MOD 1, LEC 1

Module Topics: Definition, Jurisdiction

Definition of Civil Procedure

It is the procedure governing the filing, processing, and adjudication of a civil action. Civil action or civil
case or civil suit, we refer to the same thing -- they can be used interchangeably. Civil procedure is a procedural law
or an adjective law. It prescribes the method of enforcing rights and obtaining redress for their violation. It is opposed
or different from substantive law. A substantive law is a law that creates, defines, and regulates rights and duties
that may give rise to a cause of action.

Substantive Law: Civil Code; Procedural: Rules of Court

Until its revision, we refer to these Rules as Rules of Court. But after its revision, it became commonly
known as the 1997 Rules of Civil Procedure. But these 1997 Rules had also been revised by A.M No. 19-10-20-SC.

Our Subject

Divided into the following topics:

● General Revision, found in Rule 1

● Ordinary Civil Actions, Rules 2-5

● Procedures or Procedure in the RTC, Rules 6-39

● Appeals, Rules 40-56

● Provisional Remedies, Rules 57-61

● Special Civil Actions, Rules 62-71

We will also include 1991 Rules on Summary Procedure, Local Government Code on Barangay Justice
System, and other issuances of the Supreme Court like small claims.

Any discussion of procedural law should be preceded by a discussion on the jurisdiction of courts in civil
cases.

Jurisdiction

The word came from two latin words: juris and dico. When these two words are taken together, it means “I
speak by the law”.

Definition

Jurisdiction refers to the power or authority of a court or tribunal to hear, try, and decide a case. It has also
been defined as the authority by which a court or a judicial officer takes cognizance of a case and decides it.

There are many ways to classify jurisdiction.

Classification

Original vs. Appellate Jurisdiction

● Original is that bestowed upon a court in the first instance. An example is the RTC, which has original
jurisdiction over civil actions that are incapable of pecuniary estimation.

● Appellate jurisdiction is that given to a court by means of an appeal from the judgment of a lower court.

General vs. Special or Limited Jurisdiction

● General jurisdiction means the power of a court to adjudicate all cases except those expressly withheld
from its power. The RTC is an example of a court of general jurisdiction

● Special or limited jurisdiction is that which limits the court’s jurisdiction only to some particular cases

Exclusive vs. Concurrent Jurisdiction

● Exclusive jurisdiction is the power of a court or a tribunal to adjudicate a case to the exclusion of
other courts or tribunal.
 ● Concurrent jurisdiction, sometimes referred to as coordinate jurisdiction, is the power conferred upon
different courts, whether of the same level or of different ranks. It means that courts of the same level
or of different ranks have jurisdiction over a particular case.

Delegated Jurisdiction

● The MTC has delegated jurisdiction in cadastral cases and land registration cases. This happens when
the lot involved is uncontested. Or even if contested, but the value of this lot does not exceed Php 100,
000.

Interlocutory Jurisdiction or Special Jurisdiction

● The MTC has interlocutory jurisdiction to hear and decide petitions for writ of habeas corpus or
applications for bail in the absence of all RTC judges in the province or city.

● Generally, RTC has jurisdiction over petition for writ of habeas corpus.

4 Levels of Court or Judicial System

First Level: MTC

In Metropolitan Manila, first level courts are referred to as Metropolitan Trial Courts (MeTC). In
cities like Baguio, they are referred to as Municipal Trial Courts in Cities (MTCC). There are certain
municipalities like Tubao, Pugo in La Union that have only one court for themselves -- this court is known
as Municipal Circuit Trial Court (MCTC).

MTC refers to all of them unless so specified.

Second Level: RTC

Philippines is divided into 13 judicial regions; Baguio City belongs to the first judicial region. Also
known as second-level courts.

Third Level: Court of Appeals

Fourth Level: Supreme Court

Aside from these courts, there are also other courts like the Court of Tax Appeals, Sandiganbayan (collegial,
national court).

The RTC and MTC are trial courts but the RTC has also appellate jurisdiction over a judgment of MTC.
The CA is an appellate court. The SC, of course, is an appellate court.

The Sandiganbayan is also an appellate court, although it has also original jurisdiction.

An RTC has concurrent jurisdiction with another RTC. Kidnapping, for example, is a continuing crime.
Different RTCs may have concurrent jurisdiction to try and decide a case of kidnapping. These are courts of the same
level. But if, for example, it is filed first in the RTC of Baguio City and it has validly acquired jurisdiction, then that
RTC will take cognizance of the case to the exclusion of all the other courts. This is known as the exclusionary
principle.

How about courts of different levels?

The RTC and the CA and the SC have concurrent jurisdiction to issue writ of certiorari, prohibition, or
mandamus. So, the litigant or the party may file his petition with the RTC, or the CA, or he may file it with the SC.
Although, there is a doctrine known as “Hierarchy of Courts”.

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

Doctrine of Judicial Stability or Non-Interference

A court of co-equal rank cannot interfere with the judgment or processes of another court of the same rank.

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

All the proceedings, including the judgment, are void. This is the effect if there is a total absence of
jurisdiction. If a court has no jurisdiction over a case, then the only power that it has is to dismiss the case. The
court must also take notice of the limit of its jurisdiction.
 The court is required and has the duty to take notice of the limit of its jurisdiction. Absent jurisdiction, the
only power a court has is to dismiss the case.

If a court has no jurisdiction and renders a judgment, then the judgment can be assailed anytime even if
the first on appeal; attacked directly or collaterally because it is a void judgment.

EXCEPTION: When the party himself has invoked the jurisdiction of this court and it renders a judgment
that is adverse to him then he cannot assail anymore the judgment of the court whose jurisdiction he has invoked.

The principle of estoppel precludes this party from impugning the jurisdiction of such a court.

Requisites for Valid Exercise of Jurisdiction

1. The court must have jurisdiction over the person of the parties. ○ Parties: plaintiff (one
bringing the action), defendant

○ How may it acquire jurisdiction? If a plaintiff files a complaint with a court, then he submits himself
to the jurisdiction of that court.

○ Defendant? By valid service of summons upon a defendant or by his voluntary appearance in court.

2. The court must have jurisdiction over the subject matter of the action ○ Will be discussed later.

3. The court must have jurisdiction over the Res

○ Necessary only when the defendant is a non-resident defendant who is not in the Philippines.

○ The RES is either status of the plaintiff or property of the defendant, the thing itself.

○ When can non-resident defendant be sued?

i. Action affects the status of the plaintiff who is in the Philippines.

ii. Action involves property of the defendant situated in the Philippines.

**this is known as ACTION QUASI IN REM

What will determine the jurisdiction of the court?

By the facts alleged in the complaint and by the law then enforced at the time of the commencement of the
action.

Jurisdiction must be determined at the commencement of the action. An action is commenced by the filing
of an original action in court.

Jurisdiction does not depend on the defendant's defense.

EXCEPTION: when jurisdiction will also be determined by the defense set up by the defendant in his
answer, in an ejectment case filed with the MTC and the defendant will set up the defense of agricultural tenancy.

- Court will conduct a preliminary hearing on the affirmative defense of agricultural tenancy. If after the
hearing, the court finds that the claim of the defendant is true based on evidence presented, then the
court should dismiss the case because the jurisdiction of the case is vested with the DARAB. This is
the only exception.

What happens when jurisdiction is acquired by the court?

The rule is that that court should continue to exercise jurisdiction over the case until its termination. This
principle is known as the doctrine of adherence to jurisdiction.

Doctrine of Primary Jurisdiction

The RTC has jurisdiction over action of specific performance (of contractual obligation, for example) because
it is incapable of pecuniary estimation. However, the rule is not as simple.

However, if it involves a buyer of a lot in a subdivision or a unit in a condominium then the buyer files an
action for specific performance to compel the developer or owner of such to comply with his contractual obligations,
then it is the Housing and Land Use Regulatory Board (HLURB) that has jurisdiction.

Administrative agencies that have quasi-judicial power have the primary jurisdiction to try this case. This
agency is more equipped with the competence and skill to render a judgment or decision in this case. This is the
doctrine of primary jurisdiction.
 MOD 1, LEC 2

Module Topics: Kinds of civil actions, jurisdiction of MTC

What are the kinds/ classifications of Civil Actions?

1. as to the basis/ foundation of the action

a. Real action: an action that affects title to, or possession over a real property or interest therein

● In a real action, it is founded upon the privity of real estate. It simply means that the issue for the litigation
is the title to (ownership) or possession over a real property.

● If the issue for litigation is who owns the property or who has the right of possession over the real
property, then the action is a real action. If it is a claim for damages involving his land, it is not a real
action although land is involved because no claim of title or possession is present, only damage.

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

● All actions that are not real actions are personal actions.

● What is the nature of the action to annul the contract of loan including the real estate mortgage? Personal
action.

1. As to the object of the action/ or against whom it is directed

a. Action in personam: the action is directed against a particular individual. There is a

particular defendant/s. The action is to establish a claim against a particular person on the basis
of his personal liability and the judgment that the court may render in that case will bind him
personally. It binds him and him alone. A person not a party to the case will not be bound by the
judgment.

b. Action quasi in rem: An action brought against an individual although the purpose of the action
is to subject the interest of the defendant in a particular property to the obligation burdening the
property. The judgement is conclusive only to the parties. It is an action which deals with the status,
ownership or liability of a particular property but which are intended to operate on these questions
only as between the plaintiff and the defendant.

● Examples: action for partition, attachment or foreclosure of a mortgage, status of an individual

c. Action in rem: An action against all persons who might be minded to make an objection of any
sort against the right sought to be established in that action. It is an action directed against the
whole world. The judgment binds the whole world. The action is against the thing itself and not
against a person.

● Example: land registration proceeding and petition for cancellation or correction in entry in the civil registry

Why do we need to know the classification of action?

It is important to know the classification to determine:

1. Jurisdiction of the court;

2. Venue of actions; and

3. Mode of summons to the defendant.

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

● In an action quasi in rem or in rem, even if the court has not acquired jurisdiction over the person, the court
may still validly take cognizance over the case and assume jurisdiction provided that it has jurisdiction
over the res.

How may a court acquire jurisdiction over the res?

 1. By the seizure of the property under legal process whereby the property is brought under the actual custody
of the court;

2. As a result of the institution of the legal proceedings in which the power of the court is recognized and made
effective;

Can a non-resident defendant who is not in the Philippines be sued in the Philippines?

Yes, if it affects the status of the plaintiff who is in the Philippines or if it involves the property of the defendant
situated in the Philippines.

● In this example, how may the court acquire jurisdiction over the res? By the institution of the legal
proceedings (by the filing of a complaint in court).

● An example of “by the seizure of the property under legal process whereby the property is brought under
the actual custody of the court”: plaintiff files a complaint wherein he also seeks attachment of the property
located in the Philippines.

JURISDICTION OF THE FIRST LEVEL COURTS/ MTCS

Over what civil action does the MTC have jurisdiction?

1. Over all civil actions and probate proceedings whether testate or intestate where the value of the personal
property or estate or the value of the demand does not exceed P300,000 or P400,000 in Metro Manila
exclusive of damages of whatever kind, interest, attorney’s fees, litigation expenses or cost (DIAL-C);
(personal action)

2. Over all cases of forcible entry and unlawful detainer (ejectment cases or real action - accion interdictal);
and

3. Over all civil action which involves title to or possession over a real property or interest therein where the
assessed value of the property does not exceed P20,000 or P50,000 in Metro Manila. (real action)

● Personal action: If demand or claim does not exceed P300,000/ P400,000 in MM exclusive of damages of
whatever kind, interest, attorney’s fees, litigation expenses or cost (DIAL-C), then the jurisdiction is with the
MTC. If it exceeds, then the RTC will have jurisdiction. If exact, then MTC.

● Damages incidental to your main cause of action is excluded. If it is the main cause or if one of the
causes, then it is included in the assessed value.

● Real action: If the assessed value of the real property subject litigation does not exceed P20,000 or P50,000
in Metro Manila, jurisdiction is with the MTC.

● How will you know the assessed value? Look at the tax declaration.

● Assessed value should be alleged or specified in the complaint. Or at least it should be shown in
the tax declaration attached in the complaint.

● Ejectment cases: falls within the exclusive jurisdiction of the MTC regardless of the assessed value of the
property

● If you file a case for unlawful detainer and in the same complaint, you are claiming the payment of
unpaid rentals in the total amount of 1.5M, should it be filed with the RTC? No, the claim of the
unpaid rentals is merely incidental to the action of unlawful detainer. It should be filed with the
MTC.

● Distinction between unlawful detainer and forcible entry: In unlawful detainer, defendant’s
possession was lawful at the start becoming unlawful eventually. In forcible entry, defendant’s
possession was unlawful at the start because possession was because of FISTS (force, intimidation,
stealth, threat and skill).

MOD 1, LEC 3

Module topics: Subject matter, Jurisdiction

What are the kinds of real actions?

The kinds of real action:

1. Accion interdictal
 ● Includes actions of forcible entry and unlawful detainer

● Purpose is recover possession de facto (physical or material action) of real property

2. Accion Publiciana: To recover the right of possession or possession de jure of real property.

3. Accion Reinvidicatoria: An action to recover ownership including possession of real property.

JURISDICTION OF THE RTC

What cases fall within the exclusive and original jurisdiction of RTC?

1. Exclusive original jurisdiction over all civil actions in which the subject of litigation if incapable of pecuniary
estimation.

NOTE: A civil action that is incapable of pecuniary estimation is a personal action.

2. All civil actions which involving titles to or possession of real property or any interest therein where the
assessed value of the property exceeds 20,000 pesos or 50,000 pesos in Metro Manila

3. All actions in admiralty and maritime jurisdiction where the demand or claim exceeds 300,000 pesos or
400,000 pesos in Metro Manila

4. All matters of probate both testate and intestate where the gross value of the estate exceeds 300,000 pesos
or 400,000 pesos in Metro Manila

5. All actions involving the contract of marriage and marital relations although this should now fall within the
jurisdiction of the family court

NOTE: A family court is a RTC designated by the SC as a family court

6. All cases not within the exclusive jurisdiction of any court or tribunal exercising judicial or quasi-judicial
functions

NOTE: This one makes the RTC a court of general jurisdiction

7. All other cases in which the demand exclusive of interest damages of whatever kind, attorney’s fees,
litigation expenses and costs (DIAL-C) or the value of the property in controversy exceeds 300,000 or 400,000
in Metro Manila

What happens if filing a case based on quasi-delict?

Your main cause is damages. You do not exclude damages in determining what court will try the case.

Personal action v. Real action

a. Personal Action

If the action is a personal action, the action will fall within the jurisdiction of the MTC or the RTC depending
on the total amount of plaintiffs claimed or demand exclusive of (DIAL-C) as alleged in the complaint.

If the amount of the demand or claim exclusive of (DIAL C) does not exceed 300,000 pesos or 400,000 in
Metro Manila, then it is the MTC that will have jurisdiction over the action. But if it exceeds, exclusive of (DIAL C)
then it is the RTC who will have jurisdiction.

b. Real Action

Look into the assessed value of the real property subject matter of the litigation. If the assessed value does
not exceed Php 20,000 or Php 50,000 in Metro Manila then it is the MTC who has jurisdiction but if it exceeds Php
20,000 or Php 50,000 in Metro Manila it is the RTC,

What happens in cases of forcible entry or unlawful detainer cases?

In cases for forcible entry or unlawful detainer then it is the MTC that has jurisdiction regardless of the
Assessed value of the property involved in the litigation.

Is the assessed value required to be stated or at least shown in the document?

It must be stated or alleged or at least shown in the document such as tax declaration and attached to the
complaint as it’s annexed. So that if the assessed value is not shown, then there is no way the court will be able to
determine if it has jurisdiction or it has no jurisdiction and therefore it will be dismissed if it fails to specify the
assessed value of the property subject to litigation.
 NOTE: Civil actions in which the subject of litigation is incapable of pecuniary estimation is a personal action.

When do we say that the subject matter is incapable of pecuniary estimation?

When the subject matter of the case cannot be estimated in terms of money; another way of putting it is
that you cannot assign money value in a subject to a litigation; RTC has jurisdiction.

What is an example of an action that is incapable of pecuniary estimation?

An action for a specific performance (an action to compel a party to perform his contractual or legal
obligation) is incapable of pecuniary estimation. Even if the plaintiff files a complaint against the defendant for
specific performance and in the same complaint, the plaintiff is also claiming the payment of Php 250,000 and
damages. In the given case, the value falls under the jurisdiction of the MTC, assuming that it is filed not in
connection with a claim of specific performance.

Suppose the plaintiff files against the defendant an action for specific performance and damages in the
amount of 250,000 pesos, what court will have jurisdiction?

The RTC that has the jurisdiction because the claim for damages is merely incidental to main action for
specific performance.

What if the plaintiff files a complaint for specific performance or damages in the amount of 250,000
pesos?

It is now the MTC because if the demand is in the alternative, specific performance or the payment of
damages in the amount of 250,000 pesos then this time, the plaintiff has assigned a money equivalent to his claim
for specific performance.

NOTE: This time the action for specific performance in the above question, is capable of pecuniary estimation
because the plaintiff assigned a money to his claim for specific performance

Suppose the plaintiff files a complaint demanding a specific performance and/or damages to the amount
of 250,000 pesos?

The “or” will prevail, this becomes capable of pecuniary estimation because the plaintiff himself has put a
money equivalent to his claim for specific performance.

NOTE: Other examples of actions that are: incapable of pecuniary estimation, you have an action for appointment
of a receiver which is incapable of pecuniary estimation, action for expropriation.

What is expropriation?

The method by which the state or any person entitled thereto may exercise eminent domain.

Who has the jurisdiction for an action of expropriation with as assessed value of 10,000 for a parcel of
land?

The RTC because an action for expropriation is incapable of pecuniary estimation.

Is an action for support capable of pecuniary estimation?

Even if you are claiming an amount of monthly support, still, it is incapable of pecuniary estimation because
the basic issue here is the right of the plaintiff and the obligation of the defendant to give support to the plaintiff

Recession or annulment of a document

Opposite of specific performance, also incapable of pecuniary estimation.

NOTE: Although the action is denominated for one (1) for specific performance or recession, if the purpose of the
action is to recover ownership or possession of a real property, then it is in fact a real action and the jurisdiction will
be determined based on the assessed value of the real property involved in the litigation.

In determining the court who has jurisdiction, you apply the following test:

1. Nature of the action test

Use it when confronted when asked what court has jurisdiction. If you apply this test, then you will
determine if the action is capable or incapable of pecuniary estimation

If the action is personal and is capable of pecuniary estimation then the jurisdiction of the court will be
based on the total demand or claim exclusive of (DIAL-C). If it exceeds Php 300,000 or Php 400,000 exclusive of
(DIAL C) then it is RTC if not exceed MTC.
 Who has the jurisdiction if it is incapable of pecuniary estimation in issues of recovering money?

It is the RTC that has jurisdiction.

2. Primary or Ultimate Objective test

The nature of the action test, must yield to another test known as the primary or ultimate objective test.
Even if the action is incapable of pecuniary estimation or even if it appears to be capable pecuniary estimation if the
primary objective or ultimate objective of plaintiff is to recover ownership or possession of real property the action is
in fact a real action and the jurisdiction of the court will be determined based on the assessed value of the property,
if it exceeds Php 20,000 or Php 30,000

NOTE: There are real actions that at first glance they might seem to be incapable of pecuniary action but in reality,
they are real actions.

EXAMPLE:

1. An action for specific performance but the purpose of the plaintiff in filing the complaint for specific
performance is to compel the defendant to execute a deed of sale of a parcel of land to transfer to him the plaintiff
the ownership of that piece of land then it is a real action although even if denominated as an action for specific
performance.

2. An action for cancelation or nullification of defendant’s certificate of title, the complaint alleges that a
certificate of title over a piece of land was issued to the defendant on a basis of a forged deed of sale, the complaint
alleges that the plaintiff is the owner of the land, but while he was away the defendant falsified a deed of sale and
on the basis of that falsified deed of sale, the the plaintiff certificate was cancelled and a new one was issued to the
defendant and was named to the defendant. The plaintiff files a complaint asking the court to cancel or nullify the
Certificate of Title of the defendant. The primary objective of plaintiff is to recover his land from the defendant then
it is a real action and the jurisdiction of the court will be determined on a basis of assessed value of the real property
or of the land.

In instances of Real estate mortgage:

In most cases:

Mortgagee and Mortgagor, Creditor – Debtor

If the mortgagor files an action for the nullification of the real estate mortgage then that action is a personal
action, but the action is to foreclosed the Real estate mortgage filed by the mortgagee because according to him, the
mortgagor debtor failed to pay his indebtedness to the mortgagee creditor files an action of foreclosure, this is a real
action. If the foreclosure is void, the action is still a real action because it will affect the ownership of the real
property.

MOD 2

Module Topics: General Provisions, Rule 1

Rules of Court

● Commonly known as the 199ee7 Rules of Civil Procedure

● Rules 6-35 have been amended by A.M. No. 19-10-20-SC which took effect on May 1, 2020

● These rules, as revised, shall apply in all courts, except as otherwise provided by the Supreme Court.

○ For example, in the MTC there are instances where cases are governed by the rule of Summary
Procedure and not these rules.

● These rules shall apply in all civil actions, criminal actions, and special proceedings except as otherwise
provided by the Supreme Court.

● However, the Rules do not apply to the following cases:

1. Election cases;

2. Land registration cases;

3. Cadastral cases;

4. Naturalization proceedings;

5. Insolvency; and
 6. Other cases like labor cases

● Exception: by analogy or in suppletory character and whenever practicable and convenient.

Civil Action

● A civil action, sometimes called ‘civil case’, is one by which a party sues another for the enforcement or
protection of a right or the prevention or redress of a wrong.

● Examples: action to enforce payment on an unpaid loan, ejectment case, recovery of a property, or demand
payment of damages

● Two classifications: ordinary civil action and special civil action (e.g. interpleader)

○ Both civil actions are governed by these Rules however, there are special rules that apply only to a
particular special civil action.

● Examples of Special Civil Action: interpleader, certiorari, prohibition, mandamus, quo warranto,
expropriation, partition, contempt

○ certiorari, prohibition, mandamus are governed by Rule 65 (different from Rule 45 which is a
petition for review on certioari - a mode of appeal)

Criminal Action

● An action by which the State prosecutes a person for an act or omission punishable by law (crime, felony,
offense).

Special Proceeding

● A remedy by which a party seeks to establish a status, a right, or a particular fact.

● Examples: settlement of estate of a deceased person, adoption, habaes corpus, change of name, arbitration
(although not mentioned in the Rules)

Distinctions between a Civil Action and Special Proceeding

1. A civil action is one by which a party sues another for the enforcement or protection of a right or the
prevention or redress of a wrong. While a special proceeding is a remedy by which a party seeks to establish
a status, a right, or a particular fact.

2. A civil action is adversarial, while a special proceeding may or may not be adversarial but it becomes
adversarial if there is an opposition.

- An action is adversarial when one party is asserting a claim and another party is opposing the
claim.

3. The object of a civil action is the formal demand of a right by one against the other. On the other hand, a
special proceeding is simply a declaration of a status, a right, or a particular fact.

Commencement of a Civil Action

● The civil action is commenced upon the filling of the original complaint in court that has jurisdiction.

● The act of presenting it to the clerk of court must be accompanied by payment of the filing or docket fee.

Filing a Complaint

● Refers to the act of presenting the complaint to the clerk of court and paying the amount of docket or filing
fees.

● It is deemed completed only upon the payment of the docket or filing fees, regardless of the actual date of
filing.

● The payment of the filing fee is a jurisdictional requirement. It is only when the docket or filing fee that the
court will be able to acquire jurisdiction over the civil action.

● The fee, however, may be paid within a reasonable time but before the expiration of the applicable
prescriptive period for the cause of action.

● If not paid, the defendant must promptly raise the question of nonpayment of the docket fees otherwise,
estopped from doing so.
 ● Exemption: when the plaintiff is authorized by the court to litigate as an indigent or pauper litigant.

Impleading an Additional Defendant

● If an additional defendant is impleaded in a later pleading (amended pleading) then as to that defendant,
the Civil Action is commenced as of the filing of the amended complaint, irrespective of whether the motion
for its admission is denied by the court.

● When a complaint is amended, usually, the amendment will retroact to the filing of the original complaint.

● Amendment: either a matter of right or with leave of Court (permission of the Court). If with leave of Court,
then a motion for leave must be filed to be granted or denied by the Court.

Amendment to change the cause of action

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

Why do we need to know when a Civil Action is commenced?

1. It is the commencement of the Civil Action that interrupts the period of prescription as to the parties to the
action; and

2. It is when the Civil Action is commenced that it may be considered a pending civil action for the purpose of
asking a dismissal of the other action on the ground of litis pendentia or author act pendant.

How should the Rules of Court be construed?

The rules shall be construed liberally to promote their objective of securing a just, speedy, and inexpensive
disposition of every action or proceeding.

Liberal construction is the controlling principle to effect substantial justice so that litigation should be
decided on the merits of the case rather than the technicalities.

The rules must be used to facilitate and not to frustrate the ends of justice in cases where a rigid application
of the Rules will result in manifest failure or miscarriage of justice or where the interest of substantial justice will
be better served.

However, the party invoking the principle of liberal construction must be able to adequately explain his
failure to comply with the rules.

MOD 3

Module Topics: Cause of Action, Rule 2

Civil action may either be an ordinary civil action or a special civil action. Rule 2 talks about an ordinary civil action.

What is the basis of an ordinary civil action?

● The basis of an ordinary civil action is a Cause of Action

Section 1:

● Every ordinary civil action must be based on a cause of action.

Cause of Action

● The act or omission by which a party violates a right of another. (Memorize)

Requisites of a Cause of Action

1. Existence of plaintiffs right by whatever means and under whatever law it arises or is created. (It may be
created by a contract or it may arise from law itself)

NOTE: Whether created by a contract or it arises from law, that right of the plaintiff is entitled to be
respected by everyone else.

2. An obligation on the part of the defendant to respect and not to violate the right of the plaintiff.

3. An act or omission on the part of the defendant constituting a violation of plaintiff’s right which causes
damage or injury to the plaintiff.

Is a cause of action the same from action? NO

 NOTE: If a person has no cause of action and then he institutes an action in court, then that action may be
dismissed for lack of cause of action.

Difference between an action and cause of action

1. An action is the suit filed in court for the enforcement or protection of a right or the prevention or
redress of a wrong while a cause of action is the basis for the filing of the action.

Right of Action Vs Cause of Action

● The right of action is the right to commence and maintain an action while a cause of action is a formal
statement of the operative facts that give rise to such right of action.

● The right of action is the consequence of the violation of plaintiffs cause of action. Therefore, there is no
right of action if there is no cause of action.

NOTE: An ordinary civil action must be based on a cause of action.

QUESTION:

Suppose the plaintiff has only one cause of action, how many suits may be filed for a single cause of action?

ANSWER:

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

SPLITTING A SINGLE CAUSE OF ACTION

● splitting means to “divide”

● It is the process of dividing a claim or a demand into two or more parts and bringing suit for each of these
parts. Splitting is not allowed.

QUESTION:

What happens if there is a splitting of a single cause of action?

ANSWER:

The rule tells us the following:

If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgement
upon the merits in anyone is available as a ground for the dismissal of the others.

If two or more suits are filed on the basis of a single cause of action, then some of these causes of action may
be dismissed either on the ground of litis pendentia or on the ground of res judicata.

Litis Pendentia

● “There is another action pending between the same parties and for the same cause”

Res Judicata

● “bar by prior judgment”

QUESTION:

When may it be litis pendentia or res judicata? When may the defendant file a motion to dismiss on the
ground of litis pendentia or res judicata?

ANSWER:
 If both actions are pending, then the ground is litis pendentia. The defendant will seek the dismissal of one
of these actions alleging litis pendentia. But if there is already a judgment in one case and the judgment has attained
finality, then the ground is res judicata.

NOTE: Motion to dismiss is a prohibited motion except if it alleges any of the following grounds; (RULE 15)

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

2. Litis pendentia

3. Res judicata

4. Prescription

But here, the defendant may file a motion to dismiss on the ground of litis pendentia or res judicata because that is
an exception to the rule.

NOTE: Splitting a cause of action is discouraged and in fact not allowed because of the following reasons:

1. It breeds multiplicity of actions or suits;

2. It clogs the dockets of courts;

3. It causes a necessary expense to the parties

QUESTION:

How do we know that there is only one cause of action or how do we determine the singleness of a cause of
action?

ANSWER: (Divide your answer into two parts)

If the action arises from quasi-delict, it is action ex delicto, or one arising from the fault or negligence of
the defendant then the singleness of the cause of action lies in the singleness of the delict or wrong committed by the
defendant in violation of plaintiff’s right. So if there is only one delict or wrong committed then there is only one
cause of action.

But if the obligation arises from a contract, in an action ex contractu, or one arising or is founded on a
contract then you have to distinguish between an indivisible obligation and a divisible obligation.

NOTE: If the contract is violated and the obligation is indivisible then there is only one cause of action
regardless of the number of violations committed if the obligation is indivisible. But if the obligation is divisible,
there would be as many causes of action as there are obligations violated.

DOCTRINE OF ANTICIPATORY BREACH

Example: X (creditor) lent 1 million to Y (debtor). At the same time, Y mortgaged his lot to X.

The purpose of the mortgage is to secure the payment of the obligation.

If Y defaults in the payment of his debt, then X has the following remedies:

1. To demand payment of the obligation by filing an action for collection

2. To foreclose the mortgage

When the debt became due, Y refused to pay or he failed to pay. And so X filed a complaint against Y for
collection. While this is pending, X filed and action to foreclosed the mortgage.

QUESTION:

Suppose Y files a motion for the dismissal of the second case on the ground of litis pendentia and the court
granted the motion and dismissed the second case, is the court correct in dismissing the second case?

ANSWER:

Yes. Because when Y failed to pay his debt of 1M, X had only one right that was violated and that is the
right to the payment of the 1M.
 NOTE: The mortgagee has the choice of remedies. If he chooses the collection, he abandons the foreclosure
and vice versa.

NOTE: A criminal action for violation of BP 22 shall be deemed to include the civil action for recovery of
civil liability arising from the offense charged, except:

1. If the offended party waves the civil action;

2. If he reserves the right to institute a separate civil action;

3. If he institutes the civil action prior to the criminal action

QUESTION:

Suppose the plaintiff has many causes of action or several causes of action, may the plaintiff join these
causes of action in one complaint?

ANSWER:

He may join them in one complaint and that is what we call joinder of causes of action. But joinder of
causes of action is only permissive. A plaintiff who has several causes of action may join them in one complaint or he
may file one complaint for one cause of action and another complaint for the other cause of action. He may file
separate complaints for these causes of action. But he may also join them in one complaint.

NOTE: Need to memorize the requisites of joinder of causes of action.

MOD 4, LEC 1
Module Topics: Joinder of Causes of Action; Rule 3 Parties

Causes of Action

Before we go to Module 4, complete discussion on joinder of causes of action.

We mentioned that joinder of causes of action is only permissive. The plaintiffs are not compelled to join
their causes of action. They may or may not join. But if they do, they must comply with the requisites that we have
mentioned last time.

Requisites of Joinder of Causes of Action

Number one is that the party joining the causes of action shall comply with the rules on joinder of parties;
next, the joinder shall not include a special civil action or a civil action governed by special rules. An example is an
action for annulment of contract or document or instrument or an action for specific performance cannot be joined
with an action for illegal detainer. An illegal detainer is a special civil action.

Also an action for quieting title is a special civil action under Rule 63 and therefore, cannot be joined with
an action for declaration of nullity of title which is an ordinary civil action. An action for partition is a special civil
action under Rule 69, therefore it cannot be joined with an action for rescission.

However, a misjoinder of causes of action as when an action governed by a special rule is joined with an
ordinary civil action, is not a ground for dismissal of the actio. On motion of the party or the court motu proprio may
drop a misjoined cause of action.

But if a misjoined cause of action is not dropped and the parties went to trial and they presented evidence
on both causes of action, may the court render judgment on these causes of action although misjoined? YES, provided
that the court has jurisdiction over all the causes of action.

The third requisite is if the causes of action are between the same parties but pertain to different venues
and jurisdictions, the joinder may be allowed before the RTC provided one of the causes of action falls within the
jurisdiction of the said court or the venue lies therein.

Example: X resides in Baguio, Y resides in Bontoc. There is land belonging to X but it is located in Agoo,
La Union and has an assessed value of Php 75, 000. There was a transaction between X and Y. X lent to Y Php 250,
000. X also asked Y to oversee his land in Agoo but then Y falsified a deed of sale and on the basis of such, he was
able to transfer the title over this land to his name.
 X would like to file a complaint against Y for the amount of Php 250, 000. At this point, X has two causes of
action: the Php 250, 000 and the one involving the land. X can join these causes of action in one complaint but he is
not compelled to do so since joinder of causes of action is only permissive.

Suppose X decides to file a complaint for the amount of Php 250, 000; with what court should he file the
complaint? MTC of Baguio or Bontoc. This is a personal action so the venue should be where the plaintiff resides
at the election of the plaintiff.

May X also file another complaint to recover ownership and possession of his land from Y? Yes. This is a real
action. In view of the assessed value, he should file the complaint with the RTC. The venue is the place where the
property is located -- Agoo, La Union.

May X join his two causes of action in just one complaint although the venues are different? Yes. The rule
says the following: if the causes of action are between the same parties. The joinder may be allowed before the RTC
provided that one of the causes of action falls within the jurisdiction of that court and the venue lies therein.

Last requisite, when the claims in all the causes of action are principally for recovery of money, the
aggregate amount shall be the test of jurisdiction. This is known as the totality rule.

This ends our lesson on causes of action. The requirements involving Module 3 that pertains to Rule 2; you
must submit these requirements.

MODULE 4

Parties to Civil Action

Rule 3

Question: Who may be parties to a civil action?

Only natural persons, juridical persons, or entities authorized by law may be parties to a civil action.

When we say natural persons, we have an individual like you and me. Juridical persons like corporations,
partnerships, and even the State and its political subdivisions. Entities authorized by law; we’ll give an example
later.

Meanwhile, when we say parties: plaintiff and defendant.

Plaintiff is one who has an interest in the subject of the action and in obtaining the relief demanded. He
may be the claimant in an original complaint, counterclaim, cross claim or third party complaint.

Example: You have X who filed a complaint against Y and Z. Then this is the main action. So X is the
plaintiff. But if Y files a counterclaim against X, Y is the plaintiff. Y is the claimant in this counterclaim. Y may have
a claim against Z arising from the complaint of X against them. So Y can file a cross-claim against Z; here, Y is the
plaintiff. Now, Z may file a third-party complaint against Q. As to this, Z is the plaintiff. Z is now a third-party
plaintiff; Q as the third-party defendant.

A counterclaim is a pleading; one which a defending party has against the opposing party. A cross-claim is a
claim which a party has against his co-party.

Defendant is one who has interest in the controversy adverse to the plaintiff (check example for
illustration).

When we say an entity authorized by law, this entity may not have a legal personality. A partnership or
a corporation has a legal personality. That’s why we refer to them as a juridical person because it has a legal
personality. But an entity authorized by law has no legal personality yet the Rule allows it to be part of a civil action.

Example of entity authorized by law: when two or more persons not organized as an entity with juridical
personality enter into a transaction under a common name then they can be sued for that common name although
they cannot sue under that common name.

They enter into a transaction with A, under a common name like Blue Sky Enterprises. This is not a
partnership, but just doing business under that common name. Then they can be sued under the common name. A
can file against Blue Sky Enterprises. However, they cannot sue under this common name. If they would want to
sue A, they should sue A in their own names.

Another example of entity: estate of a deceased person. That is why you might have come across cases titled
“Estate of X vs. XXX”. A labor organization is another example. Also, a corporation by estoppel or a partnership by
estoppel.
 Question: What about a sole proprietorship (SP)? Is it an entity authorized by law? No. And so, if A has a
business and he calls it “A Enterprises”, it is a sole proprietorship.

May the sole proprietorship be a party to a civil action? NO. Because it has no legal personality, it is not an
entity authorized by law. If A wants to file a case against someone else, A should file such case under his own name.

Sole proprietorship is not one of those parties under a civil action.

If SP is plaintiff, the case may be dismissed because plaintiff has no legal capacity to sue. It is a ground for
dismissal of action. When may this ground be invoked to dismiss a complaint or an action? If the plaintiff is not
among those who may be parties to a civil action.

But if the defendant has no legal capacity to sue, then the ground for dismissal is that the complaint fails
to state a cause of action.

Case in April 2015: Resident Marine Mammals et al v. Sec. of Energy

The plaintiffs in this case were the dolphins, whales, and other marine mammals. And so, the
question was do dolphins, whales, and other marine mammals - can they be parties to a civil action? No,
they cannot be parties.

NOTE: The rule is that the action may be prosecuted under the name of the real party in interest. An action may
only be prosecuted or defended in the name of the real party in interest.

Real Party in interest (RPII)

Plaintiff and defendant should be both real parties in interest.

● Who is a real party in interest? The party who stands to be benefited or injured by the judgment in the suit
or the party entitled to the avails of the suit.

● It has been said that to be a RPII, interest must be real, material, and direct as distinguished from a emre
expectancy or a future, contingent, or consequential interest.

Example: X, the owner of land and Y, the lawful possessor. Then Z, the one who committed an act that
disturbed Y in his lawful possession of the subject property. Who is the one that can bring an action against Z? It
has been said that where a lawful possessor has been disturbed, it is the possessor himself and not necessarily the
owner who can file an action to recover said property.

Example: Contract between A, B, C, and D. They were the parties to this contract. It has been said that in
case of violation of said contract, the parties in the contract are the RPII. The doctrine of relativity of contracts (Art.
1311, NCC)

Exception: when contract conveys a benefit to a third party (stipulation pour autrui)

Question: What about if a suit or an action is brought or filed against a person who is not a real party in
interest? Then the complaint may be dismissed on the ground that it fails to state a cause of action.

Plaintiff can be one of the parties to a civil action but he is not a real party in interest because he does not
stand to be benefited from a judgment. May his complaint be dismissed? Yes, because his complaint does not state a
cause of action, although he has a legal capacity to sue.

● NOTE: There is no longer a motion to dismiss. It is a prohibited motion except on certain grounds. In the
past, you can file a motion to dismiss on failure to state a cause of action or plaintiff has no legal capacity to
sue. If these grounds are available, then the defendant may file an answer and then assert them as
affirmative defenses. These grounds for dismissal may only be filed in answer by way of affirmative defenses.

Real Party In Interest

When you say RPII, he may be an indispensable party or a necessary party.

Indispensable party: is a party without whom no final determination can be had on an action.
 If an indispensable party is not joined in an action (ex. A, B, C, D are co owners of a party and A would like
to have partition, in an action for partition involving this property, all of them are indispensable parties and so all
of them must be in the action; either as plaintiffs or defendants).

Suppose one of the co-owners is not impleaded and that omission is not brought to the Court, is the judgment
valid? Judgment is void for lack of authority to act, not only as to the party absent but also to the parties present.

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

NOTE: In the past, the necessary party was referred to as a “proper party”. But do not use this term
anymore, say necessary party.

MODULE 4

LECTURE 2

Recap:

Indispensable party is a party without whom no final determination can be had on an action.

Meaning: if the court renders a judgment in that action, where an indispensable party is not impleaded, the judgment
is not valid because if he is not a party to the action, he will be a complete stranger to the action. A stranger to an
action is not bound by any judgment that a court may render in that case.

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

In other words: the presence of a necessary party in the action will enable the court to adjudicate the entire
controversy. If an unnecessary party was not impleaded, the court may still render a valid judgment although it will
not resolve the entire controversy.

Example:

A- creditor

B and C - debtors (joint obligation so 500,000 each)

Amount of indebtedness is Php 1M

If the debt becomes due, A may file a complaint against both B and C.

If A files a complaint against B alone, A can only collect Php500,000. The court can only file a judgment but only for
the Php 500k. It will not settle the entire controversy or entire claim of A.

Q: Is C an indispensable party?

No because there is a valid judgement that can be rendered in this case. C is only a necessary party in this case. If
he is not impleaded in the action, then the court cannot adjudicate the entire controversy and A cannot expect that
his claim will be settled completely. So, for the complete settlement of A’s claim, C should be impleaded in the action.

Q: What if the obligation is solidary? (any debtor can be compelled to pay the entire obligation)

Is C an indispensable party?

C is neither because A can collect the entire obligation even if not including C and it would still be a valid judgment.

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

- The non joinder or the failure to implead an indispensable party is not a ground for the dismissal
of the action.
Suppose the court court was made aware that an indispensable party was not included in the action,
what may the court do now?

- The court may issue an order directing the plaintiff to amend his complaint to implead the omitted
indispensable party.

Suppose the plaintiff fails or refuses to comply with the order, then the court may now dismiss the complaint
on the ground of the failure of the plaintiff to obey an order of the court without any justifiable reason.

Suppose the plaintiff does not or fails implead a necessary party?

The plaintiff must state the name of the necessary party and the reason for the non-inclusion. If the reason is not
meritorious, The court may issue an order directing the plaintiff to amend his complaint to implead the omitted
necessary party.

Suppose the plaintiff fails or refuses to comply with the order, then the refusal or the failure to implead will
amount to a waiver of his claim against the omitted necessary party.

Distinguish between non-inclusion of indispensable and necessary party

1. The non-inclusion of an indispensable party may result in the dismissal of the complaint (there is no
immediate dismissal). The non-inclusion of a necessary party may result in the waiver of the claim of the
plaintiff against him.

2. An indispensable party should be included for a final determination of an action because if an indispensable
party is not included there can be no final determination that can be had on an action. If a necessary party
is omitted, there can be no complete determination of an action.

What happens if a party should be a plaintiff but his consent cannot be obtained or he is not willing?

- He is what you call a unwilling co-plaintiff or non-consenting plaintiff.

- He should be impleaded as a defendant so that the court may acquire jurisdiction over his person.

What if you did not include him as a defendant but as a plaintiff?

- If a non-consenting plaintiff/ unwilling co-plaintiff is included, that will amount to a denial of due process
because he refused/ or consent cannot be obtained.

REPRESENTATIVE AS PARTIES

- persons who can sue in behalf of a real party in interest

- one acting in fiduciary capacity, but the beneficiary is incapacitated, then the beneficiary still be included in
the title and shall deemed to be the real party-in-interest.

Ex. Trustee of an express trust, guardian, executor or administrator or a party authorized by rules and law (like an
agent acting on his own name and for a benefit of an unknown principal may sue or be sued without naming the
principal except when the contract involves things belonging to the principal - Agency with undisclosed principal)

PRO FORMA PARTY

- “nominal party”, is one who is joined as a plaintiff/defendant not because he has any real interest in the subject
matter of the litigation or in the relief demanded but merely because the rules of pleadings require the presence of
such party.

Ex: The husband may not file an action without joining the wife. The Wife is the pro forma party. Because the rule
is husband and wife shall sue or be sued jointly except as provided by law.

- husband and wife shall sue or be sued jointly except as provided by law.
 - If the wife files a case alone, the nonjoinder of the husband is not fatal but a formal defect that may be cured
in any stage of the action. Why? Because they are the joint administrator of the absolute community or
conjugal partnership, except when the property relation are governed by separation of property or exclusive
property of one.

MINORS OR INCOMPETENT

-Minors or incompetents may sue or be sued with the assistance of the father, mother or guardian. If the child has
none, by the guardian ad litem.

How is a guardian ad litem?

- special guardian appointed by the court in which a particular litigation is pending to represent or assist a minor
or incompetent in the action

- its status exists only in that particular litigation in which the appointment occurs

JOINDER OF PARTIES

- only permissive except when the party is an indispensable party then his joinder is compulsory EXCEPT in a class
suit.

- there can be no joinder if there is only a solo/ one party.

- If there are several plaintiffs or defendants or both, you can join them or you may also not join them because
the joinder is only permissive (not compulsory, except when the party is an indispensable party then
his joinder is compulsory because no final determination can be had EXCEPTION TO THE EXCEPTION:
class action.

Class Suit

- all individuals or persons belonging to the class are indispensable parties but not all of them need to be joined as
parties because there are so many of them that it is impracticable to join as parties.

Requisites of Joinder of Parties:

1. There must be right to relief for or against several parties arising from the same transaction or event;

2. There must be a question of law or a question of fact common to all of them.

Question of Law - one that requires interpretation or application of a certain provision of a law / doubt arises
difference arises as to what the law is pertaining to a set of facts

Question of Fact - one that pertains to a resolution of a factual dispute on a set of facts / doubt arises as to the truth
or falsity of the set facts

Example of Joinder or parties:

- Bus full of passengers and there was an accident. 10 passengers suffered serious injuries. Each one can file
a case against the bus driver or operator.

- May the 10 of them file just a single complaint? Yes they will now join as plaintiff. Joinder is only permissive.

- The claim is separable, then 1 passenger can file a case but so can the 10 of them combined.

- Why? The right of relief arose from the same event/ transaction which is the accident. Then there is a
question of fact common to all (negligence of the driver.

Class Suit / Class Action

- Maybe plaintiffs as a class or a defendant as a class

 - Requisites:

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

- There must be a community of interest among many individuals

- the interest of one is not separable to the interest of the others, there must be unity

- X owns a huge land and was absent for a while (absentee land owner). The residents subdivided it and each
one was occupied by families. X would like to file an action against all of them. Is this a proper class action?
No because there is no community of interest in the subject matter.

- not determinable, identifiable or separable interest

Dona Paz Tragedy

- Ship that sunk, families of the victims filed a class suit

- Held as not a proper class suit because the claim of individual damages are separable

- individual’s claim pertain to him and him alone and he has no interest to the claim of
damages of other family (No community of interest)

- subject matter of the controversy must be of common or general interest

- Oposa v. Factoran – Generation yet unborn

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

3. The parties bringing or defending the class suit are found by the Court to be sufficiently numerous
or representative to fully protect the interest of all.

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

MODULE 4

LECTURE 3

When is there a misjoinder of parties?

There is a misjoinder of parties when that party is made a party to the action although he should not be
impleaded because he has no material interest in the subject of the litigation so If a person is made a party which he
should not be impleaded there is a misjoinder of parties

When is there a non-joinder of parties?

When a party who is supposed to be joined in the action is not impleaded. The rule is that misjoinder or non-
joinder of a party is not a ground for dismissal of the action. Parties may be dropped or added by the order of the
court on motion of any party or upon the initiative of the court itself at any stage of the action and on such terms as
may be judged.

Is a Misjoinder or non-joinder a ground for dismissal of action?

No. It is not a ground for dismissal of the action but then if the court issues an order to implead a party that
is not joined or to dropped a party who is mis joined but the plaintiff refuses or fails to obey the order of the court
then the complaint or action may be dismissed for failure of the plaintiff to obey the order of the court

Who will the plaintiff sue if he is not sure whom he will file his complaint?

If the plaintiff is uncertain against who of several persons he is entitled to relief. He may join or any of them
as defendants on the alternative although the right to relief may be inconsistent to the right of relief against the
other.

Example:

Person is injured when two vehicles collided. This person is a passenger in one of the two vehicles. He is not sure
against whom he should file his complaint. He is uncertain to whom he should file his complaint.

Who will be impleaded or the defendant?

 Plaintiff if uncertain then he can file his complaint against both of the two vehicles in the alternative
although the right of relief against one may be inconsistent with the right to relief against the other

His cause of action against the bus owner or the owner of the vehicle would be based on contract. A contract of
carriage/ transportation (culpa contractual)

But his cause against the owner of the vehicle or even the driver of the vehicle would be be based on culpa aquiliana

What if the name of the defendant is unknown?

Then the defendant may be sued as the unknown owner or by such other designation as the circumstances
may allow.

Example:

Owner of the vehicle with the license plate number XXX. He may be sued as an unknown defendant.

Effect of a death of a party:

What happens when a party dies and his claim is not extinguished by his death?

Actions that are abated of the death of the party:

When a party dies and his claim is thereby extinguished. It is now the duty of the counsel of that party to
inform the court within thirty (30) days after such death of the fact of death of the party and the name, address of
the legal representative/ or heirs of the deceased party. Court will then order the counsel to substitute the party.

What is there is no heir/ legal representative?

- The adverse party will now ask/ procure the appointment of an administrator or executor of the estate.

Suppose the counsel fails to comply?

If he has notice of the death of his client but he does not notify the court of the death of his client then the
counsel may be subject to a disciplinary action.

What happens if the court receives a notice of the death of the party?

The Court shall order the legal representative to appear and to be substituted in the action within thirty
(30) days from receipt of the notice

Actions that survive:

1. Actions arising from delict

2. Actions for the recovery of real or personal property

3. Action for the recovery of a sum of money

4. Action for damages

Actions that do not survive: (They will be dismissed; no substitution for party)

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

2. Action for annulment of marriage or legal separation

What is the purpose of the substitution?

Protection of the right of every party to due process and therefore non-compliance will render the
proceedings infirmed and it might nullify the proceedings because there is a violation of due process.

What if the deceased party has no legal representative?

Then the heirs must secure an appointment of an administrator or executor then will substituted in place
of the deceased party.
Suppose a counsel is representing a plaintiff or defendant and then the party dies. May the counsel
continue to represent him?

No. Counsel cannot represent a deceased party. That is why his duty is to give notice of death and he cannot
presume he will be retained counsel by the legal representative because the legal representative may engage the
service of another counsel.

What happens to a public officer who is sued in his official capacity?

If the public officer dies or resigns or seizes to hold office after it was dismissed. Action may be continued
against the successor. If within 30 days after the successor assumes the office or such time the court may allow it is
shown by the party there is a substantial need for continuing and maintaining the action and the successor adopts
or continues the action of his predecessor.

Requisites of substitution in public officer is suing or being sued in his official capacity and he dies or
seizes to hold office:

1. There must be satisfactory proof of any party that there is a substantial need for continuing or maintain
the action

2. Successor adopts or continue the acts of his predecessor

3. Substitution is affected within 30 days after successor assumes office or granted by court

4. The notice of the application for substitution must be given to the other party

Note: Failure of substitution is ground of dismissal of the action

Effect of death of defendant in an action involving contractual money claim:

NOTE: Money claim can be express or implied

“Plaintiff filed a complaint against a defendant of a money claim arising from a contract expressed or implied. Action
is pending in court and the defendant dies.”

What needs to be ascertained first in the given scenario?

You need to ascertain first in what part of proceedings the defendant dies. If before entry of judgment then
the action will continue until entry of judgment.

When can you have an entry of judgment?

When the court renders a judgment and the judgment becomes final then there will be an entry of judgment
and the date of the finality of judgment shall be presumed to be the date of entry of judgment. So if judgement is
appealed to a higher court then it will not become final because it is on appeal.

So, if the defendant dies before entry of judgment then the action will not be dismissed instead it will
continue until entry of judgment.

Usually, when you have a judgment and is final the judgment of obligee, the party that prevails will be
entitled to the execution of judgment. Judgment will be enforced by means of execution. Court will issue a writ of
execution.

What happens if a defendant dies before entry of judgment?

It will continue until entry of judgment but will not be enforced but will be presented as a money claim
based on judgment on the testate and intestate proceedings involving estate of deceased defendant.

Creditor v. Debtor

“Debt is now due, but the creditor has not filed a complaint yet. Then the debtor dies.”

May creditor file against debtor?

No. Because the debtor has no legal personality anymore because he is dead.

What is the remedy?

The remedy of the creditor is to present his claim as a money claim in the testate or intestate proceedings
of the estate of the deceased debtor

Testate – if debtor dies with a will

Intestate – if debtor dies without a will

What if the debtor is not yet dead and he was sued by the creditor and while the action is pending the
defendant debtor dies?

Action should not be dismissed but will continue until entry of judgment and then the judgment that is now
final cannot be the subject of an execution instead it will be presented as a money claim based on judgment

What are the differences of the two cases?

Both will be presented as a claim in the testate or intestate proceedings involving the estate of the deceased
debtor. The differences are that in the first case the money claim, it will be subject for proof by the creditor. It must
present proof of his money claim and if his money claim is allowed or denied by the administrator or executor then
he has to appeal from the denial of his money claim.

In the 2nd case, money is based on judgment because conclusive proof of his money claim does not need to
present proof and he can merely present a copy of judgment.

Defendant creditor dies after there is a levy on his property then the proceedings will be allowed to
continue?

May not be easy to follow unless given an example.

Ordinary proceeding:

Judgment becomes final so there is now an entry of judgment because it has become final then the judgment
of obligee files a motion for execution of the judgment and then the court issues a writ of execution and then the
sheriff will enforce the writ of execution he will levy on the property of the judgment of obligor next is sale on
execution.

What if the defendant dies after levy?

Proceeding will continue there will be a sale on execution so the judgment will not be presented anymore as
a money claim based on judgment in the probate proceedings involving estate of the deceased defendant.

What is the effect of levy?

He has the effect of segregating the property levied upon the other properties belonging to the same
defendant. Constitute as a lien on the property levied upon.

What is the effect if the defendant dies before levy?

Then the judgment will be presented as a money claim based on judgment in the testate or intestate
proceedings of the deceased defendant.

Death of a defendant on contractual money claim:

Action must be a pending action because if the defendant dies before an action can be instituted then you
will not talk about entry of judgment because no action yet. What happens is the claim will be presented as a money
claim in the probate proceedings that is settlement of estate. If there is no pending case yet. If there is a pending
case and he dies before entry of judgment, it will not be dismissed but will continue until entry of judgment.

What if the plaintiff filed against the defendant of a money claim based on a contract express or implied
but the plaintiff is the one who dies?

There would simply be a substitution and then the action will continue until there is judgment and if it
becomes final and it will be executed by means of writ of execution so levy, then sale.

Transfer of interest pendente lite:

When can there be a transfer of interest pendente lite?

If the interest of a party (transferor pendente lite) is conveyed upon another person (transferee pendente
lite) who is not a party of the action.

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

Action may continue by or against the original parties. Proceedings and judgment binds the transferee he
will simply step into the shoes of the transferor even if the action is continued between the original parties, but on
motion, the transferee may be impleaded or added as an additional party

MOD 5
Module Topics: Venue of Actions in Civil Cases; Rule 4

(Recap of Module 4)

Transfer of Interest Pendente Lite

● It means pending litigation

● If there is a transfer of interest pending litigation, then the action may be continued by or against the
original party, unless the court upon motion directs the transferee to be substituted in the action or to be
joined with the original party. But even if the transferee is not substituted in the action or is not joined with
the original party and the action is continued by or against the original parties to action, any judgment that
may be rendered by the court will bind the transferee pendente lite.

● Rule: the action may be continued by or against the original parties, unless upon motion, the court directs
the transferee to be substituted in the action or to be joined with the original party

How may a transfer of interest pendente lite be effected?

● It may be effected by means of sale or by means of a donation or by any mode by which the interest is
conveyed by the transferor to the transferee (e.g. quit claims).

Indigent Litigant or Pauper Litigant

● If a person is without any means to prosecute his claim in court, then upon his application, he may be
authorized by the court to litigate as an indigent or pauper litigant. And if so authorized by the court, he
will be exempt from the payment or filing fees.

● Definition

○ One who litigates a claim in court but he has no money or property sufficient and available for good,
shelter, and basic necessities for himself and his family.

○ One whose gross income and that of his immediate family does not exceed an amount double the
monthly minimum wage of an employee AND who does not own real property with a fair market
value more than 300,000 pesos.

When may the Solicitor General be required to appear in the action?

● In any action involving the validity of any treaty, law, ordinance, ecutive order, presidential decree, rule or
regulation, the Court may require the Solicitor General to appear in the action.

● He may be heard in person or through a representative whom he has deputized.

Module 5 - Venue of Actions

What is ‘venue’?

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

● It has also been defined as the proper location for the trial of a case.

Recall: In a criminal case, venue is jurisdictional. So, if an accused raises the question of improper venue, he is
questioning the jurisdiction of a court. But in a civil case, the venue of an action is different from jurisdiction.

Distinctions between venue and jurisdiction

1. Venue is the place where the action is commenced and tried. While jurisdiction is the authority of a court to
hear and decide the action.

2. Venue may be waived. On the other hand, jurisdiction over the subject matter of the action cannot be waived.

- Although, jurisdiction over the person of the defendant can be waived.

 3. Venue may be the subject of a written agreement between the parties. While jurisdiction cannot be the
subject of a written agreement between the parties.

- This is because jurisdiction is conferred by law.

4. A court cannot motu proprio dismiss the action on the ground of improper venue, except if a civil action is
governed by the rule on summary procedure. While a court, can motu proprio dismiss the action for lack of
jurisdiction over the subject matter of the action.

5. Venue establishes a relation between the plaintiff and the defendant. While jurisdiction establishes a
relationship between the court and the subject matter.

In a civil action, is improper venue jurisdictional?

● In a civil action, improper venue is NOT jurisdictional even if the venue is improperly laid. But if the subject
matter of the action is within the jurisdiction of the court, although the venue is improperly laid, the court
can still render a valid judgment.

● Problem: if the case is one for ejectment (forcible entry or unlawful detainer), the venue is the municipality
or city where the property is situated. The subject of the unlawful detainer case is a house situated in
Baguio. The house is covered by a contract of lease between A (lessor) and B (lessee). B has not been paying
his rent and so A demanded that B vacate. Despite the demands, B failed to vacate it. A who resides from
Dagupan filed a case against B for unlawful detainer with the MTC of Dagupan City. In due time, MTC
rendered a judgment ordering B to vacate the house located in Baguio City. Is the judgment of the Court
valid?

● YES, because the MTC has jurisdiction, although the venue is improperly laid in Dagupan. The question of
improper venue may be waived.

○ Forcible entry - possession by the defendant of the real property subject of the case is unlawful
from the start

○ Unlawful detainer - possession by the defendant of the subject property is lawful in the beginning
but becomes unlawful at a later time

What is the venue of the civil action?

● The rules of venue will depend whether the action is a real action or a personal action.

● If it is a real action (affects title to or possession of a real property), the action shall be tried in the proper
Court which has jurisdiction over the place where property involved or a portion of it is situated.

● If it is a personal action, the venue is where the plaintiff or any of the principal plaintiffs resides, or where
the defendant or any of the principal defendants resides, or if the defendant is a non-resident defendant,
then the venue is where he may be found at the election of the plaintiff.

● Who has the choice of venue? The plaintiff has the choice of venue.

○ E.g. X (resides in Baguio), Y (resides in Angeles), the court that has jurisdiction is the MTC. X files
the action with the MTC of Angeles, is the venue properly laid? Yes, because the one who can choose
the venue of an action in a personal action is the plaintiff.

○ If the plaintiff decides to file the case in the MTC of Baguio, then it is also properly laid.

○ Suppose, X files it with the MTC of Bontoc, the venue is IMPROPERLY laid in Bontoc.

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

What is the venue of the action if the defendant is a non-resident defendant who is not in the
Philippines? Can you sue him in the Philippines?

● Yes, but only if the action affects the personal status of the plaintiff or any property of the defendant located
in the Philippines. Then, the venue of the action shall be the place where the plaintiff resides or where the
property or any portion of the property is situated or found.
 ● Actions affecting the personal status of the plaintiff: annulment of marriage, nullity of marriage, legal
separation and even declaration of presumptive death.

What is the venue of the action if the defendant is a non-resident defendant?

● If the non-resident defendant is in the Philippines, the venue is where the plaintiff of any of the plaintiffs
resides or where the non-resident defendant can be found at the election of the plaintiff.

● If the non-resident defendant is not in the Philippines and the action affects the personal status of the
plaintiff or any property of the defendant located in the Philippines, then the venue of action is where the
plaintiff or any of the principal plaintiff resides or where the property of the defendant or any portion
thereof is situated or found.

If the plaintiff is the non-resident, then he will be limited to where the defendant or any of the principal
defendants resides, or where he may be found.

What do you mean by ‘reside’?

● Means the place of abode, whether temporary or permanent, as distinguished from domicile.

● Example: X resides in Baguio but he does business (X Enterprises) in Dagupan. The defendant is also a
resident of Baguio City. X files a personal action against the defendant but in Dagupan. Is the venue
properly laid in Dagupan? No, Dagupan is merely the address of the business of the plaintiff. The venue of
the action should be in Baguio City.

Instances where the rules of venue will NOT be applicable

1. When there is a specific rule or law providing for a different venue of the action (e.g. libel); and

2. When the parties have validly agreed in writing on an exclusive venue of the action.

- To be valid, the agreement on exclusive venue must be in a) writing and b) it must be made prior
to the institution of the civil action.

May the parties validly agree on the exclusive venue of their action?

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

Example: In a contract of lease, there is a stipulation which states “any case that a party may file against the other
arising from this contract shall be instituted in the proper court of Baguio City only”.

- the contract provides for the exclusive venue of the action

- If there is a restrictive word like ‘only’, ‘alone’, or ‘exclusive’, then it is understood that the contract provides
an exclusive venue for the action.

- If there is no restrictive word, then it is understood that the contract provides an additional venue for the
action.

Who can raise the question of improper venue?

● The defendant is the one who can raise the question of improper venue. The only way that the defendant
can do this is by asserting it as an affirmative defense in his answer. If not, then the defendant shall
be deemed should have waived the question of improper venue.

○ In the previous rule, there are two ways to raise the question of improper venue: 1) by filing a
motion to dismiss alleging the ground of improper venue or 2) the defendant files an answer and
asserts it as an affirmative defense.

○ The 1997 Rules have been amended by AM No. 19-10-20-SC which took effect on May 1, 2020. In
this rule, it provides that a motion to dismiss is a prohibited motion except if filed based on the
following grounds:
 1) Lack of jurisdiction over the subject matter of the action;

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

3) Res judicata or bar by prior judgment; or

4) Prescription bar by the statute of limitations.

MOD 6

Rule 6, 7, 8 (Lecture 1)

I must have told you before that the 1997 Rules have been amended by AM No. 19-10-20-SC that took effect May 1,
2020. And this amended Rule 6 up to Rule 35.

What is a Pleading

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

- Pleadings are necessary to secure the jurisdiction of the court so that the subject matter can be presented
for the consideration of the court.

Jurisdiction is determined by the facts alleged in the complaint.

A civil action is commenced by the filing of the original complaint in court.

- Pleadings are the means by which the issues are laid before the court because the issues involved in a
litigation are defined by the pleadings

Kinds of Pleadings

1. Complaint

2. Counterclaim

3. Crossclaim

4. The third-party complaint

5. Or even a complaint in intervention

Take Note:

- The claims of a party are asserted in the complaint or counterclaim or cross claim or third-party complaint
or complaint in intervention.

On the other hand, you have also the answer, that is also a pleading. And the defenses of a party are set-up in
the answer to the pleading asserting a claim against him.

We also have a reply. Reply to the answer.

In one bar examination by way of multiple choice, the following question was asked:

“State whether or not the following are pleadings”

a. Complaint

b. Counterclaim

c. Motion to Dismiss

d. Crossclaim
Which one is not a pleading?

- A motion to dismiss is not a pleading. But a counterclaim just like a complaint or a crossclaim just like a
complaint is a pleading.

Again, I'd like you to know that a pleading is the written statement of the respective claims and defenses of the
parties submitted to the court for appropriate judgment. And so, a pleading states a claim or a cause of action.

What pleading states a claim or a cause of action?

- A complaint, a counterclaim and so on…

What pleading states defenses?

- An answer is a pleading that state defenses

But I’d like you to know and we will talk about this in due time that in cases governed by the Rules on Summary
Procedure, the only pleadings allowed are:

1. COMPLAINT,

2. COMPULSORY COUNTERCLAIM (it must be pleaded in the answer)

3. CROSSCLAIM PLEADED IN THE ANSWER (it must be pleaded in the answer))

4. ANSWERS THERETO.

So, these are the only pleadings allowed in cases governed by the Rule on Summary Procedure. I would like you to
take note class that the rule is that, PLEADINGS ARE TO BE LIBERALLY CONSTRUED SO AS TO DO
SUBSTANTIAL JUSTICE.

How should a pleading be construed liberally so as to do substantial justice?

- So formal defects in a pleading may be cured at any stage of the proceeding by means of an amendment.
But then even as we say that pleadings are to be liberally construed still a party is bound by the allegations
o statements or admissions made by him in his pleading. And he cannot take a position that is inconsistent
with his allegation, statement or admission.

Later in another subject, in evidence you’ll learn that if an admission is made in the pleadings then that admission
is a judicial admission. It is in the nature of a judicial admission. And a judicial admission binds the admitter and
he cannot contradict his admission as a rule.

So, I’d like you to take note of that one that pleadings are to be liberally construed so as to do substantial justice but
then a party is bound by his allegations or admissions made in his pleadings.

Specific Kind of Pleadings:

1. Complaint – that is the first pleading that is filed in court because it is the filing of the complaint that will
commence the civil action.

- A complaint is the pleading alleging the plaintiff’s or claiming parties (claimant) cause of action or causes
of action.

- The names, residences of the plaintiff’s and the defendant’s must be stated in the complaint.

Why should the residence of the defendant/s be stated in the complaint?

- Well, for service of summons. So that the Court will know how to serve and where to serve summons upon
the defendant. So, take note that the complaint must state the names and residences of the plaintiffs and
the defendants.

- And later when we get to parts of a pleading, then we will say “caption title” and the title must specify the
name of all the parties etc.
Plaintiff vs Defendant

What is the pleading that the plaintiff will file with the Court?

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

What will the defendant state in his answer?

- The defendant will state his defenses in his answer. So, the answer will contain defendant’s defenses.

What are the Kinds of Defenses?

I. Negative Defenses – they are in the form of specific denial of a material fact/s alleged in the pleading
of the claimant (complaint) essential to his cause of action.

How may a defendant make a specific denial or What are the kinds of specific denial?

1. One way is by specifically denying the material allegation or averment in the pleading of
the adverse party (usually a complaint) and setting forth the substance of the matter upon
which the defendant relies for his denial. (absolute denial)

Example:

- That on July 16, 2019, the defendant borrowed 1 million from the plaintiff. The same to be paid on December
5, 2020. Let us say that the defendant would like to deny this allegation in the complaint. Then he can say
the following No 5. The defendant specifically denies the allegation in paragraph 5 of the complaint. The
truth being as follows that the amount of 1 million is not an indebtedness but a deposit for safe keeping
with the defendant. So here class, the defendant will deny it specifically and then he will state the substance
of the matter upon which he will rely for his denial. The truth being that the amount of 1 million is not an
indebtedness but an amount given to the defendant by way of a deposit, for safe-keeping.

- If you simply say “defendant specifically denies the allegation in paragraph 5 of the complaint”, even if the
word “specifically” is used, that will not amount to a specific denial. If the defendant will not state the
substance of the matter, upon which he relies for his denial.

Suppose the defendant simply says “defendant specifically denies the allegation of paragraph 5 of the
complaint” that’s all that he says.

- Then that will be in the nature of a general denial. Notwithstanding that the word “specifically” is used,
that is not a specific denial. That is in fact a general denial.

- A general denial is an admission. A general denial is not in any of the forms mentioned.

- So, if he simply says” “the defendants specifically deny the allegation in paragraph 5 of the complaint, the
same being false. That kind of a denial is not a specific denial. It will be a general denial. And a general
denial is an admission (judicial admission).

But suppose, the defendant simply follows or adapts the words used in the complaint. He will adapt the
words used in the complaint and then there is a proceeding phrase that says “that it is not true that on
July 16, 2019, the defendant borrowed 1 million from the plaintiff which fell due on December 5, 2019.
So he simply uses exactly the same words but there is a phrase before the allegation, it precedes the
allegation it says “it is not true on July 16” etc.
- Well, that is not a denial. That is called a “NEGATIVE PREGNANT DENIAL”. A negative pregnant
denial is in fact an admission. So, if you simply use the same words like in the examples, I gave you, that
will be in the nature of negative pregnant denial.

2. And the second way of making a specific denial is when the defendant will deny only a part
of the allegation by specifying so much of it as true and deny only the remainder. So that is
a partial denial.

- For example, this is the allegation, NUMBER 6. That the debt of 1 million has already become due. And
despite the month, the defendant has refused to pay. So, let us say that the defendant will make a partial
denial of that allegation, he will admit or specify so much of it as true and then deny only the
remainder.

- The defendant will say the following “that the defendant admits that the obligation has already become due
but denies the rest of the allegation the truth being that the defendant has already paid the amount of 1
million.

3. And then the third way of making a specific denial is denial by disavowal.

- How will you make that denial?

● By stating lack of knowledge or information sufficient to form a belief as to the truth of the
allegation in the pleading of the adverse party. And that will have the effect of a specific denial.

- For example, the plaintiff in his complaint states the following “that because of defendant’s refusal to pay,
the plaintiff has incurred other damages in the amount of 500,000 by way of attorney’s fees, etc. Of course,
the defendants don’t know anything about that as to whether the plaintiff has incurred other damages, the
defendant has no information, has no knowledge about it.

- And so how will he deny this allegation?

● By alleging in his answer that he has no knowledge or information sufficient to form a belief as to
the truth of the allegation in the complaint. And that will have the effect of a specific denial.

- Suppose the fact stated in the allegation is within the knowledge of the defendant? He is supposed
to know it and then notwithstanding that the fact is suppose to be within his knowledge, he still says that
he has no information or knowledge sufficient to form a belief as to the truth of the allegation, then he is
making that allegation in bad faith. That will be a bad faith denial.

- And if that kind of denial, lack of knowledge or information sufficient to from a belief, if that is made in bad
faith, it will amount to an admission. If the fact is within the knowledge of the defendant and despite that,
he still alleges lack of knowledge or information then he is doing it in bad faith and that will amount to an
admission.

- For example, this is a complaint for support. The plaintiff being the wife of the defendant. And then the
plaintiff in paragraph 2 of her complaint alleges the following “that the plaintiff’s is the lawfully wedded
wife of the defendant. And then the defendant in his answer “he has no knowledge or information sufficient
to form a belief as to the truth of the allegation in paragraph 2 of the complaint”. Then the defendant is in
bad faith and his allegation of lack of knowledge will amount to an admission. (because the defendant should
know if he is the husband of plaintiff)
II. Affirmative Defense – An affirmative defense is an allegation of new matter which although hypothetically
admitting, the material allegations in the pleading wound nevertheless bar or prevent recovery by him.

- In an affirmative defense, there will be what you call a “HYPOTHETICAL ADMISSION”. But
notwithstanding that hypothetical admission, the affirmative defense that is set up would still prevent or
bar recovery by the plaintiff.

What are the affirmative defenses that a defending party may set up in his answer?

1. Fraud

2. Statute of limitations

3. Release

4. Payment

5. Illegality

6. Statute of Frauds

7. Estoppel

8. Former Recovery

9. Discharge in Bankruptcy

10. Other matter by way of confession and avoidance

Are these the only affirmative defenses that can be set up?

- The defendant may also set up:

a. The defendant may also set up court has no jurisdiction over the subject matter of the action.

b. There is another action between the same parties and for the same cause (litis pendentia)

c. That the action is barred by prior judgment (res judicata)

We have also the following:

a. Court has no jurisdiction over the person of the defendants

b. That the venue nis improperly laid

c. Plaintiff has no legal capacity to sue

d. The pleading asserting a claim states no cause of cation

e. That the condition preceded for the filing of the claim has not been complied with.

Motion to Dismiss – may also invoke these affirmative defenses as grounds for dismissal of the complaint.

May these affirmative defenses be pleaded in a motion to dismiss like in the past?

- No, they should be set up as affirmative defenses in the answer. They cannot be pleaded in a
motion to dismiss anymore. Except if the ground is:

a. that the court has no jurisdiction over the subject matter of the action

b. litis pendentia

c. res judicata

d. that the claim or demand is barred by the statute of limitation

 - if the ground is any of these four grounds, then you may file a motion to dismiss

Is a motion to dismiss still allowed?

- No. it is not allowed anymore. Because under the present rule, a motion to dismiss is a prohibited
motion except if the grounds are the four-ground mentioned earlier.

- These affirmative defenses must be invoked at the earliest opportunity. Section 12 (b) of Rule 8 provides
that “failure to raise the affirmative defenses at the earliest opportunity shall constitute a waiver thereof”

- Failure to invoked at the earliest opportunity then you are deemed to have waived these grounds.

What is the earliest opportunity?

- Asserting them as affirmative defenses in the answer is deemed to be the earliest opportunity. But if the
grounds are any of the four grounds, then invoking them in a motion to dismiss, may also be considered an
earliest opportunity.

What does the rule require the Court to do if affirmative defenses are set up in the answer?

- If the affirmative defenses set up are any one of the 1-10 affirmative defenses. Then the Court must
conduct a summary hearing on these affirmative defenses within 15 days from the filing of the
answer. Within 30 days from the termination of the summary hearing, the court will resolve the affirmative
defenses

- But if the affirmative defenses set up by the defendant in his answer are any of 1-5 affirmative defenses,
the court must resolve these affirmative defenses “MOTU PROPIO” within 30 days from the filing of the
answer. There will be a summary hearing.

Requisites of Litis Pendentia

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

2. The identity of rights asserted and relief prayed for, the relief being founded on the same facts

3. The identity of the two cases such that judgment in one, regardless of which party is successful, would
amount to res judicata in the other.

MOD 6

Rule 6, 7, 8 (Lecture 2)

In our last lecture, we were talking about the requisites of litis pendentia as an affirmative defense. We
mentioned all of them and this time we go to the next requisite.

The next requisite is that there must be identity of rights asserted and the reliefs prayed for,the
reliefs being founded on the same facts. So that there would still be identity of rights asserted even if the claim
is set forth by way of a counterclaim.

Example:

X as plaintiff and Y as defendant. In the other action, X as plaintiff and Y as defendant. In the first
action, it is for specific performance while the second is for rescission based on the same contract.
Here, there is still identity of rights asserted.

● There can be identity of rights asserted even in counterclaims.

Example:

X files a case against Y. This is for specific performance. Then Y filed a complaint against X, and X
asserted a counterclaim against Y, still for specific performance involving the same contract. X
asserted his claim for specific performance as a counterclaim against Y.

Now, let’s go to the third requisite. The identity in both cases is such that the judgment that may be
rendered in the pending case regardless of which party is successful will amount to res judicata in the
other case.

● There can still be identity of parties even if the position of the parties is reversed.
 Question: When there are two pending cases involving the same parties and for the same cause, which of
the two cases should be dismissed? Is it the first case or the second case?

Example:

X v. Y. Then the second case is Y v. X. The two cases are based on the same contract between X and
Y. In the first case, X is asking for specific performance. In the second, Y is asking for rescission of
contract. Which should be dismissed? First or second case?

To answer, we must apply two tests.

1. Priority in Time Rule

- If we apply this rule, then it means that the first case should have priority over the second case.
Hence, the second case should be dismissed. But this rule must yield to more appropriate action
test.

2. More Appropriate Action Test

- If the second case is more appropriate than the first one, then the first case should be the one
dismissed. After all, the rule simply tells us that there is another action pending between the same
parties and for the same cause.

Example:

X and Y are husband and wife. So the wife is X and the husband is Y. X filed an action against Y,
the husband, for support. So it is a complaint for support. While this case was pending in court, Y
filed a complaint against X for legal separation. X filed her answer to the complaint and the answer
contains a counterclaim for support. Which of the cases should be dismissed?

Answer:

We apply the More Appropriate Action Test. In the second case, both legal separation and complaint
for support can be litigated. Hence, the second case is more appropriate and the first case should
be dismissed.

SUFFICIENCY OF A COMPLAINT

If a complaint fails to state a cause of action, then it may be asserted as an affirmative defense. And if the
court finds that it indeed fails to state a cause of action, then it may dismiss the complaint for failure to state a cause
of action.

How do you know if a complaint is sufficient?

Question: In determining whether the complaint states a cause of action, should the court require the
presentation of evidence?

Answer: No. The court will simply confine itself within the four corners of the complaint. Then it will look
at the facts alleged in the complaint and if the court can render judgment based on the facts alleged in the complaint,
then the complaint is sufficient. It states a cause of action. But even if the facts are hypothetically admitted, if the
Court cannot render a valid judgment based on these facts, then the cause of action is insufficient and therefore, the
complaint must be dismissed.

● Sufficiency of a complaint is another ground that may be invoked as an affirmative defense. It may also be
invoked in a motion to dismiss.

○ A motion to dismiss is a prohibited motion except if the ground alleged is of any of the four grounds
we’ve mentioned before.

REQUISITES OF RES JUDICATA

1. There must be a former judgment that is already final.

2. The judgment must have been rendered by a court having jurisdiction over the subject matter of the action
and of the parties.

3. The judgment must be a judgment on the merits.

4. There must be between the first and the second actions identity of parties, identity of subject matter, and
identity of causes of action.
Note:

A cause of action is different from a remedy because a cause of action may give rise to two or more different
remedies; but there’s only one cause of action. So that if you have a contract for example, and it is violated by one
party, then the aggrieved party has the choice of remedy - file a complaint demanding specific performance or a
complaint seeking the rescission of the contract. He can choose only one.

● A party cannot by varying the form of his action or adopting a different method of presenting
his case escape the effect of res judicata.

Example:

X files a complaint against Y, whose whereabouts is unknown. A summons was issued

against Y. On motion of X, the court issued an order directing that the summons be served to Y by
publication. Despite the lapse of so many months, the summons was not published. And so, because
of the failure of the plaintiff to cause the publication of the summons, the court dismissed the case.
The court stated that the dismissal is due to the failure of X to prosecute his case within a
reasonable time so the case was dismissed.

Years later, X has obtained information regarding where Y can be located. He refiled his
complaint against Y. This is the second case. Y argued that res judicata has set in because there
was a dismissal of the first case and argued that it was an adjudication of the case on its merit.

Should Y’s motion to dismiss be granted? Has res judicata set in?

Answer:

Just look at the requisites. One of them is that the court must have jurisdiction over the subject
matter and the persons of the parties. In this case, the court has not acquired jurisdiction of Y
because the summons was not published. Therefore, one requisite of res judicata is wanting. And
so, res judicata has not set in and the second case can prosper.

The next affirmative defense we will talk about is lack of legal capacity to sue.

LACK OF LEGAL CAPACITY TO SUE

It means that the plaintiff is not in the exercise of his civil rights or does not have the necessary
qualifications to appear in the action or does not have the character or representation that he claims. In any of these,
the plaintiff is said to not possess a legal capacity to sue.

● Always on the part of the plaintiff. There is no legal capacity to be sued. Only capacity to sue.

● Lack of legal capacity to sue is not the same as lack of legal personality to sue.

Question: What is lack of legal personality to sue?

Answer: Plaintiff is not the real party in interest. The ground for dismissal here is failure to state a cause
of action.

Example:

Several persons acting as plaintiffs, claiming it to be a class suit but the subject is not of common
or general interest to many persons then the plaintiffs have no legal capacity to sue because they
do not have the character of representation that they claim.

Another affirmative defense the defendant may set up in his answer is that a condition precedent for the
filing of a claim has not been complied with.

CONDITION PRECEDENT FOR THE FILING OF A CLAIM HAS NOT BEEN COMPLIED WITH

When may one set up this defense?

1. Plaintiff fails to exhaust administrative remedies.

2. When the plaintiff fails to comply with the requirements of prior referral of the dispute to the lupon.

3. When the suit is between the members of the same family, it must be alleged in a verified complaint that
earnest effort toward a compromise has been made but the same has failed.

REPLY
 A reply is a pleading, the office or function of which is to deny or allege facts in denial or avoidance of a new
matter alleged in or relating to an actionable document attached to the answer of the defending party.

● The only instance when a plaintiff must file a reply is when the affirmative defense of the defendant is based
on an actionable document; to deny under oath the guinness and due execution of that actionable document.
If the plaintiff fails to do so, then he will be deemed to have admitted the genuineness and due execution
of that actionable document.

● If denial is not under oath, then there will be an implied admission of the due execution and genuineness of
the document.

● Actionable document: basis of a cause of action or a defense (eg. deed of sale)

Question: For a specific denial to produce the effect of a negative defense, must the denial be under oath?

Answer: No, it need not be under oath. The denial will produce the effect of a specific denial if it is made in
any of the three ways that we have mentioned in lecture 1 (absolute, partial, disavowal).

Exception: To deny the genuineness and due execution of an actionable document which is the basis of the
defense, then the denial must be under oath.

Who may plead an actionable document?

Plaintiff or defendant. If it is the defendant who will plead, then the plaintiff should file a reply under oath
if he wants to deny the due execution and genuineness of that actionable document.

Question: Suppose the plaintiff attaches to his reply an actionable document, how may the defendant deny
said actionable document?

Answer: He may do so by filing a response. In his response, he will deny under oath the genuineness and
due execution of the actionable document filed in plaintiff’s reply.

Question: Suppose here is X the plaintiff filing complaint against defendant Y. And the answer contains
new matters (affirmative defenses), and the plaintiff believes he has another cause of action against Y arising from
these new matters. May the plaintiff file a reply to assert this new cause of action against the defendant?

Answer: The plaintiff cannot set up a cause of action or claim against a defendant in a reply even if the new
cause of action or claim arose from defendant’s answer.

Question: Suppose the plaintiff has a new cause of action? How may the plaintiff set up such?

Answer: Through an amended or supplemental complaint.

MOD 6

Rule 6, 7, 8 (Lecture 3)

COUNTERCLAIM

Kinds of counterclaim:

1. Compulsory Counterclaim

REQUISITES OF COMPULSORY COUNTERCLAIM:

a. It arises out of or is necessarily connected with the transaction or occurrence that is the subject
matter of the opposing party’s claim or complaint
b. It does not require for its adjudication the presence of a third person over whom the Court cannot
acquire jurisdiction

- If the action is an action in personam and the defendant is not in the Philippines, he cannot be sued
in the Philippines because the court will not be able to acquire jurisdiction over his person. This is
the meaning of the 2nd requisite. It does not require for its adjudication the presence of a third
person over whom the Court cannot acquire jurisdiction.

c. It must be cognizable by the regular Court of Justice

- It must be cognizable by the RTC/ MTC.

d. It must be within the jurisdiction of the Court both as to the amount and the nature thereof, except
that in an original action before the RTC the counterclaim is still compulsory regardless of the amount
thereof.

- EXAMPLE: X is the plaintiff and Y is the defendant. The action is filed in the MTC. The action is
to recover ownership of the real property, the assessed value of the property does not exceed
P20,000. This case falls within the jurisdiction of the MTC. Y filed an answer and asserted a
counterclaim in his answer against X for an amount of P500,000 or P1M.

- The counterclaim of Y is beyond the jurisdictional amount that can be taken cognizance of by the
MTC.

- This cannot be a compulsory counterclaim because the MTC cannot render a judgment for the
P500,000 because it is beyond the jurisdiction of the court.

QUESTION: May the defendant Y still assert it in his answer against X?

- The amount is beyond the jurisdiction of the MTC. If the MTC finds that Y (defendant) is entitled
to this amount, it can render judgment but not for the entire amount of P500,000. So, it is not
asserted as a true compulsory counterclaim but merely as a special defense.

- Note: except that in an original action before the RTC the counterclaim is still
compulsory regardless of the amount thereof.

- EXAMPLE: The complaint is filed in the RTC because the assessed value of the land is more than
P20,000 or P50,000. It falls within the jurisdiction of the RTC. Y filed his answer to the complaint
and asserted a counterclaim of P1M or P500,000.

- QUESTION: Is it alright? Yes, because the amount is within the jurisdiction of the RTC.

- QUESTION: Suppose Y’s counterclaim is only for P150,000 only. Would that still be a
counterclaim? Yes, because an original action before the RTC the counterclaim is still compulsory
regardless of the amount thereof. Regardless of the amount, even if the amount is below the
jurisdictional amount that could be taken cognizance of the RTC because the rule tells us that
except that in an original action before the RTC the counterclaim is still compulsory
regardless of the amount thereof.

e. It must already be existing at the time the defendant/ defending party files his answer.

- If the claim is not yet existing at the time of the filing of the answer, it has not yet accrued, it cannot
be a compulsory counterclaim.

NOTE: A Counterclaim, whether compulsory or permissive is a pleading. But a counterclaim is incorporated in the
answer that the defendant files in court.

How? You state in the answer after the others (denials, defenses, etc) , usually in the end of the answer :
“And as a counterclaim…. ”

2. Permissive Counterclaim
Distinctions between a Compulsory Counterclaim and a Permissive Counterclaim

1. A compulsory counterclaim arises out of or is necessarily connected with the transaction or occurrence
constituting the subject matter of the opposing party’s claim. While a permissive counterclaim does not arise out of
or is necessarily connected with the transaction or occurrence constituting the subject matter of the opposing party’s
claim.

2. A compulsory counterclaim is barred if not set up in the answer. While a permissive counterclaim is not
barred even if not set up in the answer.

- Suppose the defendant has a compulsory counterclaim against the plaintiff but for some reasons,
he fails to set it up in his answer.

- The compulsory counterclaim is barred. If the counterclaim is compulsory, it cannot be the subject
of an independent litigation. On the other hand, if the counterclaim is permissive, even if it is not
set up in the anwer, it is not barred.

- QUESTION: Assuming that the defendant has a permissive counterclaim against the plaintiff,
may he set it up in the answer? Yes.

- May he file a separate case against the plaintiff to litigate his permissive counterclaim? Yes, a
permissive counterclaim is not barred even if it is not set up in the anwer. It can be a subject of a
separate or independent litigation or case.

- Suppose: The defendant Y has a compulsory counterclaim against the plaintiff X but he does not
set it up in his answer. He files a complaint against X to litigate his compulsory counterclaim.

- Question: What will happen to this case?

It will be dismissed on the ground of litis pendentia because the compulsory

counterclaim cannot be the subject of an independent litigation.

On the other hand, if the counterclaim is permissive, the defendant Y has the option to assert it in
his answer but he does not have to do that if he doesn’t like to because he can file another case to
litigate it.

3. A plaintiff is not required to answer a compulsory counterclaim and he cannot be declared in default with
respect thereto. While a permissive counterclaim must be answered after the payment of the docket fees otherwise
the plaintiff may be declared in default.

- X is the plaintiff in the main case, and Y is the defendant. If Y has a counterclaim, Y becomes the
plaintiff in the counterclaim and X becomes the defendant as to that counterclaim.

- Plaintiff X is not required to answer a compulsory counterclaim and he cannot be declared in

default with respect thereto.

- Rule 9: If the defendant fails to file an answer within the time for filing it, then on motion of the
plaintiff, the defendant may be declared in default.

- But, if the counterclaim of Y against X is a compulsory counterclaim, then X does not have to file
an answer. He may or may not. And if he does not file an answer, X cannot be declared in default.

- But if the counterclaim of Y against X is a permissive counterclaim, the X the plaintiff who is the
defending part as to the counterclaim, must file an answer. If he doesn’t, he may be declared in
default.

4. A compulsory counterclaim is not an initiatory pleading and therefore does not require a certification on
non-forum shopping. While a permissive counterclaim is an initiatory pleading and requires a certification on non-
forum shopping.

QUESTION: May a counterclaim implead a person who is not a party to the original complaint?

Yes, so that there can be a complete adjudication of the claim and the subject matter of the action. A
compulsory counterclaim may implead a person who is not yet a party or who is not a party to the original complaint
to enable the court to adjudicate the entire controversy involving the parties.
EXAMPLE: Plaintiff is X, defendant is Y. Usually, if Y asserts a counterclaim, it will be a claim that Y has against
X. X and Y are the parties to the original complaint.

Suppose: X and Y are joint debtors of A. There is another legal matter involving X and A. X filed a case against A for
the recovery of ownership of a parcel of land. A asserted counterclaim that against X involving this indebtedness of
X and Y in favor of A.

Question: May the counterclaim implead Y who is not a party to the original complaint?

Yes. If A asserted counterclaim that against X, he can only recover ½ of the indebtedness because the obligation is
joint. For complete adjudication of his complaint, he may implead Y even if he is not a party to the original complaint.

Should summons be served to the defending party?

X need not be served with summons. But Y, who was impleaded by A should be served with summons so
that he could answer the counterclaim that A has asserted against him. (Yes, as to the other party who is not yet or
who is not a party to the original complaint.)

CROSS CLAIM

- A claim of one party against a co-party arising out of a transaction or an occurrence that is the subject
matter either of the original action or the counterclaim therein.

- Example: X files a complaint against Y and Z. If Y has a claim against Z, then that would be a crossclaim.

THIRD PARTY COMPLAINT

- A claim that a defendant may with leave of Court file against a person not party to the action called the
“third party defendant” for contribution, indemnity, subrogation or any other relief in respect to his
opponents claim.

- Example: X is the Plaintiff and Y is the defendant. Y may file a case against Z, who is not a party to the
original action yet. As to the third part complaint, Y is called the third party plaintiff and Z is the third
party defendant.

- NOTE: there is no such thing as a second party complaint but you can have a fourth, fifth, nth party
complain.

- EXAMPLE OF FOR CONTRIBUTION: Y and Z are the debtors of X. The liability of X and Y is solidary (one
of the debtors may be compelled to pay the entire amount of the indebtedness). when the debt became due,
X filed a case against Y alone to recover the amount of obligation of P1M. Y’s remedy is to file a third party
complaint against Z for contribution to compel Z to pay also ½ of the indebtedness.

- NOTE: The Third party complaint of Y is in respect of his opponent’s claim against him. A third
party complaint may only be filed with leave of court.

- EXAMPLE OF INDEMNITY: X has a car that is insured by Y (insurance company). There was an accident.
A filed a complaint against X for damages. But X’s car is covered by an insurance policy issued by Y. X may
file a complaint against Y for indemnity.

- EXAMPLE OF SUBROGATION: X is a lessor, Y is a lessee and Z as a sub-lessee. X files a complaint against

Y to recover the cost of the repair that Y has made in the property subject of the lease contract. But there is
also an agreement between Y and Z that Z should be liable for the repair of the subject property. If X files a
case against Y, then Y can file a third party complaint against Z for subrogation.

- EXAMPLE OF ANY OTHER RELIEF: X (vendor) has sold a land to Y (vendee). Z sued Y because according
to him, Z is the owner of the property that X sold to Y. Y may also file a third party complaint against X to
enforce his warranty against eviction.

PARTS OF A PLEADING

1. Caption

2. Body
 3. Signature

4. Address

5. Verification

6. Certification on non-forum shopping

1. CAPTION

What does the caption include?

- it includes the name of the Court, the title of the case and the docket number if one has already been
assigned

1. name of the Court

2. the title of the case; and

- The title must specify the names of all the parties and their participation in the action.

- However, in the subsequent pleading it is enough to mention the name of the first party with an
appropriate indication that there are other parties (et al.). You cannot use et al in the complaint
because that is the first pleading. Further, however, in a notice of appeal or on the record of appeal
the names of all the parties must be specified.

3. the docket number if one has already been assigned.

- The clerk of court assigns the docket number.

- prepare the complaint and leave the docket number blank. Go to the office of the Clerk of Court.
The personnel in the CoC will assign a docket number and pay the docket fees. It will be the docket
number in all subsequent pleadings.

MOD 7
Rule 9 (Lecture 1)

Rule 9: Effects of failure to plead

Recap of module 6:

Verification v. certification of non-forum shopping and it is important to know the differences (MEMORIZE)

Verification Certification of non-forum shopping

It is a sworn statement that delegations in the A sworn statement of, no other file is filed pending in
pleading are true and correct based on the personal another court or tribunal
knowledge of the affiant, or based on authentic
records.
may be required in an initiatory pleading or a required only in a complaint or initatory pleadings
complaint or even a responsive pleading like an
answer
Defect in the verification is curable by amendment by defect in a certification of non-forum shopping is not
a defect curable by amendment.

Defect in verification does not immediately result in a a defect in a certification of non-forum shopping or
dismissal of the complaint even lack of certification will result in the dismissal of
the complaint

Verification may be signed by a counsel or a party while a certification must be signed by a party.

Actionable document

How to plead an actionable document?

An actionable document is pleaded by:

1. Setting forth the substance of the actionable document in the pleading and;
2. Attached the original copy of the actionable document to the pleading.
What if an actionable document is properly pleaded in a pleading, but the adverse party fails to
specifically deny it under oath?

Then it he will be deemed admitted of the genuineness of that document and such implied admission he will not be
able or allowed to set up defenses that are inconsistent with his implied admission like forgery because it is
inconsistent with his implied admission

Are there any defenses available to him?

He can still set up defenses that are not inconsistent in his implied admission like payment, prescription, waiver,
estoppel or fraud because they are not inconsistent with his implied admission

Module 7

Rule 9: Effects of failure to plead

Section 1: Waiver of defenses and objections it says that all objections and defenses must be pleaded in
a motion to dismiss or in an answer, otherwise they shall be deemed waived.

Under the new rule: The way to plead defenses is to plead them by affirmative defenses in the answer, but you
may file a Motion to dismiss and such Motion to dismiss is not a prohibited motion.

Motion to dismiss is not prohibited in some instances like:

Waiver of objections or defenses because they must be pleaded in a Motion to dismiss or in an answer otherwise they
shall be deemed waived except:

If it appears from the pleadings and evidences on record that:

1. Court has no jurisdiction over the subject matter of the action

2. There is another action pending between the same parties and for the same cause
3. The action is barred from prior judgment
4. The action is barred from statute of limitations

GR: Motion to dismiss is a prohibited motion.

XPNs: the 4 grounds above.

- These four defenses are not barred even if not set up in a motion to dismiss or in answer because the law
provides that what it appears on pleadings that any of these grounds exist then the court shall dismiss the
claim or the complaint.
- four defenses that are not deemed waived even if not set up, they are also the grounds where the court may
motu proprio dismiss the claim.

Memorize four defenses that are not deemed waived even if not set up.

NOTE: Compulsory counter-claim or a cross claim must be set up otherwise they shall be barred.

Where should a compulsory counter claim be set up?

In the answer because the rule tells us that a Compulsory counter claim existing in the filing of the answer must be
contained in the answer, it must be incorporated, it must be pleaded on the answer.

Default:

When a plaintiff files a complaint in court, what will the court do?

The court in due time issues a summons, the summons is served on the defendant and the defendant has thirty (30)
days extendable for another thirty (30) days in total of 60 days with extension (extension is only 1 time) to file his
answer to the complaint.

- 30 days starts from the date of the receipt of the summons (exclude the first day, include the last)

What If the defendant fails to file his answer within the period allowed?

He may be deemed declared default and a judgment of default may be taken against him

NOTE: Court cannot on its own, motu proprio declare the defendant in default.

Example:
A complaint was filed the record will show that the defendant was served with summons, some months ago, it has
been more than five months and yet defendant has not filed his answer to the complaint so the court issued an order
declaring the defendant in default and later rendered a judgment on default.

Was the court correct?

No, because the court cannot motu proprio declared the defendant in default

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

The requisites are:

1. Plaintiff must file a motion to declared defendant to be in default

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

What do you call the motion that the plaintiff will file?

Motion to declare defendant in default

Why is that the even if the record will show that defendant fails to comply, why can’t the court declare
the defendant in default?

Plaintiff must protect his interest, so if you are the plaintiff you should watch out and protect your interest.

Does default result in the failure of defendant to attend pre-trial?

Default does not concur for failure of defendant to attend pre-trial because if defendant fails to attend the pre-trial
without any justifiable cause then the court will simply authorize the plaintiff to present his evidence ex-parte or
default does not occur of failure of defendant to attend his trial because defendant fails to attend will result to his
absence construed as a waiver of his part to assail the evidence presented against him or waiver his right to adduce
his evidence.

Is failure to answer on the part of the defendant within the time allowed by the rules, the only instance
in which the defendant may be declared in default?

No, they may also be other instances when a defendant who has filed an answer may still be declared in default such
as:

1. if he refuses to obey an order requiring him to comply with the modes of discovery;
2. If defendant or managing agent of the defendant will fully fails to appear before the officer who is to take
his deposition.

NOTE: If the case is governed by the rule on summary procedure then a motion to declared defendant in default is
a prohibited motion and therefore plaintiff cannot file the motion because it is a prohibited motion.

Example:

Case is governed by the rule on summary procedure, the defendant was served with summons requiring him to file
his answer in the complaint but he failed to do so

What can the court?

Answer: Court may render a judgment as may be warranted in the facts alleged in the complaint and limited what
is prayed for therein

Once defendant is declared in default what are the options of the court?

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

If the court goes to the second option, then the presentation of evidence ex parte may be delegated to the clerk of
court, provided that the clerk of court is a member of the Philippine Bar.

If the court requires the plaintiff to present evidence ex parte against the defaulted defendant, may the
reception of evidence may be delegated to the clerk of court?

Yes, provided that the clerk of court is a member of the Philippine Bar.

If court finds it meritorious

Court will issue declaring defendant in default.

NOTE: Do not be confuse between the order of default with the judgment of default

Order of default – order declaring defendant in default, comes first, before the court can render a judgment of default

What is the extent of the relief that may be awarded in a judgment of default?

Judgment against a defendant in default shall not exceed in the amount prayed for or award unliquidated damages
even if there is presentation of evidence ex parte and such evidence is shown that the plaintiff is entitled to higher
amount than that prayed for in his complaint

Example:

Plaintiff is asking for only 1M by way of damages in his complaint that is based on a contract between the parties
and at the trial plaintiff was able to prove that he is entitled to more than 1M.

May the court render judgment for an amount higher than the amount prayed for in the complaint?

- Generally, yes, the court may award a higher amount. But not in a judgment of default.

No, in a judgment of default. If the plaintiff to prove a higher amount then the court may grant him that higher
amount but not if a defendant is declared in default because an amendment to conform to evidence does not apply to
a defendant declared in default. Here if defendant is declared in default the judgment against him cannot exceed the
amount or be different in kind what prayed for or award unliquidated damages.

What is the effect of an order of default?

The defaulted defendant shall be entitled to notice of subsequent proceedings but shall not to take part in the trial.
He loses his standing in court

Effects of partial default

Example:

X filed a complaint against Y and Z so there are two defendants. Complaint asserts a common cause of
action against Y and Z, but here Y files an answer but Z did not file an answer. On motion of X, Z was
declared in default

Is it proper for the court to divide the proceedings in two? Render a judgment against the defaulted
defendant and to the other defendant who filed an answer?

No. In a situation like the above-mentioned where the plaintiff files an answer a certain cause of action
against several defendants, one or some of them file an answer and the others did not, then what the court should
do is to try the case against all the defendants on the basis of the answer that was filed.

Court should not divide the case, rather it should try the case against all the defendants on the basis of the
answer that was filed by one or some of the defendants.

What happens if defendant is declared in default, does a defendant declared in default has remedies?

- AN ORDER OF DEFAULT IS NOT APPEALABLE. It is merely interlocutory (it does not end the
case).
- Is a judgment by default appealable? Yes, because it is a final judgment.

Yes. The following are the remedies of a defendant in default:

1. Motion to set aside an order of default

- It must be under oath and must be filed by the defendant anytime from notice of the declaration of
default but before judgment
- He must show by an affidavit of merit that his failure to file his answer was due to fraud, accident,
mistake and excusable negligence (FAME)
- Not appealable, a judgment by default is appealable but an order of default is not appealable

What kind of fraud?

Extrinsic fraud, fraud that prevented defendant his day in court or kept him away from court

Why is a motion to set aside an order of default not appealable?

Because an order of default is simply interlocutory. Order does not terminate the case something else has
yet to be done.

NOTE: This is not a motion for reconsideration

 2. Motion for new trial
- only if a judgment of default has been rendered but has not become final yet, so the defaulted
defendant may file a motion for new trial on the grounds of: fraud, accident, mistake, excusable
negligence (FAME), within fifteen (15) days.
3. Appeal from the judgment by default, but within fifteen (15) days.

4. A petition for relief of judgment based on fraud, accident, mistake, excusable negligence (FAME)
- This petition from relief of judgment should be filed if appeal is not available as a remedy through no
fault of the defendant himself.
- Shall be filed within sixty (60) days from notice of judgment but within 6 months from entry of judgment
- Available as a remedy but only when the judgment has become final

5. Action for annulment of judgment based on extrinsic fraud

- Here, the judgment by default became final and within 4 years upon the discovery of the fraud, the
defendant may file an annulment of judgment on the ground of extrinsic fraud.

6. Petition for certiorari

- May be filed within 60 days from notice subject of the petition. If he files a motion for
reconsideration, then the 60 days should be reckoned from the notice of the denial of the motion for
reconsideration.
- This is available to the defendant if he has been improperly declared in default (e.g. when he has
filed an answer and yet he was declared in default).
- The defendant can file this petition alleging that the declaration of default against him was tainted
by grave abuse of discretion amounting to lack or in excess of jurisdiction.

If a judgment becomes final, may there be a remedy against a judgment that has become final?

Yes. A petition for relief from judgment.

Cases where to no default is allowed

- However, no judgment in default may be declared by the Court in the following cases:
1. Annulment of marriage
2. Declaration of nullity of marriage
3. An action for legal separation
4. An action for expropriation
5. Forcible Entry and unlawful detainer cases
6. Other cases governed by the rule on summary procedure.

- Instead, the Court shall order the State to inquire whether there is a collusion between the parties. If there
is no collusion, then the State shall order the prosecution to intervene on behalf of the State.

MOD 8

Rule 10 (Amended and Supplementary Pleading)

What are amendments?

● shall consist of adding or striking out an allegation or the name of any party, correction of mistakes in the
name of the party, or a mistaken or inadequate allegation or description of an object in the pleading.

● Purpose: To allow the parties to bring all the issues before the court so that the actual merits of the
controversy may be determined without regard to technicalities;

● e.g. impleading an omitted party by amending a complaint or pleading; if the allegation is inefficient or
inadequate or the allegation is not correct, the deficiency can be supplied by amending the pleadings

What are the kinds of amendments?

1. Formal Amendments
 - It is formal when you want to correct a defect in the designation of parties and other clerical errors
may be summarily corrected

- e.g. mistake in the names of the parties (plaintiff, defendant); instead of calling him ‘plaintiff’, he
was called a ‘petitioner’ or ‘complainant’

- Only a formal defect - clerical errors may be formally corrected

2. Substantial Amendments

- All other amendments are considered substantial

- e.g. change of the cause of action or add another cause of action to the complaint

When may an amendment be made?

- Formal and substantial amendment can be made once, as a matter of right before a responsive pleading is
served, or in case of a reply, at any time within ten days after it is served.

- Amendment can be made even if the case is dismissed provided that the dismissal has not attained finality
yet. If the dismissal becomes final, amendment cannot be made as there is nothing more to amend.

- A party may amend his pleading once as a matter of right at any time before a responsive pleading is served.
After a responsive pleading has been served, substantial amendments may be made only with leave of court.

What is a responsive pleading?

- These are pleading that are filed by a party who will respond to a pleading filed against him. That is to deny
an allegation against him or her. An answer and reply (filed only when it is based on an actionable
document) a responsive pleading.

○ Example: A plaintiff filed a complaint but no answer has yet been filed by the defendant, plaintiff
may amend his complaint once as a matter of right because there is no responsive pleading served
upon him yet. The right of the plaintiff to amend his complaint at this point is without leave of
court. At this point, the amendment is a matter of right.

○ Suppose, the plaintiff files a second amended complaint, no responsive pleading has
been served on him yet, may he still amend the amended complaint by filling a second
amended complaint? YES, but with leave of court because the rule says that a party may amend
his pleading once as a matter of right before a responsive pleading is served.

- Prior to the filing of the answer or a responsive pleading, the plaintiff has the absolute right to amend his
complaint (applies whether the amendment is formal or substantial or whether a new cause of action is
introduced in the amended complaint).

- Before a responsive pleading is served on the plaintiff, he has the absolute right to amend his complaint
once.

Suppose the plaintiff files a motion to dismiss instead of an answer, may the plaintiff still amend his
complaint once as a matter of right?

- YES, because a motion to dismiss is not a responsive pleading; it is a motion (explained in Rule 15).

Suppose the court resolved the motion by granting it and the court issued an order dismissing the
complaint (final order where the plaintiff can appeal). May the plaintiff still amend his complaint
notwithstanding the order of dismissal?

- YES, provided the order of dismissal has not yet become final. But the moment it has become final, then the
plaintiff cannot amend his complaint anymore because there is nothing else to amend.

After the plaintiff has been served with a copy of the defendant’s answer, may the plaintiff still amend
his complaint?

- YES but if the plaintiff would like to introduce a substantial amendment at this point when there is already
a responsive pleading, the plaintiff must first obtain leave of court.

- After the filing of a responsive pleading, substantial amendments require leave of court.
When may the Court refuse leave to amend the pleading? Or what are the limitations in the right of a
party to amend his pleading?

The following are the limitations on the right of the party to amend his pleading: (MEMORIZE)

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

2. The purpose of the amendment is to confer jurisdiction upon the Court; and

- Example: he plaintiff files a motion to dismiss alleging that the Court has no jurisdiction over the
subject matter of the action. Plaintiff amended the complaint because it is a matter of right (amount
of his claim is now within the jurisdiction of the RTC), the Court should not allow the amendment
since the purpose of this amendment is to bring his complaint within the jurisdiction of another
court (RTC).

- The court must first acquire jurisdiction over the subject matter of the action before it can act on
the amended complaint.

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

- Example: The debt fell due on July 16 but the plaintiff, without waiting for the cause of action to
arise, the plaintiff filed his complaint on June 5. At the time of the filing of the complaint on June
5, the plaintiff has no cause of action yet because the indebtedness has yet to become due. On Aug.
5, plaintiff filed an amended complaint and alleged that he already had a cause of action at this
point. Is the plaintiff correct?

- Answer: No, the amended complaint will retroact to the date of the filing of the original complaint.

- If at the time of the filing of the complaint, the cause of action is non-existent, the plaintiff cannot
cure this defect by amendment.

Note: In order to be valid one must attach to the motion for leave the proposed amended complaint.

Question: If amendment requires leave of court but the party amending his pleading did not anymore
obtain leave of court, what is the standing of the amended pleading?

Answer: It has no standing. Therefore, it may be stricken from the records of the case.

Example: Suppose X, plaintiff, filed a complaint against two defendants, Y & Z. Y filed an answer to the complaint
but Z filed a motion to dismiss. May X amend his complaint as against Y and Z?

Answer: As to Y, with leave of court. But as to Z, he can amend his complaint without leave of court because, at this
point, amendment as to the defendant who has not filed an answer or a responsive pleading is a matter of right.

AMENDMENT TO CONFORM TO EVIDENCE

When does it apply?

- When issues not raised in the pleading are tried with expressed or implied consent of the parties, they shall
be treated in all respects as if they had been raised in the pleadings and there can be an amendment to
conform to the evidence, but failure to amend will not affect the result of the trial of these issues.

NOTE:

- Here, you will only present evidence on the issues raised by the pleadings or made out in the pleadings.
These issues will be identified at the pre-trial and stated by the Court in a pre-trial order that it will issue
after the pre-trial. But suppose, issues not raised in the pleadings are tried, they shall be treated in all
respects as if they had been raised in the pleadings.

- If the party fails to make the amendment then his pleading nonetheless is deemed amended so as to conform
to the evidence.

- Example: the claim of the plaintiff is only 1M Php based on his allegation but at the trial, the plaintiff
presented evidence showing that the defendant owed him 1.8M Php. The defendant did not object to the
presentation of this evidence. What hapenes?
 - It can be said that the defendant has impliedly consented that this issue be tried likewise. The
pleading will be deemed amended to conform to the evidence.

Question: Suppose in the same example, the defendant objected and the Court sustained the objection, what is the
remedy of the plaintiff?

Answer: The remedy of the plaintiff is to ask the Court to allow him to amend his complaint so as to authorize the
presentation of evidence.

AMENDMENT TO AUTHORIZE PRESENTATION OF EVIDENCE

- When evidence objected to at the trial on the ground that it is not within the issues made by the pleadings
and the Court sustains the objection on motion of the party affected like the plaintiff, the Court may allow
the pleadings to be amended so as to authorize the presentation of evidence and the Court may do so with
liberality.

What are the effects of an amended pleading?

The following are the effects of an amended pleading:

1. It supersedes the pleading that it amends;

2. Admissions in the superseded pleadings may be received as evidence against the pleader;

3. Claims and defenses alleged in the superseded pleading but not incorporated in the amended pleading shall
be deemed waived (except of course those defenses [mentioned in Sec. 1, Rule 9] that are not deemed waived
even if not pleaded in a motion to dismiss or in an answer).

How is an amended pleading filed?

- The amendments or the amended portions of the pleading must be indicated by underscoring them.

SUPPLEMENTAL PLEADING

- If a pleading was filed like a complaint and then facts occur or events transpire after the filing of that
complaint then you can file a supplemental complaint to allege those facts or events occurring since the time
or after the filing of the complaint.

- However, these amendments (including amendment to conform to evidence) does not apply to a defendant
declared in default because a judgment by default cannot exceed the amount or be different in kind from
that prayed for or award or liquidated damages.

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

1. An amended pleading is filed either as a matter of right or with leave of court. While a supplemental
pleading is always with leave of court.

2. An amended pleading alleges matters and facts occurring before the filing of the original pleading. While a
supplemental pleading alleges matters or facts occurring after the filing of the original pleading.

3. An amended pleading supersedes the original pleading that it amends. While a supplemental pleading
allows the original pleading to stand (meaning the original pleading is not superseded, instead the original
pleading and the supplemental pleading will be taken together).

MOD 9 and 9A

Rule 11 and 12 (Lecture 1)

Responsive Pleading

- Is one that sets up defenses (negative defenses or affirmative defenses)

 - A complaint is not a responsive pleading

- An answer is a responsive pleading

- A motion to dismiss is not a responsive pleading

When to file responsive pleadings?

1. What about an answer to a complaint in a case governed by the rule on summary procedure? What is
the period within which to file the answer?

- It is 10 days from service of summons. Ten calendar days including Saturdays and Sundays and even
holidays.

TN (applies to all): when counting the number of days, you exclude the first and include the last. And if the
last day falls on a Saturday, Sunday or Legal Holiday, in the place where the court seats, then the pleading may be
filed on the next business day, provided it is not a holiday.

Example: 10 days from July 1. The defendant receives the summons on July 1. Start counting on July 2 until July
11. The last day to file an answer is July 11. If it falls on a Saturday, Sunday, or Legal Holiday in the place where
the court seats then it may be filed on the next business day.

TN: The holidays should be in the place where the court seats

2. What about an answer to the complaint? (Regular cases or cases governed by regular rules)

- It is 30 calendar days from, service of summons upon the defendant. Unless a different period is fixed by
the Court. The reckoning point is from the date of service of summons.

Suppose the lawyer hired by the defendant has to attend to so many court appearances etc. and therefore he may
not be able to meet the deadline.

- Then he can file an extension for no more than 30 calendar days. It’s a one-time extension. The defendant
is allowed only one motion for extension

3. What about answer to the amended complaint?

- If the amendment is a matter of right then the defendant will have 30 calendar days after being served
with a copy of the amended complaint. But if the amendment is with leave of court, then it is 15 days from notice of
the order admitting the amended complaint.

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

May the plaintiff amend his complaint although the defendant has already filed his answer to the
complaint?

- Yes. But this time the amendment should be with leave of court. So, the defendant will file a motion for
leave to amend his complaint attaching to his motion the proposed amended complaint. If the Court grants
the motion and admits the amended complaint then the defendant will be served with a copy of the order
admitting the amended complaint. From the time the defendant receives the order admitting the amended
complaint, he will have 15 days to file his answer to the amended complaints.

Suppose the defendant does not file an answer to the amended complaint. May the defendant be
declared in default if he does not file an answer to the amended complaint?

- No. because if the defendant does not file an answer to the amended complaint, then his answer to the
original complaint will stand as his answer to the amended complaint.

If the defendant files an answer to the amended complaint, then it is called answer to the amended complaint
you do not say amended answer.

Amended Answer
 - An amended answer is when the defendant simply amends his answer.

May the defendant amend his answer even if the plaintiff does not amend his complaint?

- Yes, in which case you call it as amended answer

But if the plaintiff files an amended complaint this time it is with leave of court because the defendant has already
filed his responsive pleading then the defendant may file an answer to the amended complaint

Question: What about if the defendant is a foreign private juridical entity? How many days does it have to file its
answer to the complaint?

Answer: if the summons is served upon its resident agent, then it has 30 days from service of summons. But if the
summons is served on a government official designated by law to receive the summons on behalf of the defendant
foreign private juridical entity, then it has 60 calendar days after receipt of the summons by such entity.

4, What about an answer to third fourth party complaint?

- It should be filed within 30 calendar days after service of summons unless a different period is fixed by the
Court.

5. What about an answer to a complaint in intervention?

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

6. What about an answer to a counterclaim or crossclaim?

- It is 20 calendar days from service of the counterclaim or crossclaim. It is not 20 days from service of
summons. It is 20 calendar days from service of the counterclaim or crossclaim

TN: If it is a permissive counterclaim, it must be answered otherwise the plaintiff who is the defendant as to the
permissive counterclaim may be declared in default. But if the counterclaim is a compulsory counterclaim, it may or
may not be answered.

7. What about answer to the supplemental complaint?

- It is 20 calendar days from notice of the order admitting the supplemental complaint unless a different
period is fixed by the court.

But if no new or supplemental answer is filed the answer to the complaint shall served as the answer to the
supplemental complaint

8. What about a reply?

- Reply is 15 days from service of the pleading responded to.

Question: May the defendant file a motion for extension of time to file responsive pleading?

Answer: A motion for extension to file a pleading other than an answer is a prohibited motion.

Suppose you were not able to meet the deadline. The period for filing the answer has expired. You did not also file a
motion for extension

Question: After the expiration of the period to file an answer, can you file a motion for extension?

Answer: No. Because at that time there is nothing else to extend. The period has expired and therefore nothing else
to extend.
What is your remedy if you fail to file your answer within the period for filing it and you have not filed a motion for
extension? You are 5 or 10 days late

- Your only remedy is to file your answer even after the period for filing it and then file along with the answer.
You file a motion to admit the answer attaching to your motion your answer and then explain why you were
not able to file it on time. And if the court will find the reason to be meritorious then the court may admit
you answer even if it was filed out of time.

Question: May the period for filing of responsive pleadings be shortened?

Answer: No. the court may extend but cannot shorten the time for filing of the answer. Except if that quo warranto
cases, the period may be shortened

Question: When may a complaint be filed?

Answer: A complaint is not a responsive pleading. The plaintiff may file his complaint from the accrual of
his cause of action or any time thereafter but before his cause of action is barred by the statute of
limitations.

Rule 12

BILL OF PARTICULARS

What is a Bill of Particulars?

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

What is the remedy of the defendant if the complaint is vague or indefinite?

- To file a motion for bill of particulars. The defendant will file a motion asking for to direct the plaintiff to
give a more definite statement. To give a Bill of Particulars. So that those vague allegations will become
clearer.

A motion of a Bill of Particulars should be filed before filing an answer or before responding to a pleading

Question: When may the defendant file a motion for a Bill of Particulars?

Answer: Before filing his answer.

But if the pleading is a reply the motion must be filed within 10 days from the service of the reply.

Question: Suppose you are the defendant and you file a motion for a Bill of Particulars and then somebody will ask
you, is your motion a litigious motion?

Answer: Yes, and therefore you have to serve a copy of your motion on the plaintiff

Question: What is the duty of the clerk of court upon the filing of the motion of bill of particulars

Answer: The clerk of court must bring it immediately to the attention of the court. And the court may deny or grant
the motion outright or allow the parties and opportunity to be heard

Question: May the court grant it outright?

Answer: Yes, because the court will allow the parties to be heard thereon.

Suppose the court grants the motion and directs the plaintiff to comply with the order, how may the plaintiff comply
with the order?

Answer:

1. within 10 days
2. he may file the bill of particular either as separate pleading or as an amended pleading.

MOD 10

Rule 13
Filing and Service of Pleadings, Judgments, and Other Papers

FILING

Filing is the act of submitting the pleading or other paper to the court.

Note: When it comes to a complaint, it is only deemed file upon the payment of filing fees.

SERVICE

Act of providing the other party of a copy of the pleading or any other court submission.

Upon whom may the pleadings be served?

Upon the party. If a party is represented by a counsel, then the service should be made upon the counsel. If
counsel represents multiple or several parties, he will be served with only one copy of the pleading or papers.
But if several counsels appear for a party or parties, then they will be entitled to only one copy. The pleading
will be served upon the lead counsel, if one is so designated.

MODES OF FILING

1. Personal Filing

- Accomplished by submitting personally the original copy of the pleading, motion, or other papers
to the court plainly indicated as such.

- Personally submitting the original copy of the pleading or other court submissions plainly indicated
as such to the court.

2. Filing by Registered Mail

3. Filing by Accredited Courier

4. Filing by Electronic Mail or Other Electronic Means

- May include fax.

- Accomplished by transmitting them to the court by electronic mail or by other electronic means as
may be authorized by the court in places where the court is electronically equipped.

- While it is now one of the modes of filing authorized by the rules, yet if you go to Sec. 14 of Rule 13,
you’ll find that the following must only be served or filed by personal filing or by registered mail and
should not be filed electronically unless expressly authorized by the court:

(a) Initiatory pleading and initial responsive pleadings such as an answer;

(b) Subpoena or protection orders and writs;

(c) Appendices and exhibits to motions and other documents that are not readily
amenable to electronic scanning;

(d) Sealed and confidential documents or records.

Question: So you are filing a pleading and other papers. Consider the modes of filing. When are they considered
filed? At one point are they considered filed?

Answer:

(a) If made by personal filing, the Clerk of Court shall endorse on the pleading, motion, or other court
submissions, the date and hour of filing;
 (b) If made by registered mail or by accredited courier, the date of the mailing of the pleading, motion,
or other court submissions and the payment or deposit as shown by the post office stamp on the
envelope or the registry receipt shall be considered as the date of its filing. The envelope shall be
attached to the record of the case;

(c) If by electronic mail or other electronic means, the date of the electronic transmission shall be
considered as the date of filing.

Question: What are the papers required to be filed with the court and served on the parties affected?

Answer:

(a) Judgment;

(b) Resolution;

(c) Order;

(d) Pleading;

(e) Pleading subsequent to complaint;

(f) Written motion;

(g) Notice;

(h) Appearance;

(i) Demand;

(j) Offer of Judgment; or

(k) Similar papers.

Note: Even judgment has to be filed with the Court. When you get to Rule 36, Sec. 1, you will find out that
one requisite of a valid judgment is that it must be filed with the Clerk of Court.

MODES OF SERVICE

1. Personal Service

- Made by personally delivering a copy of the pleading, motion, notice, order, and other court
submissions to the party or to his counsel

- How? By leaving it in his or her office, with his Clerk, or with a person having charge of the office.

- Suppose he has no office or the office cannot be located? Then by leaving the copy between the hours
of 8 in the morning and 6 in the evening at the parties’ or counsel’s residence if known, with a
person of sufficient age and discretion residing therein.

2. Service by Mail

- Service by mail may be done either by registered mail or ordinary mail. In filing, it must always be
registered mail.

- Made by depositing the copy in the post office in a sealed envelope

3. Service by Accredited Courier

4. Service by Electronic Mail or by Facsimile Transmission or Other Electronic Means As May Be

Authorized By Court

5. Substituted Service
 - Accomplished by delivering a copy to the Clerk of Court with proof of failure of personal service and
service by mail.

- Which court? Court where the case is pending.

Note: When it comes to judgments, final orders, or resolutions (that dispose of the case), modes of service are:
personal service, service by registered mail or accredited courier, and service by publication.

6. Service of Judgment by Publication

- For judgment, final orders, or resolutions.

- This may be done only when the defendant is summoned by publication and he did not appear in
the action.

PRESUMPTIVE SERVICE OR PRESUMPTIVE NOTICE

When it comes to notice of hearing, there is a new rule. This is called “presumptive service” or “presumptive
notice”. There was no presumptive service under the old rules.

There is a presumptive notice to a party of a court setting if such notice appears on the record to have been
mailed at least twenty (20) calendar days prior to the scheduled date of hearing and the addressee is from within the
same judicial region where the case is pending.

Or if the addressee resides or is from outside the judicial region, it should be thirty (30) calendar days.

Note: This presumptive notice applies only to service of notice of hearing. When it comes to service of
judgments and other pleadings, there is no presumptive service.

WHEN SERVICE IS COMPLETE

The rule regarding completeness of service (when to start counting 15 days to appeal):

(a) If by personal service, it is complete upon actual delivery;

(b) If by ordinary mail, it is complete upon expiration of ten (10) calendar days after mailing unless
the court provides otherwise;

(c) If by registered mail, it is complete upon actual receipt by the addressee or after five (5) calendar
days from the date the addressee received the first notice of the postmaster, whichever date is
earlier;

- Example: Date of mailing is July 1 and addressee received it on July 16. But
earlier, the addressee received a notice from the postmaster on July 13. Service is
complete on July 16.

(d) If by accredited courier, it is complete upon actual receipt by the addressee or after at least two (2)
attempts to deliver by the courier or upon expiration of five (5) calendar days after the first attempt
to deliver, whichever is earlier;

(e) If by facsimile transmission, it is complete upon receipt by the other party as indicated in the fax
printout;

(f) If by electronic message or electronic means, it is complete at the time of the electronic transmission.
However, electronic service is not effective or complete if the party serving the document learns
that it did not reach the addressee or person to be served.

(g) If by substituted service, it is complete at the time of actual delivery to the Clerk of Court.

NOTICE OF LIS PENDENS

This is a notice of lis pendens; not litis pendentia which is a ground for dismissal of an action. Notice is
different from action.

A notice of lis pendens may be recorded only if the action is a real action. An announcement to the world that
a particular real property is the subject of a pending litigation and serves as a warning to everyone who might want
to deal with this property or enter into a transaction involving this property that it is the subject of litigation.

Question: In what office does a notice of lis pendens recorded?

 Answer: It is recorded in the Registry of Deeds of the province or the city where the real property is located.
The recording is extrajudicial in the sense that you do not need a court order to record a notice of lis pendens. That
is why there is no separate action just to record a notice of lis pendens.

What to State in the Notice

1. Name of the parties;

2. Object of the action;

3. Notice is directed to the Registry of Deeds;

4. Attach to your notice a copy of the complaint, if not as long as you indicate the title of the case, case number,
and the court where it is pending in the request for recording of the notice.

● Request for recording of notice is in the form of a letter.

Question: In what action may a notice of lis pendens be recorded?

Answer: It is available only in a real action; an action affecting title or possession of real property.
Specifically:

1) Action to recover possession or ownership of real property;

2) Quiet title;

3) Remove cloud; or

4) For partition; and

5) Any other proceeding of any kind in court directly affecting title to the land, affecting the
use or occupation thereof, including the building thereon.

Question: Who may record a notice of lis pendens?

Answer: The plaintiff. Or even the defendant, if the defendant is also asking for an affirmative relief
involving the real property.

Cancellation of Notice of Lis Pendens

There must be a court order for the cancellation of lis pendens. The court will issue an order directing the
cancellation of lis pendens if it is shown that:

1. Notice is for the purpose of molesting the other party; or

2. It is not necessary to protect the right of the party who caused it to be recorded.

MOD 11

Rule 14- Summons (Lecture 1)

SUMMONS

- It is a writ issued and signed by the Clerk of Court upon the filing of the complaint and payment of the requisite
docket fees addressed to the defendant and directing him to file his answer to the complaint with a warning that if
he fails to do so, then the plaintiff will take a judgment in default and he may be granted the relief applied for.

- The summons must contain the name of the Court and the names of the parties.

- Summons is singular. Plural for is summonses.

Two-Fold Purpose of Summons

The two-fold purpose of summons:

1. to enable the Court to acquire jurisdiction over the person of the defendant; and

2. to notify the defendant of the filing of the complaint against him.

What is the significance of summons?

- Summons is the primary means by which the Court is able to acquire jurisdiction over the person of the defendant
and to give notice that an action has been commenced against him.

- It is the writ by which the defendant is notified of an action brought against him.

- Jurisdiction cannot be acquired over the defendant even if he knows of the case filed against him unless there was
a valid service of summons upon him or if the defendant voluntarily appeared before the court.

How may a Court acquire jurisdiction over the person of the defendant?

Jurisdiction over the person of the defendant can only be acquired thru:

1. Valid service of summons; or

2. By the defendant’s voluntary appearance in the action.

What is equivalent to service of summons?

- The voluntary appearance of the defendant in the action shall be equivalent to service of summons.

When may the Court direct the Clerk of Court to issue the summons to the defendant?

- If the complaint is not dismissible on its face under Section 1, Rule 9, the Court shall within 5 calendar
days from receipt of the complaint from the initiatory pleading and proof of payment of the
requisite legal fees direct the clerk of court to issue the summons to the defendant.

- Section 1, Rule 9 - These are the defenses that cannot be waived even if they are not set up in a motion to
dismiss or answer.

- If the complaint is dismissible on its face under Section 1, Rule 9, then the court will simply dismiss the
case. The court will no longer direct issuance of summons because the complaint is already dismissed.

What should the summons contain?

The following should be contained in the summons:

1. Name of the Court;

2. Name of the parties;

3. Authorization from the plaintiff to serve the summons to the defendant if authorized by the Court upon ex parte
motion;

4. A direction that the defendant answer within the time fixed by the rules and a notice that if the defendant so
answers, plaintiff will take a judgment in default and maybe granted by the relief applied for.

5. A copy of the complaint and order for the appointment of a guardian ad litem, if any, should be attached to the
original and each copy of the summons.

Who may serve the summons?

Summons may be served by:

1. The Sheriff or his deputy or other proper Court officer;

2. The plaintiff if authorized by the Court in case there is a failure of service of summons by the sheriff, his deputy
or other proper Court Officer;

3. The plaintiff shall be authorize to cause the service of summons in the following instances:
 i. If the summons is to be served outside the judicial region of the Court where the case is pending;

ii. If summons is returned without being served in any or on all the defendants

- If the summons is returned without being served to any or all of the defendants the Court shall
order the plaintiff to cause the service of the summons by other means available under the
rules.

What if the plaintiff fails to comply with the order for him to cause the service of summons?

- The failure of the plaintiff to comply with the order will cause the dismissal of the complaint or initiatory
pleading without prejudice (can be refiled).

If the summons is issued, what is the lifetime of summons? Until when is the summons valid?

- A summons has no definite lifetime.

- Once issued it shall remain valid until duly served or recalled by the Court.

- However, if the summons is lost or destroyed without being served, then the Court upon motion shall issue
an “ALIAS SUMMONS”.

When may the Court issue an “Alias summons”?

- If the summons is lost or destroyed without being served, then the Court may, upon motion, issue an
“ALIAS SUMMONS”.

- It is filed by the one who is interested to have another summons issued, which is the Plaintiff. Thus, the
plaintiff will be the one to file.

What are the modes of service of summons or how may summons be served? How may summons be
served?

We have the following modes of service:

1. Service in person on the defendant

2. Substituted Service

3. Service of summons by publication

SERVICE IN PERSON ON THE DEFENDANT

How is Service in person on the defendant made?

There are two ways:

1. By handing the copy of the summons to the defendant in person and informing him that he or she is
being served with summons.

- It is a face to face situation

2. If the defendant refuses to receive and sign for it, by leaving the summons within the view and in the
presence of the defendant.

- In the past, if the defendant refuses to receive and sign for it, by tendering it to him. That was in the past.
Now, it is by leaving the summons within the view and in the presence of the defendant.

- Let us say, you are handing a copy to the defendant, he refuses to receive it and sign for it, then you leave
the copy within the view and in the presence of the defendant.

- “Within the view” - Does it mean that the defendant should be looking at the summons being left within his
view? No, as long as that it is within his view and in his presence.
SUBSTITUTED SERVICE

When may Substituted Service of summons be effected?

- If for justifiable causes the defendant cannot be served with summons after at least three (3) attempts on
two (2) different days then substituted service of summons may be effected.

- When you say three attempts on 2 different days, it can be 2-1 or 1-2.

How substituted service of summons be effected?

1. By leaving a copy of the summons at the defendant’s residence to a person at least 18 years of age and of
sufficient discretion residing therein;

- Suppose the person is 18 years of age but is not of sound mind or suppose the person is 18 years of age of
sufficient discretion but is only visiting by that time… Then, you cannot leave the copy with him.

2. By leaving copies of summons on the defendant’s office or regular place of business with some competent
person in charge thereof.

Who is a competent person?

- A competent person includes but not limited to those who customarily receives correspondences for the
defendant.

3. By leaving a copy of summons if refused entry upon making his authority and purpose known with any
officers of the homeowners association or condominium corporation or its chief security officer in
charge in the community or the building where the defendant may be found.

4. By sending an electronic mail to the defendant’s electronic mail address if allowed by the Court.

May summons be served by sending electronic mail to defendant’s electronic mail address?

- Yes. That is one way of making a substituted service of summon, but only if allowed by court.

If summons is served upon the defendant by substituted service, the one serving the summons shall
make a return of the summons.

- Return means report of what happens to the summons.

- The return to be filed by the Sheriff or process server or person authorized by the Court to serve the
summons shall state the following (the return must state the following):

a. The impossibility of prompt personal service within a period of 30 calendar days from issue and
receipt of summons.

- it must be shown that within the period of 30 days from the time the summons was issued, service in person
to the defendant cannot be made or there is impossibility.

- There must be an attempt to serve the summons personally to the defendant but was impossible.

b. The date and time of the three attempts in at least two different dates to cause the service in person
and the details of inquiries made to locate the defendant residing thereat.

c. The name of the person at least 18 years of age and of sufficient discretion residing at the residence
of the defendants or name of the competent person in charge of the defendants office or place of
business or the name of the officer of the homeowners association or condominium corporation or its
chief security officer in charge in the community or the building where the defendant may be found.

SERVICE OF SUMMONS BY PUBLICATION

What are the instances when Service of summons by publications may be made?

The following are the instances:

1. In any action where the identity of the defendant is unknown as when the defendant is simply
designated as unknown owner.
 - In any action includes action in personam and in rem.

2. In any action in which the whereabouts of the defendant is unknown and cannot be ascertained by
diligent inquiry within 90 calendar days from the commencement of the action.

3. If the defendant does not reside and is not found in the Philippines but the suit can be properly
maintained against him it being an action in rem or quasi in rem

- Instances when a nonresident defendant who is not in the philippines may be suid in the philippines:

1. when the action affects the status of the plaintiff who is in the Philippines

2. when it affects/ involves a property of the plaintiff who is in the Philippines

4. If the defendant is a resident of the Philippines but is temporarily out of the country.

Suppose the defendant does not reside in the Philippines, is a nonresident defendant not found or is
not found in the Philippines. The summons will be served outside the Philippines.

How may summons be effected outside the Philippines?

- This is known as extraterritorial service of summons.

- However, the Court will not be able to acquire jurisdiction over the person of the defendant because the
defendant does not reside in the Philippines and is not found in the Philippines.

- But then, what is important is for the court to be able to acquire the jurisdiction over the RES.

Why is there a need to serve summons if the court cannot acquire the jurisdiction of the person?

- The purpose of serving him with summons is to comply with DUE PROCESS.

What are the modes of extraterritorial service of summons?

The modes are the following

1. By personal service or as provided for in international conventions to which the Philippines is a

party;

2. By publication in a newspaper of general circulation in such places and for such time as the Court
may order and a copy of the summons and order of the Court must be sent by registered mail to the last
known address of the defendant; or

- It is not enough that publication in a newspaper of general circulation was made. A copy of the summons
and order of the Court must be sent by registered mail to the last known address of the defendant.

3. In any other manner which the court may deem sufficient.

- In one case, the summons was sent to the defendant by registered mail to his last know address. The
defendant assailed the validity of the serving summons. Arguing that the sending of summons by registered
mail is simply a part of service of summons by publication. In serving summons by publication, 2 things
must be done: (1) By publication in a newspaper of general circulation in such places and for such time as
the Court may order; and (2) a copy of the summons and order of the Court must be sent by registered mail
to the last known address of the defendant. Thus, according to the defendant, there was no valid service of
summons to him because the summons was simply sent to him by his last known address by registered mail
and no publication. According to the defendant, the mode of extraterritorial service of summons is void.

- The SC said that there is yet another mode of service of summons and that is in any other manner which
the court may deem sufficient.

- If the extraterritorial service of summons was made by sending the summons to him by
registered mail to the last known address of the defendant, and the court will deem that
sufficient, then it will be a valid service of summons.

- ALL THESE MODES WILL REQUIRE LEAVE OF COURT.

Upon whom may summons be served?

- The service of summons shall be made upon the defendant.

 - But if the defendant is:

a. Entity without juridical personality then the service may be effected upon all the defendants by
serving upon any of them;

- Entity without juridical personality as well as persons associated with an entity without juridical
personality are sued under the name by which they are generally or commonly known.

b. Prisoner confined in a jail or an institution service shall be effected by serving the summons upon
him or by the officer having the management of such jail or institution who is deemed to be a special
sheriff for said purpose

- Here, it will be the officer who has management of the ajail or institution.

c. Minor, insane or an incompetent person, service of summons shall be made upon the defendant and
on his legal guardian. If none, upon his guardian ad litem.

- If a guardian ad litem is appointed, the order appointing the guardian ad litem shall also be
attached to the summons.

Suppose the defendant is a foreign juridical entity or a domestic juridical entity, upon whom may
summons be served? (next lecture)

MOD 11, LEC 2

Module Topics: summons

How summons may be served upon a domestic private juridical entity?

What is an example?

Corporation or partnership

If the defendant is a domestic private juridical entity upon whom may the summons be served?

Upon any of the following: President, Managing partner, General manager, Corporate secretary, Treasurer, In-house
counsel

NOTE: In the past, the enumeration was exclusive. It means that the summons should be served to any of these
officers only if the defendant is a domestic private juridical entity, but with the amendment of the rules if the summon
cannot be served upon any of them then the summons may also be served upon their secretaries. If none it can be
served upon the person who customarily receives the respondents for the defendant and its principal office.

May the summons may be served upon the security guard?

In the past no, now if the security guard is a person who customarily receives respondents for the defendant at its
principal office then the service of summons may be upheld as valid at present.

If the summons cannot be served upon any of these individuals for the defendant in its principal office either because
they are absent, unavailable or there is a refusal on the part of these persons at least 3 attempts on 3 different dates,
then the service of summons can be through electronically if allowed by the court.

May summons upon a domestic private juridical entity be served electronically?

If there is refusal on the part of these individuals to receive the summons despite three attempts on two different
dates then service may be made electronically if allowed by the court

What about if the private juridical entity is a foreign private juridical entity? How may summons be
served to this defendants?

If Foreign private juridical entity transacted or doing business in the Philippines, service may be made upon its
resident agent, but if there should be no resident agent then upon the government official designated by law to
receive summons for the private juridical entity or any its officers within the Philippines.
Who are these government officials designated to receive summons?

Insurance: Insurance commissioner

To all other corporations: Security and exchange commission

What if the foreign private juridical entity is not registered in the Philippines or has no resident agent
but has transacted or doing business in the Philippines?

Then the service of summons, with leave of court, be effected outside the Philippines through any of the following
means (This is an extraterritorial service of summons):

1. Personal service course through the appropriate court in the foreign country with the assistance of
Department of Foreign Affairs (DFA)

2. Publication of newspaper of general circulation in the country where the defendant is found and by serving a
copy of the summons and the court order upon registered mail on the last address of the defendant

3. By FAX or by electronic means with the prescribed proof of service

4. By such other means as the court in its discretion may direct

May the service of summons be done on email?

Yes, because the rule says by electronic means by prescribed proof of service and by such other means as the court
may direct.

Upon whom may summons be served if the defendant is a public corporation?

If the defendant is the Republic of the Philippines, service of summons may be effected through the Solicitor General

NOTE: You cannot sue the government if there is no consent on the part of the Government.

If the defendant is a province, city, or municipality or a public corporation, executive head or other officer as the
court may direct may be served with summons

What is the proof of service of summons and what form shall the proof of service be made?

The proof of service of summons shall be made in writing by the server and shall set forth the manner, place, date of
service and shall specify any paper which has been served along with the summons and the name of the person who
received the summons and shall be sworn to when made by the person other than a sheriff or his deputy.

If a summons is summoned through email, print out of the email with a copy of the summons as served and the
affidavit of the person who mails it shall constitute proof of service.

If the service is made by publication, the service may be proved by the affidavit of the publisher, the editor or the
advertising manager and the affidavit should be attached a copy of the publication.

Suppose the summons was not served on any of the modes that we mentioned or upon any individuals
we have mentioned, and not upon any of the persons we mentioned. What is the effect of the service of
summons?

None because that service of summons is void.

What is the effect of the defendant's voluntary appearance in the action, given service of summons is
void or has not been served?
Even if the service of summons upon the defendant is void or the defendant has not been served with summons, his
voluntary appearance is equivalent to a service of summons.

Supposed defendant files a motion to dismiss and in his motion he includes other grounds aside from
lack of jurisdiction over his person, what is the effect of inclusion such as other grounds?

It shall be deemed a voluntary appearance, so if the defendant files a motion to dismiss alleging that the court has
not acquired jurisdiction of his person because of the void service of summons against him but when he added other
grounds to his motion to dismiss it will be deemed a voluntary appearance.

NEW RULE: Lawyer or counsel appears on behalf of defendant and enters a special appearance on behalf of
defendant to question the court’s jurisdiction over the person defendant he shall question the validity of the summons
then the court may require the defendant's counsel to serve the summons on his client or his defendant.

Section 13 Rule 14 (New provision): Where the summons is improperly served and a lawyer makes a special
appearance on behalf of the defendant to, among others, question the validity of service of summons, the counsel
shall be deputized by the court to serve summons on his or her client.

MOD 12, LEC 1

Module Topics: Motions (Rule 15)

What is a motion?

Motion is an application for an order other than by a pleading. When you file a pleading in court you are demanding
a relief granted by court. You are asking to issue a judgment or order. If you want to ask a court for a relief then you
can do it by means of a motion.

Note: Motion generally must be in writing except those made in open court in the course of the trial or proceeding

Sample: You are presenting a witness in court then his testimony is included and the court will ask you to present
your witness but your next witness is not available on that day so you ask the court to reset the hearing to another
day then you will make an oral manifestation “Your honor please, I respectfully move that the hearing be reset to
another day because we have no other witness to present today”

A motion be classified as either:

Non-litigious Motion

- Does not need to be heard by the court so there will be no notice of hearing

- A motion which the court may act upon without prejudicing the rights of the adverse parties

- The following are non-litigious motions:

1. Motion for issuance of an “alias summons”;

2. Motion for extension to file answer;

*Motions are also classified as 1) prohibited motions and 2) motions that are not prohibited. A
motion for extension to file a pleading is a prohibited motion except for a motion for extension to
file answer. But a party may file only one motion to file extension to file an answer.

3. Motion for the issuance of writ of execution;

4. Motion for the issuance of an order directing the sheriff to execute a final certificate of sale;

5. Motion for issuance of a writ of possession.

- If the motion is non-litigious, it shall not be set for hearing but it shall be resolved by the Court within 5
calendar days from receipt of the motion. Moreover, it needs no notice of a hearing.

Litigious Motion

- the court in its discretion may set the motion for hearing in which case the court will issue a notice of
hearing.
 - A motion which the court may act upon which prejudices the rights of the adverse parties

- The following are litigious motions:

1. Motion for bill of particulars;

- Filed by the defendant before he responds to a pleading

2. Motion to dismiss;

3. Motion for new trial;

4. Motion for reconsideration;

5. Motion for execution pending appeal;

6. Motion to amend after a responsive pleading has been filed;

- After a responsive pleading has been filed, amendment is with leave of court.

7. Motion to cancel a statutory lien;

8. Motion for an order to break in or for a writ of demolition;

9. Motion for intervention;

10. Motion for judgment on the pleadings;

11. Motion for summary judgment;

12. A demurrer to evidence;

- In the nature of a motion to dismiss on the ground of insufficiency of evidence.

13. Motion to declare the defendant in default;

14. Other similar motions (e.g. motion to set aside order of default)

- If the motion is a litigious motion, the opposing party shall file his opposition to a litigious motion within
5 calendar days from receipt of the motion. The Rules tell us that no other submissions (rejoinder, reply,
comment, etc.) shall be allowed or considered by the Court in the resolution of the motion.

- If the motion is a litigious motion, the Court has 15 calendar days from receipt of the opposition or
expiration of the 15 days for filing the opposition to resolve the motion. Moreover, a notice of hearing is
discretionary on the part of the Court.

NOTE: You might come across several cases where the Supreme Court held that the motion is defective and thus
not a valid motion because of an absence of a notice. Notice is required by due process and the notice those days is
served upon the adverse party by the movant himself at least three days before the date of hearing If you are not
able to comply it is void.

New rule: It is not the movant that will make the notice of hearing that will now be a discretionary on the part of
the court whether to set the motion for hearing or not

Notice is made by the moving party himself and it is addressed to the adverse party and it must specify the date and
time of the hearing of the motion.

When shall a notice be served?

A motion must be served at least three days before the date of the hearing specified in the notice itself

When shall a notice of hearing be void?

If it contains a notice of hearing but the date and time is not specified the notice is void. Or if the movant failed to
comply with the three days rule it is also considered void?

NOTE: Technically there is no Rule 16 because Rule 16 is motion to dismiss because a motion to dismiss is a
prohibited motion except if it based on:

1. Lack of jurisdiction over the subject matter

 2. Action pending of the same cause

3. Res judicata

4. Prescription

Requisites of a valid motion:

1. A motion must be in writing except if made in an open Court and in the course of the proceeding;

- Example: a motion asking the court to reset the hearing or a motion asking the court to allow you
to mark an exhibit - made in open court or in the course of the proceeding

2. A motion must state the reliefs sought to be obtained and the grounds upon which it is based. If required by
the rules or necessary to prove the facts therein stated, it must be accompanied by affidavit or other
supporting papers;

3. It must be served by personal service, accredited private courier, by registered mail or by electronic means
to ensure its receipt by the other party;

- In the list of modes of service as provided in Rule 15, there is no service by ordinary mail as to
motions.

- Note: If a motion is made in open court or in the course of the proceeding and the rules require the
court to resolve the motions immediately, after the adverse party is given the opportunity to argue
his or her opposition. A motion is made in open court and there was no objection, then the court
should resolve the motion immediately - either by granting it or denying it. In most instances, if a
motion is made in open court and there is no opposition from the other party, then the court may
grant the motion. But if the other party has an opposition, then the court should allow him to argue
his opposition in open court. After the argument, the court should resolve the motion.

- If the motion is based on facts not appearing on record, then the court may require the parties to
submit affidavits thereon or to submit a deposition or give an oral testimony. The court may allow
the parties to be heard by means of affidavits, deposition or oral testimony.

4. There must be a proof of service of the motion

Question: Do motions require a notice of hearing?

- If the motion is a non-litigious motion, there is no notice of hearing. A notice of hearing is not required if it
is a non-litigious motion because the Court may simply resolve the motion within 5 days from receipt of the
motion itself.

- On the other hand, if a motion is a litigious motion, a notice of hearing is discretionary on the part of the
Court. If it does issue a notice of hearing, then the notice should be addressed to all parties concerned and
it shall specify the time and date of the hearing of the motion.

What motions are prohibited?

The following are prohibited motions:

1. Motion to dismiss, except on the following grounds:

a. That the Court has no jurisdiction over the subject matter of the claim or an action;

b. That there is another action pending between the same parties and for the same cause;

c. That the cause of action is barred by prior judgment; and

d. That the cause of action is barred by the statute of limitations.

2. Motion to hear affirmative defenses;

- In the past, there was a motion called ‘motion for a preliminary hearing on affirmative defenses,
but it is now prohibited because the court has 30 calendar days to resolve the motion reckoned from
the time of the receipt of the answer or the termination of the summary hearing, if one is conducted.

3. A motion for reconsideration of the Court's action on affirmative defenses;

- The plaintiff files a complaint, defendant files his answer with affirmative defenses, the Court will
resolve the affirmative defenses that are stated in the answer within 30 days reckoned from either
the receipt of the answer or the termination of the summary hearing, if one is conducted.
 - Suppose, the Court denies the affirmative defenses, may the defendant file a motion for
reconsideration of the Court’s action? No, because this motion is a prohibited motion.

- BUT if the affirmative defenses set forth in the answer are granted by the court, therefore,
the court dismisses the complaint, a motion for reconsideration should be allowed because
the complaint is dismissed. If the complaint is dismissed and the dismissal is with
prejudice, then the order of dismissal will attain finality. (In Dean’s opinion, there may be
a motion for reconsideration)

4. A motion to suspend proceedings if there is no temporary restraining order or injunction issued by a higher
Court;

5. A motion to file an extension of time to file pleadings, affidavits or any other papers, except if the motion to
file an extension is to file an answer then a one-time motion is allowed; and

6. Motion for postponement intended for delay;

- A motion for postponement is allowed if based on these grounds:

a. Acts of God;

b. Force majeure; or

c. Physical inability of the witness to appear and testify.

NOTE: After the pre-trial and the Court issues the pre-trial order which states the dates of the hearing for the
presentation of evidence, and a motion of postponement is filled based on the three grounds, then the court will allow
the postponement BUT the presentation of evidence must still be terminated on the dates previously agreed upon
by the parties as stated in the pre-trial order.

Example: Plaintiff files a complaint against the defendant. The defendant files an answer which contains affirmative
defenses. The Court must resolve the affirmative defenses which may either result in the dismissal of the complaint
or not. If the court denies the affirmative defenses, the defendant cannot file a motion for reconsideration. If the
Court grants the affirmative defenses, and dismisses the complaint, is the dismissal of the complaint with
prejudice or without prejudice?

- With prejudice - the plaintiff cannot refile the complaint. His remedy is to appeal from the order of dismissal.

- Without prejudice - remedy of the plaintiff is to refile the complaint but cannot appeal.

- If dismissal is with prejudice, the plaintiff cannot refile his complaint. The remedy is to appeal from the
order of dismissal. However, if it is without prejudice, the plaintiff cannot appeal but his remedy is to refile.

Answer: The dismissal is with prejudice if the court grants the affirmative defenses, and therefore, the refiling of
the complaint or action is barred if dismissal is based on any of the following grounds:

1. that the cause of action is barred by prior judgment (res judicata);

2. the cause of action is barred by the statute of limitations (prescription);

3. that the claim or demand set forth in plaintiff’s pleading or complaint has been paid, waived, abandoned or
otherwise extinguished; and

4. that the claim on which the action is founded is unenforceable under the statute of frauds.

If the complaint is dismissed based on the above grounds, then the dismissal is with prejudice.

But if the dismissal of the complaint is based on other grounds (e.g. improper venue where the plaintiff can refile
his complaint with the Court that has jurisdiction), then it is without prejudice.

Omnibus motion

- A motion that attacks a pleading, an order, a judgment or a proceeding.

- e.g. a motion to dismiss, motion for reconsideration, a motion for new trial

What is the Omnibus Motion rule?

 - A rule that requires that a motion must state all the grounds or objections then available and those grounds
and objections not set up are deemed waived.

- Except: those that are not deemed waived even if not set up as stated in Sec. 1 of Rule 9.

What does the rule require the movant/applicant/moving party to do if he files a motion for leave to file
a pleading, motion, etc.?

- A motion for leave to file a pleading shall be accompanied by the pleading or motion sought to be admitted.
As to form, the motion must comply with the rules applicable to pleadings.

- The Rules require that the proposed amended pleadings be attached.

MOD 13

Rule 17 (Lecture 1)

DISMISSAL OF ACTIONS

In Rule 17, the dismissal of the action is caused by the plaintiff himself or due to the act of the plaintiff.

Question: May the plaintiff himself dismiss his own complaint?

Answer: Yes

Question: If the plaintiff dismisses his complaint, how may the plaintiff dismiss his own complaint?

Answer: There are 2 ways:

1. The plaintiff may file a notice of dismissal

2. Motion to Dismiss - is a prohibited motion except when filed on four grounds.

Question: Is this motion to dismiss likewise a prohibited motion?

Answer: No. A motion to dismiss his own complaint filed by the plaintiff himself is not a prohibited motion. It is a
motion authorized or allowed by Rule 17.

1. NOTICE OF DISMISSAL

Question in the bar: When may the plaintiff dismiss his own complaint

Answer: By filing a notice of dismissal

Additional Question: At what point in the proceedings?

Answer: Before service upon him (plaintiff) of defendant’s answer or a motion for summary judgment.

Question: Suppose the plaintiff files a notice of dismissal on July 16. What may the court do?

Answer: The court will issue an order confirming the dismissal.

Question: What is the nature of the dismissal? Or what is the effect of the dismissal?

Answer: The dismissal is without prejudice to the refiling of the complaint. Unless otherwise stated in the order
approving the dismissed.
Question: May the plaintiff refile his complaint? Exactly the same complaint?

Answer: Yes. Because the dismissal is without prejudice.

Question: Are there exceptions?

Answer: Yes.

1. Except if it is stated in the notice to be with prejudice. If in the notice of dismissal, the plaintiff states that
the dismissal is with prejudice.

2. The dismissal shall be considered as an adjudication of the case on its merit if the plaintiff has once
dismissed his action based on or containing or based on the same claim.

TWO DISMISSAL RULE

- It is the rule that bars the refiling of the complaint by the plaintiff who has once dismissed an action based
on or including the same claim.

Example: X files a complaint against Y and then he files a notice of dismissal. The court issues an order confirming
the dismissal. And then months or weeks later the same X files the same complaint against the same Y. And then
after filing his complaint against the same defendant Y he again files a notice of dismissal. And then the court issues
an order confirming the dismissal. And then weeks or months later, he again files the same complaint with the same
defendant.

Question: Can he still file the complaint?

Answer: No more because the complaint is barred by two dismissal rules.

Question: Suppose the plaintiff says the dismissal is with prejudice?

Answer: Then it will be with prejudice.

Question: Suppose the plaintiff says without prejudice

Answer: Then it is without prejudice

Question: Suppose nothing is said about whether it is with or without prejudice

Answer: Then it is without prejudice.

Question: If the order dismissing the complaint is silent as to whether the dismissal is with or without prejudice

Answer: Then under section 3 the dismissal is with prejudice.

Question: Suppose the defendant has already filed an answer to the complaint or a motion for summary judgment.

Question in the bar exam: May the plaintiff still dismiss his complaint? Can he still dismiss his complaint
notwithstanding that he has already been served with the defendant's answer or a motion for summary judgment?

Answer: Yes. Not anymore by notice of dismissal but by motion to dismiss

TAKE NOTE: That the motion to dismiss requires the approval of the court.
But if the defendant has asserted a counterclaim against the plaintiff in this action And then the plaintiff files a
motion to dismiss his complaint. And then the court issues an order approving the motion to dismiss. Then the
dismissal shall be limited to the complaint. What is dismissed is the complaint. The Dismissal of the complaint shall
be without prejudice to the right of the defendant to prosecute his counterclaim in the same action.

(24:06) Without prejudice to the right of the plaintiff to prosecute his counterclaim in a separate action unless within
15 days from notice of the motion, he manifests his preference to have his counterclaim resolved in the same action.

It is without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within
15 calendar days from notice of plaintiff's motion the defendant manifests his preference to have his counterclaim
resolved or litigated in the same action.

Section 3 Rule 17 - Instances when the complaint may be dismissed upon motion of the defendant or upon the
courts motion.

Section 3 says:

1. “if for no justifiable cause the plaintiff fails to appear on the date of the presentation of the evidence in chief
on the complaint”

2. “Without any justifiable cause the plaintiff fails to prosecute his action for an unreasonable length of time”

3. “For no justifiable cause, the plaintiff fails to comply with the Rules of Court or fails to comply with an order
of the court.

Then on motion of the defendant, or upon the court’s motion, the complaint may be dismissed.

Question: Suppose the defendant did not file a motion at all? May the court itself dismiss the complaint

Answer: Yes. It can do so, Motu Propio

Question: What if the plaintiff failed to appear for the dates of presentation for his rebuttal evidence? May the court
dismiss his complaint?

Answer: No. because the failure to appear is failure to appear on the dates for the presentation of his rebuttal
evidence. What the rule is mentioning is failure to appear on the dates for the presentation of his evidence in chief
of the complaint. This is not a chief complaint of the evidence because it’s a rebuttal evidence.

Question: Suppose there is a counterclaim asserted by the defendant. The trial was pretrial and was concluded.
Failed to appear without any justifiable cause. And the court dismissed the case. Is the dismissal correct?

Answer: No, because the dismissal is limited to the complaint. Because it is without the prejudice to the right of the
defendant to prosecute his counterclaim in a separate or in the same action.

Question: What constitutes unreasonable length of time?

Answer: We have to depend on the circumstances of time, place and person

Question: Suppose no judge has been assigned to that court?

Answer: Then it is not the default of the plaintiff that his case is not moving because no judge has been assigned to
preside over that court.

Question: What then is the remedy of the plaintiff if his complaint is dismissed under Section 3 Rule 17
Answer: It will all depend on the nature of the dismissal. If the order is silent, then the dismissal is with prejudice.
Then The remedy of the plaintiff is to appeal from the order of dismissal.

Question: Can he refile?

Answer: No he cannot refile. But if the order states that the dismissal is to be without prejudice then plaintiffs
remedy is refile his complaint.

TAKE NOTE: If the dismissal is without prejudice then the order if dismissal is not appealable.

Question: Suppose the dismissal under section 3 is silent and then the plaintiff did not act on it. Can he still appeal?

Answer: No. The order of dismissal has attained finality.

Question: Suppose the plaintiff will refile his complaint

Answer: Then his complaint may now be dismissed on the ground of bar by prior judgment or res judicata.

TAKE NOTE: The dismissal under Section 3 of Rule 17 constitutes an adjudication of the case upon its merits.

PRE-TRIAL

- It is a procedural device intended to clarify and limit the basic issues between the parties? Its main objective
is to simplify, abbreviate and expedite the trial or even dispense with it

MOD 14
Rule 18 (Lecture 1)

PRE-TRIAL

Pre-Trial

- Pre Trial is a procedural device intended to clarify and limit the basic issues between the parties. It’s main
objective is to simplify, abbreviate or expedite trial or otherwise dispense with it.

Main Objective

- The main objective of the conference among the parties at the pre-trial is to determine what precisely are
the factual issues between and among parties and to limit the presentation of evidence on these factual
issues.

When may the case be set for Pre-trial or when is a case ripe for pre-trial?

- The case may be set for pre-trial after the last responsive pleading has been served and filed. So that is
when the case may be set for pretrial. After the last responsive pleading has been served and filed.

Last Responsive Pleading

- The last responsive pleading is determined by what pleadings have already been filed.

- Example:
A summons was served to the defendant and files an answer to the case and that is all that the defendant
filed. The answer is the last responsive pleading and therefore the case may now be set for pre trial.

If the defendant files a counterclaim following the answer then the answer and counterclaim is not the last
responsive pleading. The last responsive pleading might be an answer to the counterclaim. Although if the
counterclaim is a compulsory counterclaim the plaintiff need not file an answer thereto.

If the counterclaim is a permissive counterclaim the last responsive pleading would be an answer to the
 permissive counterclaim.

- Bar Exam Question: Plaintiff files a complaint against the defendant. The defendant does not file an
answer to the complaint. It is now way beyond the period for filing of the answer and yet the defendant has
not yet filed any answer to the complaint.

Question: May the case be set for pretrial now or is the case already ripe for pre-trial?

Answer: No because the last responsive pleading has not yet been filed. There will be no pre-trial because
the defendant has not filed his responsive pleading and so it cannot be said that the last responsive pleading
has been served and filed.

On motion of the plaintiff the defendant should be declared in default and then there will be a judgment by
default. No pre-trial will be had because the last responsive pleading had not been filed.

- EXAMPLE: If the defendant files a third-party complaint against X then the last responsive pleading would
be the answer to the third party complaint of X.

- NOTE: *What would be the last responsive pleading in a case will be determined by what pleadings have
already been filed*

Duty of the Clerk of Court

Under the present rule, it is the duty of the clerk of court within 5 calendar days to issue a notice of pre-
trial setting the case for pre-trial within 60 days from the date of the filing of the last responsive pleading.

Within 5 calendar days from the filing of the last responsive pleading. The clerk of court shall issue a notice
of pre-trial setting the case for pre-trial not later than 60 calendar days from the date of the filing of the last
responsive pleading.

What must be included in the notice of pre-trial?

Aside from the directive for the parties to file their respective pre-trial briefs. The notice of pre-trial must
also include the dates of the pre-trial, the court annexed mediation and the judicial dispute resolution.

Note: The notice of pre-trial directs the parties to file their respective pre-trial briefs in a manner as to ensure its
receipt by the other party at least 3 days before the date of the pre-trial.

Service of the notice of Pre-trial

The notice of pre-trial must be served upon the party if not represented by a counsel and if the party is represented
by a counsel the notice of pre-trial must be served on his counsel and the counsel has the duty to notify the party
represented by him of the date and time of the pre-trial. (this is a departure from the old rule where the notice must
be served not only upon the counsel but all the parties even if represented)

Failure of the Clerk of Court to send the notice

There is nothing that prohibits the counsel from filing a motion asking that the case be set for pre-trial
because the clerk of court has neglected to send a notice of pre-trial as required by the rules.

Question: Suppose a pre-trial is conducted even when one of the parties has not been served with a notice
of pre-trial because the counsel representing him has in fact filed a motion asking the court to set pre-trial
on that date and was not given a notice of pre-trial anymore?

Answer: The pre-trial is not valid.

Nature of a Pre-trial

A pre-trial is mandatory in both civil and criminal cases.

Question: Suppose when the date set for pre-trial arrived and all the parties and their counsel are in court
and both counsels stood and manifested the following: “We do not believe that there can be a settlement
 in this case and so with all due respect may we respectfully move that the pretrial be dispensed with”. The
court granted the motion and the pre-trial was not conducted anymore. Is that correct?

Answer: No, settlement is not the only purpose of the pre-trial.

MATTERS TO BE TAKEN UP DURING THE PRE-TRIAL

The matters to be taken up to be taken up at the pre-trial are the following:

1.) The possibility of an amicable settlement or submission to alternative modes of dispute resolution

Question: What are the modes of dispute resolution?

Answer: Arbitration, mediation, conciliation early-neutral evaluation, mini trial or any combination of the
foregoing.

2.) Simplification of the issues

Question: How will you determine the issues to be tried in this case/ what are the issues to be tried?
Answer: Issues may be classified into:

a. Factual issues – if the controversy is with respect to the facts. It is determined by the pleadings,
the complaint and the answer. If the defendant specifically denies having borrowed 1 million for
the plaintiff Issue= Whether the defendant is indebted to the plaintiff.

b. Legal Issues – if the controversy is on the legal principles or the provisions of law that should be
applied

3.) The possibility of obtaining stipulations or admission of facts and of documents to avoid unnecessary proof.

Question: What are certain matters that do not need proof/ evidence?
Answer: Judicial Admission - an admission made in the pleadings by the parties or in the course of the
proceedings in the same case. The rule on evidence tells us that the admission if it is judicial binds the
admitter. He cannot take a position that is inconsistent with his admission. He cannot contradict his
admission except if he can show that it was made through a palpable mistake or that no such admission has
been made.

Note: If you have a witness but he has not been mentioned at the pre-trial. You may not be allowed to
present him in the pre-trial even if his testimony is very material because you did not mention him at the
pre-trial unless you can show a good cause to the court and the court can allow you.

4.) Limitation of the number and identification of witnesses and setting of trial dates

Question: What does it mean by Identification of witnesses?

Answer: You have to identify them and mention their names

5.) Advisability of a preliminary reference of issues to a commissioner

6.) Propriety of rendering judgment on the pleadings or summary judgment or dismissal of the action if a valid
ground therefore be found to exist.

Question: When can there be a judgment on the pleadings?

Answer: The plaintiff files a complaint and the defendant files an answer and the answers fails to tender
an issue or it otherwise admits the material allegations in the plaintiff's complaint.

Question: When can there be a summary judgment?

Answer: There is no genuine issue as to any material fact. There is an apparent issue but it is found by
affidavit, by deposition or by admission that the issue is not genuine, that the issue is false or sham or
pretended.

PURPOSES OF PRE-TRIAL

7.) The requirement for the parties to mark their respective evidence if not yet marked in the judicial affidavits
of their witnesses.

Question: How do you mark evidence?

Answer: Plaintiff- Letters (Exhibit A and Exhibit B)
 Defendant – Numbers (Exhibit 1 and Exhibit 2)

Question: Suppose there are two defendants and have conflicting defenses?
Answer: If the name of the first is Agranza and the second is mendez it will be ( Exhibit 1 – Agranza)

8.) Examine and make comparisons of the adverse party’s evidence in relation to the copies to be marked

Question: May a party reserve evidence that is not available at the pre-trial?
Answer: Yes, but only in the following manner:

a. If the evidence is testimonial given by a testimony of a witness by giving the name of the witness
or the position of the witness and the nature of the proposed testimony

b. If the evidence is documentary or an object evidence then by giving a description of the evidence.

c. No reservation shall be allowed if not made in the manner that has been mentioned above.

9.) Manifest for the record stipulations regarding the faithfulness of the reproduction and the genuineness and
the due execution of the party’s evidence
Question: Who must be present during the pre-trial?
Answer: The party and the counsel are required to appear at the pre-trial. Before the amendment only the
party is required to appear at the pre-trial now the party and the counsel

10.) Reserve evidence not available at the pre-trial

11.) Such other matters as may aid in the prompt disposition of the action

What are the effects of the failure of the party and the counsel to appear at the pre-trial?

1.) The failure without just cause of a party and counsel to appear during pre-trial despite notice shall result
in a waiver of any objections to the faithfulness of the reproduction of documentary evidence marked or their
genuineness and due execution.

2.) When duly notified, the failure of plaintiff and counsel to appear without valid cause shall cause the
dismissal of the complaint. The dismissal shall be with prejudice unless otherwise ordered by the court. The
remedy of the plaintiff is appeal is the dismissal is with prejudice. If the order is without prejudice the
remedy is to refile the complaint.

3.) Similar failure on the part defendant and his counsel shall be a cause to allow the plaintiff to present his
evidence ex parte against the defendant. The presentation of evidence ex parte shall be within 10 calendar
days from the termination of the pre-trial and the court shall render judgment based on the evidence
presented.

MOD 14

Rule 18 (Lec 2)
Pre-Trial

RECAP

Effects of the Failure of a Party and His Counsel to Appear at Pretrial.

1. Their failure to appear will result in the waiver of their objection to the faithfulness of the reproduction of
a copy of a documentary evidence that is marked; their genuineness and due execution.

2. If the plaintiff and his counsel fail to appear at pre-trial despite notice to them, then the action or the
complaint will be dismissed by the court. The dismissal amounts to an adjudication of the case on its merits.
That means that the dismissal shall be with prejudice, except only when the court states otherwise in its
order of dismissal.

3. If the dismissal is with prejudice, then the remedy is appeal from the order of dismissal. If dismissal is
without prejudice, the remedy is refile the complaint.
 4. If it is the defendant and his counsel who fails to appear at the pre trial despite notice, then that will
authorize the plaintiff to present evidence ex parte against defendant and for the court to render judgment
based on the evidence presented by the plaintiff.

Effect of Failure to Bring Documents to be Marked As Evidence / Failure to Bring Object Evidence.

That will be deemed a waiver of presentation of such evidence. So the party who fails to bring documentary
or abject evidence at the pre-trial will be deemed to have waived the presentation of such evidence.

When Non-Appearance of a Party and Counsel is Excused.

Question: Is there an instance when the non-appearance of party and counsel at the pre-trial or court
annexed mediation or even judicial dispute resolution despite notice, will be excused?

Answer: Yes, if the non-appearance of the party and counsel at the pre-trial, court-annexed mediation, or
judicial dispute resolution is caused by:

(1) Act of god;

(2) Force majeure; or

(3) Duly-substantiated physical inability.

Note: Force majeure is an extraordinary event beyond the control of the person who was absent (eg. wars, riot, strike,
violent protests). Acts of God are events caused by forces of nature like earthquake, flood, et cetera.

When Representative of Absent Party Allowed.

Question: Suppose a party anticipates that he will not be able to appear at the pre-trial because of certain reasons
or any cause that might prevent his appearance in court. May a representative appear on behalf of such party
during the pre-trial, court-annexed mediation, or judicial dispute resolution?

Answer: Yes. If such representative is fully authorized in writing, usually a special power of attorney, to:

(1) Enter into an amicable settlement;

(2) Submit to alternative modes of dispute resolution; and

(3) To enter into stipulations or admissions of facts and documents.

May there be a second pre-trial? A second pre-trial may be held if both parties consent to the holding of a second pre-
trial.

What must the parties file before the pre-trial? They are required to file their pre-trial briefs.

PRE-TRIAL BRIEF

Contents. What must a pre-trial brief contain?

(1) A concise statement of the case and the reliefs prayed for;

(2) A summary of admitted facts and proposed stipulations of facts;

(3) State factual and legal issues to be resolved;

(4) Propriety of referral of factual issues to commissioners;

(5) The documents or other object evidence to be marked and the purpose of each must be stated;

(a) Object evidence: gun used in the killing

(b) Documentary evidence

(c) Testimonial evidence

 (6) The names of the witnesses and the summary of their respective testimonies;

(a) If you fail to mention a name of the person who will be testifying, then you cannot present
him at trial. Same goes for documentary evidence. Unless you can show good cause.

(7) Brief statement of points of law and citation of authorities.

What will you do with the-pre trial brief?

Serve it on the other party and submit it to court. Mode of service must be such as to ensure the receipt of
a pre-trial brief by the other party at least three (3) days before the pre-trial.

Question: Suppose a party fails to file a pretrial brief. What is the effect of failure to file a pretrial brief?

Answer: It has the same effect as failure to appear at pretrial.

Note: If a party or the parties have not filed their pretrial briefs, then the court cannot conduct a pretrial. Instead, the
court shall apply the rule on the effect of failure to file a pretrial brief. It has the same effect as failure to appear.

Termination of pretrial.

What shall the court do upon the termination of the pretrial? Within ten (10) calendar days from the
termination of the pretrial, the court shall issue a pretrial order.

PRE-TRIAL ORDER

The pretrial order shall recite in detail the matters taken up at the pretrial. It shall also state the following:

1. An enumeration of the admitted facts;

2. The minutes of the pretrial conference;

3. The legal and factual issues to be tried;

4. Applicable law, rules, and jurisprudence;

5. The evidence marked by the parties;

6. The specific trial dates for continuous trial which shall be within the period provided by the rules;

7. The case flowchart

a. Determined by the court and shall contain the different stages of the proceedings up to the
promulgation of the decision;

8. Statements that the one-day examination of witness rule and most important witness rule will
have to be followed.

● The pretrial order shall state specific dates for continuous trial.

One-Day Examination of Witness Rule

This is provided for in AM No.03-1-09-SC.

The One-Day Examination of Witness Rule requires that a witness has to be fully examined in one
day only; the direct testimony and cross-examination of the witness will have to be conducted in one day.

The rule says that this must be strictly adhered to. It is subject to the court’s discretion during the
trial on whether to extend the direct and cross-examination for justifiable reasons.

Most Important Witness Rule

At the pretrial, the court shall determine the most important witnesses to be heard. Then the court
will limit the number of witnesses.

The presentation of testimonies of other witnesses may be dispensed with by the court on behalf of
the most important witnesses.
 If you mention the name of the witness, you must state the facts to be proven by these witnesses
and the approximate number of hours that will be needed in the taking of his testimony.

Postponement of Presentation of Parties’ Witnesses, When Allowed.

Is postponement of presentation of parties’ witnesses at the scheduled date allowed?

The Rule says it is not allowed. Except only if the failure of witness to attend is caused by:

A. Acts of god;

B. Force majeure; or

C. Physical inability of witness to appear and testify.

● The party who caused the postponement will be warned by the court that the presentation of its evidence
must still be terminated within the remaining dates agreed upon; no replacement dates.

NOTE: The courts, however, allow the postponement anyway. But based on the Rules, it is not allowed.

When choosing trial dates:

1. Choose one where you don’t have a conflict in schedule;

2. When you are fixing trial dates, if you have 5 witnesses, ask the court to give you 6 trial dates so
you have an extra.

Question: Suppose the plaintiff, his counsel and witnesses are present. But the defendant's counsel is not in
court and the defendant himself is not in court. Suppose the opposing party fails to appear without any valid
cause on the scheduled hearing, may the other party still present the witness?

Answer: Yes. Presentation of scheduled witness will proceed. The absent party will be deemed to have
waived the right to interpose any objection and to conduct a cross examination.

Effect of pretrial order.

The contents of pretrial order shall control the subsequent proceedings and the course of the trial, unless
modified before the trial to prevent manifest injustice.

COURT-ANNEXED MEDIATION (CAM)

Court-annexed mediation is mandatory. It is conducted by the Philippine Mediation Center.

When shall the court refer the parties to a CAM?

After the pretrial, the court shall refer the parties for a mandatory court-annexed mediation. The period of
such shall not exceed thirty (3O) calendar days.

JUDICIAL DISPUTE RESOLUTION

Judicial dispute resolution is not mandatory.

Even if the CAM fails, the case will be returned to the court of origin and the court of original may determine
if a judicial dispute resolution may still be conducted notwithstanding the failure of CAM.

If it fails, trial will be conducted by the court of origin (where the case is originally raffled).

NOTE:

1. The proceeding in CAM or JDR are confidential. They cannot be used in the trial. Even if one
party made a confession, the other party cannot use this admission at the trial because the
proceedings are confidential.

2. The court after a pre-trial may render either a judgment on the pleadings or a summary of the
judgement. It can be done upon motion by a party or motu proprio by the court. The court may
include in the pre-trial order that the case will be submitted on the judgement on the pleading or
a summary judgment. The order of the court that the case will be submitted for judgement on the
 pleadings or summary judgement cannot be a subject of an appeal or petition for certiorari.
Although, the judgment itself, the judgment of the pleadings or summary judgment is appealable.

MOD 15

Rule 19 (INTERVENTION)

- In an intervention there must be a pending action because a person will intervene in the action. If there’s
no pending action, no intervention.

- The initiative to become a party to the pending case comes from the INTERVENOR.

- Example: X as plaintiff, Y as defendant and Z who is not a party can become a party by means of
intervention. The initiative to become a party comes from the intervenor (Z).

- Should not be confused with a third party complaint, because the initiative to bring a person
who is not yet a party in the action comes from the defendant who is also known as a third party
plaintiff. The party will be referred to as third party defendant.

- In the third party complaint, Z will now be referred as a third party defendant. In intervention,
he will be known as an intervenor.

Who may intervene in an action?

The person who intervenes must be one who has:

a. has legal interest in the matter in litigation;

b. has legal interest in the success of either party;

c. has legal interest against both the parties; or

d. he is so situated as to be adversely affected by the disposition of a property or the distribution of a

property in the custody of the court or an officer thereof.

* legal interest – material interest the intervenor stands to be injured or to be benefitted by a judgment that may
be rendered by the Court in the pending action. The intervenor may either gain or lose as a result of the judgement
that may be rendered.

Example: X vs. Y. The plaintiff filed an application for the attachment of a property believed to be the property of
defendant Y. There was a levy on attachment. It turns out that the property belongs to Z. Z has so many remedies.
One of which is to intervene in the case because Z has legal interest in the matter in litigation or situated as to be
adversely affected by the disposition of a property or the distribution of a property in the custody of the court.

- What happens if Z, supposed intervenor, is a transferee pendente lite?

Let’s say the case between X and Y involves a grand piano. While the case is pending in court, X conveyed his interest
over the piano to Z. The transfer is pendente lite because it was made while the action is pending in court. Z is a
transferee pendente lite. May Z intervene in the action?

- No. He cannot intervene because by means of the transfer pendente lite, he is a virtual party in the case
even if he will not intervene, he will be affected by the judgment. That is, the judgment is still binding to
him because Z as a transferee takes the place of X.

When may a person intervene? At what point in the proceedings may he intervene?

- At any time before rendition of judgment by the Trial Court.

- As a rule, if the case is on appeal, a person can no longer intervene because there is already a judgment
rendered. However, if the person is an indispensable party, he may be allowed to intervene even in appeal.

How can he intervene?

- By filing a motion for leave of Court to intervene and he will attach in his motion his supposed pleading in
intervention which will be served on the original parties.

What do you call the pleading in intervention?

 - The pleading in intervention is called the complaint in intervention except only when the intervenor
unites with the defending party, in which case it will be called an answer in intervention.

- If the motion to intervene is granted and the complaint in intervention is admitted then the complaint in
intervention may be answered and such may be filed within 15 calendar days from notice of the order
admitting the complaint in intervention.

When may the Court refuse leave to intervene?

1. When it will unduly delay or prejudice the adjudication of the rights of the original parties; or

2. When the intervenors rights may be fully protected in a separate proceeding.

Intervention is not allowed in the following:

Not allowed in two cases:

1. In land registration cases, because the remedy of the person adversely affected by the land registration case is to
file opposition.

2. Cases governed by the rules on summary procedure.

NOTE: Intervention is merely collateral or ancillary to the principal action. It is not an independent
proceeding. Thus, if the main action is dismissed, the complaint in intervention can no longer be acted
upon.

MOD 16

RULE 21 (SUBPOENA)

What IS Subponea (plural subpoenae)?

- It is a process directed to a person requiring him to attend and testify at the hearing or trial of the action
or any investigation conducted by a competent authority or at the taking of his deposition. (MEMORIZE)

What are the kinds of subpoena?

1. Subpoena ad testificandum

- subpoena requiring a person to attend and testify

- subpoena only (refer to these kind)

2. Subpoena duces tecum

- subpoena requiring a person to produce and bring to court certain documents, objects etc and to testify thereon.

Who may issue a subpoena?

The following may issue a subpoena:

a. The Court before whom the witness is required to attend and testify;

b. The Court where his deposition is to be taken;

c. The officer or body authorized by law to do so in connection with an investigation that is being
conducted;

d. Any justice of the Supreme Court and CA in any case or investigation pending within the Philippines.

- The prosecutor can also issue a subpoena. The police and agents of the FBI cannot issue a subpoena.

Suppose you file a request for the issuance of a subpoena. Does a request to issue a subpoena require a notice
to the other party?
 - No, it does not require a notice to the other party.

- Absent any proceeding suit or action commenced or pending before a court or before any officer
authorize to conduct any investigation a subpoena CANNOT be issued. (pending investigation)

When is a witness not bound by a subpoena?

The following are the instances:

1. When the witness resides more than 100 kilometers from his residence to the place where he is to
testify by ordinary course of travel.

- He can file a motion to quash a subpoena.

- The VIATORY right of the witness: the right of the witness not to be compelled to testify in a civil case
if reside more than 100 kms. from the place of trial.

Suppose your case is pending in Baguio City. You have a witness who resides in Quezon City (more than 100 kms)
and invokes his viatory right. What is your remedy?

- the remedy is to take the DEPOSITION in Quezon City (in his place where he cannot invoke his viatory
right) by filing a notice to the other party stating at the time and place and name to be served on them,
proof of service of notice shall be presented by the clerk of the place where the deposition is to be taken. The
Clerk will then issue a subpoena to be served to the witness.

- He cannot now invoke his viatory right because his residence is at Quezon City where the deposition will be
taken.

2. The witness is a prisoner.

- Two kinds of prisoner:

a. Detention prisoner – the prisoner is not bound by the subpoena if there is no permission from the Court in which
his case is pending.

b. Prisoner is serving sentence of reclusion perpetua or death confined in a penal institution, - the prisoner is not
bound unless there is an authority of the Supreme Court to bring out the prisoner.

What are the grounds to quash a subpoena?

- If the subpoena is a subpoena duces tecum, the grounds are:

a. it is unreasonable and oppressive;

b. the relevancy of the books documents or things do not appear;

c. The person in whose behalf the subpoena is issued fails to advance the reasonable cause of the production thereof:
and

d. The witness fee and kilometrage allowed by the rules were not tendered when the subpoena was served

- If the subpoena is a subpoena ad testificandum, the following are the grounds:

a. the witness is not bound by the subpoena; or

b. The witness fee and kilometrage allowed by the rules were not tendered when the subpoena was served.

How is a subpoena served?

- A subpoena is served in the same manner as personal or substituted service of summons. However, at the
time of service, the following must be tendered to the witness:

a. witness fee

b. Cost of the production of the documents;

c. Other materials subject of the subpoena

Can a person be compelled to appear and testify without a subpoena?

- Yes, if the person is already present in Court. Then he can be compelled to testify.
What are the consequences of disobedience of a subpoena?

A person who disobeys a subpoena may be:

a. arrested and brought before the Court where his attendance is required

b. Citation in contempt of the Court from which the subpoena is issued.

MOD 17

RULE 22 (COMPUTATION OF TIME)

How do you compute time?

15 days = July 1 (received the judgment) = July 16

- You exclude the first and include the last.

- But if the last day fall on a Saturday, Sunday or a legal holiday in the place where the Court sits, then the
pleading or motion or notice may be filed on the next business day.

- “ in the place where the Court sits” refers to the holiday

- The rule that “if the last day fall on a Saturday, Sunday or a legal holiday in the place where the Court sits
filed on the next business day” APPLIES ONLY TO FILING OF PLEADINGS NOTICE OR MOTION
AND NOT TO PRESCRIPTION OF OFFENSES OR CAUSES OF ACTION.

MOD 18

Rule 23 -29

Topic: Modes of Discovery

What is the purpose of the modes?

Modes are resorted to unmask the other party/opponent for him to know information or facts that are in the
possession of the other party which are relevant to the issues involved in the case.

NOTE: May be resorted by one party to discover the facts that are in the possession or under the custody of that
party so the trial will not be undertaken in the dark.

Before they go to trial the party may ascertain the facts that are known to or in the possession of the opponent

What are the purposes of these modes of discovery?

1. Narrow down or clarify the basic issues between the parties

2. To ascertain the facts that are relevant to the issues involved in the case

What are the modes of discovery? (Memorize)

1. Deposition pending action (De bene esse)

2. Deposition before action or pending appeal (in perpetuam Rei memoriam)

3. Interrogatories to parties

4. Request for admission

5. Production, inspection of document or things

6. Physical or mental examination of a party

What should a party do if he wants to resort to these modes of discovery?

Identify what mode of discovery he would want to resort to.

1. Deposition pending action (De bene esse)

Party must file an ex parte motion in court to take the deposition of the other party or a person who is not a party of
the action upon oral examination or written interrogatories.
NOTE: There must be a pending action

Scenario:

X (plaintiff) v. Y (respondent)

Whose deposition may be taken in the given scenario?

If X

Deposition of Y, or deposition of a person who is not a party of the action

If Y

Deposition of X, or deposition of a person who is not a party of the action

How may the deposition be taken?

Upon oral examination or upon written interrogatories.

2. Deposition before action or pending appeal (in perpetuam Rei memoriam)

- No action has yet been filed by an action is anticipated to be filed in the near future and so this
party want to perpetuate his own testimony or the testimony of another person otherwise known
as perpetuation of testimony

What should a party do if he wants to resort to this action?

He should file a verified petition in the court of the residence of any expected adverse parties.

NOTE: Expected party, because there is no action yet or there are no pending actions yet.

How about in cases of Deposition pending appeal?

If an appeal has been taken from a judgment of a court, or before the taking of the appeal if the time for perfecting
of appeal has not yet expired, the court where the judgment is rendered may allow the taking of depositions of
witnesses to perpetuate their testimonies for use in the event of further proceedings in court in such case the party
who desires to perpetuate the testimony should file a motion in the said court that rendered the judgment for leave
to take the deposition upon notice and service thereof, as if the action was pending in court

SUMMARY:

Deposition pending action – ex parte

Deposition before action – verified petition

Deposition pending appeal – Motion for leave for the taking of a deposition

3. Interrogatories to parties

A party desiring the interrogatories of a party should file an ex parte motion with the court where the case is pending.

4. Request for admission by adverse party

At any time issues have been joined a party may file and served upon the other party a written request for admission

5. Production of a document or thing

Upon motion of any party in the court where the case is pending

6. Physical or mental

Upon notice, to the party to be examined and to all parties in an action to which a mental or physical condition of a
party is on controversy

What is a Deposition?

A deposition is taking the testimony of any person whether party to the action or not a party at the instance of a
party to the action

Upon whose instance may the deposition be taken?

Upon instance of a party of the action

How is a deposition taken out of court?

The deposition is taken out of court upon oral examination or written interrogatory

What is a Deponent?

Person’s deposition is being taken or has given his deposition

If a party desires to resort to these modes of discovery, is a leave of court required?

In deposition pending action, interrogatories to parties or request for admission, if an answer in the complaint has
already been filed then leave of court is not required. But if an answer has not yet been filed but the court already
has jurisdiction over the person and subject matter of the defendant then there must be leave of court.

In instances for Production, inspection of document or things and Physical or mental examination of a party must
always have a leave of court.

What is the scope of a deposition?

Deponent may be examined regarding any matter not privileges provided it is relevant to the subject of the pending
action whether it relates to a claim or defends a party

Before whom may depositions be taken?

If within the Philippines, the deposition may be taken a judge or a notary public or a person authorized to administer
oath, but if in a foreign country the deposition may be taken before the Secretary of the Embassy, or Diplomatic
minister or his staff, consul general, consul, vice consul, consul agent or before such person or officer as may be
appointed by a commission or letters rogatory.

What is a commission?

· An instrument issued by a court or any competent tribunal in a foreign country to authorized persons to
take deposition or to do any act by authority of the court or by tribunal who issued it.

· Address to an officer, designated by name or a descriptive title.

What is a letters rogatory?

· An instrument sent in the name and by authority of a judge or court to another court or judge requesting
the latter to cause to be examined upon interrogatories filed in a case pending before the court that issued it. A
witness who is within the jurisdiction of the judge or court to whom the letters of rogatory are addressed

· Addressed to a judicial authority in a foreign country and it may be applied for and issued only after a
commission has been returned and executed

For what purpose may a deposition be used?

1. If the deponent is a party to the case, his deposition may be used for any purpose

What is any purpose?

a. Establish a claim or defense, if you use these two you are now using it as evidence to establish or
prove a claim

b. Purpose of contradicting or impeaching him if he testifies

2. If the deponent is not a party to the case, his deposition may only be used for the purpose of contradicting
him or impeaching him if he testifies

Exceptions:

1. If the witness or deponent is dead

2. Deponent resides 100 km from the place of trial

 3. Witness is unable to attend because of age or some other infirmity

4. Party offering the deposition is unable to procure the attendance of the witness by means of
subpoena

5. Or such other exceptional circumstances exist

Example:

X v. Y

X took Y’s deposition, because there was no settlement on the pre-trial so parties went to trial and X presented his
evidence, among X’s evidence is the deposition of Y. Y did not testify as a witness in this case but X has in his position
the deposition of Y

May X use the deposition of Y?

Yes, because the deposition of a party may be used by the other party to prove or establish his claim or defense.

So, what if the trial is in Baguio, X took the deposition of W, who is in Baguio and W is always available to testify.
W was never called to testify, X presented his evidence and when he was asked to offer his evidence and offered the
deposition of W.

If you were the defendant Y what objection could you make to the admission of W’s deposition?

Y can object to the admission of deposition on the ground that deposition is inadmissible to evidence because it is
hearsay.

What if W resides 100 km from Baguio City, Can X use W’s evidence?

Yes, because that is one of the exceptions.

What if in cases of inconsistencies of the testimony?

X took W’s deposition and then Y presented W as his own witness and W testified in a way that is inconsistent with
what he said. Then X can use W’s deposition in contradicting him or impeaching him as a witness.

Supposed this is a criminal case, you have a witness residing 100 km away from the trial and that witness is about
to depart from the Philippines with no fixed date in returning and the witness is a witness in the prosecution

May the deposition of this witness taken and will be used as evidence in a trial?

No, take the conditional examination of the witness

Does this apply to both prosecution and defense witness?

Yes, it is called conditional examination, the difference is that in the prosecution witness his conditional examination
will only be taken where the court is pending, but if in defense witness the exam can be taken before a judge or a
member of bar in good standing.

MODULE 19

Module Topic: Rule 30 (Trial)

RULE 30 (TRIAL)

- After pretrial, the Court will issue a pre-trial order which will specify the dates of the trial. Subject to a few
exceptions, the trial cannot be postponed to another day.

What does the rule require the party to do regarding the scheduled hearings as agreed upon by them
and set forth in the pre-trial order?

- The rule requires the parties to strictly observe the scheduled hearings as agreed upon and set forth in
pretrial order.

- The schedule of trial dates for both the plaintiffs and the defendant shall be continuous and the initial
presentation of the plaintiff’s evidence shall not be later than 30 days after the termination of the pretrial.
The plaintiff shall be allowed to complete the presentation of his evidence within a period of 3 months or 90
 calendar days which shall include the date of the judicial dispute resolution (discretionary on the part of the
court) if one is conducted.

- The initial presentation of the defendant’s evidence shall be not later than 30 calendar days after the Court’s
ruling on plaintiff’s formal offer of evidence. The defendant shall complete the presentation of his evidence
within a period of 3 months or 90 calendar days.

- In the formal offer of evidence, plaintiff will mention in Court one by one his exhibits and the
purposes for which the exhibits are being offered. The defendant or the adverse party is allowed to
comment or to object to plaintiff’s evidence. Afterwhich, the Court will resolve to either admit or
deny plaintiff’s evidence (resolution of the Court of the plaintiff’s offer to evidence).

What if there’s a third-party complaint, counterclaim, or cross-claim?

- The presentation of evidence of the third-party complaint, fourth-party complaint, or counterclaim or cross-
claim, shall be determined by the Court. But the total number of days shall in no case exceed 90 calendar
days.

- If they have rebuttal or surrebuttal evidence, then the Court will also set the date for the presentation of
rebuttal evidence which shall be completed within the period of 30 calendar days.

- Depending on the number of witnesses, the trial dates may be shortened. But the rule states that the total
period for the presentation of the party’s evidence shall be within 10 months or 300 calendar days.

- But if no third party complaint, fourth party complaint, counterclaim or cross-claim, then the
presentation of all the parties shall be terminated within the period of 6 months or 180 calendar days.

- Then the case will be submitted for the decision. But the Court will allow the submission of a memorandum
or memoranda, then such case will be submitted for decision. Then the rule tells us that the Court shall
decide the case and serve copies of the decision on all the parties within the period not exceeding 90 calendar
days from the submission of the case or decision, with or without memoranda.

- Example: If the Court has given the parties a period to submit their respective memoranda but
they failed to do so, then the Court shall decide the case just the same - within a period stated
above.

May the trial be postponed?

- Yes, the Court may adjourn a trial from day to day and to any stated time or date as may be convenient, but
it shall have no power to adjourn and reset a case for a longer period than one month for its adjournment.

- Example: If the case is postponed today, the next date cannot be longer than ONE month from
today.

- The party who caused the postponement is warned that the presentation of his evidence must still be
terminated on the remaining days, as agreed upon and stated in the pretrial order.

NOTE: The trial will be limited to the issues stated in the pretrial order, subject to amendment to conform to
the evidence (Rule 10).

- There may be an amendment to conform to the evidence when an issue not raised in the pleadings is tried
with express or implied consent of the parties.

ORDER OF TRIAL

1. The first one to adduce or present his evidence is the plaintiff in support of his complaint. Then, the plaintiff
will formally offer his evidence, assuming all his witnesses have already testified and will rest his case.

2. Defendant shall now adduce his evidence in support to his defense, counterclaim, cross-claim, or third-party
complaint, if any, then he will also rest his case.

3. The third-party defendant, if any, shall adduce his evidence on his defense, counterclaim, cross-claim, or
fourth-party complaint if any.

4. The parties against whom any counterclaim or cross-claim has been pleaded shall adduce evidence in
support of their defense.

5. The parties may respectively adduce rebutting evidence.

 6. Upon admission of evidence, the case is deemed submitted for decision, unless the Court directs the parties
to argue and submit their respective memoranda.

NOTE: The offer of evidence and the objection thereto by the other party shall be made orally in Court.

- If the exhibits are too many, it might be more advisable to require that the offer of evidence be made in
writing.

Who will receive the evidence?

- The judge will receive the evidence of the parties.

May the reception of evidence be delegated to the Clerk of Court?

- Yes, but only if the clerk of Court is a member of the Philippine Bar only in the following instances:

1. In default or ex parte hearings; or

2. In any case in which the parties agree in writing.

May the parties agree upon the facts and submit the case for decision, based on the facts without the
introduction of evidence?

- Yes, the parties may agree on the facts and submit the case for judgment, provided that the agreement of
the parties must be in writing (written agreement on the facts of the case).

Suppose the parties can agree only on some facts but they dispute the other facts, then the trial shall be held
upon the disputed facts. But even so, if there is a partial agreement on some facts, that partial agreement must be
in writing.

Exceptions: There cannot be a judgment based on agreed stipulation of facts in the following instances:

1. Legal separation;

2. Annulment of marriage;

3. Declaration of nullity of marriage.

NOTE: In the above cases, there cannot also be a judgment by default, a judgment on the pleadings, a summary
judgment, and a judgment upon confession or compromise.

SUSPENSION OF ACTIONS

May an action be suspended?

- Yes, under the Civil Code, an action may be suspended if it is shown that the parties are willing to discuss
a compromise. There is a willingness on the part of one or both parties to discuss a compromise. Or if it
appears that one of the parties before the commencement of the action has offered to discuss a possible
compromise but the other party has refused the offer.

MODULE 19 & 19-A

Module Topic: Rule 31 (Consolidation and Severance)

RULE 31 (CONSOLIDATION OF CASES)

When can there be a consolidation of cases?

- When actions involving a common question of law or a common question of fact are pending before the same
court, it may order a joint hearing or trial of any or all the matters in issue in the actions.

- Meaning that there are two actions pending before the same Court and involve a common question
of law or fact.

Why is a consolidation of action allowed?

- To avoid the possibility of conflicting decisions being rendered; and

 - In the interest of orderly administration of justice.

May there be a consolidation of actions are pending in different Courts?

- Yes, there can be a consolidation in different Courts. If there is a civil action (to recover civil liability arising
from the offense charged) and criminal action pending in two different courts, the civil action may be
consolidated with the Court trying the criminal action.

- When a criminal action is instituted, the civil action for the recovery of civil liability arising from
the offense charged is deemed instituted in the criminal action.

- Subject to the following exceptions:

1. The offended party waives the civil action;

2. The offended party reserves the right to institute it separately; and

3. The offended party institutes the civil action prior to the criminal action.

But if the civil action is independent of a civil action, then such will not apply. Applicable only to civil actions arising
from the offense charge (civil liability ex-delicto).

Thus in trial, both civil and criminal aspects are tried. One exception is if the offended party institutes the civil
action prior to the criminal action. The civil action then will be suspended in whatever stage it may be found, before
judgment on the merit.

The only instance in which the criminal action will be suspended is when civil action is a prejudicial question.

Example: The civil action is filed in a Court in La Union, but the criminal action is instituted in a
Court in Baguio City. The two actions may be consolidated.

NOTE: Consolidation is not automatic. It must be upon motion of the offended party. The Court
will not order a consolidation without a motion being filed.

In what Court will a motion to consolidate be filed?

- In the Court trying the criminal action.

- If the motion is granted, there will be a consolidation.

What case will be consolidated with what case?

- It will be the civil action that will be consolidated with the criminal action. And so, the two cases will be
tried jointly.

May a petition for issuance of a writ of possession be consolidated with the action to annul the
foreclosure?

- No, strictly speaking, the petition for issuance of writ of possession although denominated as a petition, it
is not really a judicial process. It is a non-litigious process that is summary in nature. On the other hand,
an action to foreclose is an ordinary civil action and is adversarial in character.

- If there is a consolidation, the right of the petitioner in petition for issuance of writ of possession will be
prejudice by consolidation with the annulment of the foreclosure case.

- Example:

X - mortgagor , Y - mortgagee, Real estate mortgage (REM)

X defaulted in the payment of his obligation and upon Y’s application, the mortgage was
foreclosed. There was a foreclosure sale where Y was also the successful bidder. Then, a certificate
of sale was issued by the Sheriff who conducted the foreclosure proceedings. Y then filed a petition
against X for the issuance of a writ of possession (remedy of the successful bidder at the foreclosure
sale if he wants to obtain possession of the property).

X alleged that the foreclosure sale is void and is questioning the validity of the foreclosure
sale for failure to comply with the notices (annulment of the foreclosure sale). May this petition
for the issuance of a writ of possession be consolidated with the action to annul the
foreclosure sale?
 - No, because even if the writ of possession is denominated as a petition for the
issuance, strictly speaking, it is an ex parte petition. It is in fact a motion,
although termed as a petition, that the Court may act upon ex parte. On the other
hand, the annulment is an ordinary civil action and is adversarial in nature.
Therefore, it cannot be consolidated.

MOD 20 and 20-A

Module Topics: TRIAL BY COMMISSIONER (RULE 32)
DEMURRER TO EVIDENCE (RULE 33)
Lecture 1

TRIAL BY COMMISSIONER (RULE 32)

Commissioner - He may be an accountant, a surveyor, an examiner or anyone who may be appointed by the court
by means of an order known as order of reference

Order of Reference - That is an order appointing a commissioner

Question: When may the court refer the case for trial by a commissioner?
Answer: Upon agreement of the parties in writing.

The commissioner may be one agreed upon by the parties. Or if the parties do not agree, the court may still refer
the case for trial by a commissioner upon his own motion or on motion of either party. When for example the case
will require examination of long accounts or it has something to do with a boundary dispute

Does the commissioner have the power to issue a subpoena to a witness?

- YES.

Question: Does he also have the power to rule upon the admissibility of evidence?
Answer: YES also, unless that power is withheld by the court from him. But if not otherwise provided in the order
appointing him as commissioner, the commissioner has the power to rule on admissibility of evidence

Suppose the commissioner issues a subpoena to a witness but the witness refuses to obey the
subpoena, may the commissioner punish him for contempt?

- Refusal of a witness to obey the subpoena will constitute a contempt of the court that appointed the
commissioner. So it is a contempt of the appointing court. So it will be the court that can punish him for
contempt.

If a commissioner is appointed by the court, trial shall proceed before the commissioner as it would be held on a
court. And after the trial, the commissioner will submit his report to the court.

Objections by a party to the report may not be raised before the court that appointed the commissioner unless the
objections were made before the commissioner during the hearing.

TAKE NOTE: If the parties will stipulate that the commissioner’s findings of facts will be final, then only
questions of law shall be considered by the court.

Are there instances when a commissioner is required to be appointed by the court or by the rules?

Answer: YES. And these are the instances:

1. In expropriation cases under Rule 67 to determine the just compensation of the property subject of the
expropriation case
2. In partition under Rule 69 when the parties are unable to agree as to the matter of partition.

DEMURRER TO THE EVIDENCE (RULE 33)

Who files a demurrer?

- In a civil case, the one who files a demurrer is the defendant. There is also a demurrer to the evidence in
a criminal case. And the one who files a demurrer in a criminal case is the accused.

Question: May a defendant file a demurrer before the presentation of evidence by the plaintiff?
Answer: No. The time to file a demurrer is after the plaintiff has completed the presentation of his evidence.

Upon what ground may the demurrer be filed?

 - The rule says that on the ground that upon the facts and the law, plaintiff has shown no right to relief.
Translation: Insufficiency of evidence to sustain a judgment in favor of the plaintiff.

So here, the plaintiff has completed the presentation of his evidence. He has rested his case. And in the opinion of
the defendant or the way the defendant evaluates plaintiff’s evidence, is that the evidence is not sufficient to
sustain a judgment in favor of the plaintiff.

If that is the conclusion of the defendant, the plaintiff’s evidence is insufficient to sustain a judgment in his favor,
he has not proved his case by preponderance of evidence, then the defendant may file what is known as
DEMURRER TO THE EVIDENCE

A demurrer to the evidence is in the nature of a motion to dismiss on ground of insufficiency of evidence.

If a defendant files a demurrer to the evidence, he is seeking the dismissal of the case on ground of insufficiency of
evidence.

Example: The plaintiff has presented his evidence. So supposed to be, it is now the term of the defendant to
present his evidence. But instead of presenting his evidence, the defendant files a demurrer to the evidence. So the
defendant has opted not to present his evidence instead he now has filed a demurrer to the evidence.

Question: Does the defendant need leave of court to file a demurrer to the evidence?
Answer: In a civil action, No. it is not required. In criminal action, the accused may file a demurrer to the evidence
with leave of court or without leave of court.

In a criminal case, there is a distinction between an accused filing a demurrer with leave of court and an accused
who files a demurrer without leave of court.

Question: What may happen to his demurrer? How may the court resolve the demurrer to the evidence?
Answer: The court may deny the demurrer to evidence.

Question: Why should the court deny the demurrer to the evidence?
Answer: Because in the opinion of the court, the plaintiff has presented sufficient evidence. That’s why the court
has denied the demurrer to the evidence.

What is the remedy of the defendant whose demurrer to the evidence is denied by the court?
- To present his evidence. Because in a civil case, a defendant whose demurrer to the evidence is denied by
the court does not lose his right to present evidence in the event of the denial of his demurrer to the
evidence.

Question: What about if the court finds that indeed the evidence presented by the plaintiff is insufficient.
Answer: If that is the finding of the court, then the court may grant the demurrer to the evidence.

Question: What happens if the demurrer to the evidence is granted by the court? What happens to the case?
Answer: The case is dismissed.

TAKE NOTE: The order granting the demurrer to the evidence is an order of dismissal. It dismisses the case. The
dismissal is based upon the finding of the court that plaintiff’s evidence is insufficient. And therefore, the dismissal
of the case constitutes an adjudication by the courts on the merits of the case.

What is the remedy of the plaintiff if his case is dismissed upon a demurrer to the evidence filed by the
defendant?
- His remedy is to appeal from the order of dismissal.
Going back to the example: An order denying the demurrer to the evidence is interlocutory. And therefore, the
order denying the demurrer is not appealable. And so the defendant cannot appeal from an order denying his
demurrer because that order is interlocutory. But an order granting the demurrer dismisses the case. And so that
is a final order as opposed to interlocutory, and therefore appealable by the plaintiff.

Question: Suppose the plaintiff does not appeal?

Answer: If the plaintiff does not appeal within 15 days from notice of the order dismissing his case, the order
dismissing his case will become final.

Question: May the plaintiff refile his case after the finality of the order dismissing his case?
Answer: No more because the order dismissing his case constitutes an adjudication of the case on its merits.

THE CASE IS NOW ON APPEAL:

Question: What may the appellate court do?

Answer: If the appellate court finds that indeed the plaintiff’s evidence is insufficient then it will simply sustain or
affirm the order of dismissal.
Question: Suppose the appellate court finds that plaintiff’s evidence is sufficient
Answer: Then it will reverse the order of dismissal.

Question: If the appellate court reverses the order of dismissal, should the appellate court set the case for hearing
to receive defendant’s evidence?
TAKE NOTE: At this point, the defendant has not presented his evidence at all.
Answer: No. The appellate court should not receive defendant’s evidence. The appellate court should not remand
the case to the trial court for presentation of defendant’s evidence. But should decide the case based on the
evidence presented by the plaintiff. In which event, the defendant has lost or waived the right to present evidence.

Section 1 of Rule 33 - It says if the motion is granted (DEMURRER TO THE EVIDENCE) but on appeal, the
order of dismissal is reversed, the defendant shall be deemed to have waived the right to present evidence.

Question in the bar exam: If a defendant files a demurrer to the evidence, does he waive the right to present
evidence?
Answer: if his demurrer is denied then the defendant has the right to present evidence. But if his demurrer is
granted but on appeal the order of dismissal is reversed by the appellate court, then the defendant shall be deemed
to have waived the right to present evidence.

DISTINCTIONS BETWEEN DEMURRER TO THE EVIDENCE IN A CIVIL CASE AND THE DEMURRER
TO THE EVIDENCE IN A CRIMINAL CASE:

The following are the distinctions:

1. In both civil and criminal cases, the ground is insufficiency of evidence.
2. In a civil case, the demurrer to the evidence is upon motion of the defendant. In a criminal case the
demurrer to the evidence may be upon motion of the accused or upon the court's own initiative after giving
the prosecution an opportunity to be heard.
3. The court after the plaintiff has concluded or has completed the presentation of his evidence, the court
cannot dismiss the case on a demurrer to the evidence without any motion being filed by the defendant.
The court cannot dismiss the civil case on the ground of insufficiency of evidence without the defendant
filing a demurrer to the evidence. But that is not so in a criminal action because in a criminal action, the
court may dismiss the case on ground of insufficiency of evidence upon a demurrer to the evidence filed by
the accused or upon the court’s own initiative upon giving the court an opportunity to be heard.
4. In a civil case, leave of court is not required. In criminal case, the accused may file the demurrer to the
evidence with leave of court or without leave of court.

Take note: In a criminal case, an accused who files a demurrer to the evidence without leave of court waived his
right to present evidence.

1. In a civil action, if the demurrer to the evidence is granted, the plaintiff may appeal from the order
granting the demurrer. In a criminal case, if the demurrer to the evidence is granted and therefore the case is
dismissed on ground of insufficiency of evidence, the state as the plaintiff in this case, cannot appeal from the order
dismissing the case because the order dismissing the criminal case amounts to an acquittal.

A demurrer to the evidence is in the nature of a motion to dismiss on ground of insufficiency of evidence.

Question: What are the distinctions between a motion to dismiss and a demurrer to the evidence
1. A motion to dismiss is usually filed before the filing of an answer while a demurrer is made after the
plaintiff has rested his case
2. A motion to dismiss is based on the ground while a demurrer is based only on plaintiff’s failure to show a
right to relief (insufficiency of evidence)
3. A denial of the motion to dismiss will require the subsequent filing of an answer while the denial of a
demurrer requires the subsequent presentation of defendant’s evidence

MOD 21 and 21-A

Rule 34 and 35

Judgment on the Pleadings and Summary Judgment.

Judgment on the Pleadings

What is the basis for the judgment on the pleadings?

Judgment will be based on the complaint and answer

Who will move for judgment on the pleadings?

The plaintiff in the main case or the plaintiff in a counterclaim or plaintiff in a cross claim or plaintiff in a
third-party complaint.
At what point may the plaintiff move for judgment on the pleadings?

After an answer has been filed.

Suppose the defendant has not filed any answer yet, may the plaintiff move for judgment on the
pleadings?

No because there is only one pleading and so if no answer has yet to be filed the motion is a motion to declare
the defendant in default

NOTE: A motion for judgment of pleadings may only be filed by the plaintiff after an answer has been filed.

What are the grounds for judgment on the pleading?

On the ground that the answer fails to tender an issue or it otherwise admits the material allegations in the
complaint

When may it be said that the answer fails to tender an issue?

If the denials are not in the form of a specific denial.

So that if defendants’ denials are not specific, they are not in the form of a specific denial, then they amount
to an admission and therefore the answer fails to tender an issue and therefore the plaintiff may file a motion for
judgment on the pleadings.

Example 1:

As when the defendant files an answer saying or alleging the following: “defendant specifically denies all
the material allegation in the complaint from the first paragraph up to the last paragraph” that is all that
the defendant said in his answer. What would that amount to?

It amounts to an admission because notwithstanding the use of the word “specific” or “specifically” the
denials are in fact mere general denials and they amount to an admission.

Also we mentioned one time that if the denial is in the form of a negative pregnant denial then that is also
an admission.

Example 2:

Suppose the defendant files an answer. It is a complaint for collection of an indebtedness. The answer that
the defendant files alleges that the plaintiff should wait until the defendant can become financially capable
to pay his obligation. That is all that the defendant states in his answer. Does that tender an issue or
present any issue at all?

No, therefore the remedy of the plaintiff is to move for judgment on the pleadings.

When we say the answer fails to tender an issue what does that mean?

When it fails to comply with the requirements for specific denial.

When can we say that the answer admits the material allegations in the complaint?

When the answer itself expressly confesses to the truthfulness of the allegation. As when the defendant says
in his answer “defendant admits the material allegations in paragraph 5 of the complaint” then the allegation in
paragraph 5 of the complaint is admitted.

It admits the material allegations in the complaint when

1.) It expressly confesses to the truthfulness of the allegation in the complaint

2.) It fails to deal with it at all

What does it fails to deal with it at all mean?

As when there is a paragraph 5 in plaintiffs’ complaint, it contains a material obligation but nothing is said
by the defendant in his answer regarding that paragraph. Then that also amounts to an admission.

When you say judgment on the pleadings it is a judgment rendered by the court based on the pleadings and
only the plaintiff may move for judgment on the pleadings after an answer has been filed and this happens when an
answer fails to tender an issue or it otherwise admits the material allegations in the complaint.

NOTE: when the answer raises factual issues involving damages it is not proper for the court to render a judgment
on the pleadings because the factual issues raised will require the presentation of evidence.
Suppose defendants answer fails to tender an issue or it otherwise admits the material allegations in
the complaint, the plaintiff however has not filed any motion for judgment on the pleadings, May the
court motu pro prio render judgment on the pleadings?

No, the court without any motion being filed by the plaintiff cannot render judgment on the pleadings.

NOTE: There cannot be a judgment on the pleadings in the following cases:

1.) In cases involving declaration of nullity of marriage

2.) Annulment of marriage
3.) Legal Separation

Summary Judgment

Summary judgment is also known as accelerated judgment.

What is the purpose of this motion?

This motion for summary judgment is a device for weeding out sham claims or defenses at an early stage of
the litigation thereby avoiding the expense and loss of time involved in a trial.

Is trial required?

In a judgment on the pleadings there will be no more trial as well as in summary judgment.

Who may move for summary judgment or accelerated judgment?

Either be the plaintiff or the defendant may move for summary judgment

If the moving party is the plaintiff when may plaintiff move for summary judgment?

At any time after an answer has been filed.

What if it is the defendant who is moving for summary judgment?

Then the defendant may move for summary judgment before or after he has filed an answer.

What are the grounds for Summary Judgment?

If it is the plaintiff who is moving for summary judgment the ground is that although an answer presents
apparent issue it can be shown that the issue is sham or false, that there is no genuine issue as to any material fact
and the plaintiff is entitled to a judgment as a matter of law.

What does it mean when we say there is an apparent issue?

The answer tenders an issue but the plaintiff can show by affidavit, by deposition by admission that the
issue is sham or false.

Example

The plaintiff files a complaint for collection of an indebtedness alleging in his complaint that the defendant
borrowed from him P750,000 based on a promissory note. The defendant files an answer alleging that the
amount demanded as shown in the complaint is not correct. It is not true that the amount is P750,000 it is
less than that according to the defendant in his answer but the plaintiff can show by means of an affidavit,
by means of a deposition or by means an admission that the allegation on the defendant that the amount is
not correct that the amount is less than is not true. That the amount is really P750,000 then the answer
tenders an issue but it can be shown that the issue is not genuine, it is false it is sham.

What about if the defendant is the one filing the motion for summary judgment?

If it is the defendant filing the motion for summary judgment he can file the motion even before filing his
answer or after he has filed an answer.

On what ground?

On the ground that plaintiffs claim against him is false, is sham, is not genuine and so there is no genuine
claim. There is an apparent claim but it is not genuine.

BAR: May a motion for summary judgment be filed even before an answer has been filed? Is it proper to
move for summary judgment even if the defendant has not filed an answer yet?

Yes, if the moving party or the one filing the motion is the defendant himself. But if it is the plaintiff
who files the motion for summary judgment there must already be an answer filed.
BAR: When is an issue sham or false?

An issue is sham or false if it is not genuine. An issue is said to be genuine when the issue requires
presentation of evidence, the issue of fact requires or calls for the presentation of evidence.

Whether it be the plaintiff or defendant who files the motion for summary judgment the motion must be
supported with affidavits, depositions or admissions.

The moving party will not simply file just a motion. His motion must be accompanied by supporting
affidavits, depositions or admissions

What are the steps to be followed?

1.) Plaintiff or the defendant serves on the other party a copy of the motion. The motion should cite supporting
affidavits, depositions or admissions and it must also cite the law applicable and relied upon.
2.) The adverse party files a comment and serve upon the moving party (movant) opposing affidavits,
depositions and admissions within a non-extendible period of five days from receipt of the motion.
EXAMPLE
Movant serves upon the other part his motion and is accompanied by affidavits, depositions or admission
within a non-extendible period 5 days the other party will serve on the movant his comment supported by
opposing affidavits, depositions or admissions. Unless the court will set the case for hearing, the court shall
render a summary judgment forthwith.

What will be the judgment?

If the moving party is the plaintiff and the court finds that the motion is justified and therefore there is
really no genuine issue as to the material fact then it will render a summary judgment for the plaintiff.

But if the court finds that the motion is no justified then it will deny the motion and set the case for pre-
trial and trial.

If the moving part is the defendant and the court finds the motion to be justified, then the court shall issue
an order dismissing the complaint. Otherwise, if the court finds that the motion is not justified, then the court will
order the filing of the answer if an answer has not yet been filed and then the case will be set for

pre-trial and then trial.

BAR: Suppose the court finds the motion for summary judgment to be justified, what will the court do?

It depends on who is the movant, if the movant is the plaintiff and the court finds the motion to justified it
will render a summary judgment. If not justified it will deny the motion.

If it is the defendant who is filing the motion and the court finds the motion to be justified then the court
will issue an order dismissing the complaint. If the court finds the motion to be not justified then it will
simply deny the motion.

Is a summary judgment appealable?

Yes, a judgment on the pleadings is a appealable. A party adversely affected by a judgment on the pleadings
is appealable.

Suppose the court denies the motion for judgment on the pleadings because in the mind of the court the
answer tenders an issue?

An order denying a motion for judgment on the pleadings is not appealable because that order is
interlocutory.

If the court denies the motion for summary judgment, the order denying the motion is not appealable.

May a partial summary judgment be rendered?

Yes there can be a partial summary judgment

Example: The court finds that the issue with respect that the issues with respect to some matters are sham or false
but there is a genuine issue as to the other aspects of the case then the court will render a partial summary judgment.

May appeal be taken from a partial summary judgment? May there be an appeal from a partial summary
judgment?

No, an appeal will not line from partial judgment because a partial summary judgment is interlocutory.

When do we say that an order is interlocutory?

 We say it is interlocutory if it does not put an end to the case. When something else is yet to be done.
Something else is yet to happen in the case.

Example: The court issues an order dismissing the complaint. Like “plaintiff without any justifiable cause, plaintiff
fails to appear on the date for the presentation of his evidence in chief on the complaint” The court issues an order
dismissing his complaint. If the plaintiff does not do anything about the order, then the order becomes final and the
case is dismissed and the plaintiff cannot refile his complaint because the dismissal amounts to an adjudication of
the case on its merit and so if the plaintiff refiles his complaint the defendant can invoke res judicata. That is a final
order.

A final order if not appealed within 15 days from notice will attain finality.

Note: The word final can be used in two senses

1.) If the word final is used as opposed to interlocutory then it means that is it an order or process that finally
puts an end to the case.
2.) If the word final may also be used to mean finality.

What does interlocutory mean

The order does not put an end to that case. The case is not over yet.

Example the defendant files a motion asking for the dismissal of plaintiff’s complaint, the court issues an order
denying the motion to dismiss then the order does not terminate the case/ put an end to the case therefore it is
interlocutory.

What about a partial summary judgement?

The case is not finished yet. If the court renders a partial summary judgment the case is not terminated,
the case is not finished, the case is not over and therefore a partial summary judgment is interlocutory.

May an appeal be taken from a partial summary judgment?

No, because a partial summary judgment is interlocutory and therefore the partial summary judgment shall
be taken together with the judgment that the trial court will render after the trial.

Distinction between a judgment on the pleading and summary judgment.

1.) A judgment on the pleadings Is available or may be filed when there is no genuine issue as the answer fails
to tender an issue or it otherwise admits the material allegations in the complaint while a summary
judgment is available or maybe rendered when there is an apparent issue there seems to be an issue but
the issue is sham or false or fictitious.
2.) A judgment on the pleadings is based exclusively on the pleadings while in summary judgment the judgment
is based not only the pleadings but also on affidavits, depositions and admissions showing that there is no
genuine issue.
3.) A judgment on the pleadings can be filed only after an answer has been filed while in summary judgment
the motion can be filed even before an answer is filed if it is the defendant who is moving for summary
judgment
4.) A judgment on the pleadings can only be had by the plaintiffs while in summary judgment either the
plaintiff or the defendant may file the motion for summary judgment.

A judgment on the pleadings is a judgment based on facts as pleaded by the parties while a summary judgment
is a judgment based on facts as shown by the pleadings and as summarily proven by affidavits, depositions or
admissions.

BAR: If an answer fails to tender an issue what motion may be filed?

A motion for judgment on the pleadings and the motion may only be filed by the plaintiff

BAR: If an answer tenders an issue may there be a summary judgment?

Yes, if it is proven by affidavit, by deposition, by admission that the issue is sham or false.

If the answer tenders an issue may there be a judgment on the pleadings?

No, but there may still be a summary judgment if the issue is shown to be sham or false.

MOD 23
Rule 37 (Lec 1)
New Trial or Reconsideration
MIDTERMS
1. The complaint alleges that in July 2018, the defendant borrowed 1M from the plaintiff. In his
answer, the defendant states that he specifically denies that in July 2018, he borrowed 1M from
the plaintiff. Is defendant’s denial sufficient?

No. This is a literal denial and is negative pregnant. Negative pregnant is an admission. Despite
the language of the allegation of the defendant, his allegation amounts to an admission.

2. Does a defendant have a duty to investigate the facts pleaded in a complaint before alleging in
his answer that he has no knowledge or information sufficient to form a belief as to the truth of
those facts?

Yes, he has a duty to investigate the facts pleaded in a complaint before setting up a denial
by disavowal. This denial must be set up in good faith. The defendant or any party has the
obligation to ascertain the factual contentions pleaded in the pleadings to see to it that these factual
contentions have evidentiary support.

3. May a defendant set up a counterclaim in his answer that is not within the subject matter
jurisdiction of the court where the main case is pending?

If it is in the RTC, the answer is yes. Even if the counterclaim is not within the jurisdiction
of the RTC, because as we have noted, in an original action before the RTC, the counterclaim is still
compulsory regardless of the amount thereof. It is no if it’s in the MTC.

4. On Oct. 1, defendant filed an answer alleging the following affirmative defenses: venue is
improperly laid and the plaintiff has no legal capacity to sue. Five days after the filing of the
answer, the court dismisses the complaint on the ground that plaintiff’s claim as alleged in his
complaint has already prescribed. In his motion for reconsideration of the order of dismissal,
the plaintiff argues that the court erred in dismissing his complaint on ground of prescription
because defendant has not set it up as affirmative defense. Is the court correct in dismissing the
complaint?

Yes. Rule 9, Sec. 1 provides four defenses that are not waived even if not set up in an
answer or motion to dismiss. One of the four defenses is if a claim is barred by statute of limitations
or prescription. If it appears on the pleadings or evidence on record that the claim has prescribed,
the court can dismiss the complaint.

5. The plaintiff has already terminated the presentation of his evidence. But before the defendant
would call its first witness, the court dismissed the complaint because a party found to be
indispensable has not been joined. Is the court correct in dismissing the complaint?

No. Non-joinder of a party, even if indispensable, is not a ground for dismissal. If the court
becomes aware that an indispensable party is not included in the action, what the court can do is
to issue an order directing the plaintiff to implead the omitted indispensable party.

If the plaintiff refuses to obey the order of the court, then the court can dismiss the
complaint on the ground of failure of plaintiff to obey an order of the court. (Rule 17, Sec. 3)

6. Is a person who has a legal interest in the matter in litigation entitled to intervene in a pending
action as a matter of right?

No. Intervention is always subject to the discretion of the court. Intervention is with leave
of court, therefore, it is subject to the discretion of the court. Hence, a person cannot intervene as a
matter of right.

7. On the 20th day after defendant was served with summons, he filed a motion to dismiss the
complaint alleging that the venue was improperly laid. The court issued an order denying the
motion outright although it was clear from the allegations in the complaint that venue was
indeed improperly laid. After 30 days from service of summons, the court declared defendant in
default for his failure to file an answer. Is the court correct in denying defendant’s motion to
dismiss and declaring him in default?
 The court is correct in denying defendant’s motion to dismiss. Subject to some exceptions,
a motion to dismiss is a prohibited motion. Since a motion to dismiss is a prohibited motion, the
court can deny the motion outright.

The court is not correct in declaring defendant in default. The court cannot motu proprio
declare a defendant in default, there must be a motion to declare the defendant in default filed by
the plaintiff.

8. After the plaintiff was served with a copy of defendant’s answer, the plaintiff served on the
defendant a request for admission of the same facts alleged on the plaintiff’s complaint, that the
defendant had already denied in his answer. Defendant did not respond to the request for
admission. May the defendant be deemed to have admitted the facts stated in plaintiff’s request
for admission?

No. This is not a proper request for admission because the facts sought to be admitted have
already been denied by the defendant in his answer.

9. Is trial by commissioner compulsory?

No, except in two cases: expropriation and partition cases.

10. Four of the six defendants have already filed their answers. Despite the expiration of more than
one month from the service of summons, the two other defendants have not filed their answer.
May the case be set for pre-trial? May a judgment of default be rendered already against the two
non-answering defendants?

As to the first question, no. The last responsive pleading has not been filed. The last
responsive pleading is the answer of the last two defendants. Then, the remedy is for the plaintiff
to file a motion to declare them in default.

As to the second question, no. First, they must first be declared in default. Assuming
plaintiff filed a motion declaring them in default and the court grants the motion and issues the
order declaring defendants in default, then what the court can do if the complaint presents a
common cause of action against all the defendants is to try the case on the basis of the answer thus
filed.

The court cannot split the case into two: one as against the defendants who have been
declared in default and try the case as to the other remaining defendants.

11. After plaintiff has rested his case, defendant filed a demurrer to the evidence. The court denied
defendant’s demurrer. On September 16, the defendant received the order of the court denying
his demurrer. Is this order appealable? If so, until when may the defendant appeal from this
order ? If not, what is the remedy of the defendant?

Order is not appealable because it is interlocutory. Hence, we do not answer anymore till
when because order is not appealable.

If a defendant files a demurrer and his demurrer is denied, the remedy of the defendant is
to present his evidence. It does not waive his right to present evidence.

12. What are the rules to be observed if the obligor dies and there are claims against him?

If there is no case filed against him yet and he dies, then the claim against him may be
filed in the probate proceedings of the deceased obligor.

But if there is a case filed against him and he dies before entry of judgment, then the case
should be allowed to proceed until entry of judgment. But the judgment cannot be the subject of
execution. It should be presented as a money claim in the settlement of the estate of the deceased.

13. Why is negative pregnant treated as an admission?

It is not clear which admission is being denied.
NEW TRIAL OR RECONSIDERATION
New trial is not the same as reconsideration. You file a motion for new trial or motion for reconsideration.

When To File.
The motion for new trial or the motion for reconsideration must be filed within the period for perfecting an
appeal, which is usually 15 days from notice of judgment. (But it is not 15 days all the time)
Exclude the first, include the last in the computation of days.

Who May File.

Either the plaintiff or the defendant may file a motion for new trial or reconsideration.

NOTE:
Motion for new trial: plaintiff or defendant.
Demurrer: only the defendant.
Reconsideration: plaintiff or defendant

GROUNDS FOR MOTION FOR NEW TRIAL

1. Fraud, Accident, Mistake, Excusable Negligence (FAME)
- Four grounds, each are distinct from each other.

a. Fraud: extrinsic or collateral fraud

i. Fraud that prevented a party from having his day in court. Fraud committed outside the
trial or the court.

b. Accident: fortuitous event, circumstance, or happening that is beyond the control of a party.
i. Eg. sickness of a party, lack of notice because notice was sent to another address or person.

c. Mistake: mistake of fact, not mistake of law.

i. Eg. failure to answer because of the belief that it is not anymore necessary as there is a
pending discussion regarding settlement of the dispute.

d. Excusable Negligence: when there is an omission to do something which a prudent person would
have done under the same circumstances
i. Eg. failure to submit on time because of the distance involved.

2. Newly Discovered Evidence

- Which the aggrieved party could not, with reasonable diligence, have discovered or produced at the
trial and which if presented and admitted would probably alter the result.

a. Requisites
i. Evidence is discovered only after trial;
ii. Such evidence could not have been discovered and produced at the trial with reasonable
diligence;
iii. The evidence is material and not merely cumulative or corroborative or impeaching and is
of such weight that if presented and admitted, would probably alter the result or the
judgment.

Question: If the piece of evidence has always been there during the trial but the counsel representing the
party simply forgot about it and was not able to present it, and then when there is a judgment adverse to his client,
that is when he remembered. So he now presents a motion in court, motion for new trial, alleging that is newly
discovered evidence. Is that a newly discovered evidence?

Answer: No, it is a forgotten evidence, not a newly discovered evidence.

GROUNDS FOR MOTION FOR RECONSIDERATION

1. Award of excessive damages;
2. Insufficiency of evidence to justify the judgment; and
3. Decision is contrary to law and evidence.

Form.
 In what form should the motion be?
It must be in writing and follows the form of a pleading.

If the motion for a new trial is based on FAME, there must be an affidavit of merit. The motion must be
supported by an affidavit of merit. And the affidavit of merit should state facts constituting the FAME.

If the motion for new trial is based on NDE from witnesses, if testimonial, affidavit of witnesses by whom
such evidence is expected to be given. If it is documentary evidence, then by duly authenticated copy of the document.

If it is a motion for reconsideration, it should point out specifically the findings or the conclusions which is
not supported by evidence or which is alleged to be contrary to law.
If you file a motion for reconsideration and the court grants it, the court will simply modify its judgment.
If the court finds that indeed the amount of damages is excessive, the court may simply reduce the amount.

But if it is a motion for new trial, the court may deny or grant the motion.

EFFECTS OF THE ORDER GRANTING NEW TRIAL.

The effects are the following:

1. The judgment is vacated or the judgment is set aside.

2. The action shall stand for a trial de novo (there will be a new trial).
3. The recorded evidence taken during the former trial, insofar as the same is material and
competent to establish the issues, shall be used at the new trial without need for it to be retaken.

But if the motion is based on the ground of extrinsic fraud (FAME), the motion affected by the extrinsic
fraud will simply be set aside.

What comes next after a motion for reconsideration is filed?

The court may deny the motion or the court may grant the motion by amending the judgment if it finds
that excessive damage are awarded or that the decision is contrary to law or evidence. If denied, there can be no
second motion for reconsideration. No second motion for reconsideration is allowed if the motion is asking
for the reconsideration of a judgment or final order.

Question: A second MR of a judgment or final order is a prohibited motion. Suppose the motion for
reconsideration is directed against an interlocutory order, is the motion for reconsideration allowed?

Answer: Yes. What is prohibited is a second motion of reconsideration of judgment.

WHEN THE COURT SHOULD RESOLVE.

Within how many days should the court resolve the motion?

1. MTC or RTC, 30 days from the time it is submitted for resolution to resolve the motion.
2. Court of Appeals, 60 days after it declares the motion submitted for resolution.
3. Supreme Court, there’s no period prescribed.

To appeal for a judgment, should you first file a motion for reconsideration or motion for new trial?

No, you can appeal from a judgment or a final order without filing for an MR or MNT.

But in these four instances, the filing for MR or MNT is a precondition to the perfection of an
appeal:

1. In habeas corpus in relation to custody of minors

2. Annulment of marriage
3. Declaration of nullity of marriage
4. Legal separation

Note: Here you cannot appeal unless you first file a motion for reconsideration or motion for new trial and
if the motion is denied, then you can appeal.

MOTION FOR REOPENING OF TRIAL

 Not the same as motion for a new trial.

Although it has the same time frame when you file a motion for reopening of trial with new trial -- within
the time of perfecting an appeal.

But the ground is to prevent a miscarriage of justice.