declaring A the owner of the land and ordering B to surrender its possession to A. The court further orders B to pay A in damages in the amount of P1,000,000.01.” Q. Is that a findings of fact? A. No. That is a conclusion brought on the evidence. Q. What would have been the findings of fact here?

A. The court should have stated in the decision the basis of its findings that A is the owner.

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Q. In this example, is there anything said in the decision, which supports the conclusion of the court? A. There’s nothing. So that when B for instance, appeals from the judgment, what will be the basis of his assigned error when there is nothing in the decision for which an error may have occurred. This is what the court should have done to support its conclusion that A is the owner of the land. For instance, it will say, “the evidence shows that this land originally belonged to X, the father of A. This land is covered by a Certificate of Title in the name of X. (exhibit “A”), X paid the taxes of this land. (Exhibit “B”) A has been in possession of this land until he died 1980. After the death of X, A, his son, took possession of the land. So, from this, you can infer why A is the owner. Those statements after the findings of fact. Those are supposed to be stated. A judgment should be in writing, dated and signed by the judge. Unless it is in writing and signed by the judge and dated, it is not a judgment at all. Q. Supposing the court promulgated a judgment in open court, is that a valid judgment? A. No. Why? Because a judgment is supposed to be in writing and duly promulgated. As long as the judgment, though signed by the judge is not promulgated, it is no judgment … Q. When is judgment deemed promulgated? A. A judgment is deemed promulgated on the day the judge gives his judgment or decision to the clerk of court. It Is the filing of the judge with the clerk of court that constitutes the promulgation thereof. In our example, the court render judgment in favor of A, already signed, but kept his judgment on his chamber. Q. Is this a judgment within the meaning of Rule 36? A. No. Why? Because it has not been delivered to the clerk of court. Supposing the judge delivers this to the clerk of court, Dec. 1, 1998. Q. When is the judgment deemed to have been promulgated? A. On this day, Dec. 1, 1998. It’s the delivery of the judgment to the clerk of court that constitutes its promulgation. Q. What are the parts of the judgment? A. You have the following: 1) opinion of the court; 2) dispositive portion of the judgment; 3) date of judgment; and 4) promulgation Q. What is meant by the opinion of the court? A. The opinion of the court consists of the findings of fact of the court. Its findings of facts would be the basis of dispositive portion of the judgment. For instance, A. vs. B. The court rendered a decision. The first part of the judgment is the discussion of the court of the evidence. Supposing, from its discussion the court concludes that A is the owner of the land. Q. What now is the judgment of the court here? A. It is that part of judgment or decision which adjudicates the rights of the parties. It says here… “WHEREFORE, the court hereby renders judgment declaring the owner of the land.” This is the judgment. This is the adjudication of the issues of the parties. Q. Is it possible that there be a contradiction between the opinion of the court and the judgment of the court? A. Yes, it is possible. For instance, in our example here, the discussion and the opinion points to this conclusion that A is the owner of the land. But the dispositive portion says, “Wherefore, the court hereby declares B the owner of the land and dismisses the complaint.” You will notice that there is a discrepancy between the opinion of the court and the dispositive portion. Whereas the opinion of the court the discussion of the court, A is the owner, and in the dispositive portion, he is not the owner, it is B.

This reminds Judge Laggui of an incident where the counsel for the accused appeared for preliminary investigation in the case of theft of large cattle. The owner of the cow supposedly stolen engaged a private counsel. The private counsel appeared for a preliminary investigation. Because there was no prosecutor representing the state, the counsel for the accused moved that the private counsel be disqualified on the theory that private counsel cannot appear for the state unless the public prosecutor has authorized him to do so. Since the public prosecutor was not in court and there was no authority of the private counsel to represent the state he has brought to present the evidences of the state. After arguments, the court ruled the motion to disqualify the private counsel is denied. However, the counsel for the private party is required to first secure the authority of the fiscal before he can proceed. (Notice that the opinion varies with the dispositive portion. The dispositive portion should prevail) Q. What’s the concept of several judgments? A. In the case of several judgments, there are two or more defendants and the liability that they have with respect to the obligation is joint.

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In case like this, (joint) a judgment may be rendered against one or some of them in the meantime, the case against the others may be held in abeyance and thereafter, another judgment may be rendered. Example: A is the creditor of B and C. The liability of B and C is joint. Let us say, they argued a promissory note in favor of A for P500,000. Let us assume that A prosecute his case against B only because in the meantime C although sued and inspite his answer in that in the meantime, in the jurisdiction of the court. So the court tries the case with respect to B only. Q. Can this be done? A. Yes. Q. In the meantime that this case against B is being heard, what becomes of his case in so far as A and C are concerned? A. Its suspended. So this case by A against B can proceed to finality. So the court can tender a judgment at here. When C is back in the Philippines, the court may now hear the case against C and another judgment may now be rendered. Since the liability is joint, the judgment that may be rendered here will only cover the liability of B to the extent of P250, 000. So the court rendered a judgment against B in favor of A. the judgment will be limited only to P250,000.00, it will not affect the other P250,000.00 which pertains to C. so when the court renders its judgment with respect to C, the court will limit its judgment to the amount of P250,000.0 corresponding to the liability of C. Q. So what do you notice here? A. There are two judgments. One with respect to A and B and the other with respect to A and C. So we call these judgments here several judgments. This applies only where the liability of the defendant is joint and severable. If the liability is solidary, this cannot be done. So if the obligation of B and C is solidary. Q. Can you have this case? A. No. You render a judgment only one. Q. How about separate judgment, what is the difference between a separate judgment and a several judgment? A. Example: The causes of action of A are 1, 2, 3. So there are three causes of action against B. B has several defenses. Let’s say, permissive counterclaim against A. Q. What can be done in the trial of this case? A. The court may conduct a trial with respect to these first two causes of action holding in abeyance the hearing on the third cause of action. After the court has heard all these (two causes) causes of action including counterclaims that A had been raised with respect to these two causes of action. Then the court will render a judgment on these two causes of action holding in abeyance the hearing on the third cause of action. Thereafter, the court will hear this third cause of action. So you will see that there is already a judgment on the first two causes of action. Then the court will render a judgment on this third cause of action.

The court will also hear separately the permissive counterclaim and thereafter render a judgment thereof. Q. So how many judgments now do you have? A. There are three (3). So you have separate judgments. Q. What do you consider as the difference between separate judgments and several judgments? A. In separate judgments, what is several are the causes of action or claims or counterclaims. In the case of several judgments, what are several are the number of defendants.

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Several Judgments (Sec. 4 Rule 36) In an action against several defendants, the court may, when a several judgment is a prosper, render judgment against one or more of them, leaving the action to proceed against the others. Separate Judgments (Sec. 5 Rule 36) When more than one claim for relief is presented in an action, the court, at any stage, upon determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may render a separate judgment disposing of such claim. The judgment shall terminate the action with respect to the claim disposed of and the action shall proceed as to the remaining claims. In case a separate judgment is rendered, the court may order its enforcement until the rendition of a subsequent judgments and may prescribe such conditions as may be necessary to secure the benefit thereof to the party in whose favor the judgment is rendered. Q. In this case of separate judgments, for instance, after the judgment in the first two causes of action has become final, may it be executed or may be the subject of an appeal? A. Not yet, because the court may defer the enforcement thereof to await the result of the hearing of the other cause of action. This is what is meant by separate judgment. Sec. 6 Rule 36 When a judgment is rendered against two or more persons sued as an entity without juridical personality, the judgment shall set out their individual or proper names, if known. This Sec. 6 Rule 36 refers to a case when the judgment involves an entity which has not juridical personality. You remember the rule that entities without juridical personalities may be sued but when the answer is filed, the names of the persons making up that entity without juridical personality must be stated. This is now what is required when the judgment is rendered with respect to group of people who will not have separate juridical personality. So here, if X, Y and Z are sued as an entity but they do not have a separate juridical personality, then the judgment against them will set out the names of the parties making up this entity. So, if the entity is sued as X, Y and Z. Marketing, the judgment against X, Y and Z. Marketing, the names of the individual persons who made that namely X, Y and Z will be set up in the answer. RENE NOTES: Requisites of A Judgment 1. It should be in writing, personally and directly prepared by the judge 2. Must state clearly and distinctly the facts and the law on which it is based 3. It should contain a dispositive part and it should be signed by the judge and filed with the clerk of court. Promulgation – The process by which a decision is published, officially announced, made known to public or delivered to the clerk of court for filing, coupled with notice to the parties of their counsel. * A judgment based on a compromise otherwise known as judicial compromise has the force of law and is conclusive between parties. Not appealable. * The power to amend the judgment is inherent to the court before judgment becomes final and executory. Once a judgment has attained finality (expiration of the period to appeal), no further amendment or correction can be made by the court except for clerical error or mistakes.

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* Attack of judgment may be direct or collateral Direct Attack a. before finality 1. motion for new trial or reconsideration 2. appeal b. after finality 1. relief from judgment, Rule 38 2. annulment of judgment, Rule 47 Rule 37: New Trial or Reconsideration This presupposes that a judgment has already been rendered either for the plaintiff against the defendant or for the defendant against the plaintiff. Any of them can file a motion for reconsideration. Q. Within what period the motion for new trial or a motion for reconsideration may be filed? A. At any time before the judgment has become final. After the judgment has become final, the remedy is no longer a motion for new trial, it may be another remedy already such as petition for relief under Rule 38 but certainly, not a motion for new trial. There are only two grounds for motion for new trial:

1) Fraud, Accident, Mistake or Excusable negligence (FAME), which resulted in the judgment
against the movant;

2) Newly discovered evidence (NDE). Evidence which the movant could not have presented
during the trial and which if presented will probably alter the result of the cast. Example: A vs. B The judgment was rendered against B. Q. What was the reason why a judgment was rendered against B? A. Because of FAME. So this FAME resulted in a judgment, which is prejudicial to his interest. He now wants that this judgment against him (B) is set aside and that a new trial be held. Because after a judgment, he discovered evidence which could either be testimonial or documentary and which evidence he could not have presented during the trial because even if he exerted efforts to procure it, he could not procure it. This evidence if presented will probably alter the result of the case. So there are the only two (2) grounds. Procedure… now… Q. What are the requirements so that B must comply with? A. Of course, he must have to file a motion for reconsideration stating therein the ground(s). Accompanying the motion must be his affidavit of merit. Q. On what facts may this affidavit of merit may be filed? A. Let us say, with respect to the ground, for instance, the ground is FAME, then, the affidavit of merit consists of facts constituting all the fame. If the ground is newly discovered evidence, the motion must be accompanied by the statement of the person with whose testimony the newly discovered evidence is based. Let’s say, the newly discovered evidence is the document or a copy of the document must be attached to it. All the grounds for the motion for new trial must be alleged in the motion. Why? Any ground already available at the time the motion is filed but not alleged therein is deemed waived. Q. What now will happen with this motion filed by B? A. This is a litigated motion and therefore should be set for hearing strictly in accordance with Rule 18. (With respect to the affidavit of merit, in case it is the defendant who filed a motion for new trial, he should accompany his motion with a statement of a fact constituting his defense. If it is the plaintiff for instance, who filed, the affidavit of merit shall state the fact constituting his cause of action.) So, the motion now is set for hearing in accordance with Rule 15. So, the court will resolve the motion whether to grant it or to deny it. The motion may if it was established that there were FAME that resulted in the rendition of judgment against B in this example, then the motion will be granted. If the basis is newly discovered evidence and the court finds that the newly discovered evidence, then the court will grant, otherwise the court will deny. Q. What is the effect of the grant of the motion for new trial? A. The judgment already rendered is set aside, as if no judgment at all was rendered.

In this example, if the motion for new trial of B is granted, the judgment already rendered against him is set aside.

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Q. What now is the effect of the order granting the motion for new trial on the evidence already received? A. In this case, the evidence of the party consisted of the testimonies of X, Y and Z, and exhibits A, B and C. Q. What now becomes the evidence? A. If the motion for new trial is based on FAME, the rule says, “the evidence affected by the FAME will be set aside.” So if the evidence that is affected by this fraud is that coming from X, this will be set aside, only there, testimonies of Y and Z and exhibits A, B and C will remain. So the court will conduct a trial. The court may render another judgment after conducting the new trial. In deciding this case now, Q. What evidence may the court take into account? A. The testimonies of Y and Z and exhibits A, B and C. It will disregard the testimony of X. So, if another witness will testify and say E, then his testimony will also be taken into account. Q. How about these testimonies affected by B? A. If they are not affected by FAME, they will be taken into account. If there was another witness who testified, it will be taken into account. So the court will render a judgment based on these evidence remaining. This is if the ground is FAME. Newly discovered evidence, that’s the basis, let’s say, the only evidence consisting of the socalled newly discovered evidence is exhibit “I” for instance and F testimony. Q. In deciding the case, what evidence should be taken into account? A. All the evidence previously presented by A, all the evidence previously presented by B including exhibit “I” and testimony of F. Nothing is discovered because they are not affected by these newly discovered evidence. So, in the example the witness who already testified do not have to be recalled anymore. Their testimonies will be considered. If there are additional witnesses, their testimonies will be considered. This is how the motion for new trial is conducted. Q. How many motions for new trial may be filed? A. The general rule is, a party can file only one motion for new trial. Q. Is there an exception to this rule, meaning that more than one motion for new trial may be filed? A. Yes. When the ground of the second motion for new trial was a ground not existing at the time the first motion for new trial was filed. For instance, the motion for new trial is filed on the basis of FAME. While this motion is pending, defendant-movant B found evidence, which qualifies as newly discovered evidence. Q. Can B now file another motion for new trial based now or newly discovered evidence? A. Yes, because at that time the first motion was filed, this second ground was not yet in existence. Q. Is there such a thing as “partial new trial”? A. Yes. A new trial does not have to cover the entire case. Supposing there are three (3) issues in the case. Q. May a new trial be held only with respect to one of the issues? A. Yes. So, the new trial will be limited to a trial of that only issue. The judgment on the second and third issues will no longer be disturbed. Q. If there are two or more parties in one separate case, may a partial motion for new trial be granted? A. Yes. Supposing the defendants B and C, the plaintiff being A. Q. May a partial new trial be conducted only with respect to B and only with respect to C? A. Yes, because each of these defendants has his own right. So, a new trial is conducted with respect to B only, then the new trial will be limited between A and B. It will not include C.

If the new trial involves only C, then the case will only be between A and C. It will not include B. Q. What is the distinction between a motion for new trial and a motion for reconsideration? A. In a motion for new trial, the grounds are those we already specified.

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The grounds for a motion for reconsideration are different. They are: 1) when the judgment has awarded damages which are excessive; 2) when the judgment is contrary to law; 3) when the judgment is contrary to the evidence. With respect to the reception of evidence, in the case of a motion for reconsideration, there is no reception of evidence. In the case of a motion for trial, there is a reception of evidence. So these two differ. They, however, share a common point and that is, they can be filed only before the judgment has become final. Q. Why is it, in the case of a motion for reconsideration, there is no trial anymore, all that the court does is to set aside the judgment and amend it? A. Remember the grounds: 1) Excessive Damage – all that the court does is to review the evidence and find out whether the damages are excessive or not. 2) Judgment is contrary to law – all that the court does is to review the law on that matter. 3) Judgment is contrary to the evidence – all that the court does is to review the evidence. That’s why there is no need of trial. RENE NOTES: * Fraud must be extrinsic or collateral not intrinsic. * Forgotten evidence is not a ground for new trial. Requisites for newly-discovered evidence a) must have been discovered after trial b) could not have been discovered and produced at the trial c) if presented would alter the result of the action Otherwise, it is called forgotten evidence * A motion suspends or tolls the running of the reglamentary period for appeal except when the same is pro-forma. PRO-FORMA MOTION - when it does not comply with Rule 15 and Rule 37, e.g. it does not point out specifically the findings or conclusions of the judgment as are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions, ans is merely intended to delay the proceedings or if there is no affidavit of merit. Rule 38 : Relief From Judgments, Orders, or Other Proceedings Petition for relief from judgment, this assumes that the judgment has already become final. And the matter of fact that the judgment or final order has already been entered. You know that once a judgment has become final, like in this case ……………. Let’s say, you receive the judgment in favor of A. Dec. 1, 1998. He has until Dec. 16, 1998 within which to do any of the following: 1) Motion for new trial; 2) Motion for reconsideration. If he does not, one of these days until Dec. 16, 1998, as of Dec. 17, 1998, the court can no longer alter its judgment. The only thing that the court can do after a judgment has become final is to execute it under Rule 39. Of course, there are certain things that a court may do with respect to a judgment that has already become final, but not with respect to the merits thereof. No matter how the judgment is erroneous. So the only thing that can be done after the judgment has become final is to correct the clerical error or in a proper case, may clarify the judgment. These are the only things it can do. So, we said, that beginning Dec. 17, 1998, in our example, A can now execute this judgment.

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Let us say that the judgment in favor of A declared A the owner of the land. Ordered B to vacate the lot. Commanded B to pay damages of P1M. This is the judgment. Beginning Dec. 17, 1998, A can now execute this judgment under Rule 39. No matter how erroneous this judgment is, there is nothing that can be done but to execute it. However, under Rule 39, the law recognizes the possibility that B may have lost the case by reason of matters not imputable to him. For instance, the judgment was rendered against him by reason of FAME. Then the rule recognizes this. The inequity that may result to be, if this judgment procured under that circumstances will be made. So under Rule 38, the law gives B the opportunity to be relieved from his judgment. That’s why Rule 38 speaks of Petition for Relief. So, under Rule 38, if B files the petition, he will ask that he will be relieved from this judgment. That means to say that he asked that this judgment be set aside. This is the concept of Petition for Relief of Judgment There is another matter covered by a petition for review and this is a situation where a loosing party was prevented from taking an appeal therefrom. In our example, the judgment was rendered against B. After trial, there was no FAME which gave rise to the judgment. B lost. Nevertheless, he is entitled to appeal, for example, he has until Dec. 16, 1998 within which to file his notice of appeal. But he was prevented from filing the appeal by reason of FAME. So there are two things that can be the subject of petition for relief. 1) A judgment rendered by reason of FAME or a proceeding attended by FAME; or 2) A deprivation of a party of the right to appeal by reason of FAME. Q. In what court should a petition for relief be filed? Let’s assume that this case between A and B was filed in the RTC Branch 1 of Manila with Civil Case#2345. Q. In what court and in what case should B file his petition for review. A. He should file his petition for relief in the RTC of Manila Branch 1 and in the same case (Civil Case #2345). It shows that a petition for relief is a continuation in effect of the case wherein the judgment was rendered. So if the case was filed in the MTC, then this petition for relief must be filed in the MTC in the same case. There is an amendment of the old Rule 38 in the present Rule 38. Under the old rule, a judgment rendered by an inferior court (MTC for instance) and which a party thereto desires to file a petition for relief, the petition for relief must be filed with RTC. So, in our example for instance, in 1995, a case was filed against B in the MTC, Civil Case#2345, B now wants to file a petition for relief from the judgment rendered. Q. Where will he file the case? A. File it in the RTC. So the case will be now B vs. A. This is not so now! filed. The court which rendered the judgment is the court before the petition for relief should be

Period within which a petition of relief must be filed within 60 days from the time the petitioner learned of the judgment of the proceedings and in no event beyond six (6) months from entry of judgment. Q. Is this period extendible? A. No, it is not extendible. So, if you file a petition on the 61st day following your knowledge of the judgment, that petition is already filed out of time. Q. Why cannot the period be extended?

A. Because Rule 38 is an act of grace on the part of the state in favor of a party. Consequently, the party who desires to avail of this benefit should do so subject to the conditions thereof. But there can be case where this period may be extended.

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In one case, the defendant after engaging a lawyer never heard anymore from the lawyer. So, he did not know the status of the case. The only time he had learned of the status of the case was when he received a writ of execution against him. Q. So, what did he do? A. He tried to investigate. Q. What did he find? A. The fact that his own lawyer connived with the plaintiffs for his defeat. A vs B, engaged Atty. C. Atty. C connived with A. Based on these facts, B now filed a petition for relief long after the judgment against him has become final. The court allowed the petition for relief to be given course. He was a victim of a fraud committed by his very own counsel. Q. Is the court truly bound to give due course to a petition for relief? A. No. Let us see why…… After B for instance has filed his petition for relief, the court will first examine the petition to determine whether it is sufficient in form and substance. If it is not, then the court will dismiss it. If the court finds that the petition was sufficient in form and in substance, it will give it due course, meaning, it agrees to hear it. But if he denies due course, it does not want to hear the petition. Let us assume in this example that the court gave due course to the petition of B. Q. What would the court do in this case? A. It will now issue an order directing A to file a comment on the petition. Q. How would A know that a petition was filed against him by B? A. (Did you notice in our discussion whether B furnish A a copy of his petition. He did not serve the petition to A.) . the court after giving due course to the petition of B, issued an order commanding A to file his comment. Accompanied in this order is a copy of the petition of B. In other words, it is not B, it is the court that serves on A a copy of the petition. Of course the court will grant A a period of time within which to file his comment. In the absence of any period, the period shall not be less than 15 days from service of the order. Q. A. but the Is it mandatory for A to file a comment or opposition on the petition? No. Why? If A files a comment or opposition as if he does not file the comment or opposition, after the period of filing thereof has expired, the court will now set the date for the hearing of petition.

Q. What do you notice here? A. Whether or not there is a comment or opposition, the court will set the petition for hearing to determine whether said petition is meritorious or is not meritorious. So, in our example, B must present evidence in support of his petition. A, if he so desire, may present evidence in opposition, thereafter the court will resolve the petition. Q. What are the possibilities? A. 1) The court may deny the petition. So it says “there is no FAME that resulted into a judgment against B.” 2) The court found that there is FAME which resulted in the judgment and in the case, the court will grant the petition. Q. What now is the effect of the grant of the petition on the judgment already rendered? A. The judgment previously rendered is set aside. So, there’s no longer any judgment to speak of. Q. What follows after that? A. The rule says, “thereafter, the court shall hear the case as if a timely motion for new trial are granted.” The court will now hear the case anew as if a motion for new trial was granted. So, the

court will receive evidence addressed during the hearing so that it may be considered thereafter the court will render a judgment. This case will be the second judgment. Judgment now will be whatever judgment. It may happen that under the second judgment may be in favor of B now or may still be in favor of A. There is such a thing as an injunction that the court may issue while the petition for relief is pending. In our example, the judgment has already become final. A already filed a motion for execution. In the meantime B filed a petition for relief. Q. What is the available remedy to B so that pending the termination of this hearing of the petition for relief, A will not succeed in having that judgment he executed? A. B may file a motion for issuance of an injunction to restrain the execution of the judgment. For the purpose however of protesting also the right of A, B is required to post an injunction bond. So, before the court restrains the sheriff from enforcing his judgment, the court may require B to post a bond in favor of A. Q. For what is this bond responsible? A. In case damages where suffered by A as a result of the issuance of the injunction and after hearing the petition, the petition was denied or after hearing the case, the motion for new trial having been granted, the judgment is nevertheless in favor of A, then whatever damages A may have suffered by reason of the issuance of the writ of injunction, may now be answered by the bond B posted. So that if B does not pay him damages awarded to A, then A can go after the bond. Petition for Relief It is available only when the other remedies against a judgment are no longer available. So, if the motion for reconsideration is still available, or if a motion for new trial is still available: Q. Can you avail a petition for relief? A. No, Why? Because you can still avail of this other remedies. So, this is the last resort that a loosing party can avail of to set aside an unfavorable judgment. Let’s see the other aspect of a petition for relief. It is said, it involves also the failure of a party to appeal because he was so prevented by FAME. So, in our example, B files a petition to be relieve from the fact that he was not able to file the appeal. In our example, B failed to file the appeal. The judgment has become final. He wants now that he be allowed to appeal. Q. What is the remedy? A. File a petition for relief. Q. What is the prayer for that petition for relief? A. That he be allowed to appeal. Q. What could be the reason that would justify the grant of his petition? A. The justification was, he was prevented from appealing because of the FAME. So the procedure to be followed by B would be the same as he would have followed if the petition was to set aside the judgment by reason of FAME. So, the petition to be relieved from failure to appeal is granted. Q. A. the the Then what is the relief that the court would grant? Then the court will order the appeal to be given due course and that therefore, the court where petition was filed and which rendered the judgment appealed from will elevate the records tot appellate court.

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So in our example, the judgment was rendered by the RTC Br. 1 Manila and petition for relief prayed that the appeal of B from the judgment be allowed. Then when the petition is granted, the RTC of Manila Br. 1 will give due course to the appeal of B. So, the court will now elevate to the appellate court the entire records. RENE NOTES: NEW TRIAL/RECONSIDERATION * must be filed within the appeal period. Judgment not yet final. * A legal right. * FAME RELIEF FROM JUDGMENT * Judgment is final within 60 days after petitioner learns of the judgment to be set aside and within 6 months after such judgment is entered. * More on equity (Discretionary) * FAME only

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* Judgment on final order * Relief from proceeding. judgment/order on other

* Two Hearings (a) hearing to determine the judgment be set aside (b) if yes, a hearing on the merits of the case Rule 39: Execution, Satisfaction and Effect of Judgments Q. What is the concept of Rule 39? A. Example: The judgment commanded B to do these things: 1) vacate the land;and 2) pay A P1M. This judgment became final on Dec. 1, 1998. Q. Can this judgment now be altered on Dec. 2, 1998? A. No more, that cannot be altered anymore. Of course this is subject to Rule 38. No matter how erroneous this judgment is, it can no longer be set aside. All that is to be done now is to execute it. Meaning to implement it. When we say, “all that is to be done is to implement that judgment, to execute it.” We mean to say that B should now be required to vacate the land and pay P1M to A. Q. How will this command of the court be carried out? A. That is carried out in accordance with Rule 39. Every step that finally leads to the accomplishment or the execution of its judgment is provided for in Rule 39. The sheriff is the officer entrusted by the rules to execute this. In carrying out the judgment, the sheriff must follow strictly Rule 39. This is the concept of Rule 39 (Execution). The sheriff cannot execute this except in the manner Rule 39 provides. Q. What are the matters to be taken up under Rule 39? Q. What kinds of judgment or order can be executed? A. The rule said, “only a final judgment or order can be the subject of execution.” This means to say that, “in a judgment, if an order has not yet become final, it cannot be executed.” Q. What is meant by final judgment? By final order? A. Justice Regalado points out in his book the concepts in which a final order or judgment is considered final, considered in the sense with respect to the appealability of the judgment or order. Final with respect to the appealability of the judgment or order. This is how it is distinguished… Q. From the point of view of appealability and from the point of view of enforceability…… what is a final order? A. From the point of view of enforceability, a final order or a final judgment is one which can already be enforced because the period for an appeal therefrom is already without an appeal having been taken. So in our example therefore, if a judgment was received by A on Dec. 1, 1998 and by B by Dec. 2, 1998, A has only until Dec. 16, 1998 and B has only until Dec. 17, 1998 within which to file a notice of appeal, a motion for reconsideration or a motion for new trial. But they have not done this up to this day. Then we say that this judgment is final from the point of view of enforceability. Why? Because effective Dec. 18, 1998, the prevailing party, A in our example, can already enforce this. This is the meaning of a final order or judgment from the point of view of enforceability. From the point of view of appealability…. Let us say, A vs. B. B filed a motion to dismiss. The motion to dismiss was denied. Q. Is this order of denial a final order from the point of view of appealability A. No. This is not a final order from the point of view of appealability. Why? An interlocutory order is not appealable. This is the general rule. You cannot appeal from an interlocutory order because

by its very nature, it can be set aside at any time. It is always within the control of the court as oppose to a final order. Let us see….

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Suppose the motion to dismiss was granted and therefore the complaint is dismissed. Form the point of view of appealability Q. Is this order granting the petition appealable? A. Yes, Why? Bec. the order finally disposes the matters involved in the case. Q. What makes an order interlocutory. What makes an order final from the point of view of appeallability? A. In the case of interlocutory order, after its judgment, there is still something to be done with respect to the merits of the case. So, the order does not put an end to a case. In our example, the order denying the motion to dismiss is an interlocutory order. Why? Because after the order has been issued, there is still something to be done with respect to the merits of the case. For instance, B will file the answer. Thereafter, pre-trial and then judgment. This is the essence of an interlocutory order. It does not put an end to a case. There is something else to be done after its issuance. Let us take the case of order of dismissal granting the motion to dismiss. Q. What is the effect? A. We said that the complaint is dismissed. Q. Is there anything else to be done in the case after the complaint is already dismissed? A. No more. There is nothing else to be done on the merits of the case. That is why it can now be a subject of the appeal. So, this is the difference between a final order from the point of view of appeallability and from the point of view of enforceability. What we are talking about in Rule 39 is a final order from the point of view of enforceability. Example: A vs. B. The judgment has already become final in the RTC. This judgment because final on Dec. 1, 1998. Our assumption is, there was no appeal from this judgment. So, it became final Dec. 1, 1998. Q. A wants a writ of execution to be issued. Within what period can A file a motion for the issuance of a writ of execution? A. He has five (5) years from finality of judgment which is equivalent to entry of judgment within which to do so. So, he (A) has up to Dec. 1, 2003 within which to execute this judgment by mere motion. Let us suppose that Dec. 1, 2003 is the last day of the filing period. This judgment was not executed by motion within his five (5) years. Q. Dec. 2, 2003, can this judgment now against B be enforced by motion? A. No more. Q. Is there a remedy by which A can still enforce this judgment after Dec. 1, 2003? A. Yes, by action. Example: Within this five-year period from Dec. 1, 1998 to Dec. 1, 2003, all that A does to secure this writ of execution is to file a motion on the same case Civil Case #2345 RTC Manila Br. 1. So, A will file this motion for execution in the same court. Dec. 1, 2003, this judgment can no longer be enforced by motion. It can now be enforced by action. Q. What does this mean? A. Let us assume that the land is located in Zambales. A is a resident Sulu. B is a resident of Batanes. Starting Dec. 1, 2003, A can file this action. Q. Within what period can A file his action? A. He has a period ending five (5) years from Dec. 2, 2003 or Dec. 2, 2003 within which to file the action.

Q. Where will the action be filed? A. Sulu or Batanes.

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Q. Why not Zambales? A. Because an action to revive a judgment is a personal action. It is not a real action. This being a personal action, it will be governed by Rule 4, the venue could be the residence of the plaintiff or the residence of the defendant at the option of the plaintiff. A now file an action against B for revival of judgment in the RTC of Sulu or Batanes at the option of A. Q. What do you notice? A. A separate action. So this judgment rendered in Civil Case #2345 can no longer be enforced by mere motion. You can enforce it if you can procure a judgment in this RTC of Sulu or Batanes. Q. If you were A here, what would you allege in your complaint? A. Your allegation would be this… That you received a judgment in your favor in Civil Case # 2345. That the judgment was not executed by motion within five (5) years from its finality of judgment. Q. What is now your prayer? A. You now pray that the judgment rendered in that case be revived. Q. What do you associate revival? Q. Do you revive a dead man? A. No. Q. What do you do with it? A. You resurrect him if you can. Q. Who then is revived? A. He who is unconscious. Q. Why do we call this action to enforce the judgment rendered in the civil case, an action to revive? A. Because after the 5-year period during which the judgment was not enforced that judgment in a sense fell into a coma. Q. What do you do? A. Revive so it can be enforced. Q. Within what period should an action to revive be filed? A. The rule says, “it must be filed before the action is barred.” Q. Where do you find the rule to apply whether the action is barred or not? A. Civil code provisions state the periods during which actions may be filed. In certain actions, there are periods fixed. So, in our example, the action to revive the judgment should be filed within 10 years from the day the judgment in Civil Case #2345 has become final or when it was entered. Our assumption here is, the judgment became final Dec. 1, 1998. For the purpose of filing the action for revival, you have 10 years from Dec. 1, 1998. In effect therefore, A has a period of five years from the expiration of the original 5 years within which to file the action for revival. In this example, the five year period ended Dec. 1, 2003. You now can file the action within five years again, Dec 1, 2003. Let us assume that the judgment for revival is granted. Q. Can you now execute the judgment of revival? A. Yes. Q. Within what period? A. By motion also within 5 years from entry of judgment in the revival action. Q. You did not execute the judgment in that revived action within the 5-year period from its entry. Can you now execute it? A. Yes. Q. How? A. By motion again.

So you can revive the revived judgment if it was not executed within the 5-year period.

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We are talking of a judgment, which can be enforced or executed only after it has become final and that it can be executed in the court where the judgment was rendered. Let’s take the second possibility…… A vs. B RTC of Manila, Civil Case #2345. B appealed to CA. CA rendered a judgment affirming the RTC judgment of the CA became final Dec. 1, 1998. You are A who would want the judgment of CA be executed. Q. Where will you file the motion for execution? A. Here are the possibilities….. This case is still with the CA but the judgment already became final Dec. 1, 1998. But the records are still there. You now want that judgment in CA affirming the judgment of RTC executed. Q. If you were A, in what court may you now file the motion for execution? A. You can file in the RTC. Q. But the records of the case are not yet in the RTC, in what case then will you now file the motion in the RTC? A. The remedy…… A will secure a certified copy of the CA judgment, he will now get a copy of entry of judgment duly certified by the CA. Q. What will A do with these two? A. He will now attach them to the motion for execution. This motion for execution is now accompanied by these two certified copies so that although the records are still in the CA, the RTC can now act on the motion. Q. Can the RTC now enforce this judgment of CA although the records are still there? A. Yes. File in the RTC a motion for execution. Attached to that motion, certified copy of: 1) CA judgment; and 2) Entry of judgment Of course the motion for execution filed in the RTC should be heard in accordance with Rule 15. That means to say that B must be notified. Why? Because this is a litigated motion. Q. May not A file in the CA the motion for execution while the records are still with the CA? A. Yes, A can file with the CA the motion for execution. Q. Will the CA issue the writ? A. No. Q. What will it (CA) issue? A. It will merely issue an order directing the trial court, the RTC in our example, to issue the writ of execution. Now, you distinguish between the order directing the issuance of a writ of execution and the writ of execution itself. In this example, what is issued by the CA is the resolution directing the trial court to issue the writ. What RTC issues is the writ itself. Supposing these records are already turned over to the RTC and that’s already final. Q. May A file still with the CA a motion for execution? (The records are already in the RTC.) May the CA nevertheless issue an order directing the RTC to issue the writ considering the records are already in the RTC, no longer with the CA? A. Justice Regalado, a recognized writer in Remedial Law opines that the CA may still issue the order directing the RTC to issue the writ although the records are already with the RTC. *This is not a decided case. That is only the view of Mr. Regalado. Don’t be misled by this comment on this as you may find in his book you can opine otherwise and be sustained by the SC. So far we have been talking of execution of judgments. Q. May a judgment or order, which has not yet become final be the subject of execution? A. Yes, but then this is the exception.

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Example: A vs. B , A receive the judgment favorable to him on Dec. 1, 1997; B received the judgment on Nov. 28, 1997. So A has until Dec. 16, 1997. B has Dec. 13, 1997 within which to do any of the following: 1) Motion for reconsideration; 2) Motion for new trial; or 3) Notice of appeal. This is what happens… On Dec. 11, 1997, B filed a notice of appeal. Q. What is the effect of this notice of appeal filed by B in so far as he is concerned? A. Insofar as B is concerned, the court can no longer touch the judgment. It cannot modify anymore the judgment insofar as B is concerned. Q. But can the court still modify this judgment insofar as A is concerned after Dec. 11? A. Yes, because A has until Dec. 16 within which to do any of the above-stated. In other words, the appeal here of B does not affect the rights of A up to Dec. 16. So, if A files a motion for reconsideration on this judgment let’s say on Dec. 15 or four (4) days after the appeal of B has been filed. Q. Can the court still reconsider this judgment insofar as A is concerned? A. Yes, but it can no longer change the judgment insofar as B is concerned. On Dec. 15, 1997, A file a motion for execution. Q. Can A still file his motion for execution considering that the judgment is not yet final insofar as A is concerned because this will become final only as to him on Dec. 16? A. Yes, he can still file. Look… Is this judgment already final insofar as A is concerned? Not yet. Insofar as B is concerned, this is an appeal to the judgment, which is not yet final, also as to him. Q. Can this judgment nevertheless be executed? A. Yes. Meaning…. Can the court rule on this motion of A for execution is filed, the court has not yet lost jurisdiction of the case insofar as A is concerned. Supposing the records however, were elevated to the CA on Dec. 20, 1997. Q. Can the court now rule on this motion for execution on Dec. 21? A. No more. Why? The records are no longer with the court. Q. What would be the justification for the court to issue an execution against B while the case is pending appeal? A. The rule says simply that the court may issue execution for a special reason to be stated in a special order. Q. Do you find any enumeration in the rules particularly Rule 39 on what constitutes special reason which justifies the issuance of the writ of execution pending appeal? A. None. The court then will determine whether there is or there is no special reason for the issuance of a writ pending the appeal. (It is the court that determines on a case-to-case basis.) Now if the court issues a writ of execution pending appeal, the law requires that the order must state the special reason why the writ of execution was issued. In the absence of the statement in the order of what constitutes a special reason, there will be a violation by the trial court of this Rule 39. Q. What is a special reason? A. The rule does not say so. So this is a matter that is left to the discretion of the court to determine. A judgment is rendered against the defendant B to pay a sum of money. B is already on the verge of bankruptcy. While the case was pending, the period for appeal has not yet expired, he started disposing his properties. Evidently, to place them beyond the reach of the plaintiff A who obtained a judgment in his favor. Q. Should A file a motion for execution based on this ground? A. The imminent bankruptcy of B and the fact that he was disposing his properties with evident intention of depriving A of the benefits of the judgment may be considered a specified reason.

Why? Because if you wait until the judgment become final, there will be nothing left already on the assets of B which can be levied upon to satisfy the judgment.

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Q. Will this be a good reason? A. It’s up to the court. If it thinks that it is a good reason to execute the judgment is affirmed on appeal, and the judgment become final, the plaintiff is already assured of payment. Q. Supposing the judgment ordered the defendant to deliver A a quantity of perishable goods, let’s say meat for instance, what will happen to these perishable goods if you still wait until the judgment become final to execute it. A. By that time, they may have already been spoiled. Q. So, may it now be a special reason that because of the nature of the goods, the execution of a judgment is proper to avoid these goods being lost? A. Whether the reason is good or not, special or otherwise, it is the court that determines. Q. Is it only in the trial court that the motion for execution pending appeal may be filed? A. No. When a case is pending in the appellate court, the prevailing party may also file therein a motion for execution. So, in our example, the case has been appealed by B to the CA. So the case is pending now in the CA. Q. Can A file in the CA a motion for execution of the judgment pending resolution of the case by CA? A. Yes, a motion can be filed by A in CA. Q. What is the lifetime of a writ of execution? A. 5 years Q. What is a writ? A. A writ is a command of the court addressed to a proper officer normally the sheriff commanding him to execute the judgment. Example: On motion of A, the court issued an order directing that a writ be issued for the execution. Q. Who carries this (writ) into effect? A The clerk of court. Q. What will the clerk of court do? A. The clerk of court will issue in the name of the court the so-called “writ of execution.” So, the clerk of court issues this writ. Q. To whom is this writ directed? A. To the sheriff. Q. What does this writ command the sheriff do? A. The rule says, the writ must recite the dispositive portion of the decision and thereafter command the sheriff to implement it. In our example, the judgment ordered B to deliver the land to A. To pay A so much money… Q. What will the writ say? A. “Whereas on Jan. 2, 1998, a judgment was rendered by this court the dispositive portion which read, ( the dispositive portion of the judgment is quoted). Whereas this judgment has become final on this date (put the date) hence the court in its order dated so directed that a writ be issued. Wherefore, you are commanded to execute the foregoing judgment. (There is another directive there…) of the properties of B you are commanded to make up the sum of so much to pay the amount adjudged in the decision.” Q. Is it addressed to B? A. No. It is addressed to the court personnel. Q. What is a lifetime of a writ of execution? A. Under the old Rule 39, a writ has only a lifetime of 60 days counted from the day the sheriff received it. This means to say that if the judgment is not executed within that 60-day period, that writ can no longer be enforced after the 60th day. Q. What then was the result under the old Rule 39?

A. If the writ was not executed within the 60-day period, it automatically lost its force beginning the 61st day. Therefore, any service of the writ after the 60th day would be already be an invalid service. Consequently, the party who prevailed and who wants the judgment executed must again file a motion for the issuance of another writ of execution. So, under the old rule, there could be as many writs of execution issued within the five-year period for as long as the writ was not implemented within the 60-day period, another writ can be issued such that by the end of the 5th year, all the writs have not been implemented, there can be no more writ to be issued thereafter. Why? Because you now have to file an action to revive the judgment.

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Q. What is the modification now? A. Under the new rule, we now have a longer lifetime of a writ of execution. The lifetime corresponds to the period within which a judgment may be executed by mere motion. It means to say further that during this five-year period, no other writ of execution is required to be issued. The sheriff can enforce that within this five-year period for as long as the judgment is not satisfied within the 5-year period. There are several kinds of judgments that may be the subject of execution. We have a judgment for instance which calls for a judgment involving special one. Q. Where lies the difference? A. A judgment commanding specific acts to be done may involve any of the following: 1) payment of money 2) delivery of property 3) execution of deed conveyance These are among the judgments calling for specific acts. These are not the only acts involve in a judgment. (Let us just take them for illustrative purposes). And we could have a judgment called special judgment secured by A against B provided that B should tear down a concrete fence with B erected on a lot belonging to A. So, this kind of judgment is not any of this judgment for specific acts. So, there may be a judgment commanding the loosing party to turn over the prevailing party the piece of land; there may be a judgment commanding a party to execute a deed of conveyance. This is the final judgment that Judge Laggui would like to discuss to us… Example: Supposing in this example, A vs. B, the court rendered judgment the dispositive portion of which commanded the following: 1) A is the declared owner of the lot in question covered by TCT No. 2345 Registry of Deeds Province of Rizal. 2) B is ordered to execute a deed of transfer of this lot in favor of A. 3) The Registry of Deeds, Province of Rizal is so ordered to cancel the title and issue another in the name of A. Q. How will this judgment be carried out? Let us suppose in our example, B refused to comply with this order, commanding him to execute a deed of transfer in favor of A. Q. What is the remedy under this rule? A. The remedy is this… The court will commission a third person to execute the deed in favor of A. Q. What is the effect of this deed executed not by B but by C? A. The rule says, the deed executed by this third person C is just as good as if it were B. So that when A, the prevailing party, presents to the Registrar of Deeds, Province of Rizal, this deed signed by C (not by B), the Registrar of Deeds will register that and cancel the title of B. There’s another remedy, if B does not execute the deed. Q. What can the court do? A. The court will simply say, “the Registrar of Deeds, Province of Rizal is ordered to cancel the title No. 2345 in the name of B and issue another in the name of A. In the case of a special judgment… Q. How does this differ from a judgment involving specific acts. A. The difference lies in this fact. That in the case of judgment involving specific acts, the writ of execution issued to the sheriff is not accompanied by a copy of judgment. But in the case of a special judgment, the writ of

execution addressed to the sheriff is accompanied with a certified copy of the judgment. In the enforcement of this writ of execution, involving special judgment,

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Q. Who will execute the judgment? Is it the sheriff? A. No. It is the party. In our example, defendant here. Why? Because he must obey the judgment. Meaniing since he was commanded to tear down that concrete fence, B must do it himself. Q. Can he (B) order the sheriff to do it? A. No. He himself must do it. But he might say, “I cannot do it.” Bahala ka sa sarili mo! Tear it down. B says, “I will not.” Q. What is the remedy? A Declare him in contempt of court. So he does not want to tear it down, arrest him! Send him to jail. Q. Will you release him? A. No. Q. When will you release him? A. When he has obeyed tearing down. If he does not tear it down, he will rot in jail. RENE NOTES: *A Writ of Execution to be valid, must conform strictly to the decision or judgment which gives it life. It cannot vary the terms of the judgment it seeks to enforce. General Rule: Court cannot refuse execution UNLESS: (UCNID) 1. Execution is UNJUST or IMPOSSIBLE 2. Equitable grounds like a CHANGE IN SITUATION 3. Judgment NOVATED by parties 4. Execution is enjoined 5. Judgment has become DORMANT *Quashal of writ proper when: 1. Improvidently issued 2. Defective in substance 3. Issued against the wrong party 4. Judgment already satisfied 5. issued without authority *Remedies of the Losing Party 1.Petition for relief (Rule 38) or 2. Direct or Collateral Attack against judgment SUPERSEDEAS BOND - one filed by a petitioner and approved by the court before the judgment becomes final and executory and conditioned upon the performance of the judgment appealed from in case it be affirmed wholly or in part. * Supersedeas bond guarantees satisfaction of the judgment in case of affirmance on appeal, not other things like damage to property pending the appeal. * The court may, in its discretion, order an execution before the expiration of the time within which to appeal provided. 1. There is a motion for execution filed by the winning party 2. There is a notice of said motion to the adverse party; and 3. There are good reasons stated in a special order after due hearing. GENERAL RULE: an order of execution is not appealable otherwise there would be no end to the litigation between the parties. EXCEPTIONS: 1. When the terms of the judgment are not very clear; 2. When the order of execution varies with the tenor of the judgment * A revived judgment is a new judgment thus another 5/10-year period to execute and revive is given the party. Rule 39 Sec. 47: Effects of Judgment rendered by a Philippine Court The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows:

a) In case of a judgment or final order against a specified thing, or in respect to the probate of a will, or against the administration of the estate of a deceased person, or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will of the administration, or to the condition, status or relationship of the person, however, the probate of a will granting a letter of administration shall only be prima facie evidence of the death of the testator or intestate. b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest of title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity.

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c) In any other litigation between the same parties or their successors in interest, that only is
deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. You will note that Sec. 47 of Rule 39 groups into three (3) the actions covered by the section. The first section covers: 1) cases involving title to specific property; 2) cases involving probate of a will; 3) cases involving the administration of the estate of the decedent; 4) cases involving the political, legal and personal condition or status of a person; and 5) cases involving the relation of a person to another. Q. What does the rule say with respect to the judgment that may be rendered in these cases? A. The rule says (1) the judgment is with respect to the specific property, conclusive on the title to the property; (2) the judgment is conclusive on the probate of the will; (3) the judgment is conclusive to the administration of the estate; (4) the judgment is conclusive on the personal, political or legal condition of a person; and (5) the judgment is conclusive on the relation of a person to another. There is only one exception to this rule that judgment is not conclusive, and that is when it comes to the probate of a will or the administration of the estate. The judgment here is merely prima facie evidence that the testator or the person whose estate is under administration, is dead. It can be proven that he is alive. Example: A filed an application for registration of title to a lot. Only B opposed. After the trial, judgment was rendered confirming the title of A. The judgment became final. The LRA issued the decree of registration pursuant thereto, a corresponding certificate of title OCT #1234. This title now is in the name of A. Let us assume that this judgment became final on 1978. In 1998, C now files a case against A for recovery of this lot. C said, “I am the owner”. A said, “No, I am the owner.” Q. What is the issue? A. “Who is the owner?” During the trial, A now the defendant, presented in evidence the judgment of the court in that Registration case, the certificate of title issued in that case, and the decision, Exhibits “A”, “B” and “C” respectively. A says, “I offer your honor Exhibits “A”, “B” and “C” to prove that I am the registered owner.” Court: “What does B says?” C: “ I object on the ground that I was not a party to the case. The parties thereto being only A and B. Therefore, I am not bound by the judgment.” Court: “Objection overruled.” Exhibits “A”, “B” and “C” are admitted. Q. Is the ruling of the court correct? A. Yes. Why? Because under Sec. 47 (a) Rule 39, “the judgment in that registration case is pertaining to as it does to a specific property is conclusive on the title.” So, this being a proceeding in res, the judgment binds not only A and B but the whole world including C who was not a party. That means to say that C cannot be declared the owner of that land. Why? Because the ownership was already decided with finality in that case. If C has any claim over this lot, he should have filed his claim during the registration proceeding. He should have intervened. He did not. Then all claims over this land that were not presented were deemed extinguished when the judgment was rendered. This what is meant by conclusiveness of title. Of course, this does not mean to say that C may not be able to recover this lot. No! He may recover, but in another cause of action. Supposing that he can show that the ownership of the land later on pass from A to him, then he can recover. But if he simply says, “I am the owner.” On his own right deriving his title from A, that title of A cannot be challenge anymore in any proceeding. This is what is meant by conclusiveness of the judgment in a case involving title to specific property.

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Probate of Will The rule says, a judgment in a probate case is conclusive as to the probate. Q What is meant by this? A. Example: Here is the will of J. Here now is A who filed a petition for the probate of the will. The court admitted the will in probate. The judgment becomes final on Dec. 1, 1999. (Don’t forget that what is decided in a probate case is not the merits or validity of the dispositions in the will.) What is decided in the probate of the will is merely the question of whether or not the will was executed in accordance with the formalities required by law. You know that under the New Civil Code, there are certain formalities that must be followed by the testator so that the will will not be valid. So for instance, the law says, “the will must be signed by the testator at the end thereof and on every page on the left side; each page if the will consists of more than one page be numbered and that the will must be attested by three attesting witnesses; they must be acknowledged by the testator and the attesting witnesses before a notary public.” These are among the many formalities that the testator must have to follow, so that the will he executes shall be valid. Here, the will was admitted for probate. This means to say that the will was validly executed as to the form. This means to say therefore that his will was signed by the testator. This is the meaning. But, as to whether the dispositions in the will are valid or not, that is not decided. So, in the will, the testator said, “I have all these properties described as follows to my #2 for services rendered…” Q. Will the court decide that in the probate? A. No, because that was into the intrinsic validity. This is not decided. After his will was admitted on probate, A now was sued involving this will now. B now says that this will was a forgery because the signature was affixed by X without the knowledge of T. Q. Can the question of forgery of this will be raised later on? A. No more. Because the judgment in the probate proceeding is conclusive that this will was validly executed. This means therefore that the testator signed the will. But supposingly, the truth is, as contended by B, that the will was signed by X? Never mind. The law says, “the will was signed by T.” (even if it was actually signed by X. Never mind!) Under Sec. 47 Rule 39, “I signed it!!!” Whether he did actually or not, no longer matters!!! This is the meaning. However, there is a qualification here, and i. E., the admission of the will in probate is merely prima facie evidence that T died. Q. So, can it later be proven that T is still alive? A. Yes. Why? Because the presumption is that T is dead is rebutted by his appearance. A judgment involving the political, legal or personal condition of a person, or his relation to another is conclusive as to such personal condition, legal or political condition, status or relation. Example: A sues B for compulsory recognition as a natural son of B. B denied the claim of A that he is his son. So the issue is: Is A the son or not of B? After trial, the court said, “”B is the father of A.” Years later, B died succeeded by his several children. Since B has an estate, A sued the heirs of B. A alleged that he is the natural son of B. But the heirs of B alleged that A is not a son of B. Q. Can the relationship of A as a natural son be litigated anew? A. No more. A is the son of B. This question cannot be litigated again. There is logic here… Supposing the heirs of B if allowed to prove that A is not the son of B, they may now introduce evidence that A is the son of C and the court believes that C is the father of A. Q. How many fathers now does A have? A. Two. This is the evil sought to be avoided by this rule. You cannot place the status of a person in a state of uncertainty because if he (A) is now the son of B, tomorrow he will be the son of C, now, where will this end? So there can be as many fathers as can be proven… This is not allowed. This is what is meant by the conclusiveness by the judgment in a case involving the relation of a person. Q. What do we learn from this? A. The judgment in any of these cases mentioned, in Sec. 47 (a) Rule 39 is binding, conclusive and cannot be altered.

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Sec. 47 (b) Rule 39 In other cases, that which has been adjudged in a case or any matter that could have been raised in relation to that matter that has been adjudged is conclusive between or among the parties and their successors in interest by title subsequent to the commencement of the action or proceeding litigating for the same thing under the same capacity under the same title and in the same capacity. Q. What is meant by this? A. It simply means that where an issue has already been decided in one case, that issue cannot be litigated again. Why? Because that judgment toward this issues which has been raised and decided is already conclusive and can never be changed anymore insofar as the same parties or their successors in interests are involved. This is the so-called rule involving res judicata. That which have been decided in another case involving the same subject matter, involving the same causes of action. Example: If you kill a cow or a carabao and you want to eat the flesh, what do you do? You skin the carabao or the cow. Can you skin the same animal twice? You can skin it only once. You can litigate an issue only once. You cannot litigate again for the same issue. And if a litigation is brought involving the same issue, the judgment rendered in the first case may now be pleaded in the second case. Res judicata is a ground for motion to dismiss.

Example: A vs. B for reindivicacion. What is the issue? A says, “I am the owner.” B says, “I am the owner.” So, the issue is: “Who is the owner?” Trial… A presents evidence to prove his ownership. B presents his evidence to prove his ownership. Judgment: “A is the owner.” The judgment became final on Dec. 10, 1994. In 1995, B now or if he (B) is dead, the heirs of B, file a case against A or if A is not alive, A’s heirs. So, it’s either heirs of B against A or Heirs of B against heirs of A. Q. What is the nature of the action? A. Reindivicacion – Why? B’s heirs wants to recover. A’s heirs wants to recover. B’s heirs said “We are the owners.” A’s heirs said, “We are the owners.” Issue: Who are the owners? Q. What did you notice here? A. In both cases, the parties are the same. A vs. B or heirs of B vs. heirs of A. Q. Why are the parties the same when A and B are dead and the parties litigating are just their respective heirs? A. Because their heirs merely stepped into the shoes of A or B respectively. The subject matter is the same – the land. The cause of action is the same. Issue: same – ownership. Q. Can this be decided in this case? A. No more. The judgment rendered in the first case on the issue of ownership is binding on all the parties in the second case. Q. If these were the situation, what is the remedy available to A or the heirs of A, in order that this second case will not be tried anymore on the merits? A. What the defendant A or heirs of A can do is to file a motion to dismiss under Rule 16 on the ground or res judicata. This is a very simple form of res judicata. Q. What are the other rules with respect to res judicata? A. Here are the rules… The effects of res judicata cannot be avoided or evaded simply by changing the nature of the subsequent cause of action. Example: You will note that this case between A and B, the issue is: Who is the owner of the land? That judgment was rendered in favor of A. So, he was declared the owner. The judgment became final. B now sued A for recovery of damages representing the value of this lot, let’s say P1M. Can this suit for recovery of damages be maintained by B?

Look… Q. What is the subject matter of the first case? A. A lot. Q. What is the subject matter of the second case? A. Money. (So, they are not the same!) Q. Lot and money… is that so? A. No. Why? Because the money represents the value of the lot. Q. What is the basis now of the claim of B or the heirs of B in recovery of P1M? A. Their ownership of the land, because if they were not the owner, he/they would not recover. Q. But was not this question of ownership already decided? A. Yes. It was decided. Q. What is the cause of action in the first? A. Ownership. A says, “I am the owner.” B says, “I am the owner.” Q. What is the cause of action in the second case? A. Their claim of ownership.

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So, you have here, identity of parties, identity of causes of action, identity of subject matter, then you have here res judicata. Q. What does this example illustrate? A. That the effects of res judicata cannot be avoided by simply changing the nature of the action. Q. What is the nature of the action in the first case? A. Reivindicacion. Q. What is the nature now of the second action? A. Recovery of money. There was a mere change in the nature of action, but both actions are founded in the same facts. Another rule… The fact that the parties in the subsequent case may not be exactly be the same as the parties in the prior case does not affect the application of the rule of res judicata. So long as the parties in the subsequent case represents substantially the same interest as represented in the prior case. Example: In the first case the defendant was only B. In the second case, B and S are now the main plaintiffs. Why S? Because S is the wife of B. B and S now filed an action to recover the value of the land. Naturally A filed a motion to dismiss on the ground of res judicata. But B and S argued that the rule on res judicata does not apply. Why? Because the parties in the first case and the parties in the second case are not the same. So, they argued that in the first case, the parties thereof are A, as plaintiff and B, as defendant. In the second case, the parties are B and S as plaintiffs and A as defendant. S was never a party. So there is no identity. Q. Is the contention of the plaintiffs B and S, correct? A. No. Why? Because S being merely a spouse was not an indispensable or even a necessary party in the first case. If she were sued then, she could have been sued merely as a nominal party. With her addition as a plaintiff in the subsequent case, that will not strengthen the case of the husband because with or without the wife impleaded in the first case, the judgment will have been applied equally to S. Here is an illustration of what we said earlier that in the subsequent case, there is or there are parties who were not parties in the prior case, will not affect the application of the rule on res judicata, the additional parties, in our example, were not indispensable parties in the prior case. The third part of Sec. 47 (c) Rule 39 presupposes that there was a prior case between parties and that judgment in the prior case is invoked in a subsequent case between the same parties. Example: A vs. B in Civil Case # 1234. A judgment was rendered in that case. Subsequent to that, there is another case between A and B or between B and A. Under this set of cases, that judgment rendered in the first case is introduced as evidence in the second case. But with the introduction in evidence of the judgment in the first case, will not be a res judicata in the second case. Why? Because under this rule (Sec. 47 (c) Rule 39), only those matters that have been decided in that prior case is deemed res judicata in the second case. Therefore, there is still a part of the case in

the second case, which can now be decided. Can no longer be decided in the second case. That is why, the rule says, “the other cases involving the same parties,” that has been adjudged in a prior case which appear on its face to have been directly adjudged or this could have been necessarily included therein.

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Example: A vs. B for forcible entry. The issue is, “Who has the right of possession of the land?” Let us say that the judgment was in favor of A. So, A was declared the lawful possessor. The court having found that A had been in possession of the land for 20 years continuously until B ejected him therefrom. Q. What do you recall about forcible entry? A. The only issue in forcible entry in , involving possession. So, what is settled in the forcible entry case is the question of possession. The question of ownership is not decided in forcible entry. Although you will recall that in BP 129 as now included in Rule 70 that, in a forcible entry case, the question of ownership may be decided. But the decision is only for the purpose of determining who is the lawful possessor. So, the law says, “When the question of ownership is raised and the question of possession cannot be decided without deciding the question of ownership, then the question of ownership may be decided. But only for this purpose. To allow the Municipal Trial Court to determine who is the lawful possessor. But then the findings of the MTC as to who is the owner is not final. It is only good in that case. The question of ownership can again be litigated. After the judgment in favor of A has become final, B sued A, this time for reivindicacion. So B says, “I am the owner.” Q. So, what is the issue here? A. Ownership. This is what A did. He filed a motion to dismiss this second case. What is his basis? He now argued that the judgment in the forcible entry case is already res judicata. Since the question of possession has already been decided in that forcible entry case, this action for reindivicacion can no longer be litigated. This is his (A) contention. Q. Is the contention of A correct? A. No. Under the par. C of Sec. 47 Rule 39, the rule says, “In other cases involving the same parties that is deemed decided in the prior case which appears on its face to have been directly adjudged. Q. What was adjudged in a forcible entry? A. Only the question of possession the question of ownership here can still be decided. Q. But can there be now a dispute as to the question of possession, so that if the question of possession can still be disputed, B can prove that A was not in possession of the lot? A. No more. Why? Because the question of possession was already settled in the forcible entry case. So in the reindivicacion, the question of possession is res judicata. That cannot be litigated anymore. It is already res judicata. Q. So, what do you notice here? A. Par (c) of Sec. 47 of Rule 39 involves partial res judicata. That is what is meant by par (c) of Sec. 47 Rule 39. Sec. 48 Rule 39: Effect of Judgment rendered by a Foreign Court The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows: (a) In a case of judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title of the thing; and (b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud or clear mistake of law or fact. A judgment rendered by a foreign court cannot be enforced in the Philippines except by action. If a foreign judgment rendered in an action involving title to specific property, or the action in connection which a judgment may have been rendered is a personal action. Example:

A vs. B involving specific property or personal action. This case was filed in the USA. Let’s say that the judgment was rendered in any case in favor of A. So, in the case of specific property, he is declared the owner. In the case of personal action, B was ordered to pay A money. The trouble was, although this judgment has already became final in the USA, it was not enforced or executed in USA. A and B came to the Philippines. A now files a motion in court for the execution of that judgment in USA. Q. Can that be done? A. No. it cannot be done. Our courts do not enforce foreign judgment. Q. What is the remedy available to A so that he can enforce this judgment? A. He must file an action in the Philippine courts for the enforcement of that judgment. He (A) now files in the Philippines, RTC of Manila for the enforcement of an action involving title or he will now file an action to enforce his judgment. Q. What is the effect of this judgment of the US court on the title on that property? What is the effect of this judgment of the US court with respect to his money? A. The rule says, “In the case of title to specific property, that judgment is conclusive on the title to that property. In the case of personal judgment, that judgment is merely a presumptive evidence that A has a claim against B. That is why under the last paragraph, the rule says, “In any case, B may repel the judgment by proof of lack of jurisdiction of the US court to render the judgment. Lack of notice a clear mistake of fact or of law committed by US court. Q. What is strange here is this… In the case of title to specific property, the law says, “the judgment of the US court is conclusive to the title. But in the last part, a party against whom the judgment is sought to be enforced in the Philippines can still question the judgment because it says here, “in either case,” meaning, whether the judgment involves title to specific property or whether the judgment involves personal action, “the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud or clear mistake of law or fact.” Whereas under par (a), the judgment of US court insofar as title to the property is concerned is final; yet under the last paragraph, “it can be repelled by proof of want of jurisdiction, lack of notice, fraud, collusion, clear mistake of fact or of law. Q. What is strange here? A. Final, but it can be repelled. With respect to the second case, the action for money, well, since this is merely a presumptive evidence of right of A against B, the right can be contested by showing lack of jurisdiction of the court, lack of notice, fraud, collusion, clear mistake of law or fact. So that is something strange about this… Foreign Judgment: Asiabest Limited vs. CA G.R. NO. 128803 Sept. 25, 1998 (296 SCRA 539 Appeals Rule 40: Appeal from MTC to RTC A vs. B 1. MTC (Rule 40) Mode of Appeal Notice of Appeal within the MTC Appellate Court RTC (No denovo) Period of Appeal Within 15 days from notice of judgment and on proper case within 30 days. Where the case in inferior court involves a special proceeding or one which involves multiple appeal is 30 days a record on appeal being required. Questions Raised 1. QF 2. OL 3. OF&L

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2. RTC Exercise of: a) Original j. A vs. B for specific performance (A won: B appeal) issues raised on appeal Notice of Appeal Filed with the same RTC that rendered judgment (question of law and question of fact or question or fact only.) CA (15/30) N.B. When there is a motion for reconsideration of the judgment of RTC, the appeal period is counted from the receipt of the appellant of same (15 or 30 days) the order denying the motion for reconsideration. Same (15 or 30 days)

Issue raised on appeal b) Appellate Jurisdiction Ex. A vs. B MTC; Judgment was Appealed to RTC

Petition for Review on Certiorari (Rule 45) (question law only) CA: Petition Review for

SC

CA (Regardless of the nature of the question raised)

Same (15 or 30 days)

Let us first take the case of a judgment of the MTC. So, if the case is one between A and B and B appeals from the judgment. Q. What would be his mode of appeal? (Mode of Appeal) A. Notice of Appeal Q. To what court must he direct the appeal? (Period of Appeal) A. RTC 15/30 days Q. Within what period must he file the appeal? (Period of Appeal) A. There is only one mode of appeal from a judgment of an inferior court and that is notice of appeal. Q. With what court is this notice of appeal be filed? A. MTC Q. What is the appellate court? A. Only the corresponding RTC. There can be no direct appeal from the MTC to any court other than the corresponding RTC. So, B here cannot appeal directly to the CA. He cannot appeal directly to the SC. If he wants to go to the SC, he can go there, but not by appeal. The period of appeal is as a rule 15 days from notice of judgment. And on a proper case 30 days. Where the case in the inferior court involves a multiple appeal, the period of appeal is 30 days, a record on appeal being required. So, this case now of A and B in the RTC. Q. How will this case of B be resolved by the RTC? Will there be a trial de novo when this case is before the RTC? A. No, there is no trial de novo. Why? Because the RTC now will decide the appeal of B solely on the basis of the records of the case, the evidence presents as forwarded by the clerk of court of the MTC to the clerk of court of the RTC. Q. What is needed for B here to perfect his appeal? A. Within the period for the taking of an appeal, 15 days or in a proper case 30 days. B should also pay the appellate docket fee. So, there are two things as an appellant here must do. File the notice on appeal on time, and pay the appellate docket fee on time. Q. What now is the duty of the clerk of court of the MTC upon the filing of the notice of appeal and payment of the appellate docket fee?

A. He will now examine the records of the case preparatory to the elevation of the appropriate RTC and certify to the correctness of the records, certify to the completeness of the records. Q. What is the duty of the clerk of court with respect to this certificate issued? A. He must furnish the parties: A and B with that certificates. The records of the case are now with the RTC clerk of court.

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Q. What now is the duty imposed by the rules on the clerk of court? A. Upon receipt of the records, the clerk of court of the RTC will now send a notice to both A and B informing them of the fact that, records are already there. For what? So that B , the appellant, may now file his memorandum on appeal. So it’s the duty of appellant B to file his memorandum on appeal within 15 days from notice or from within such period that appellate court may grant. Q. What is the effect of the failure of B to file the appellants brief, his memorandum? A. That could be a cause for the dismissal of the appeal of B. The appellee, that is A here may also file the so-called Appellees brief, but in case like this, the brief is called memorandum. So, A may also file his apellee’s memorandum within 15 days from receipt of the appellant’s brief or memorandum. Q. Supposing the apellee A does not file the apellee’s brief or memorandum, can the court decide the case? A. Yes. Why? Because anyway the memorandum of the appellant B is already there. Q. What now will the RTC do on the case? A. The court will now decide the case on the basis only of the records and the evidence forwarded by the inferior court to the RTC. Q. Will not the court then hear A and B and receive their evidence? A. The general rule is: NO! The court will only decide on the basis of what was presented in the lower court. (Let us assume that A is the appellant…) The appeal may have been the result of the following: A for instance appealed from an order disposing the case without trial. Let say B filed a motion t dismiss on the ground that the complaint does not state the cause of action. The appellate court, RTC, will have the power to affirm the order or reverse the order. Let us suppose that the motion to dismiss was based on lack of jurisdiction. So, the MTC, here dismissed the complaint of A on the basis of the motion to dismiss filed by B. (Reason: The MTC has no jurisdiction). Let us say that the RTC agrees with the finding of the MTC that it has no jurisdiction. Q. What will be the action of the RTC on appeal? A. It will affirm the order of the court or it can order a hearing to be held as if this case was filed directly with the RTC. Illustration: This is an action filed by A against B for reivindicacion in the MTC. The value of the property is P50,000 and this property is outside Metro Manila. So, B now files a motion to dismiss on the ground of lack of jurisdiction. So, the court dismissed it because the MTC has jurisdiction over (reivindicacion) cases only when the value of the property outside Metro Manila does not exceed P20,000. Here, since the value exceeds P20,000 it (MTC) has no jurisdiction. So, the basis for the motion to dismiss by B is proper. A now appeals. The RTC affirms the order. In fact the RTC says, “the MTC has no jurisdiction. Since the RTC has jurisdiction over reinividicacion involving this amount, the court will try the case if this case was originally filed with the RTC.” Let us assume that in this example, the court found that, contrary to the holding of the MTC, the MTC has no jurisdiction. Q. What will the RTC now do? A. It will return the case to the MTC for further proceedings. So, in our example for instance, the motion to dismiss that the court has no jurisdiction but the RTC found that the MTC has jurisdiction, the RTC will not try the case. It will return the case to the MTC for further proceedings. Let us take the second situation. There was a trial between A and B in the MTC. The court (MTC) has no jurisdiction. No jurisdiction notwithstanding, the court rendered now a judgment in favor of A. So B appealed. The court found that indeed the MTC have no jurisdiction. Q. What will be the remedy available to the RTC? A. Like the first case, it will try the case. It will not dismiss.

So there are the effects of appeal in the MTC. This is what is mentioned in Sec. 8 Rule 40.

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Sec. 8 Rule 40 Appeal from orders dismissing case without trial; lack of jurisdiction. – If an appeal is taken from an order of the lower court dismissing the case without a trial on the merits, the Regional Trial Court may affirm or reverse it, as the case may be. In case of affirmance and the ground of dismissal is lack of jurisdiction over the subject matter, the Regional Trial Court, if it has jurisdiction thereover, shall try the case on the merits as if the case was originally filed with it. In case of reversal, the case shall be remanded for further proceedings. If the case was tried on the merits by the lower court, without jurisdiction over the subject matter, the Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof, but shall decide the case in accordance with the preceding section, without prejudice to the admission of amended pleadings and additional evidence in the interest of justice. (n) Let us take the case of RTC. The judgment of the RTC can be rendered in the exercise of its ORIGINAL JURISDICTION or in the exercise of its APPELLATE JURISDICTION. The distinction is important because the modes of appeals are not the same. Let us assume that the RTC decided a case. A vs. B in the exercise of its original jurisdiction. Let us say that A won the case. B now wants to appeal. Q. What would be the mode of appeal of B? A. It would be a simple notice of appeal filed with the same RTC that rendered the judgment. Appellate court…. CA However, if the only issue raised by B on appeal is question of law, then the mode of appeal is no longer a notice of appeal but under Rule 45 in which the case, the appellate court would no longer be the CA but the SC. Let me stress… with respect to the judgment of the RTC rendered in the exercise of its original jurisdiction, the mode of appeal may be a simple notice of appeal or a petition of certiorari depending on the question that is raised. If the question raised on appeal is only a question of fact, or a question of fact and law at the same time, the mode of appeal is a simple notice of appeal filed with the RTC, the appellate court is the CA. Where the appeal involves only a question of law, the mode of appeal is a petition for review or certiorari under Rule 45 and the appellate court is the SC. The period is the same, 15 or 30 days. Q. How about the judgment of the RTC rendered in the exercise of its appellate jurisdiction? A. For instance, this (A vs. B) was judgment of the MTC which the court ruled upon on appeal and this judgment of the RTC affirming, modifying or reversing the MTC judgment is in turned appealed. What would the be mode of appeal? A. The mode of appeal is a petition for review (R 42). Q. What would be the appellate court? A. Regardless of the nature of the question raised on appeal. The question raised on appeal may be a question of fact, it may only be a question of law, or it can be a question of fact and law at the same time. It is the CA that has jurisdiction. Period of Appeal… The same. But when there is a motion for reconsideration of the judgment of the RTC, the appeal period is counted from receipt by appellant of the order denying the motion for reconsideration. Appeal from judgment of SC-Appellate Court is God! Mode of Appeal-Period of AppealEternally! (Joke only) Why? Q. Is there an appeal from the judgment of SC? A. No more that’s why the only appellate court would be God, the mode of appeal is prayer. (Forget that!) RENE NOTES: * failure to file appellants brief cause for dismissal of appeal * failure to file appellee’s brief, court can still decide appeal based on appellant’s brief * The judgment on appeal of the RTC is immediately executory, without prejudice to a further appeal that may be taken therefrom. * The Summary Rules no longer apply when the cases is on appeal. * Residual power of the court prior to the transmittal of the original record or record on appeal:

1. to issue orders of the preservation of the rights which do not involve matters litigated by appeal; 2. to approve compromise prior to the transmittal of the record; 3. permit appeal by an indigent; 4. order execution pending appeal under Rule 39 Sec.2 (motion for execution was filed before the expiration of the period to appeal) ORDINARY APPEAL * Matter of right * All the records are elevated from the court of origin * Notice of record on appeal is filed with the record of origin PETITION FOR REVIEW * Discretionary * No records are elevated unless the court decrees it * Filed with the CA

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* If lower court dismissed the case without trial on merits: - RTC may: (a) Affirm; or (b) Reverses, in which case, it shall remand the case for further proceedings. * If dismissal is due to lack of jurisdiction over the subject matter: - RTC may: (a) Affrim: if RTC has jurisdiction, shall try the case on the merits as if the case was originally filed with it, or (b) Reverse, in which case, it remand the case for further proceedings. * If the case was tried on the merits by the lower court without jurisdiction over the subject matter: - RTC shall dismiss the case, if it has original jurisdiction, but shall decide the case, and shall admit amended pleadings or additional evidence. Rule 41: Appeal from Regional Trial Courts * What cannot be appealed? Clue: (WE PAID) 1. WITHOUT PREJUDICE – Order dismissing an action without prejudice 2. EXECUTION – Order of Execution 3. PENDING – Judgments or final orders for or against one or more of several parties or in separate claims while the main case is pending 4. APPEAL – Orders disallowing or dismissing an Appeal 5. INTERLOCUTORY orders 6. DENIALS – Orders denying P.M.S. (Petition for relief, Motion for new trial or reconsideration and motion to Set aside a judgment, by consent, confession or compromise on the ground of fraud, mistake, duress or any ground vitiating consent.) * Remedy in cases where appeal is not allowed: - Special civil action of certiorari or prohibition if there is lack of jurisdiction or grave abuse of discretion or mandamus if there is no performance of duty. * A judgment based only on compromise is not appealable and is immediately executory. Rule 42 :Grounds for Outright Dismissal 1. petition was filed out of time 2. required fees were not paid 3. copies of the petition were not served on the adverse party - no proof of service 4. failure to comply with the proper form for the petition 5. petition patently without merit 6. prosecuted manifestly for delay 7. the questions raised are unsubstantial

Ordinary Appeal (appeal by writ of error)

Petition for review (Rule 42)

Petition for review certiorari Rule 45

on

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* Case is decided by the RTC in its original jurisdiction Appealed to the CA * File a notice of appeal or a record on appeal with the court of origin (RTC) and give a copy to the adverse party. * Case is decided by the MTC. Appealed to the RTC. Petition for review with the CA. * File a verified petition for review with the CA / Pay the docket and lawful fees, and P500 as deposits for costs with the CA / Furnish RTC and adverse party copy of such (R42). Within 15 days from notice of the decision to be reviewed or form the denial of a MR or new trial. * The case raises only a question of law. * File a verified petition for review on certiorari with the SC (R45) / Pay docket and lawful fees and P500 for costs / Submit proof of service of a copy to the lower court and adverse party. * Within 15 days from notice of the judgment or order of denial of the MR or new trial.

* Within 15 days from the notice of the judgment for notice of appeal and within 30 days for records on appeal / The period for filing is interrupted by a timely motion for reconsideration or new trial.

Rule 42: Petition for Review from the Regional Trial Courts to the Court of Appeals * Failure to comply with the requirements on form such as: 1) certification against forum shopping 2) non-payment of docket, lawful fees and 3) deposit for costs and 4) failure to show proof of service of the same petition to the adverse party are grounds for dismissal. * Outright dismissal allowed – Petition for review is not a matter of right but discretionary on the part of the CA. It may only give due course to the petition if it shows on its face that the lower court has committed an error of fact and/or law. * ACTIONS ON THE PETITION Court may 1. require respondent to file comment - 10 days 2. dismiss the petition if it finds that: a) it is patently without merit b) prosecuted manifestly for delay c) the questions raised are unsubstantial * It is merely discretionary on the CA to order the elevation of the records. This is because until the petition is given due course, the trial court may still issue a warrant of execution pending appeal and in some cases such as ejectment and those of Summary Prcedure, the judgments are immediately executory. It is only when the CA deems it necessary that the Clerk of the RTC will be ordered to elevate the records of the case. See Table Rule 43: APPEALS FROM THE CTA AND QUASI JUDICIAL AGENCIES TO APPEALS Sec. 1 Rule 43 Sec. 1 of Rule 43, the different quasi-judicial bodies which decisions are subject to appeal to the Court of Appeals are enumerated under. To this list, you add two other bodies whose decisions are appellate to the Court of Appeals: 1. the orders of the ombudsman is administrative discipline cases In case of Fabian vs. Desierto, the court declared unconstitutional the provision of the law creating the office of the ombudsman which empowered the SC to review judgment of the ombudsman iN administrative-disciplinary cases. So, under this decision, judgment or orders of the ombudsman in administrative-disciplinary proceedings, are reviewable by the CA. Fabian vs. Desierto G. R. #129742 Sept 16, 1998 2. NLRC (National Labor Relations Commission) Judgment of NLRC are not appealable to the SC but to the CA. THE COURT OF

Before the decision in Saint Martin Funeral Homes vs. NLRC, the judgment of NLRC were reviewable be certiorari before the SC. In this case, (Saint Martin Funeral Homes vs. NLRC) G.R. # 130866, Sept 16, 1998 295 SCRA 494, SC held that there is no law which authorizes appeals from judgment of the NLRC to the SC. In this case, the SC traced the legislative history of the NLRC and it came into the conclusion that no one of the laws relative the NLRC provided for an appeal from judgment of the NLRC to the SC. Of course you will notice that under Sec. 2 of Rule 43, judgments of the Labor Law of the Philippines are not covered by Rule 43. But under this decision now, Saint Martin case, the decision of the NLRC are now covered by the Rule 43. Except for some differences, the procedure of an appeal from judgment of the quasi-judicial bodies are practically the same as the procedure for the disposition of an appeal from the judgment of the RTC in the exercise of its appellate jurisdiction. They are practically the same. With this difference only. Both are reviewable by petition for review. Example: A vs. B in SEC B lost the case in the SEC. B now wants to appeal from the judgment of the SEC. Q. What is the mode of appeal? A. Petition for Review Q. Period? A. The same. The period is within 15 days from receipt of the copy of the award, judgment or order of the SEC. In case, however, the judgment of a quasi-judicial body requires it to be published in order that a judgment may be valid, the 15 days period is counted from the last day of publication. In case there is a motion for reconsideration of the judgment, order or award of the SEC, the 15-day period is counted from the receipt of the resolution denying the motion for reconsideration. Contents of Petition, Documents to be attached thereto… I leave this to you, so we can move… Scope of Sec. 1 Rule 43 1) Appeals from judgment or final orders of the court of Tax Appeals; 2) Appeals form awards, judgments, final orders or resolution of or authorized by any quasijudicial agency in the exercise of the quasi-judicial functions. List of Agencies 1) Civil Service Commission 2) Central Board of Assessment Appeals 3) Securities and Exchange Commission 4) Office of the President 5) Land Registration Authority 6) Social Security Commission 7) Civil Aeronautics Board 8) Bureau of Patents, Trademarks and Technology Transfer 9) National Electrification Administration 10) Energy Regulatory Board 11) NTC 12) Department of Agrarian Reform under R. A. No. 6657 13) Government Insurance System 14) Employees Compensation Commission 15) Agricultural Inventions Board 16) Insurance Commission 17) Philippine Atomic Energy Commission 18) Board of Investment 19) Construction Arbitrators Authorized by Law 20) National Labor Relations Commission (Saint Martin Funeral Homes vs. NLRC) 21) Ombudsman (Fabian vs. Desierto) 22) Voluntary Arbitrators

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Action of the CA on the petition… It may dismiss outrightly the petition on the ground for instance that (1) the motion was filed out of time; (2) the required fees were not paid; (3) copies of the petition were not served by the adverse party, etc. The court may find that petition is not meritorious at all or the court may find that the petition was filed merely for purposes of delay, or the court may find the issues raised in the petition are too insubstantial to require further proceedings. On the other hand, the court may find it proper to direct the respondent to file a comment with 10 days from notice. So if the court gives the respondent time to comment that means to say that the court may grant to determine whether to give due course or not, to this petition.

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Let us say now that the comments have been filed Q. What now will the action of the court thereafter? A. The court may then give due course to the petition or deny due course. Q. When will the court give due course here? A. If from the pleading, the comment on the petition itself if there is a prima facie showing that the body whose judgment is subject of petition may have committed an error. This error is of fact or of law. Q. Is it enough that the error was committed either of fact or of law? A. No. An error that may warrant a reversal of the judgment, order or award appeals from or which may warrant at least a modification of the judgment appeals. Q. If the court gives due course, how will the CA decide now the case? A. At its option, it may now require the quasi-judicial body, SEC in our example, elevate to the CA the records of the case. Let us assume that the records have been elevated to the appellate court. Q. Will the case now be submitted for decision? A. Not yet. CA may require the parties to submit their memorandum within a given period of time. Upon the filing of the memorandum or the expiration of the period of the filing thereof, the case may now be submitted for decision. (That’s how simple it is!) Q. What is the difference between the effect of an appeal from a judgment rendered by a quasijudicial body on the execution of the judgment appealed from the effect of an appeal in an ordinary case from the judgment of CA where the judgment is that of a RTC? A. In the case of a judgment of the quasi-judicial body, the appeal therefore does not stay the execution of the judgment. It is immediately executory. However, this is subject to an exception where the appeal from the judgment of the SEC or any quasi-judicial body for that matter stay the execution when the CA itself orders the stay of an execution. On the other hand, a judgment of the RTC appealed from cannot be executed during the pendency of the appeal, that is the general rule. In other words, an appeal from a judgment of the RTC to the CA is stayed. Q. not A. the the Is there a case however, where a judgment is that of a RTC and yet an appeal therefore does stay the execution? Yes. That is when the judgment rendered by the RTC involves a case which is decided under rules on summary procedure in which case, the appeal therefore does not stay the execution of judgment.

Example: The RTC affirmed the judgment of the inferior court in a forcible entry case, which ordered the defendant to vacate the premises. The RTC affirmed the judgment. The defendant B filed a petition for review under Rule 42 (petition for Review from the RTC to SC). Q. May this judgment against him be enforced notwithstanding his appeal therefore in CA? A. Yes. It’s the only exception. RENE NOTES: Grounds for Outright Dismissal 1. Petition filed out of time 2. Required fees were not paid 3. Copies of the petition were not served on the adverse party 4. Contents of appeal does not follow the prescribed form Grounds for Dismissal (Upon motion) 1. Patently without merit 2. Prosecuted manifestly foe delay 3. Questions raised are unsubstantial to require consideration PROCEDURE IN THE COURT OF APPEALS RULE 44: Ordinary Appealed Cases Time to File a) appellant’s brief - 45 days from notice of clerk of court b) appellee’s brief

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- 45 days from receipt of appellant’s brief c) appellant’s reply brief - 20 days from receipt of appellee’s brief * Failure to file appellant’s brief on time is a ground for dismissal of the appeal. * If a motion to dismiss an appeal has been filed, it suspends the running of the period for filing the appellant brief, as the same would be unnecessary should the motion be granted. * The failure of the appellant to make specific assignment for errors in his brief or page references to the record as required in this section is a ground for dismissal for his appeal. Rule 45: Appeal by Certiorari to the Supreme Court * Appeals to the Supreme Court can be taken from a judgment or final order for resolution of the CA, the Sandiganbayan, the RTC or such other court as may be authorized by law and only by a verified petition for review on certiorari on questions of law except in appeals from judgments of the RTC in criminal cases wherein the penalty imposed is life imprisonment, or reclusion perpetua which shall be elevated by ordinary appeal, or wherein the death penalty is imposed which is subject to automatic review. QUESTIONS OF LAW * doubt of controversy as to what the law is on ceratin facts * if the appellate court can determine the issue raised without reviewing or evaluating the evidence * can involve questions of interpretation of the law with respect to the ceratin set of facts QUESTIONS OF FACT * doubt or difference arises as to the truth or falsehood of facts, or as to probative value of the evidence presented * the determination involves evaluation or review of evidence * qeury invites the calibration of the whole evidence considering mainly the credibility of witnesses, existence and relevancy of specific surrounding circumstances and relation to each other and the whole probabilities of the situation

* As a general rule, the findings of fact of the CA are final and conclusive and cannot be reviewed on appeal to the SC. Exceptions to Conclusiveness of Facts: 1. When the finding is grounded entirely on speculations, surmise of conjecture; 2. When inference made is manifestly absurd, mistaken or impossible; 3. When the judgment is premised on a misrepresentation of facts; 4. When there is grave abuse of discretion in the appreciation of facts; 5. When the findings of facts are conflicting; 6. When the CA in making its findings went beyond the issues of the case and the same is contrary to both the admissions of appellants and appellees; 7. When the findings of fact of the CA are at variance with those of the trial court, the SC has to review the evidence in order to arrive at the correct findings based on the record; 8. When the findings of fact are conclusions without citation of specific evidence on which they are based; 9. When the facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondents; 10. The findings of fact of the CA is premised on the supposed evidence and is contradicted by the evidence on record; 11. When certain material facts and circumstances have been overlooked by the trial court which, if taken into account, would alter the result of the case in that they would entitle the accused to acquittal. * Certiorari under Rule 45 vs. certiorari under Rule 65 (special civil action) CERTIORARI UNDER RULE 45 * petition is based on questions of law CERTIORARI UNDER RULE 65 * petition raises the issue as to whether the lower court acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion Special civil action * directed against an interlocutory order of the court or where there is no appeal or any other plain, speedy or adequate remedy * filed not later than 60 days from notice of judgment, order of resolution appealed from * unless a writ of preliminary injunction or

It is a mode of appeal * involves the review of the judgment award or final order on the merits * must be made within the reglementary period * stays the judgment or order appealed from

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temporary restraining order is issued does not stay the challenged proceeding * the petitioner and the respondent are the original parties to the action, and the lower court or quasi-judicial agency is not impleaded * Motion for reconsideration is not required * the parties are the aggrieved party against the lower court or quasi-judicial agency and the prevailing parties * Motion for reconsideration or for new trial is required * File a motion for reconsideration or new trial is filed, the period shall not only be interrupted but another 60 days shall be given to the petitioner (SC Admin. Matter 002-03) * court exercises original jurisdiction

* the court is in the exercise of its appellate jurisdiction and the power of review Rule 46:Original Cases (In the CA)

Under BP Blg. 129, the CA has original jurisdiction to issue writ of mandamus, prohibition, certiorari, habeas corpus and quo warranto, and auxiliary writs or processes, whether or not they are in aid of its appellate jurisdiction, and it has executive original jurisdictions over actions for annulment of judgments of Regional Trial Courts. The court acquires jurisdiction: (1) Over petitioner by filing of the petition (2) Over the respondent by the service on the latter of the order or resolution indicating the courts initial action on the petition and NOT by the service on him of the petition. Procedural Outline (original cases in the Court of Appeals) 1) Filing of the petition 2) Order to acquire jurisdiction over respondents OR Outright dismissal for failure to comply to requirements also form and payment of docket and other legal fees. 3) Require respondents to file COMMENT within 10 days from NOTICE 4) Court may require the filing of a REPLY or such other pleadings as it may deem necessary 5) Determination of FACTUAL ISSUES - the court may delegate the reception of evidence on such issues to any of its members. Rule 47: Annulment of Judgment or Final Orders and Resolutions (Annulment of Judgments rendered by the RTC and Annulment of Judgment rendered by the Inferior Court) Q. When may a judgment of the RTC be the subject of a petition for annulment in the CA? A. If a judgment has already become final and the loosing party lost the right to file a petition for review or lost any other remedy against this judgment without his fault then he may file a petition for annulment of this judgment. This means to say that if the party against whom the judgment was rendered lost the right to file a petition for relief or lost any other remedy which could have been available to him because of his fault, then he cannot avail of this Rule 47. Example: In the RTC, the parties were A and B. A judgment was rendered against B. This judgment became final. Q. Well, what did we learn under Rule 39? A. When a judgment becomes final, there is nothing left to be done but to execute it. Q. Why did this judgment become final? A. Because B failed to file a notice of appeal. Because B failed to file a motion for reconsideration: because B failed to file a motion for new trial; because B failed to file a petition for relief. The lost of any of these rights was not due to the fault of B. If the lost of any of these remedies was on account for the fault of B, then B cannot file an action for annulment. Period within which B may now file an action for annulment in CA… The period depends on the ground whether the ground is extrinsic fraud or the ground is lack of jurisdiction.

If the ground is fraud, he Has four (4) years from discovery of the fraud with which to file an action.

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If it is lack of jurisdiction, at any time before the action is barred by laches or estoppel. These are the only periods. Q. What are the grounds? A. It’s either extrinsic fraud or lack of jurisdiction These are the only two (2) grounds available to B. Q. What is an extrinsic fraud as contradicting intrinsic fraud? A. Let’s illustrate each of them… Example: Supposing during the trial, in the RTC, A submitted in evidence a forged document. Exhibit “A”. And on the basis of this forged document alone, the court rendered a judgment in favor of A. Q. B files an action to annul this judgment on the ground of extrinsic fraud. Is this ground (forgery) an extrinsic fraud? A. No, what then? Intrinsic fraud. Let’s reverse the situation… Example: A and B received the notice of pre-trial setting the pre-trial for specific date. Before the date of the pre-trial, A met B and said, “B, I already filed a motion for postponement. The court has already granted it. You do not have to appear anymore in the court for the pre-trial.” Believing on the truthfulness of A, B did not appear for the pre-trial. On the day of the pretrial, however A appeared in court. Because of the absence of B, A now moves that he be allowed to present his evidence ex parte. Thereafter, the court rendered judgment. The judgment in favor of A became final. B now wants to file an action for annulment based on extrinsic fraud. Q. With what extrinsic fraud consist of? A. According to him (B), the misrepresentation of A that the pre-trial set on the scheduled date was cancelled. Q. Is it the contention of B here correct? A. Yes, it is correct. Why? That kind of a fraud committed against him was committed outside the trial. Whereas, the fraud consisting in the introduction of evidence in court of that Exhibit “A” is an intrinsic fraud. Q. What is the difference? A. In the case of an intrinsic fraud, there is an opportunity for the adverse party to counteract that fraud. In this case, B could have presented on the fact that this document is a forgery. He did not. That is his (B) fault. But in the case of the second misrepresentation, B would not have rebut it with contrary evidence because that was not committed outside the trial. This is the concept of extrinsic fraud. Of course the other ground is lack of jurisdiction. Procedure. If B is to file the petition. The contents of the petition are stated in Rule 47, do not have to repeat, except for this matter. The petition should be accompanied by affidavits of witnesses of the party filing the petition. In our example, the petition of B should be accompanied by affidavits of his witnesses. So, since he was the defendant in the trial below (RTC), the affidavit of his witnesses must be those which would support his defense against the action of A. If it were A who filed his petition, his petition should be accompanied by affidavits of his witnesses on the cause of action of A. The petition is now there in court (CA). Q. What now will be the action of CA, will it immediately give the due course or it can dismiss outright the petition? A. There are two (2) causes of action that CA may take this case: 1) immediately dismiss the petition. Ground the petition in its (CA) view is not impressed with merits. In other words, it is not meritorious. Then the court can immediately dismiss it. 2) The court finds the petition to be impressed with merits (with prima facie merit). Q. Then what shall CA do?

A. Then it will give it due course. How? The rule now says, “that this case will now be treated as if it were an ordinary case filed in the RTC.” That’s why the respondent in this case now, A will have to be summoned. Q. What will be required of B here? A. B will be required to file his answer and thereafter, trial shall proceed as if this were a case pending in the RTC. Q. Will there be an actual trial in the CA or in short may the CA receive the evidence itself? A. There are several options available to the C.A. regarding the Evidence which it is required to receive. It may authorize any of its members to receive the evidences. In other words, the members of the CA assigned to receive the evidence will act as if he were a judge of RTC conducting a trial. The CA may delegate the reception of the evidence to another judge, an appropriate judge. Any judge? No, Judge of the RTC. So these are the options available to the CA. Q. What is the extent of the power of the RTC judge to whom the reception of the evidence of the parties has been delegated by the CA? May the RTC decide the case? A. No. Why? Because the power delegated to him is the power to receive the evidence, not the power to decide the case. It will still be the CA that will render the judgment. So after the reception of the evidence either by the CA itself or by a judge of the RTC, the CA will now decide the case. The decision may be dismissal of the petition. This means to say that the grounds have not been proven. So the decision of the RTC stands. The judgment of the CA may be to grant the already expired decision. This is what is meant by this suspension of prescriptive period (Sec. 8 Rule 47) Sec. 7 Rule 47 (Effect of Judgment) A judgment of annulment shall be set aside the questioned judgment or final order or resolution and render the same null and void, without prejudice to the original action being refilled in the proper court. However, where the judgment or final order or resolutions set aside on the ground of extrinsic fraud, the court may on motion order trial to try the case as if a timely motion for new trial had been granted therein. Sec. 8 Rule 47 Suspension of Prescriptive Period The prescriptive period for the refilling of the aforesaid original action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment. However, the prescriptive period shall not be suspended where the extrinsic fraud is attributable to the plaintiff in the original action. We said that, where the judgment is declared void, this action can be refilled. However, where the ground, which serves as the basis of the CA in setting aside the judgment of RTC was extrinsic fraud, instead of having this case refilled, the trial may be declared to hear anew the case as if a motion for new trial was granted. Example: The judgment of the RTC was set aside. The ground was extrinsic fraud. We say that as a result of this judgment, the plaintiff here, A, may re-file the case or instead of refilling the case, the CA may direct the RTC to continue hearing the case. It is as if there was a new trial granted. However, if the basis of the CA in setting aside the judgment of the RTC was lack of jurisdiction, obviously, the CA cannot direct the RTC to hear this case. It has to be re-filed. The prescriptive period for the filing of the aforesaid original action shall be deemed suspended from the filing of said original action until the finality of judgment of annulment. However, the prescriptive period cannot be suspended where the extrinsic fraud is attributable to the plaintiff in the original action. Example: RTC-A vs. B. Let’s say that the cause of action that can be brought within four (4) years from the happening. Let say this cause of action became the subject of a complaint filed by A against B on January 2, 1993. Q. What do you notice here? A. At the time the action was filed, only one (1) year of the prescriptive period remained. This judgment in favor of A became final on Jan. 3, 1994. this judgment however, was rendered in favor of A. So, in the CA now, B filed an action for annulment on Jan. 5, 1995. A

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judgment annulling this decision of the RTC that was rendered by the CA and became final on Jan. 6, 1997. Since the extrinsic fraud by A and A elected to re-file the case in the RTC. He filed this case A vs. B on Jan. 7, 1999.

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Q. Has his action prescribe or did not prescribe? A. The law says… Since A was the one guilty of extrinsic fraud, the period between the time he filed the original complaint (Jan. 2, 1993) and the time judgment became final (jan. 6, 1997). The period between the first time the case was filed and time of the judgment of CA (Jan. 6, 1997) became final, this was not suspended. So, if you add therefore the period from Jan. 1, 1990 to the time he filed the second action (Jan. 7, 1999), you have already a period of nine (9) years. He only has four (4) years. Prescribed! If however, the ground of the annulment was not in jurisdiction, not fraud, for purposes of refilling the case, this period is suspended. Therefore, at the time this case was re-filed, the period may not have yet prescribed. January 1, 1990 A vs. B January 2, 1993 The cause of action arose on Jan. 1, 1990. The cause of action prescribes in four (4) years from happening. A filed a complaint against B in RTC (original complaint) (at the time of filing, only one (1) year left in the prescriptive period) January 3, 1994 Judgment in RTc became final. Judgment in favor of A. (By reason of extrinsic fraud committed by A) January 5, 1995 B filed an action for annulment by reason of extrinsic fraud committed by A. January 6, 1997 The judgment of CA annulling the decision of the RTC became final January 7, 1999 Since the extrinsic fraud was committed by A, he (A) (elected to) re-filed the case in the RTC, A vs. B. Note* Nine (9) years have elapsed. Not suspended because extrinsic fraud by A.  The period from January 2, 1993 (first case was filed to) January 6, 1997 (CA decision became final) was not suspended because the extrinsic fraud was committed by a (plaintiff). Therefore, from January 1, 1990 to January 7, 1999, the cause of action already prescribed. Note that the cause of action in the above example prescribes in four (4) years.

RENE NOTES: Rule 47: When to File - if failed to file without fault 1) notice of appeal 2) motion for reconsideration 3) motion for new trial 4) petition for relief Extrinsic Fraud - Fraud committed outside the trial and not in the course of the trial * extrinsic fraud shall NOT be a valid ground if: - it was availed of or could have been availed of in a: a) motion for new trial b) petition for relief Effect of Judgment a) annulment based on lack of jurisdiction – original action may be refilled. b) based on extrinsic fraud – trial court will try the case. (as if a motion for new trial was granted) Rule 48: Preliminary Conference * Not mandatory Things taken up: 1. possibility of an amicable settlement 2. clarification of issues 3. formulation or stipulation of facts 4. other matters which may aid in the prompt disposition of the case Rule 49: Oral Argument * Not mandatory

* The oral argument shall be limited to such matters as the court may specify in its order or resolution. Rule 50: Dismissal of Appeal Grounds for Dismissal

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(a) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules; (b) Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules; (c) Failure of the appellant to pay the docket fee and other lawful fees as provided in Section 5 of Rule 40 and Section 4 of Rule 41; (d) Unauthorized alterations, omissions or additions in the approved record on appeal as provided in Section 4 of Rule 44; (e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules; (f) Absence of specific assignment of errors in the appellant’s brief, or of page references to the record as required in Section 13, paragraph (a), (c), (d) and (f) of Rule 44; (g) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order; (h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and (i) The fact that the order or judgment appealed from is not appealable. (1a) * An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed outright. * An appeal will be withdrawn as a matter of right at anytime before the filing of the appellee’s brief. Thereafter, the withdrawal will be allowed in the discretion of the court. Rule 51: Judgment A case shall be deemed submitted for judgment: A. In ordinary appeals 1) Where no hearing on the merits of the main case is held a) upon the filing of the last pleading, brief or memorandum; or b) expiration of the period for filing 2) Where hearing on the merits of the main case is held a) upon its termination; b) upon the filing of the last pleading or memorandum; or c) expiration of the period for filing

B. In original action and petition for review – 1) Where no comment is filed a) upon the expiration of the period to comment; 2) Where no hearing is held a) upon the filing of the last pleading; or b) expiration of the period for filing; 3) Where hearing is held a) upon its termination; b) upon the filing of the last pleading or memorandum; or c) expiration of the period for filing.
Rule 52: Motion for Reconsideration * The rules now prohibit a second motion for reconsideration. * The pendency of a motion for reconsideration filed on time shall stay the execution of the judgment. * The rules now require the service of the motion to the adverse party. Rule 53: New Trial Q. When may a motion for new trial in CA be filed? A. At anytime after the appeal has been perfected up to the time the CA has not yet lost jurisdiction over the case. Q. What is the jurisdiction here? A.

Example: A vs. B in the RTC. Let’s say that B appealed to CA. B wants to file a motion for new trial.

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Q. Within what period must he file it? A. The law says, “at anytime after the appeal has been perfected”. Let us say that the appeal made was perfected on Dec. 1, 1998, until then the court still retains jurisdiction. Let us say that a judgment was rendered by the CA on Dec. 1, 1998. Let us assume also that B received the copy of the decision on Dec. 3, he has a 15-day period therefrom within which to file a petition for certiorari in the SC. So, the last day for him to file would be Dec. 18, 1998. Q. When then can he file a motion for new trial? A. At anytime between the date (Dec. 1, 1998 to Dec. 18, 1998) before the court lost its jurisdiction. Because if there is no perfected petition for certiorari as of Dec. 18, 1998, the following day, the judgment already becomes final. So, the court no longer has any jurisdiction. So, between these two dates (Dec. 1 to Dec. 18). There is only one ground for a motion for new trial under Rule 53. The motion for new trial in the CA can be based only on one ground that is newly discovered evidence. Evidence which would not have been discovered while the case is pending before trial in RTC (in our example). Even with due diligence, B in this example, would not have presented that evidence and which if presented will probably alter the judgment of CA already rendered. This is in contrast with the ground of a motion for new trial under Rule 37. There are two grounds where a judgment which has been rendered against a party because of FAME that affected the substantial rights. This is not available in the CA. Q. How will the CA here resolve this motion for new trial? A. It will conduct a hearing. Q. Who may receive the evidence in this case? A. Unlike a motion for new trial in a criminal case which can be conducted by a trial court, a motion for new trial in a civil case can be heard only by CA itself. This is a distinction between the two. Q. When should this motion for new trial be resolved? A. Within 90 days from the date the motion for new trial is submitted for resolution. Assuming now that the motion for new trial has been granted, what will be the next proceeding? Unless the court otherwise directs, the procedure in the new trial shall be the same as that granted by the RTC. How RTC conducts a trial following the grant of a motion for new trial. RENE NOTES: PROCEDURE OF THE SUPREME COURT Rule 56: Original and Appeal Cases Original Cases Cognizable 1. Certiorari 2. Prohibition 3. Mandamus 4. Quo warranto 5. Habeas Corpus 6. Disciplinary proceedings against members of the judiciary and attorneys 7. Cases affecting ambassadors, other public ministers and consuls * An appeal to SC can only be taken by petition for review on certiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua, or life imprisonment. Grounds for dismissal of appeal by SC: a) Failure to take appeal within the reglementary period; b) lack of merit in petition; c) failure to pay the requisite docket fee and other lawful fees to make deposit for costs; d) failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition; e) failure to comply with any circular, directive or order of the SC without justifiable cause; f) error in choice or mode of appeal; g) case is not justifiable to SC. * Discretionary upon SC (and CA) to call for preliminary conference similar to pre-trial. *GR: Appeal to SC by notice of appeal shall be dismissed

Exception: In criminal cases where the penalty imposed is life imprisonment, or when a lesser penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence which gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed (Sec. 3, Rule 122).

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* Appeal by certiorari from RTC to SC submitting issues of fact may be referred to the CA for decision for appropriate action, without prejudice to considerations on whether or not to give due course to the appeal as provided in Rule 42. PROVISIONAL REMEDIES Rule 57: Preliminary Attachment * Provisional remedies (anciliary/auxiliary) – writs and processes available during the pendency of the action may be resorted to by a litigant to reserve and protect rights and interests therein pending rendition, and for the purpose of ultimately effecting a final judgment in the case.  PROVISIONAL – constituting temporary measures availed of during the pendency of the action.  ANCILIARY – incidents in and dependent on the result of the main action. *Preliminary Attachment a) available even if the recovery of personal property is only an incidental relief sought in the action; b) may be resorted to even if the personal property is in the custody of a third person; c) extends to all kinds of property, real or personal or incorporeal; d) to recover possession of personal property unjustly detained, presupposes that the same is being concealed, removed, or disposed of to prevent its being found or taken by the applicant; e) can still be resorted to even if the property is in custodia legis, as long as the property belongs to the defendant, or is one in which he has proprietary interests, AND with permission of the court. *Grounds a) recovery of specified amount of money and damages, except moral or exemplary, where party is about to depart from the Phils with the intent to defraud creditors; b) action for money or property embezzled or for willful violation of duty by public officers, officers of corp, agent or fiduciary; c) recovery of possession of property (both real and personal) unjustly detained, when the property is concealed or disposed of to prevent is being found or taken; d) action against party guilty of fraud in contracting the debt or incurring the obligation or in the performance thereof; e) action against party who is concealing or disposing of property, or is about to do so, with intent to defraud creditors; f) action against party who is not a resident of the Phils and cannot be found therein upon who service by publication can be made. * PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICITON (Preliminary Attachment) - Enforcement of writ of preliminary attachment must be made preceded by or simultaneously accompanied by service of summons, copy of complaint, application and affidavits for the attachment and the bond upon the adverse party; BUT the requirement of prior or contemporaneous service of summons shall not apply where the summons could not be served despite diligent efforts, or the defendant is a resident of the Phils temporarily absent therefrom, or the defendant is a non-resident of the Phils or the action is in rem or quasi in rem. * When preliminary attachment is discharged a) debtor posts a counterbond or makes requisite cash deposit – if attachment to be discharged is with respect to particular property, counterbond or deposit shall be equal to the value of the property as determined by the court; in all other cases, amount of counterbond should be equal to the amount fixed in the order of attachment. * CASH DEPOSIT OF COUNTERBOND SHALL SECURE THE PAYMENT OF ANY JUDGMENT THAT ATTACHING PARTY MAY RECOVER b) applicant’s bond is insufficient or sureties fail to justify; c) attachment was improperly or irregularly issued; d) property attached is exempt from execution; e) judgment is rendered against attaching party; f) attachment is excessive – discharge is with respect to the excess * Application for discharge may only be filed with the court where the action is pending and may be filed even before enforcement of the writ so long as there has been an order of attachment. * When to apply for damages against the attachment bond a) before trial; b) before appeal perfected; c) before judgment becomes executory; d) in the appellate court for damages pending appeal, before judgment becomes executory.

* When judgment becomes executory, sureties on counterbond to lift attachment are charged and can be held liable for the amount of judgment and costs upon notice and summary hearing. There is no need to first execute judgment against obligor before proceeding against sureties. * Claims for damages cannot be subject of independent action except: a) when principal case is dismissed by the trial court for lack of jurisdiction without giving the claiming party opportunity to prove claim for damages; b) when damages sustained by a third person not a party to the action. Rule 58: Preliminary Injunction

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* Preliminary injunction distinguished from Prohibition Preliminary Injunction Prohibition Generally directed against party to the Directed against a court, tribunal, or person action but may be against any person exercising judicial powers Does not involve the jurisdiction of the court May be on the ground that the court against whom the writ is sought acted without or in excess of jurisdiction May be main action itself or just a provisional Always a main action remedy in the main action * Grounds for Preliminary Injunction a) plaintiff is entitled to relief sought which consists in restraining or requiring the performance of acts (latter is preliminary mandatory injunction); b) the commission of acts or non-performance during pendency of litigation would probably work injustice to the plainitiff; c) defendant is doing or about to do an act violating plaintiff’s rights respecting the subject of the action and tending to render judgment ineffectual. * Injunction may be refused or dissolved when: a) complaint is insufficient; b) defendant is permitted to post a counterbond it appearing that he would sustain great and irreparable injury if injunction granted or continued while plaintiff can be fully compensated; c) plaintiff’s bond is insufficient or defective. * No preliminary injunction or TRO may be issued without posting of bond and notice to adverse party and hearing. * PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION: When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after NOTICE to and IN THE PRESENCE of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied by service of summons, together with a copy of the complaint and the applicant’s affidavit and bond, upon the adverse party in the Phils; BUT the requirement of prior or contemporaneous service of summons shall not apply where the summons could not be served despite diligent efforts, or the defendant is a resident of the Phils temporarily absent therefrom, or the defendant is a non-resdent of the Phils. * difference with principle in prelim attachment – in attachment, the principle applies only in the implementation of the writ, while in applications for injunction or TRO, this principle applies before the raffle and issuance of the writs or TRO. * TRO good for only 20 days from service; 60 days for CA; until further orders from SC. * TRO can be issued ex parte only if matter of grave urgency and plaintiff will suffer grave injustice and irreparable injury. Good for 72 hours from issuance, within which judge must comply with service of summons, complaint, affidavit and bond, and hold summary hearing to determine whether the TRO should be extended for 20 days. In no case can TRO be longer than 20 days including 72 hours. Rule 59: Receivership * When receiver may be appointed: a) party has an interest in the property or fund subject of the action and such is in danger of being lost, removed or materially injured; b) action by mortgagee for foreclosure of mortgage when the property is in danger of being wasted or materially injured and that its value is probably insufficient to discharge the mortgage debt, OR that the parties have stipulated in the contract of mortgage; c) after judgment, to preserve the property during the pendency of the appeal, or to dispose of it, or aid in execution when execution has been returned unsatisfied or the judgment debtor refuses to apply his property to satisfy judgment, or to carry out the judgment. d) when appointing one is the most convenient and feasible means to preserve, administer, or dispose of the property in litigation.

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* When receivership may be denied/lifted: a) appointment sought is without sufficient cause; b) adverse party files sufficient bond for damages; c) applicant or receiver’s bond is insufficient. * Both the applicant for receivership and the receiver appointed must file separate bonds. * In claims against the bond, it shall be filed, ascertained and granted under the same procedure as Section 20, Rule 57, whether it is damages against the applicant’s bond for the unlawful appointment of the receiver or for enforcing the liability of the sureties of the receiver’s management (in the latter case, no longer need to file a separate action). Rule 60: Replevin * Replevin a) available only where the principal relief sought in the action is the recovery of possession of personal property; b) can be sought only where the defendant is in the actual or constructive possession of the personal property involved. c) extends only to personal property capable of manual delivery; d) available to recover personal property even if the same is not being concealed, removed, or disposed of; e) cannot be availed of if property is in custodia legis, as where it is under attachment, or was seized under a search warrant or distrained for tax assessment. * Defendant entitled to return of property taken under writ if: a) he seasonable posts redelivery bond b) plaintiff’s bond if insufficient or defective c) property is not delivered to plaintiff for any reason. - replevin bond is only intended to indemnify defendant against any loss that he may suffer by being compelled to surrender the possession of the disputed property pending trial of the action. Thus, surety not liable for payment of judgment for damages rendered against plaintiff on a counterclaim for punitive damages for fraudulent or wrongful acts committed by the plaintiffs which are unconnected with the defendant’s deprivation of possession by the plaint Special Civil Actions Rule 62: Interpleader Q. Why are these called “Special Civil Actions”? A. Because of their nature, there are special procedures to follow. The first of this special civil action is the case of an interpleader. Q. What is the concept of an interpleader? A. Example: A leased an apartment to B. So, pursuant to this agreement, B have been occupying this apartment paying the rentals. After the lease period has run, let’s say, six (6) months, here now surfaces C. C said, “B does not pay anymore the rentals to A, this apartment is mine. Pay to me.” B is in a dilemma. If he (B) pays to A and it turns out later that C has a better right, he runs the risk of paying twice. If he pays to C, he runs the risks of paying again to A because C may not have the right. Q. If you were B, what is the remedy available to you, so that regardless of who is the party entitled to receive, you will be protected? A. File a suit for interpleader. B vs. A and C. Why? So that A and C can fight it out in this case. So, B initiates the complaint against two (2) people who do not want to go to court and litigate. So, this process of interpleader, A and C are compelled to fight each other. That is the concept of interpleader. Sec. 1 Rule 62 Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest whatever is the subject matter, or an interest which in whole and in part is not disputed by the claimants, he may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves. We now have this complaint by B against A and C.

Q. What is the prayer of B here? A. That A and C be directed to interplead with each other. Meaning, that A and C should fight it out and have this matter of who is entitled to the rental. Actually, it is not B who is fighting A or C. It is A and C who are fighting each other. Q. But who initiated the fight between the two (2)? A. B. Q. What now is the procedure to be followed by the court when this interpleader action was filed? A. Actually, A and C will also be summoned under Rule 14. But with this difference, accompanying the summons is an order of the court. Sec. 2 Rule 62 Upon filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one another. If the interests of justice so require, the court may direct in such order that the subject matter be paid or delivered to the court. So, the sheriff now serves on A and C the summons. Together with the summon is that order of the court directing A and C to interplead with one other. So, A will file his answer. Q. Who will be furnished copy of the answer of A? A. A will furnish B and C. Q. C will file his answer. Who will be furnished with the copy of the answer of C? A. A and B. Q. Do you now see why this is a special civil action? A. In ordinary civil action, do the defendants furnish each other copies of their answers? No. But here, the defendants furnish each other. Why? Because they are the ones litigfating. So, insofar as A is concerned, the plaintiff against him is C. Insofar as C is concerned, A is the plaintiff against him. Q. May a motion to dismiss the action for interplead be filed by A and C? Can A and C avail of Rule 16, before they file their answer? (coz remember under Rule 16, the motion to dismiss can be filed only before the answer has been filed. This question is answered by this Sec. 4 Rule 62. A. Section 4 Rule 62 Within the time of filing an answer, each claimant may file a motion to dismiss on the ground of impropriety of the interpleader or on other appropriate grounds specified in Rule 16. The period to file the answer shall be tolled and if the motion is denied, the movant may file his answer within the remaining period, but shall not be less than five (5) days in any event, reckoned from notice of denial. Q. What do you notice with respect to the ground of a motion to dismiss an interpleader action and a motion to dismiss in an ordinary civil action? A. In an ordinary civil action, the impropriety of the action is not a ground for a motion to dismiss. Under Rule 62, it is. So, the grounds for a motion to dismiss under Rule 62 are more encompassing than the ground of a motion to dismiss under Rule 16. Sec. 5 Rule 62 covers that situation already mentioned earlier. Sec. 5 Rule 62 Each claimant shall file his answer setting forth his claim within fifteen (15) days from service of the summons upon him, serving a copy thereof upon each other conflicting claimants who may file their reply thereto as provided by these Rules. If any claimant fails to plead within the time herein fixed, the court may, on motion, declare him in default and thereafter render judgment barring him from any claim in respect to the subject matter. The parties in an interpleader action may file counterclaims, cross-claims, third-party complaints and responsive pleadings thereto, as provided by these Rules. After A and C have been summoned, they will file their answer serving the plaintiff B and other defendants of the copy of the answer. In the answer of A and C, each will assert his right to the rental in this example. He will give his reasons why the rental should be paid to him. Q. May any of them A and C file also a counterclaim, a cross-claim? A. Yes. The parties in an interpleader action may file counterclaim, cross-claims, third-party complaints and responsive pleadings thereto as provided by these Rules.

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So, there is nothing special about this, except with this provision where they have to furnish each other with copies of their pleadings.

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Q. What now is the disposition of the court with respect to these cases? A. After the pleadings of the conflicting claimants have been filed and pre-trial have been conducted in accordance with the rules, the court shall proceed to determine their respective rights and adjudicate their counterclaims. It means to say following the pre-trial, trial proper will now proceed. After the court has conducted the pre-trial and received the evidence, the court will now determine who between A and C is entitled to this rental. And of course, will adjudicate the counterclaims. This is how Rule 62 works. RENE NOTES: INTERPLEADER 1. an original action 2. presupposes that plaintiff has no interest in the subject matter of the action or has interest therein in whole or in part which is not disputed by the other parties INTERVENTION 1. ancillary action 2. proper in any of the four situations: persons having (a) legal interest in the matter of litigation, or (b) success of either of the parties, or (c) an interest against both, or (d) is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an offer thereof, (Rule 19, Sec. 1) 3. defendants are original parties to the pending suits

3. defendants are being sued precisely to interplead them

Rule 63: Declaratory Reliefs and Similar Remedies Q. What is the subject matter of a declaratory relief? A. A person may be interested in a law, (he may be affected by a law), he may be affected by an instrument. He may want to know what his rights are or what his obligations are, under a written instrument or a law. Q. Can you now bring an action in court to determine what his rights are, what his obligations are under the law or under a written document? A. Example: A and B entered into an agreement. There are certain provisions here, which confer on A certain rights and imposes him certain obligations. There are also provisions here, which impose on B certain obligations and also certain rights. But in the case of A, these provisions are vague, he cannot quite comprehend it. And he (A) fears that there may be a litigation arising out of it. Q. Can he now file an action in court against B for the purpose only of obtaining a declaration from the court on what his rights are, on what his obligations are, on what the rights of B are, or there is a law or ordinance, say regulating sale of liquor, A is a liquor distributor, this law affects him so he wants to know what his rights are, what his obligations are under this law, can he now file an action against the authorities to determine what his rights are or his obligations are under this ordinance? A. Yes. That is the concept of a declaratory relief. Take note that a court is supposed to determine actual controversies. As a rule, a court is not required to give advisory opinions. It cannot settle abstract matters. It settles only actual conflicts. But under the law on declaratory relief, the court is actually called upon to render an opinion in a case involving these documents agreed upon. Of course, that can be done only before there has been a breach of the written document. Q. What is the situation contemplated by Rule 63? A. A person whose interest thereunder is a deed, a will, a contract or any other written instrument under a law, an ordinance, executive order, his rights under this law or instruments are affected. The provisions of the written instrument or the law may be vague giving rise to uncertainties. So, the possibility of a suit arising out of this vagueness of this instrument or this doubtful character, the instrument, because if you will not determine this, there will be a suit that will arise. Q. So, what is the idea behind the suit now that the party in this written instrument may file? A. The idea here is to secure from the court a declaration as to the validity of the instrument or of the law.

So, in the case then of the declaratory relief, the idea of the party filing the case is to know before there is a breach of the law on the agreement or written instrument, what his rights are, what his obligations are, under the contract or under the written agreement or under the instrument or under the law. So, in other words, he wants to know in advance what his rights are. So he goes to the court and in effect to ask for an opinion. We said that the court, does not as a matter of course render an opinion on abstract matters or hypothetical cases. But this is a sort of an exception to this. That is why, under this law the court may or may not agree to entertain an action for declaratory relief. It is being ask merely to interpret an instrument or a law or it may be asked only to declare what would be the proper construction or interpretation of the law or of the written instrument. There are however, suits that may be brought under the provisions of these rules on declaratory relief, which the courts cannot decline to entertain. These are the following actions: 1) an action to quite title to a property or to remove a cloud over a property; 2) an action for the reformation of an instrument; 3) an action for consolidation of ownership where the subject matter of the suit involves a contract of sale with right to repurchase. These three (3) actions mentioned, when brought under the provisions on Declaratory Reliefs cannot be dismissed by the court. It must have to entertain. But other cases of declaratory relief may be denied due course by the court. For this declaratory relief rules to apply, what must be established is the concurrence of all these circumstances: 1) There is an instrument; there is a will; there is a written contract or there is law 2) This written instrument or this law affects the right of a person; 3) A person wants this law or this instrument to be interpreted, to be given a construction; 4) At the time the suit is brought, there must be a threatened suit that may arise out of it; and 5) This controversy is justifiable.

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Example: (how this rule works) Here is a contract entered into between A and B. Let us assume that in our contract, that A undertakes to deliver supplies to B. A was supposed to load this supplies on a ship belonging to A for delivery to B. This contract calls for a ten (10) year period. On the 9 th year of the period, A Assigns his rights under this contract to C. C now is the transferee. Pursuant to this contract of A and C now says to B, “B beginning this 10th year, I will now be the one to supply you the materials which A under the contract supposed to deliver to you.” Q. Is B bound by this contract? A. For instance, A, C now delivers to B what A was supposed to deliver, and B refuses, may he (B) be held liable? Q. What is the remedy here? A. B here may file an action for declaratory relief against C and A. Q. What will be the prayer now of B here? A. He will now pray that the court interpret this contract involved here and find out what his rights are, what his obligations are under this contract of C and A. Does this contract bind him or it does not bind him? So, before there is any breach by A and B or C on this contract, then B can go to the court to declare what his rights are, what his obligations are, under this contract. Example: You will notice that this case here illustrates that first part of the rule where a party filing the case is interested under a contract. The other subject matter of a rule on declaratory relief, is a law, an ordinance or an executive order which affects the rights of a person. The municipality of X for instance which passed an ordinance on taxes, on business establishments selling liquor. Here is Y, who is a license dealer of liquor. This law, affects him, one way or the other. He doesn’t know what his rights are, now he is supposed to pay, let’s say, taxes which are much higher than the amount he is presently paying. But he is in doubt whether this is applicable to him or not applicable to him because of the vagueness of the law. Q. What is he allowed to do before there is any breach of this law by him? A. He can file an action against the municipality of X for declaration of whether this law is valid or not. This is his main purpose. To find out whether he is liable under this or he is not liable. This is the sole purpose.

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Q. Who will be the parties against whom, in our example, A, which affected by that law or contract or ordinance? Who will be the defendants? A. The law says, “all those persons whose rights are affected by this instrument must have to be made parties. And those who are not made parties are not affected by whatever judgment may be rendered in a case. Although there is a decision cited in the book of Moran to the effect that when a necessary party is not impleaded, then a declaratory relief petition may be filed. Why? Because the party who is necessary can always later on question an instrument or the law in a separate proceeding and so this declaratory relief will not put an end. Let us now assume that the petition for declaratory relief is filed. The court refuses to give it due course. Ground for instance, whatever judgment the court may render will not put an end to the uncertainty that brought about the controversy. So, it will be useless. So, the court can decline. On the other hand, the court may opt to consider it so it will hear the case. It is as if it were an ordinary civil case. Q. What will be the judgment? A. It will simply be a declaration of whatever or not this law is valid or not. It will simply declare what rights of A has under the contract. What obligations he has. That is all! Q. Is there anything in the judgment that can be executed? A. No. Why? Because this is merely declaratory. It does not resolve an actual controversy. It merely declares, “here are the rights, here are the obligations.” It cannot be enforced by execution because there is nothing to enforce. The law says, “if the petition was entertained by the court but while the case is pending in court, there is a violation of the agreement, or there is a violation of the law, there is a breach. Q. Can the petition for declaratory relief be maintained? A. No more. Let’s assume in this example of A filing the action against the Municipality to contest the validity of the tax ordinance. When the case was pending, plaintiff A paid the taxes. Q. Can this declaratory relief be continued? A. No more. It can no longer be continued. Q. What will happen then? A. The court will now treat this as an ordinary civil action. So, it will now try the case and render a judgment which can be enforced. So, in our example here, if taxpayer paid the taxes while the case is pending, there is already a breach of the law sought to be clarified. So, the court can no longer simply declare what are the rights and obligations. The court will now resolve with finality the rights of the plaintiff and his obligations. And the judgment there can be enforced by execution. But in a case of validity or invalidity, there is nothing that it can be enforced. Because it is merely a statement, “this is your right, this is your obligation, etc…” So, this in essence is the concept of Declaratory Relief. Let’s go back to the cases mentioned which can be filed under this provision… on rules on declaratory relief namely: 1) an action to quite title to property or to remove a cloud on a property; or 2) an action for reformation of an instrument; or 3) an action for consolidation of ownership. These cases cannot be declined to be entertained by the court. It must have to decide those cases. Since the subject of the petition for declaratory relief is a written instrument or a law or an ordinance. Q. Can there be an action for declaratory relief to declare that a certain person is or is not a Filipino citizen? A. No. Why? Because an action of this nature is not based on any document, it is not based on any written agreement. In one case, in 1941 when war was about to break, X went to the office of the municipal treasurer of his town and registered himself as a Chinese citizen. After the war, he now instituted an action for declaratory relief against the government. Q. What was his purpose here? A. To serve a declaration that he is a Filipino. In his petition he alleged that because of his fear, he registered himself as a Chinese citizen. Nevertheless, his having registered himself as a Chinese notwithstanding, he always considered himself as a Filipino. So that he now wants that he be declared a Filipino citizen.

The petition was dismissed outrightly.

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Q. Could the petition for declaratory relief be validly filed to secure a declaration that a person is a Filipino citizen? A. First, there is a written instrument, which is the basis of this petition. The documents, which is the basis of this petition. The documents, which he signed when he registered himself as a Filipino does not constitute a written agreement. Why? Because that was a unilateral act on his part. No one is interested in that document which he executed except himself. So, there can possibly be no question of doubt arising from that unilateral act. In one case, the suit was filed by A against B. the judgment was rendered against B. B now filed an action for declaratory relief based on this judgment. In other words, he wanted to find out what his rights are under that judgment. Q. Is the remedy of a declaratory relief petition, proper in this case? A. No. Why not? First, there are other remedies available to A to find out what his rights are. For instance, he could have filed a motion for clarificatory judgment. If he was in doubt as to what his rights are, he could have filed a motion in court to clarify the judgment. There is another remedy. He could have appealed from the judgment. In other words, this petition for declaratory relief is available only when there is no other available remedy against a written instrument or against a law. So, when there are still available remedies, this cannot be resorted to. But of course, there is one compelling reason why this petition was dismissed and that is the rule on res judicata. That has been already resolved with finality. It cannot be subject of another litigation. RENE NOTES: Requisites for Declaratory Relief 1. justiciable controversy 2. adverse claim between real parties in interest 3. subject matter is a written instrument or a statute 4. relief sought is merely a determination of the rights and duties 5. there must be no breach or violation of instrument or statute 6. no other available or sufficient remedy GR: Declaratory relief is available BEFORE there is actual breach or violation of an instrument or statute. Exceptions:, declaratory relief may still be availed even if there is breach or violation IF: 1. it concerns future application of the instrument or law [Gomez vs. Palomar (25 SCRA 827)] or 2. not objected to by the adverse party and the court has rendered judgment after full blown trial [Matalin Coconut Producers (143 SCRA 1)] Rule 65: Certiorari, Prohibition and Mandamus There are two (2) types of certiorari. One, as an appealed remedy from a final judgment or order of for instance, the RTC ---------------------- judgment and there is an appeal therefrom on a question of law, the remedy is certiorari under Rule 45, not a certiorari under Rule 65. The judgments of the Sandiganbayan may be appealed to the SC. The appeal is by certiorari under Rule 45. The judgment of the CA may be appealed to the SC. The remedy is certiorari under Rule 45. So, it is in this sense that in this (Rule 45) certiorari is not the certiorari mentioned in Rule 65 because Rule 65 does not contemplate an appeal. To better have an idea of what Rule 65 covers we may have this situation. Example: A sued B in the MTC for nullity of marriage. B here filed a motion to dismiss on the ground of lack of jurisdiction. The motion is denied. He then said, No, the MTC has jurisdiction.” Q. Can you appeal if you were B from this order denying your motion to dismiss? A. Look the order of dismissal is merely interlocutory. You cannot appeal from an interlocutory order. This is clear in Sec. 1 (c) of Rule 41. But definitely, the order of denial is wrong. So, if you do not correct this error, and you are B, you will go to a process of getting this case heard and decided by the MTC. You could just imagine the waste of time, money and effort if the proceedings will continue until terminated. Why? Any judgment rendered by the MTC here will be void. Q. What is the remedy here if you cannot appeal? A. Under Rule 65, B may question the order denying the motion to dismiss. The remedy could be a petition for certiorari. RENE NOTES:

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* In a petition for certiorari, the court may order dismissal of the complaint because it is part of the incidental relief (Newsweek vs. IAC) Requisites of Certiorari: 1. there must be a controversy 2. the respondent is exercising judicial or quasi-judicial functions 3. the respondents acted without or in excess of its jurisdiction or acted with grave abuse of discretion 4. there must be no other plain, speedy and adequate remedy Requisites of Prohibition: 1. there must be a controversy 2. the respondent is exercising judicial or quasi-judicial or ministerial functions 3. the respondents acted without or in excess of its jurisdiction or acted with grave abuse of discretion 4. there must be no other plain, speedy and adequate remedy Requisites of Mandamus: 1. there must be a clear legal right or duty 2. the act to be performed must be practical – within the powers of the respondent to perform such that if the writ of mandamus was issued, he can comply with it, or else the essence will be defeated 3. respondent must be exercising a ministerial duty – a duty which is absolute and imperative and involves merely its execution 4. duty or act to be performed must be existing – correlative right will be denied if not performed by the respondents 5. no plain, speedy and adequate remedy in the ordinary course of law * A writ of certiorari can never be issued by an RTC against an administrative agency because an administrative agency when exercising quasi-judicial functions is considered as of the same rank as the RTC. However, a writ of prohibition may be issued by the RTC against administrative agencies only when what is sought to be prohibited is a ministerial function but not quasi-judicial function. * The jurisdiction of the Sandiganbayan over certiorari proceedings is only in aid of its appellate jurisdiction. Grounds for Dismissal of Petition: 1. patently without merit 2. prosecuted manifestly for delay 3. questions raised are too unsubstantial to warrant further proceedings * As a GENERAL RULE, a motion for reconsideration is an essential precondition for the filing of the petition for certiorari as a form of a plain, speedy, and adequate remedy. Its purpose is to give the court a quo the opportunity to correct itself. EXCEPT: 1. if the assailed judgment/order is a patent nullity 2. when there is extreme urgency 3. if the issue has been raised and promptly passed upon by the court 4. if the issue is purely a question-of-law 5. if for public purpose 6.if suggested by the court a quo GENERAL RULE: If after judgment the petition for certiorari is availed of when appeal is plain, speedy and adequate remedy then the petition must fail for certiorari may not be resorted to as a substitute for appeal, in such a case appeal is deemed abandoned. EXCEPTION: If after judgment an appeal has been perfected, a petition for certiorari relating to certain incidents therein may prosper where the appeal does not appear to be the plain, speedy and adequate remedy. Hence, in this light, appeal and certiorari are remedies that does not exclude each other. (Lansang vs. CA, 184 SCRA SCRA 230) * Mere filing of petition for certiorari under this rule will not stay execution of judgment. Preliminary injunction must be sought. Purpose writ. of the CERTIORARI *Intended as a corrective remedy *Annul and modify a proceeding Discretionary act Exercising judicial and quasi-judicial function PROHIBITION Prevent the commission or carrying out of an act Discretionary and ministerial act Judicial/or nonjudicial function MANDAMUS Intended to compel performance of an act desired Ministerial act Judicial and/or nonjudicial function

Act sought to be controlled. With respect the respondent.

* If a motion for reconsideration or new trial is filed the period shall not only be interrupted but another 60 days shall be given to the petitioner. (SC Admin. Cir. 002-03) Rule 66: Quo Warranto

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Quo Warranto – A proceeding or writ issued by the court to determine the right to use an office, position or franchise and to oust the person holding or exercising such office, position or franchise if his right is unfounded or if a person performed acts considered as grounds for forfeiture of said exercise of position, office or franchise. Quo warranto may also be used when an association acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. QUO WARRANTO Designed to try the right or title to the office, the right to the office itself is disputed Quo Warranto in Electoral Proceeding - To contest the right of an electoral public officer to hold public office. - an electoral proceeding under the Omnibus Elections Code for the exclusive purpose of impugning the election of a public officer on the ground of ineligibility or disqualification to hold the office - petition must be filed within 10 days from the proclamation of the candidate MANDAMUS Applicable only in cases where the right to the office is NOT in dispute Quo Warranto in Electoral Proceeding - prerogative writ by w/c the govt. can call upon any person to show by what title he holds a public office or exercises a public franchise - three grounds: usurpation, forfeiture, or illegal association

- may be filed by any registered candidate for the same office and, who, even if the petition prospers, would not be entitled for that office. Rule 67: Expropriation - All properties may be expropriated except: 1. Money 2. Choses in action

- presupposes that the respondent is already actually holding office and action must be commenced within one year from cause of ouster or right of petitioner to hold office arose - the petitioner must be the government or the person entitled to the office and who would assume the same if his action succeeds.

* When is expropriation proper? 1. When the owner refuses to sell 2. When he agrees to sell but an agreement as to price cannot be reached *Purpose of Preliminary Deposit under Sec. 2 1. provide damages if court finds plaintiff has no right to expropriate 2. advance payment for just compensation * Only an ANSWER is allowed under Sec. 3 Rule 67, no other responsive pleadings are allowed * Declaration of Default - The defendant cannot be declared in default. Failure to file an answer would result to the court’s judgment on the right to expropriate without prejudice to the right to present evidence on just compensation. * When is Title Vested in Expropriation: - if personal property, upon payment of just compensation (Sec. 10) - if real property, upon registration (Sec. 13) STAGES IN EXPRORIATION 1. Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of the exercise in the context of the facts involved, and 2. Determination of JUST COMPENSATION. * When may plaintiff enter into possession of property?

1. Upon filing of complaint, serving notice to defendant and after depositing of assessed value of property for taxation purposes with authorized government depository (Section 2) 2. Upon payment or tender of compensation fixed by the judgment and payment of the costs by plaintiff (Section 10) Rule 68: Foreclosure of Real Estate Mortgage

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*Effect in the Encumbrancer is not Impleaded a. his equity or right of redemption is not affected or barred by the judgment of the court (Sunlife Insurance vs. Diez) b. his right is not affected because he is merely a necessary party not an indispensable party c. the remedy of the senior encumbrancer is to file an INDEPENDENT proceeding to foreclose the right to redeem by requiring the junior encumbrancer to pay the amount stated in the order of execution or to redeem the property in a specified time *Remedy of Mortgage against the Buyer of the Mortgage Property: - Mortgagees can substitute or implead the buyer. (Sec. 19 Rule 3) However, this rule shall not apply if: a) the property is covered by the Torrens System; b) buyer bought the property in good faith - To prevent this, the mortgagee must annotate a notice of lis pendens in the certificate of title so that subsequent buyer(s) have notice. * Instances where Court cannot render Deficiency Judgment 1. Recto law 2. Non-resident mortgagor unless there is attachment 3. Sec. 7 Rule 86 when mortgagor dies, the mortgagee must file his claim with the probate court 4. Third person owned the property mortgaged but not solidarily liable with the debtor JUDICIAL FORECLOSURE Requires court intervention There is only an equity of redemption Alternative remedy to personal action for the amount due to satisfy mortgage debt EQUITY OF REDEMPTION - right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the debt w/in 90-120 days after the entry of the judgment or even after the foreclosure sale but prior to confirmation - governed by Rule 68 JUDGMENT If actual partition of property is made EXTRAJUDICIAL FORECLOSURE No court intervention necessary Right of redemption exists Proper only when provided for in the contract RIGHT OF REDEMPTION - right of the debtor, his successor in interest or any judicial creditor or judgment creditor of said debtor or any person having alien on the property subsequent to the mortgage or deed of trust under which the property is sold to redeem the property w/in one year from the registration of the Sheriff’s certificate of foreclosure sale - governed by Secs. 29-31 of Rule 39 EFFECT OF JUDGMENT To vest in each party to the act, in severally the portion of the estate assigned to him.

If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the court If the property is sold and the sale is confirmed by the court

CONTENTS OF JUDGMENT The judgment shall state definitely: (1) by metes and bounds and adequate description, (2) the particular portion of the estate assigned to each party The judgment shall state: 1. the fact of such payment, and 2. the assignment of the real estate to the party making the payment The judgment shall state: 1. the name of the purchaser(s), and 2. a definite description of the parcels of the real estate sold to each purchaser

To vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action To vest the real estate in purchaser(s) making payment(s), free from claims of the parties to action. the the the the

Two (2) Issues in an Action for Petition 1. Whether or not a co-ownership exists 2. How to actually partition the property

* The appointment of Commissioners is mandatory unless there is an extra-judicial partition between the parties. Rule 70: Forcible Entry and Unlawful Detainer Three (3) Kinds of Action for Recovery of Possession ACCION INTERDICTAL *summary action for the recovery of physical possession where the dispossession has not lasted for more than one year. *ejectment proceeding under Rule 70, either forcible entry or unlawful detainer *All cases of forcible entry and unlawful detainer irrespective of the amount of damages or unpaid rentals sought to be recovered should be brought to the MTC. ACCION PUBLICIANA *a plenary action for the recovery of the real right of possession has lasted for more than one year. ACCION REINDIVICATORIA *an action for the recovery of ownership w/c necessarily includes the recovery of possession.

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*RTC has jurisdiction if the value of the property exceeds P20,000 outside Metro Manila; P50,000 within Metro Manila. *MTC has jurisdiction if the value of the property does not exceed P20,000 – outside Metro Manila; P50,000 within Metro Manila

*RTC has jurisdiction if the value of the property exceeds P20,000 outside Metro Manila; P50,000 within Metro Manila, *MTC has jurisdiction if the value of the property does not exceed P20,000 – outside Metro Manila; P50,000 within Metro Manila

FORCIBLE ENTRY *possession of the land by the defendant is unlawful from the beginning as he acquires possession by Force, Intimidation, Strategy, Threat or Stealth (FISTS) *no previous demand for the defendant to vacate the premises is necessary *the plaintiff must prove that he was in prior physical possession of the premises until he was deprived thereof by the defendant *the 1 year period is generally counted from the date of actual entry on the land

UNLAWFUL DETAINER *possession is inceptively lawful but it becomes illegal by reason of the termination of his right to the possession of the property under his contract w/ the plaintiff *demand is jurisdictional if the ground is: 1. non-payment of rentals, or 2. failure to comply with lease of contract *the plaintiff need not have been in prior physical possession *period is counted from the date of last demand or last letter of demand

Tenor of Demand: a. Pay AND Vacate; or b. Comply with the condition of the lease AND Vacate *Judgment on Ejectment Proceeding are Immediately Executory Unless the Defendant: (1) perfects his appeal, (2) files sufficient superseades bond to pay the rents, damages and costs occurring down to the time of judgment appealed from; and (3) deposits with the appellate court the amount of rent due from time to time under the contract or in the absence of a contract, the reasonable value of the use and occupation of the premises on or before the 10th day of each succeeding month or period. * However the RTC may issue a writ of preliminary mandatory injunction to restore plaintiff in possession if the court is satisfied that: 1. defendant’s appeal is frivolous or dilatory, or 2. appeal of plaintiff is prima facie meritorious, upon motion of plaintiff within 10 days from perfection of appeal. - If there is no formal contract between parties; there can still be unlawful detainer because ejectment considers implied contracts. Possession by tolerance creates an implied promise to vacate the premises upon the demand of the owner: (Peran vs. CFI of Sorsogon) *The doctrine of tolerance applies only if possession is lawful from the start. In short said doctrines applies only to unlawful detainer cases and not to forcible entry because: 1. the violation of the right in forcible entry authorizes speedy redress; 2. if a forcible entry is allowed only after a number of years then it may well be that no action for forcible entry can really prescribe. (Munoz vs. CA, 214 SCRA 216) *Questions to be resolved in an action for forcible entry are: First, who had actual possession over the piece of real property?

Second, was the possessor ousted therefrom within one year from the filing of the complaint by force, threat, strategy or stealth? Third, does the plaintiff ask the restoration of possession? (Dizon vs. Concina) * The court can award damages in ejectment cases provided the damages refer only to: a. the fair and reasonable value of the use and enjoyment of the property or the rent arising from the loss of possession; b. arrears; c. liquidated damages since they are already part of the contract Rule 71: CONTEMPT DIRECT CONTEMPT *summary in nature GROUNDS: a) misbehavior in the presence of or near a court as to obstruct or interrupt the proceedings b) disrespect towards the court c) Offensive personalities towards others. d) Refusal to be shown or to answer as witness or to subscribe an affidavit or deposition. INDIRECT CONTEMPT Punished after being charged and hearing GROUNDS: a) misbehavior of an officer of a court in the performance of his official duties or in his official transactions. b) Disobedience of or resistance to a lawful writ, process, order, or judgment. Unauthorized intrusion to any real property after being ejected; c) Any abuse or any unlawful interference w/ the proceedings not constituting direct contempt d) Any improper conduct tending to degrade the administration of justice. e) Assuming to be an attorney or an officer of the court w/o authority. f) failure to obey a subpoena g) Rescue, or attempted rescue, of a person or property in the custody of an officer. If committed against: a. RTC – fine not exceeding P30,000 or imprisonment not exceeding 6 months or both. b. MTC – fine not exceeding P5,000 or imprisonment not exceeding (1) month or both

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If committed against: a. RTC – fine not exceeding P2,000 imprisonment not exceeding (10) days both b. MTC – fine not exceeding P200 imprisonment not exceeding one (1) day, both.

or or or or

*Remedies to Challenge Contempt Judgments: Direct Contempt - The person adjudged in direct contempt may avail himself of the remedies of certiorari or prohibition. The execution of the judgment shall be suspended pending resolution of the petition, provided such person files a bond and conditioned that he will abide by and perform the judgment should the petition be decided against him. Indirect Contempt - The person adjudged for indirect contempt may appeal such judgment or final order to the proper court as in criminal cases. The execution of the judgment shall NOT be suspended until a bond is filed by the person adjudged in contempt. -The judgment against a person adjudged to be in contempt is immediately executory and can be stopped only by filing a bond.

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