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LECTURE NOTES ON CIVIL PROCEDURE Revised August 2005 WHAT IS CIVIL PROCEDURE It is the procedure governing the filing,

processing and adjudication of civil actions. It essentially is the lawyers law that defines the rules of the game that lawyers and judges play. It is embraced in Rules 1 to 71 of the Rules of Court and after its revision, is now commonly known as the 1997 Rules of Civil Procedure. It is divided into the following topics: General Provisions (Rule 1), Ordinary Civil Actions (Rules 2-5), Procedure in Regional Trial Courts (Rules 6-39), Appeals (Rules 40-43), Procedure in the Court of Appeals (Rules 44-55), Procedure in the Supreme Court (Rule 56), Provisional Remedies (Rules 57-61), and Special Civil Actions (Rules 62-71). Included within its scope are the 1991 Rules on Summary Procedure and Local Government Code provisions on the Katarungang Pambarangay. JURISDICTION Any discussion of procedural rules should always be preceded by a discussion of jurisdiction. The presence of jurisdiction gives rise to the application of the rules for the purpose of resolving the action that is brought before a court. Absent jurisdiction, the only thing a court can do as provided by the rules is to dismiss the action. If a court acts without jurisdiction, all its acts are null and void. Further, any decision it may render is not a decision in contemplation of law and cannot be executory. See: Abbain v. Chua 22 SCRA 748, Estoesta vs. CA 179 SCRA 203, Dava v. People 202 SCRA 62 Simply defined JURISDICTION refers to the power and authority of a court or tribunal to hear, try and decide a case. It has also been defined as the authority by which courts and judicial officers take cognizance of and decide cases. REQUISITES FOR A VALID EXERCISE OF JURISDICTION 1. It must have jurisdiction over the persons of the parties. It is acquired over the plaintiff upon his filing of a complaint. On the other hand, it is acquired over the defendant by his voluntary appearance before the court or the employment of the coercive power of legal process. 2. It must also have jurisdiction over the subject matter in controversy Jurisdiction over the subject matter of the compliant as determined by the allegations in the complaint and the law in force at the time of the commencement of the action. 2.1 Determined by allegations in the complaint

2.1.a The facts allege dispossession of the property by force the allegations make out a case for forcible entry The law provides that such cases fall within the jurisdiction of the MTC. 2.1.b The allegation is for recovery or payment of the sum of 500,000, subject matter jurisdiction is with the RTC

2.1.c The plaintiff claims PHP 500,000 but after trial he is only entitled to PHP 100,000, subject matter jurisdiction is with the RTC. See: Ratilla v. Tapucar, 75 SCRA 64 2.1.d It cannot be made to depend on the defenses interposed in an answer or a motion to dismiss AS IT IS THE COMPLAINT, PETITION OR INITIATORY PLEADING THAT BRINGS THE CASE FOR TRIAL AND JUDGMENT ALTHOUGH THE DEFENDANT MAY IN HIS ANSWER OR MOTION ATTACK JURISDICTION if the Rule were otherwise NO ACTION CAN PROSPER as all the defendant has to do is to allege that jurisdiction is vested in another court. The EXCEPTION is the defense of agricultural tenancy. See Section 3, Rule 70 2.2 Determined by the law in force at the time of the commencement of the action

2.2.a If action for payment of a sum of money is filed after the effectivity of RA 7961 on April 15, 1994 (Expanding the jurisdiction of the MTC and implemented by Adm. Circular 9-94-June 14, 1994) interest, damages of whatever kind ( as long as incidental), attorneys fees, litigation expenses and costs are not to be considered in fixing the jurisdictional amount, but must be specifically alleged and filing fees paid thereon 2.2.b There is a shipment of goods from HK to Manila. The shipment was short. Consignee sued in Manila, carrier moved to dismiss for lack of jurisdiction since the Bill of Lading provided that in case of dispute, suit must be brought in HK. Motion will not prosper as jurisdiction is conferred by law and cannot be stipulated by the parties. DISTINCTIONS BETWEEN THE NATURE OF JURISDICTION EXERCISED BY THE COURTS 1. AS TO THE NATURE OF THE EXERCISE OF JURISDICTION it is General, meaning it is exercised over all kinds of cases or Limited, meaning it exercised over and extends only to a particular or specified cases 2. AS TO THE NATURE OF THE CAUSE OR THE ACTION it is Original, meaning it is exercised by courts in the first instance or Appellate, meaning it is exercised by a superior court to review and decide a cause or action previously decided by a lower court. 3. AS TO THE EXTENT OF THE EXERCISE OF JURISIDICTION it is Exclusive, meaning it is confined to a particular court or CONCURRENT, meaning two or more courts have jurisdiction at the same time and place. In this instance, the court which has first validly acquired jurisdiction takes it to the exclusion of the others. NOTE THOUGH the DOCTRINE OF HIERARCHY OF 1

COURTS which requires litigants to initially seek proper relief from the lower courts in those cases where the Supreme Court has concurrent jurisdiction with the Court of Appeals and the Regional Trial Court to issue the extraordinary writs of certiorari, prohibition or mandamus. The Supreme Court is a court of last resort and its jurisdiction to issue extra-ordinary writs should be exercised only when absolutely necessary, or where serious and important reasons therefor exist. See Pearson v. IAC, 295 SCRA 27. Also, concurrence of jurisdiction does not grant any party seeking any of the extra-ordinary writs the absolute freedom to file the petition with the court of his choice. See: Ouano vs. PGTT International Investment Corporation, 384 SCRA 587 4. AS TO SITUS it is Territorial, meaning it is exercised within the limits of the place where the court is located or ExtraTerritorial meaning it is exercised beyond the confines of the territory where the court is located. WHAT HAPPENS WHEN JURISDICTION IS ACQUIRED Jurisdiction once acquired continues until the case is terminated. It is not affected by subsequent legislation placing jurisdiction in another tribunal. See Mercado vs. Ubay, 187 SCRA 719. The exception is when the expressly provides for retroactivity. See Latchme Motoomull v. Dela Paz, 187 SCRA 743 DOCTRINE OF PRIMARY JURISDICTION That which vests in an administrative tribunal the jurisdiction to determine a controversy requiring the exercise of sound administrative discretion stated otherwise if jurisdiction is vested upon an administrative body, no resort to courts can be made until the administrative body shall have acted on the matter. WHEN CAN THE ABSENCE OF JURISDICTION BE QUESTIONED The general rule is jurisdiction may be questioned at any stage of the proceedings, even on appeal, BUT a party may be barred from raising it on the ground of laches or estoppel when he has actually invoked the jurisdiction of the court by participating in the proceedings, then belatedly questions lack of jurisdiction after judgment has gone against him. See: Tijam v. Sibonghanoy, 23 SCRA 29, Lopez v. Northwest 223 SCRA 469, Soliven v. FastForms Phil. Inc, GR No. 139091, October 18, 2004, citing PNOC v. CA,. 297 SCRA 402, APT v. CA 300 SCRA 597 and Producers Bank v. NLRC, 298 SCRA 517. See also: Sections 2 and 3, Rule 47 Annulment of Judgment based on extrinsic fraud or lack of jurisdiction.If based on lack of jurisdiction before it is barred by laches or estoppel. PROBLEM AREAS AFFECTING JURISDICTION 1. ACTIONS INCAPABLE OF PECUNIARY ESTIMATION

1.1 Generally, it is one where the basic issue is something other than the right to recover money, where the money claim is incidental to or is a consequence of the principal relief being sought. It is a claim, the subject of which cannot be estimated in terms of money. 1.2 Examples: Action for specific performance although damages are being sought BUT if damages are part of an alternative prayer, jurisdiction should be based on the amount. OTHERS: Action for appointment of receivers, expropriation, interpleader, support, and rescission 1.3 In determining which court has jurisdiction, the applicable test is the NATURE OF THE ACTION TEST (Determination as to whether or not the action is capable of pecuniary estimation. If not capable, jurisdiction is with the RTC. If capable-jurisdiction is determined by the amount claimed/value of the personal property) BUT this test must yield to the PRIMARY OBJECTIVE TEST (where notwithstanding the fact that the action appears to be incapable of pecuniary estimation, if the primary objective is to recover real property, jurisdiction will be determined by the assessed value of the real property) 2. DETERMINATION OF AMOUNTS OF THE CLAIM TO DETERMINE JURISDICTION AND PAYMENT OF DOCKET FEES 2.1 Foreclosure of chattel to collect 100K but actual value is 500K MTC RULE: Jurisdiction is determined by the amount claimed by the plaintiff. 2.2 Action for removal of improvements with prayer for 10,000 for attorneys fees RTC incapable of pecuniary estimation.

2.3 Action to collect sum of money within jurisdiction of the MTC but with accessory prayer for damages beyond MTC jurisdiction MTC - if action is personal, damages are to be excluded (Adm Circ. 09-94 June 14, 1994) for determining jurisdiction but payment is still to be collected Damages, Interest, Attorneys fees and Litigation costs. BUT if action is for damages over 400K RTC because it is the main cause of action or one of the causes of action. 3. IF DOCKET FEES ARE INCORRECT The trial court should allow the plaintiff to pay within a reasonable period of time before the expiration of the applicable prescriptive or reglamentary period EFFECT defendant must move to dismiss the complaint on the ground of lack of jurisdiction if not he may be considered to be in estoppel. See NSC v. CA GR 123215, Feb 2, 1999) 4. DOCKET FEES FOR MAIN/REAL ACTION PAID BUT THOSE FOR RELATED DAMAGES ARE NOT PAID Trial court may expunge the claims or allow on motion, a reasonable time for amendment of the complaint or accept payment of the requisite legal fees. 5. IF CLAIMS ARE UNSPECIFIED BUT ARISE AFTER FILING The required additional fee shall constitute a lien on the judgment

LEVELS OF SUBJECT MATTER JURISDICTION 1. JURISDICTION OF THE SUPREME COURT

The jurisdiction of the Supreme Court in civil cases of which it cannot be deprived and which cannot be diminished by Congress is to review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question; (b) all cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto; (c) all cases in which the jurisdiction of any lower court is in issue; and (d) all cases in which only an error or question of law is involved. The foregoing Constitutional definition is of appellate jurisdiction. Congress, however, is not prohibited from increasing or adding to this Constitutionally-defined jurisdiction. And so Congress has given the Supreme Court original jurisdiction over cases affecting ambassadors, other public ministers, and consuls and petitions for the issuance of writs of certiorari, prohibition and mandamus against the Court of Appeals. Congress has also vested the Supreme Court with jurisdiction, concurrent with the RTCs, over petitions for the issuance of the writs of certiorari, prohibition, habeas corpus, and in actions brought to prevent and restrain violations of law concerning monopolies and combinations in restraint of trade. The appellate jurisdiction in civil cases of the Supreme Court as defined in the Constitution had been revised and expanded a little bit more by law to include all cases involving petitions for naturalization or denaturalization, all decisions of the Auditor General, if the appellant is a private person or entity, and final judgments or orders of the Commission on Elections. 2. JURISDICTION OF THE COURT OF APPEALS

The Court of Appeals has both original and appellate jurisdiction. Its original jurisdiction, which is exclusive, is over actions for annulment of RTC judgments. Its original jurisdiction, which is concurrent with the Supreme Court and the RTCs, is to issue writs of mandamus, prohibition, certiorari, habeas corpus and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction. The appellate jurisdiction of the Court of Appeals, which is exclusive, is over final judgments or resolutions of RTCs and quasi-judicial agencies, such as the Securities and Exchange Commission, Sandiganbayan an National Labor Relations Commission. 3. JURISDICTION OF REGIONAL TRIAL COURTS

The RTCs are our second-level trial courts. As the Supreme Court and the Court of Appeals, RTCs have both original and appellate jurisdiction in civil cases. Their original jurisdiction is concurrent with the Supreme Court and the Court of Appeals in the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunctions but, as issued by RTCs, these writs may be enforced only within their respective regions, and over actions affecting ambassadors and other public ministers and consuls. The original jurisdiction of RTCs, which is exclusive, is broad and covers the following cases: (1) all civil actions in which the subject of the litigation is incapable of pecuniary estimation; (2) all civil actions which involve the title to, or possession of, real property, or any interest therein, where the assessed value of the property involved exceeds Two hundred thousand pesos (P200,000.00) or for civil actions in Metro Manila, where such value exceeds Four hundred thousand pesos (P400,000.00) except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts; (3) all actions in admiralty and maritime jurisdiction where the demand or claim exceeds Two hundred thousand pesos (P200,000.00) or in Metro Manila, where such demand or claim exceeds Four hundred thousand pesos (P400,000.00); (4) all matters of probate, both testate and intestate, where the gross value of the estate exceeds Two hundred thousand pesos (P200,000.00) or, in probate, both testate and intestate, where the gross value of the estate exceeds Two hundred thousand pesos (P200,000.00) or, in probate matters in Metro Manila, where such gross value exceeds Four hundred thousand pesos (P400,000.00); (5) all actions involving the contact of marriage and marital relations; (6) all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions; (7) all civil actions and special proceedings falling within the exclusive jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as then provided by law; and (8) all other cases in which the demand, exclusive of interest, damages of whatever kind, attorneys fees, litigation expenses, and costs or the value of the property in controversy exceeds Two hundred thousand pesos (P200,000.00) or, in such other cases in Metro Manila, where the demand, exclusive of the above-mentioned items exceeds For hundred thousand pesos (P400,000.00). The appellate jurisdiction of the RTCs is over all cases decided by Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in their respective territorial jurisdiction. The term damages of whatever kind has been specially defined by the Supreme Court for purposes of determining the jurisdictional amount in respect to the jurisdiction of the RTC. This term is understood to apply only to cases when the damages are merely incidental to or a consequence of the main cause of action, and that therefore where the claim for damages is the main cause of action or one of the causes of action, the amount of the claim shall be considered in determining the jurisdiction of the court. The Supreme Court has however designated certain branches of the RTCs to handle exclusively certain cases as corporate and intellectual property cases. 4. JURISDICTION OF METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS The MTCs are the first-level trial courts in this country. They have therefore no appellate jurisdiction and all their jurisdiction is exclusive and encompasses the following cases: (1) all civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not exceed Two hundred thousand pesos (P200,000.00) or, in Metro Manila where such personal property, estate, or amount of the 3

demand does not exceed Four hundred thousand pesos (P400,000.00), exclusive of interest, damages of whatever kind, attorneys fees, litigation expenses, and costs, the amount of which must be specifically alleged: Provided, That where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action irrespective of whether the causes of action arose out of the same or different transactions; (2) cases of forcible entry and unlawful detainer: Provided, That when, in such cases, the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession; and (3) all civil actions which involve title to, or possession of, real property or any interest therein where the assessed value of the property or interest therein does not exceed Two hundred thousand pesos (P200,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Four hundred thousand pesos (P400,000.00) exclusive of interest, damages of whatever kind, attorneys fees, litigation expenses and costs. The MTCs may however be assigned by the Supreme Court to hear and determine certain cadastral cases and petitions for habeas corpus. RULE I GENERAL PROVISIONS The Rules shall be known and cited as the Rules of Court.1 They shall apply in all courts, except as otherwise provided by the Supreme Court2 in civil, criminal and special proceedings.3They do not apply to election cases, land registration, cadastral, naturalization and insolvency, and other cases not herein provided, except by analogy or in suppletory character and whenever practicable and convenient.4 For purposes of the subject matter, only Rules 1 to 71 or the 1997 Rules of Civil Procedure shall be discussed herein. 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. Examples: To enforce payment of a loan or to eject an intruder on ones property. 1.1 A Civil Actions may be:

1.1.a ORDINARY or SPECIAL both are governed by the rules for ordinary civil actions, subject to specific rules prescribed for a special civil action. 1.1.b 1.1.c IN PERSONAM- brought against a person based on personal liability to the person bringing the action IN REM- it is directed against the thing itself rather than the person

1.1.d QUASI IN REM names a person as a defendant but its object is to subject the persons interest in property to a corresponding lien or obligation (Ramos vs. Ramos, 399 SCRA 43) 1.2 1.2.a 1.2.b 1.3 Distinguishing it from other kinds of actions: CRIMINAL - one by which the state prosecutes a person for an act or omission punishable by law. SPECIAL PROCEEDING remedy by which a party seeks to establish a status, right or a particular fact. DISTINCTIONS BETWEEN A CIVIL ACTION AND SPECIAL PROCEEDINGS SPECIAL PROCEEDINGS not necessarily as it may involve only 1 party declaration of a status, right or a particular fact.

CIVIL ACTION Adversarial-between plaintiff and and defendant formal demand of a right by one against the other

WHEN AN ACTION IS COMMENCED An action is commenced upon the filing of the original complaint in court. If an additional defendant is impleaded in a later pleading it is commenced on the date of the filing of the later pleading IRRESPECTIVE OF WHETHER THE MOTION FOR ITS ADMISSION, IF NECESSARY, IS DENIED BY THE COURT.5 1. Note though that FILING IS DEEMED DONE ONLY UPON PAYMENT OF THE DOCKET FEE REGARDLESS OF ACTUAL DATE OF THE FILING OF THE COMPLAINT6 (MAGASPI V. RAMOLETE 115 S 193) EXCEPT if the plaintiff is authorized to litigate as a pauper litigant he is exempt from filing fees. 2. Note that the commencement of the action interrupts the period of prescription as to the parties to the action. 7
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Section 1, Rule 1, 1997 Rules of Civil Procedure Supra, Section 2, Rule 1 3 Supra, Section 3, Rule 1 4 Supra,,Section 4, Rule 1 5 Supra, Section 5, Rule 1 6 Magaspi v Ramolete, 115 SCRA 193 7 Cabrera v Tiano,8 SCRA 542 4

HOW SHOULD THE RULES BE CONSTRUED The rules shall be construed liberally in order to promote their objective of securing a just speedy and inexpensive disposition of every action or proceeding.8 1. Liberal construction is the controlling principle to effect substantial justice. Litigation should as much as possible, be decided on their merits, and not on technicalities. It does not mean, however, that procedural rules are to be ignored or disdained at will to suit the convenience of a party.9 2. Liberal construction of the rules should be made by the courts in cases: (1) a rigid application will result in manifest failure or miscarriage of justice, especially if a party successfully shows that the alleged defect in the questioned final and executory judgment is not apparent on its face or from the recitals contained therein (2) where the interest of substantial justice will be served (3) where the resolution of the motion is addressed solely to the sound and judicious discretion of the court (4) where justice to the adverse party is not commensurate with the degree of this thoughtlessness in not complying with the procedure prescribed. 10 3. Note that in doing so, substantial justice and equity considerations must not be sacrificed. Periods for filing are as a matter of practice, strictly construed. Neither can liberality of the rules be invoked if it will result in the wanton disregard of the rules or cause needless delay in the administration of justice.11 4. Concommitant to a liberal application of the rules of procedure should be an effort on the part of the party invoking liberality to adequately explain his failure to abide by the rules.12 5. The rules and procedure laid down for the trial court and the adjudication of cases are matters of public policy. They are matters of public order or interest which can in no wise be changed or regulated by agreements between or stipulations by parties to an action for their singular convenience.13 (Republic vs. Hernandez, 253 SCRA 509) 6. The Supreme Court has the power to suspend or set aside its rules in the higher interest of justice.14

RULE 2 CAUSE OF ACTION The basis of an ordinary civil action is a cause of action.15 A cause of action is the act or omission by which a party violates a right of another.16 WHAT ARE THE REQUISITES OF A CAUSE OF ACTION The requisites for a cause of action are: (1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created (2) an obligation on the part of the defendant to respect and not to violate such right (3) an act or omission on the part of the defendant constituting a violation of the plaintiffs right.17 DISTINGUISHING IT FROM RIGHT OF ACTION RIGHT OF ACTION is the right to commence and maintain an action, it is a remedial right that depends on substantive law, while a CAUSE OF ACTION is a formal statement of the operative facts that give rise to such remedial right which is a matter of statement and is governed by procedural law. WHEN ALL ELEMENTS OF A CAUSE OF ACTION ARE PRESENT, THERE WILL BE A RIGHT OF ACTION The distinction is best used to explain the principle that the existence of a cause of action may only be ascertained from the allegations of the complaint. 18 HOW MANY SUITS CAN BE FILED FOR A CAUSE OF ACTION A party may not institute more than one suit for a single cause of action.19 1. If a party institutes more than one suit, the filing of one or a judgment upon the merits in anyone is available as a ground for the dismissal of the others. 20 This is also known as SPLITTING A CAUSE OF ACTION. 2. The SINGLENESS OF CAUSE OF ACTION of a cause of action is determined as follows: 2.1 In an action EX DELICTO, the singleness of a cause of action lies in the singleness of the delict or wrong violating the right of a person. If however, one injury results from several wrongful acts, only one cause of action arises. Example: A party who is
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Supra,Section 6, Rule 1 Vda De Toledo v Toleda, 417 SCRA 260 10 Seapower Shipping Enterprises, Inc. v CA, 360 SCRA 173, Tan v CA, 295 SCRA 755 11 El Reyno Homes v Ong, 397 SCRA 563 12 Sebastian v Hon. Morales, 397 SCRA 549, Duremdes v Duremdes, 415 SCRA 684 13 Republic v Hernandez, 253 SCRA 509 14 Fortica v Corona, GR No. 131457, April 24, 1998 15 Supra, Section 1, Rule 2 16 Supra, Section 2, Rule 2 17 Navao v CA, 251 SCRA 545 18 Equitable Bank v CA, 425 SCRA 544 19 Supra, Section 3, Rule 2 20 Supra, Section 4, Rule 2 5

injured could not maintain an action for damages based on a breach of the contract of carriage against the owner of the vehicle in which he was riding and another action for quasi-delict against the driver/owner of the offending vehicle. The recovery under one remedy necessarily should bar recovery under another. This, in essence, is the rationale for the proscription in our law againt double recovery for the same act or omission which, obviously stems from the fundamental rule against unjust enrichment. 21 2.2 In an action EX CONTRACTU, the rules are as follows:

2.2.a In a single or indivisible contract, only one cause of action arises from a single or several breaches. Example: In a contract of sale of personal property by installments, the remedies of the unpaid seller is alternative, they are: (1) elect fulfillment (2) cancel the sale, should the vendees failure to pay cover two or more installments, and (3) foreclose the mortgage on the thing sold if one has been constituted should the vendee fail to pay two or more installments. 22 2.2.b If the contract provides for several obligations, each obligation not performed gives rise to a single cause of action. But if upon filing of the complaint several obligations have already matured, all of them shall be integrated into a single cause of action. Example: Contract for delivery of goods in part or over a period. 2.2.c If the contract is divisible in its performance, and the future performance is not yet due, but the obligor has already manifested his refusal to comply, the contract is entire and the breach is total. Thus, there can only be one action. 23 IF A PARTY HAS SEVERAL CAUSES OF ACTION He can join his causes of action 24 as he may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against the opposing party, subject to the following conditions: 1. party joining the causes of action shall comply with the rule on joinder of parties, which provides that : All persons in whom or against whom any right to relief is respect to or arising out of the same transaction is alleged to exist, whether jointly, severally or in the alternative, may except as otherwise provided in these rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action. 25 2. joinder does not allow the inclusion of special civil actions or actions governed by special rules . Example: An action for a sum of money cannot be joined with an action for iIlegal detainer 3. where causes of action are between same parties but pertain to different venues or jurisdictions, joinder may be allowed in the RTC provided one of the causes of action falls within its jurisdiction and venue lies therein. 4. when the claims in all causes of action are principally for recovery of money, the aggregate amount shall be the test of jurisdiction. EFFECT OF MISJOINDER Upon motion of a party or on the initiative of the court, a misjoined cause of action may be severed and proceeded with separately.26 RULE 3 PARTIES TO CIVIL ACTIONS WHO MAY BE PARTIES TO A CIVIL ACTION Only natural or juridical persons or entitles authorized by law may be parties in a civil action. 27 They are called: PLAINTIFF he is one who has interest in the subject of the action and obtaining the relied demanded. He may be the claimant in the original complaint, the counter-claimant in the counter claim, or cross-claimant in a cross-claim or the third party plaintiff and the DEFENDANT he is one who has an interest in the controversy adverse to the plaintiff. He may be the original defending party, the defendant in a counterclaim, or cross-defendant in a cross-claim. For ready reference, a COUNTER-CLAIM is any claim which a defending party may have against an opposing party. 28A CROSSCLAIM is a claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counter-claim therein. 29A THIRD PARTY CLAIM is a claim that a defending party may, with leave of court, file against a person not party to an action for contribution, indemnity, subrogation or any other relief, in respect to his opponents claim.30 1. The state or any of its political subdivisions, while considered as juridical entities, they can sue but as a general rule, they cannot be sued without its consent. 2.
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A foreign corporation cannot be a plaintiff in suit when it is transacting business in the Philippines without a license.

Joseph v Bautista, 170 SCRA 540 Articles 1484,1486, NCC 23 Blossom & Co v Manila Gas Corporation, 55 Phil 226 24 Supra, Section 5, Rule 2 25 Supra, Section 6, Rule 3 26 Supra, Section 6, Rule 2 27 Supra,,Section 1, Rule 3 28 Supra, Section 6, Rule 6 29 Supra, Section 8, Rule 6 30 Supra, Section 11, Rule 6 6

3. Entities authorized by law are recognized labor organizations and entities without legal personality referring to 2 or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known but in their answer to the complaint, their names and addresses must be revealed. 31 4. A sole proprietorship may not be a party as it is neither a natural, juridical or entity allowed or authorized by law. If one sues as such, the action may be dismissed on the ground of lack of capacity to sue. It does not possess a juridical personality separate and distinct from the personality of the owner of the enterprise.32It cannot sue or file or defend an action in court.33 PARTIES IN INTEREST A real party in interest in the party who stands to be benefited or injured by the judgment or party entitled to the avails of the suit. UNLESS OTHERWISE AUTHORIZED BY LAW OR THE RULES all actions must be prosecuted or defended in the name of the real party in interest. 34 1. A real party in interest-plaintiff is one who has a legal right, while a real party in interest-defendant is one who has a correlative obligation, whose act or omission violates the legal rights of the former.35 2. WHEN A SUIT IS NOT BROUGHT IN THE NAME OF THE REAL PARTY IN INTEREST,it may be dismissed on the ground that the complaint states no cause of action. 36 Note that the dismissal is not due to lack of or no legal capacity to sue nor lack of legal personality, as the latter is not ground for dismissal for dismissal under the 1997 Rules of Civil Procedure. 2.1 It states NO CAUSE OF ACTION BECAUSE IT IS NOT BEING PROSECUTED IN THE NAME OF THE REAL PARTY IN INTEREST. 2.2 LACK OF LEGAL CAPACITY TO SUE means that the plaintiff is not in exercise of his civil rights, does not have the necessary qualification to appear or does not have the character or representation he claims. Example: Trustee or Minor, AS DISTINGUISHED FROM LACK OF LEGAL PERSONALITY means that the plaintiff is not the real party in interest. Dismissal is based on the fact that the complaint states no cause of action 3. Legal standing means a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the act being challenged. The term interest is material interest, an interest in issue, and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest. Moreover, the interest must be personal and not one based on a desire to vindicate the constitutional right of some third or unrelated party. CLASSIFICATION OF REAL PARTIES IN INTEREST 1. INDISPENSABLE PARTY is a party without whom no final determination can be had of an action. 37 They are those with such an interest in the controversy that a final decree would necessarily affect their rights, so that the courts cannot proceed without their presence. Example: owners of property over which reconveyance is asserted are indispensable parties without whom no relief is available and without whom the court can render no valid judgment.38 1.1 Without the presence of indispensable parties to the suit, the judgment of the court cannot attain real finality.39

2. NECESSARY PARTY is a party who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties or for a complete determination or settlement of the claim subject of the action. 40 A necessary partys presence is necessary to adjudicate the whole controversy but whose interests are so far separable that a final decree can be made in their absence without affecting them. Example: If the plaintiff only sues a one of his joint debtors, the joint debtor who is not sued is merely a necessary party. As a consequence, the plaintiff only recovers the share of the debt due from the joint debtor defendant. 2.2 A necessary party is to be impleaded as a party for complete determination of an action, while an indispensable party is impleaded for a final determination of an action. PERSONS WHO CAN SUE IN BEHALF OF A REAL PARTY IN INTEREST The following may sue in behalf of a real party in interest 1. REPRESENTATIVES- actions are allowed to be prosecuted / defended by a representative or by one acting in a fiduciary capacity BUT the BENEFICIARY SHALL BE INCLUDED IN THE TITLE and shall be deemed to be the REAL PARTY IN INTEREST. 41
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Supra, Section 15, Rule 3 Mangila v Court of Appeals, 387 SCRA 162, Yao Ka Sin Trading v Court of Appeals, 209 SCRA 763 33 Juasing Hardware v Mendoza, 115 SCRA 783 34 Supra, Section 2, Rule 3 35 Gan Hock v. Court of Appeals, 197 SCRA 223 36 Tankiko v Cesar, 302 SCRA 559 37 Supra, Section 7, Rule 3 38 Valenzuela v Court of Appeals, 363 SCRA 779 39 Domingo v Scheer, 421 SCRA 468 40 Supra, Section 8, Rule 3 41 Supra, Section 3, Rule 3 7

1.1 Examples of representatives are: (1) trustee of an express trust (2) a guardian, executor or administrator, or (3) a party authorized by law or the Rules. 1.2 An agent acting in his own name and for the benefit of an unknown principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal. This refers to an AGENCY WITH AN UNDISCLOSED PRINCIPAL.42 2. HUSBAND AND WIFE- as a general rule shall sue or be sued jointly, except as provided by law.43 Non joinder of partys husband is not fatal. It is a mere formal defect.44 2.1 They are required to sue and be sued jointly as they are joint administrators of the Absolute Community or the Conjugal Partnership.45 2.2 The exceptions provided by law are when the property relations of husband and wife are governed by the rules on separation of property46 or one is disposing of exclusive property.47 2.3 NOTE that the legal provision against the disposition of conjugal property by one spouse without the consent of the other has been established for the benefit, not of third persons, but only for the spouse for whom the law desires to save the conjugal partnership from damages that might be caused. No other party can avail of the remedy other than the aggrieved spouse.48 3. MINORS OR INCOMPETENTS- may sue or be sued with the assistance of father, mother, guardian or, if he has none, a guardian ad litem.49 3.1 A guardian ad litem is a special guardian appointed by the court in which a particular litigation is pending to represent or assist a minor or an incompetent person involved in or has interest in the property subject of litigation. His status as such exists only in that particular litigation in which the appointment occurs. 3.2 Note that the appointment of a guardian ad litem may occur in the following: for minor heirs when substituting for a deceased party 50, incompetency or incapacity of a party51, service of summons on a minor or incompetent 52, and when the best interest of the child require it.53 JOINDER OF PARTIES Joinder of Parties refers to the act of uniting several parties in a single suit either as plaintiffs or defendants. 1. The rule on joinder of parties states that: All persons in whom or against whom any right to relief in respect to or arising out of the same transaction is alleged to exist, whether jointly, severally or in the alternative, may except as otherwise provided in these rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action.54 2. Joinder of Parties, as a rule, is permissive when there is a question of law or fact common to all the plaintiffs or defendants. This means that the right to relief or to resist the action arises out of the same transaction or event or series of transactions or events. Example: action by passengers of a common carrier for injuries sustained in an accident, there is no community of interest, the extent of the interest is limited to the extent of damages being claimed by each. 3. It becomes compulsory when the parties to be joined are indispensable parties.55

4. The exception to compulsory joinder of parties is when the subject of the action is proper for a class suit. The subject matter of the controversy is proper for a class suit when it is one of common or general interest to many persons so numerous that it is impractical to join all as parties. 56 All the parties who are interested in the action as plaintiffs or defendants are all indispensable parties but not all need to be joined. 4.1 The requisites of a class suit are:

1. The subject matter of the controversy is one of common or general interest to many persons. There must be an INDIVISIBLE RIGHT AFFECTING MANY INDIVIDUALS WHOSE PARTICULAR INTEREST IS OF INDETERMINATE EXTENT AND IS
42 43

Article 1883, NCC Supra, Section 4, Rule 3 44 Miranda v Besa, 435 SCRA 532 45 Articles 96 and 124, Family Code 46 Article 145, Family Code 47 Article 111, Family Code 48 Villaranda v Villaranda, 423 SCRA 571 49 Supra, Section 5, Rule 3 50 Supra, Section 16, Rule 3 51 Supra, Section 18, Rule 3 52 Supra, Section 10, Rule 14 53 Article 222, Family Code 54 Supra, Section 6, Rule 3 55 Supra, Section 7, Rule 3 56 Supra, Section 12, Rule 3 8

INCAPABLE OF SEPARATION. This requires that the benefit to one is a benefit to all. Examples: stockholder derivative suits and taxpayer suits. 1.1 Improper for a class suit is when a claimant is interested only in collecting his claims and has no concern in protecting the interests of the others. 57 2. The parties affected are so numerous that it is impracticable to join all as parties

3. The parties bringing or defending the class suit are found by the court to be sufficiently numerous and representative as to fully protect the interest of all. To comply with the 2nd and 3rd requisite, the Complaint most allege: (1) existence of a subject matter which is of common or general interest to many persons, and (2) existence of a class and the number of persons belonging to that class

4.2 4.3

It can be brought by the plaintiffs as a class or may be filed against the defendants as a class Any party in interest shall have the right to intervene to protect his individual interest.

4.4 The general rule, is that the party bringing the suit in his own name and that of others similarly situated has the right to control the suit, BUT, it shall not be dismissed or compromised without the approval of the court.58 5. If there is a failure to join an indispensable party, the court must order the plaintiff to amend his complaint for the purpose of impleading the indispensable party. If the plaintiff fails, refuses or the party cannot be sued because he is a non-resident defendant in a personal action, the complaint must be dismissed.59 6. If there is a failure to join a necessary party, the pleader in the pleading in which a claim is asserted without joining a necessary party shall (1) set forth the name of the necessary party, if known and (2) state the reason for omission. If the court finds the reason for the omission is not meritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person is obtained. If pleader fails to comply with order for inclusion without justifiable cause, it shall be deemed a waiver of the claim against the party, BUT the non-inclusion does not prevent the court from proceeding in the action, and the judgment therein shall be without prejudice to rights of such necessary party.60 7. MISJOINDER OR NON JOINDER NOT A GROUND FOR DISMISSAL.Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms that are just. Any claim against a misjoined party may be severed and proceeded against separately.61 NOTE HOWEVER that if the party to be joined is indispensable and the plaintiff fails or refuses or such party cannot be sued the complaint must be dismissed (NDC v. CA 211 S 422) 8. IF A PARTY TO BE JOINED AS A PLAINTIFF DOES NOT CONSENT OR CANNOT BE OBTAINED he may be made a defendant and the reason therefor shall be stated in the complaint. 62 DISTINCTIONS BETWEEN Indispensable party if not joined action cannot proceed judgment is not valid -non joinder dismissed Necessary party if not joinedaction proceeds judgment is voted but does not resolve the controversy. non joinder waiver of claim

WHO WILL PLAINTIFF SUE IF HE IS UNCERTAIN

57 58

Cadalin v POEA Administrator, 238 SCRA 721 Supra, Section 2, Rule 17 59 NDC v Court of Appeals, 211 SCRA 422 60 Supra, Section 9, Rule 3 61 Supra, Section 11, Rule 3 62 Supra, Section 10, Rule 3 9

If he (plaintiff) uncertain against who of several persons he is entitled to relief HE MAY JOIN ANY OR ALL OF THEM AS DEFENDANTS in the ALTERNATIVE although a right to relief against one may be inconsistent with a right of relief against the other. 63 EXAMPLE: An action where the owner of goods is not sure whether they were lost in transit or while it was on deposit in the warehouse of the arrastre operator He may sue the shipper or the operator of the warehouse in the ALTERNATIVE although the right against the SHIPPER is based on ADMIRALITY, while that against the OPERATOR is based on CONTRACT. Action for damages arising from loss of goods due to a collision. IF THE IDENTITY/NAME OF THE DEFENDANT IS UNKNOWN He may be sued as the unknown owner, heir, devisee or by such other designation as the case may require WHEN THE IDENTITY OR NAME IS DISCOVERED the pleading must be amended accordingly. 64 EXAMPLE: Action to recover real property from several unknown heirs of a common ancestor. EFFECT OF DEATH OF A PARTY (Sec 16) When a party dies and his claim is not extinguished it shall be the duty of counsel to inform the court within 30 days after such death of the : (1) FACT OF DEATH (2) NAME AND ADDRESS OF LEGAL REP/REPS IF NOT, Counsel may be subject to disciplinary action. ONCE NOTICE IS GIVEN The COURT SHALL ORDER THE LEGAL REP/S TO APPEAR AND BE SUBSTITUTED WITHIN 30 DAYS FROM NOTICE. Note: Heirs may be allowed to be substituted for the deceased without requiring the appointment of an executor or administrator and the court can appoint a guardian ad litem for minor heirs. IF LEGAL REP/S DO NOT APPEAR OR NOTICE IS NOT GIVENThe court can order the opposing party, within a specified time to procure the appointment of an executor or administrator to appear for and in behalf of the deceased Expenses if paid by opposing party can be recovered as costs IF DEATH/SEPARATION OF A PUBLIC OFFICER (Sec 17) If sued in his public capacity and he dies, resigns or otherwise ceases to hold office The action may be MAINTAINED AND CONTINUED by or against his successor, if within 30 days after successor assumes the office or such time as granted by the court it is SATISFECTORILY SHOWN by a party that there is a substantial need for continuing and maintaining it and that the successor ADOPTS or CONTINUES OR THREATENS to adopt or continue the action of his predecessor. BEFORE SUBSTITUTION IF NO EXPRESS ASSENT, the public officer shall be given reasonable notice of the application and be accorded an opportunity to be heard. EFFECT OF DEATH OF DEFENDANT ON A CONTRACTUAL MONEY CLAIM If the action is for the recovery of money that arises from a CONTRACT, express or implied, and the defendant dies BEFORE ENTRY OF A FINAL JUDGMENT, the RULE is it will not be dismissed but shall be allowed to continue until entry of judgment, a favorable judgment obtained shall be enforced in the manner provided by the rules for prosecuting claims against the ESTATE OF A DECEASED PERSON.65 1. RULES TO BE OBSERVED IN CASE OF DEATH OF OBLIGOR are: (a) If he dies before the action is filed, a money claim must be filed in the testate or intestate proceedings (b) if he dies during the pendency of an action, the action continues until entry of judgment, and the judgment claim is then filed with the testate or intestate proceedings. It must be noted that a money claim judgment need not be proven because it is conclusive. NOTE FURTHER, that if property has been levied upon before death. It can disposed of in the manner provided by the rules on execution of judgments because it has already been segregated from estate. If there is a deficiency, a money claim can be filed subsequently.

2. IF IT DOES NOT ARISE FROM CONTRACT, RE: CLAIMS FOR RECOVERY, ENFORCEMENT OF A LIEN OR DAMAGES DUE TO TORT, the rules are: (a) if he dies before the action is filed, it may be filed against the executor or administrator (b) if already filed , it continues to final judgment and may be executed on as against the executor or administrator. 66 3. In a case for ejectment where the defendant died before the case could be decided and without being able to testify on his counterclaim for damages. The trial court dismissed the ejectment suit and ordered the plaintiff to pay the wife of the defendant moral damages and attorneys fees. The plaintiff contends on appeal that the counterclaim should have been dismissed pursuant to Rule 3,
63 64

Supra, Section 13, Rule 3 Supra, Section 14, Rule 3 65 Supra, Section 20, Rule 3 66 Supra, Section 7, Rule 39 10

Section 21 (old rule). HELD: The argument is misplaced, defendant was the plaintiff in his counterclaim, the rule is not applicable as it pertains to a defendant who dies before final judgment. In this case, it is the plaintiff who died and all that is required is a timely motion for substitution. No recovery though can be allowed as no evidence was adduced.67 4. If a claim involves a conjugal debt that was not brought and one of the spouses die before filing, the claim must be brought in the testate or intestate proceedings of the deceased spouse.68 ( Alipio v. CA, GR. 134100, 9-29-2000) 5. IF IT IS THE PLAINTIFF WHO DIES: (a) if action is purely personal to him, the action is abated (b) if action is not purely personal, it continues but counsel must give notice of death. EFFECT ON INCOMPETENCY/INCAPACITY ON AN ACTION 1. The court, upon motion with notice, may allow the action to be continued by or against the incompetent or incapacitated person assisted by his guardian or guardian ad litem.69 EFFECT OF A TRANSFER OF INTEREST PENDING LITIGATION 1. The action may be continued by or against the original party, unless the court upon motion directs the person to whom interest is transferred to be substituted in the action or joined with the original party.70 2. The rule refers to a transfer pendente lite. The transferee pendente lite shall stand exactly in the shoes of the transferor. Consequently, any judgment will be binding upon him. 3. A transferee pendent elite does not have to be included or impleaded by name in order to be bound by the judgment because the action or suit may be continued for or against the original party or the transferor and still binding on the transferee.71 4. In a case on appeal where the transferee pendente lite did not appeal, he nevertheless was benefited by the appeal of the transferor pendent elite.72 INDIGENT/PAUPER LITIGANT 1. An indigent or pauper litigant Is one who litigates on a claim that he has no money, or property sufficient and available for food, shelter and basic necessities for himself and his family.73 2. An indigent or pauper litigant must file an ex-parte application for authority to litigate as an indigent that is too be resolved by the court after hearing. Attached to the motion is an affidavit attesting to the fact that he does not earn a gross income of PHP 4000.00 in Metro-Manila, or PHP 3,000.00 elesewhere and has no real property with a fair market value of PHP 50,000.00. Said affidavit must be supported by another affidavit of a disinterested person. Note that recently, an indigent litigant has been defined as one (a) whose gross income and that of their immediate family does not exceed an amount double the monthly minimum wage of an employee and (b) who does not own real property with a fair market value as stated in the current tax declaration of more than PHP 300,000.00. If there is any falsity in the affidavit or that of the disinterested person, it shall constitute sufficient ground to dismiss the action or strike out the pleading, without prejudice to whatever criminal liability is incurred. 74 3. The effect of being allowed to litigate as an indigent or pauper litigant are: (1) exemption from the payment of docket fees and other lawful fees (2) exemption from TSN fees which the Court may order to be furnished BUT, the amounts due shall be a LIEN on a favorable judgment unless the Court orders otherwise. 4. The allowance to litigate as an indigent or pauper litigant can be contested at any time before judgment is rendered by any adverse party. If found to be meritorious, the proper fees are assessed and are to be collected. IF NOT PAID, execution shall issue on the payment thereof without prejudice to other sanctions. 5. On appeal, a motion to litigate as an indigent or pauper litigant is allowed.

WHEN SOLICITOR GENERAL IS REQUIRED TO APPEAR In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rule or regulation, the court, in its discretion, may require the appearance of the SOLGEN, who may be heard in person or through a representative duly designated by him.75 RULE 4 VENUE OF ACTIONS

67 68

UST v Court of Appeals, GR No. 124250, October 18, 2004 Alipio v Court of Appeals, GR No. 134100, September 29, 2000 69 Supra, Section 3 and 18, Rule 3 70 Supra, Section 19, Rule 3 71 State Invetsment House, Inc. v Court of Appeals, 318 SCRA 47 72 Jocson v Court of Appeals, GR 88297, March 22, 1990 73 Supra, Section 21 74 Section 19, Rule 141, Rules of Court 75 Supra, Section 22, Rule 3 11

1. 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. 2. Distinguishing it from jurisidiction: (a) venue is the place where action is commenced and tried, jurisdiction is the authority of a court to hear and decide the action (b) venue may be waived, jurisdiction over the subject matter cannot be waived, but that over the person can be waived (c) venue may be the subject of a written agreement, jurisdiction cannot be subject of a written agreement (d) a court cannot motu-propio dismiss on improper venue, while when there is no jurisdiction, a court can motu-propio dismiss the action. 3. The following are the rules on venue:

3.1 IF IT IS A REAL ACTION or one that affects title to or possession of real property, or interest therein, it shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved or a portion thereof is situated. Forcible Entry and Detainer actions are to be commenced and tried in the Municipal Trial Court which has jurisdiction over the area wherein the real property involved, or any portion thereof, is situated. 76 2. IF IT IS A PERSONAL ACTION or one that is brought for the recovery of personal property, for the enforcement of a contract or recovery of damages for its breach of for the recovery of damages due to injury to person or property or such all other actions shall be commenced or tried where the plaintiff or ANY OF THE PRINCIPAL PLAINTIFFS reside or any of the defendants reside, or if a NON-RESIDENT DEFENDANT, where he may be FOUND at the election of the plaintiff77 2.1 RESIDE means the place of abode, whether permanent or temporary as distinguished from domicile fixed permanent residence, where if one is absent he intends to return. 2.2 Is the complaint for cancellation of a real estate mortgage with damages, a real or personal action? It is a real action, the controlling factor in determining venue of such a case is the primary objective for which it is filed. An action for cancellation of a real estate mortgage is necessarily an action affecting title to real properties since the primary objective is to recover the properties that the bank had foreclosed on. 78 2.3 In personal actions, it is the residence of the proprietor, not the business address of the sole proprietorship that is considered to determine venue as a sole proprietorship has no legal personality.79 2.4 R engaged the services of L as geodetic surveyor to subdivide two parcels of land located in Batangas. As payment for Ls services, R agreed to given him one lot. After the survey, R delivered to L possession of one lot as payment for his services. However, R failed to deliver to L the tile of the lot. L, who resides in Quezon City, filed with the RTC of Quezon City an action against R for specific performance to compel R to deliver to him the title to the lot. R moved to dismiss on the ground of improper venue, contending that since his is a real action, the complaint must be filed in the RTC of Batangas where the lot is situated. Is R correct? No, R is not correct. This action for specific performance is a personal action. The venue therefore, was properly laid in Quezon City where the plaintiff resides. It is not a real action because plaintiff L is not seeking the recovery of the lot as he is already in possession thereof. He is merely asking the delivery of the title to him, which is a personal action. 80 3. IF DEFENDANT IS A NON-RESIDENT or one who does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff , or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found.81 3.1 The provision refers to a Quasi in Rem action in which an individual is named as a defendant, and the purpose of the action is to subject his interest therein to an obligation or lien burdening the property. 3.2 A non-resident alien who cannot be found can sue and be sued as by filing his complaint, he submits to the jurisdiction of the Court, even if he has never been able to enter the Philippines.82 (Dilweg vs. Philipps, 12 S 243) THE RULES ON VENUE ARE NOT APPLICABLE The rules on venue will not apply if: (1) in cases where a specific rule or law provides otherwise (2) Where the parties have validly agreed in writing BEFORE FILING OF THE ACTION ON EXCLUSIVE VENUE83 1. EXAMPLES: (1) Quo Warranto proceedings may be instituted in the Supreme Court, Court of Appeals or the Regional Trial Court exercising territorial jurisdiction over the area where the respondent/s reside. If the Solicitor General commences the action, he
76 77

Supra, Section 1, Rule 4 Supra, Section 2, Rule 4 78 Go v UCPB, GR No. 156187, November 11, 2004 79 Mangila v Court of Appeals, 387 SCRA 162 80 Dimo Realty & Development, Inc. et al. v. Dimaculangan, G.R. NO. 130991, March 11, 2004
81 82

Supra, Section 3, Rule 4 Dilweg v Philipps, 12 SCRA 243 83 Supra, Section 4, Rule 4 12

may do so in the Supreme Court, Court of Appeals or the Regional Trial Court of Manila. 84 The criminal or civil action for damages due to libel can only be instituted either in Regional Trial Court of the place where he holds office or in the place where the alleged libelous article was printed and first published; and if the offended parties are private individuals, the venue shall be in the Regional Trial Court of the place where the libelous article was printed and first published or where any of the offended parties actually resides at the time of the commission of the offense85 or 2. Art 360, RPC. Libel Civil and Criminal action to be distributed in the RTC where public official holds office or where libelous article was first printed or published (3) Intracorporate Controversies are to be filed in the Regional Trial Court where principal office corporation is located. 86 2. Any agreement as to venue must be in writing and for exclusivity, the intent must be clear, otherwise, it will be interpreted to allow for an additional venue. 2.1 The freedom of the parties to stipulate on the venue is however subject to the usual rules on contract interpretation. Where the provision appears to be one-sided as to amount to a contract of adhesion, the consent of the parties thereto may well be vitiated and the venue stipulation will not be given effect.87 2.2 Venue as stipulated in the promissory note shall govern notwithstanding the absence of a stipulation as to venue in an accompanying surety agreement as the latter can only be enforced in conjunction with the former.88 HOW VENUE IS QUESTIONED Venue may be questioned in (1) in a motion to dismiss 89, or (2) in an answer by way of an affirmative defense 90. If NOT SO MADE, it is deemed waived. RULE 5-UNIFORM PROCEDURE IN TRIAL COURTS The procedure in Municipal Trial Court shall be the same as in the Regional Trial Court, except when (1) a provision applies only, expressly or impliedly, to a particular court, or (2) In civil cases covered by the Rules on Summary Procedure 1. An example of a provision that applies only to a Municipal Trial Court is that which refers to an appeal taken from an order of the lower court dismissing the case without trial on the merits.91 PROCEDURE IN REGIONAL TRIAL COURTS RULE 6- KINDS OF PLEADINGS PLEADING DEFINED is a written statement of the respective claims and defenses of the parties submitted to the court for appropriate judgment.92 1. The pleadings that are allowed are: (a) Claims of a party are asserted in the complaint, counterclaim, cross-claim, 3 rd party complaint (4th..), or complaint in intervention (2) Defenses of a party are alleged in the answer to the pleading asserting a claim against him (3) Reply to the answer93 2. The specific KINDS OF PLEADINGS are: (a) COMPLAINT, which is the pleading alleging the plaintiffs cause of action or causes of action. The names/residences of the plaintiffs and defendants must be stated in the complaint 94 (b) ANSWER, which is a pleading in which a defending party sets forth his defenses95. Its essential purpose is to secure joinder of the issues and not to lay down evidentiary matter. 96 2.1 The following are the kinds of defenses97 that may be interposed in an answer:

2.1.1 NEGATIVE DEFENSE which is a specific denial of a material fact or facts alleged in the pleading of a claimant essential to his cause/s of action. A specific denial is made 98 by: (a) Specifically denying the material averment in the pleading of the adverse party and setting forth the substance of the matter upon which he relies for such denial (b) Deny only a part of the averment by specifying that so much of it is true and deny the remainder (c)Allegation of lack of knowledge or information sufficient to form a belief as to the truth of the material averment in the pleading of the adverse party. 2.1.2 AFFIRMATIVE DEFENSE which is an allegation of new matter, which although hypothetically admitting the material allegations in the pleading would nevertheless bar or prevent recovery. They include fraud, statute of limitations, release, payment,
84 85

Supra, Section 7, Rule 66 Article 360, Revised Penal Code 86 RA 8799, and A.M. 01-02-04-CS, March 13, 2001 87 Sweet Lines v Teves, 83 SCRA 361 88 Philippine Bank of Communications v Lim, 455 SCRA 714 89 Supra, Section 1 (c) ,Rule 16 90 Supra, Section 6, Rule 16 91 Supra, Section 8, Rule 40 92 Supra, Section 1, Rule 6 93 Supra, Section 2, Rule 6 94 Supra, Section 3, Rule 6 95 Supra, Section 4, Rule 6 96 Naga Development Corporation v Court of Appeals, 41 SCRA 105 97 Supra, Section 5, Rule 6 98 Supra, Section 10, Rule 8 13

illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, or any other matter by way of confession and avoidance. Any of the grounds for a motion to dismiss may be pleaded as an affirmative defense. He may then move for a preliminary hearing as if a timely motion to dismiss has been filed.99 NOTE that the rule that a defending party who sets up an affirmative defense HYPHOTHETICALLY ADMITS the allegations does not apply if the defense set up is any of the grounds for extinguishment of the obligation. The EFFECT is that the defending party is deemed to have admitted the validity of the obligation, and if the motion to dismiss is denied, what is left to be proven is the fact of payment or non-payment. 3. 3.1 COUNTERCLAIM, which is any claim which a defending party may have against an opposing party.100 KINDS OF COUNTERCLAIMS COMPULSORY (1) Arises out of or is connected w/ the transaction or occurrence constituting the subject matter of the opposing partys claim (2) barred if not set up in the answer (3) plaintiff need not answer (4) if not answered no default (5) does not require a certification as to non-forum shopping PERMISSIVE does not arise out of or is not connected w/the transaction or occurrence constituting the subject matter of the opposing partys claim not barred even if not set up in the answer plaintiff must answer once docket fees are paid if not answered default lies being an initiatory pleading it requires a certification as to non-forum shopping

3.2 The REQUISITES OF A COMPULSORY COUNTER-CLAIM are:(a) It arises out of or is necessarily connected w/the transaction or occurrence that in the subject matter of the partys claim (b)It does not require for adjudication the presence of 3 rd parties over whom the court cannot acquire transaction (c) It must be cognizable by the regular courts of justice (d) It must be within the jurisdiction of the court both as to amount and the nature thereof, except that in an original action before the RTC, counterclaim is considered compulsory regardless of amount (e) It must already be existing at the time defending party files his answer (Rule 6, Sec. 7, Rule 11, Sec. 8) See Reyes De leon v Del Rosario, 435 SCRA 232, test to determine whether counterclaim is compulsory or not. 3.2.1 A compulsory counterclaim that is not yet in existence at the time of the filing of an answer may be presented or set-up by a supplemental pleading before judgment.101 3.2.2 A compulsory counterclaim may implead persons not parties to the original complaint as their presence is required for granting complete relief in the determination of a counter-claim or cross claim, the court shall order them brought in as defendants, if jurisdiction over them can be obtained. 102 Summons must thus be served upon them as they must answer the counterclaim as they cannot rely on the rule that the defendant in the counterclaim is deemed to have adopted the allegations of the complaint in his answer.103 3.3 The REQUISITES OF A PERMISSIVE COUNTERCLAIM are: (a) It does not require for adjudication the presence of 3 rd parties over whom the court cannot acquire jurisdiction (b) It must be cognizable by the regular courts of justice (c) It must be within the jurisdiction of the court both as to amount and the nature thereof, except that in an original action before the RTC, counterclaim is considered compulsory regardless of amount 4. A CROSS-CLAIM is a claim by one party against a co-party arising out of a transaction/occurrence that is the subject matter either of the original action or the counter-claim. It may include a claim that a party against whom it is asserted is or may be liable to the cross claimant for all or part of a claim asserted in the action against the cross-claimant. 104 NOTE that counterclaims may be asserted against an original counter-claimant and that cross-claims may also be filed against an original cross-claimant. 105 5. A REPLY is a pleading, the office or function of which is to deny or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make an issue as to such matters.
99

Supra, Section 6, Rule 16 Supra, Section 6, Rule 6 101 Supra, Section 9, Rule 11, Intramuros Administration v Contacto, 402 SCRA 581 102 Supra, Section 12, Rule 6 103 Lafarge Cement Philippines, Inc. v Luzon Continental Land Corporation, 443 SCRA 522 104 Supra, Section 8, Rule 6 105 Supra, Section 9, Rule 6
100

14

5.1 If a reply is not filed, all new matters are deemed controverted. If plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended/supplemental complaint. 5.2 If the defense is based on an actionable document, it must be replied to, otherwise it is admitted.

6. A 3RD PARTY COMPLAINT is a claim that a defending party may, WITH LEAVE OF COURT, file against a person, NOT A PARTY, called 3RD party defendant. FOR CONTRIBUTION INDEMNITY, SUBROGATION, OR ANY OTHER RELIEF in respect of his opponents claim.106 6.1 EXAMPLES:

CONTRIBUTION- A sues X for collection of money based on a promissory note signed jointly and severally with Y. X may file a complaint against Y for contribution INDEMNITY S, as surety, is sued for recovery of the obligation of M. S may file a complaint against M for whatever amount he may be adjudged to pay as surety SUBROGATION X, as lessor, sues Y, as lessee for repairs. Y may file a complaint against his sub-lessee who filed to comply with the obligation to repair OTHER RELIEF X bought land from Y. Later X is sued by A for recovery of the land. X may file a complaint against Y for his warranty against eviction. 6.2 An ANSWER TO 3RD PARTY COMPLAINT may include (a)DEFENSES COUNTERCLAIMS OR CROSS-CLAIMS including such defenses that the 3RD PARTY PLAINTIFF may have against the original plaintiffs claim, and (b) IN PR0PER CASES, he may assert a counter-claim against the ORIGINAL PLAINTIFF in respect to his claim against the 3rd party plaintiff.107 EXAMPLE: a REINSURER (3rd party defendant) may set up in his answer the defense alleged by defendant insurer that loss is caused by plaintiff insured. However 3rd party defendant cannot file a counterclaim against the original plaintiff as there is no privity of contract. WHEN NEW PARTIES CAN BE BROUGHT If the presence of others besides the parties is required for the granting of full relief in the determination of a counter-claim or crossclaim the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained 108. RULE 7 PARTS OF A PLEADING The PARTS OF A PLEADING of a pleading are CAPTION, BODY, SIGNATURE, ADDRESS, VERIFICATION, AND CERTIFICATION AGAINST FORUM SHOPPING. 1. CAPTION it sets forth the (a) NAME OF THE COURT (b) THE TITLE OF THE ACTION- this includes an indication of the NAME of the PARTIES, who are REQUIRED to be NAMED in the ORIGINAL COMPLAINT OR PETITION. In subsequent pleadings, the name of the first party on each side is sufficient with an appropriate indication when there are other parties. NOTE: In an appeal, Sections 5 and 6, Rule 41 requires all names to be indicated in the NOTICE OF APPEAL and RECORD ON APPEAL (c) DOCKET NUMBER , if one has already been assigned.109 2. BODY - sets forth its designation, the allegations or a partys claims / defenses, the relief prayed for, and the date of the pleading 2.1 The allegations in the body shall be divided unto paragraphs so NUMBERED to be readily IDENTIFIED. Each shall contain STATEMENT OF A SINGLE SET OF CIRCUMSTANCES so far as it can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings. 2.2 Headings must be used when 2 or more causes of action are joined, the statement of the first shall be prefaced by : FIRST CAUSE OF ACTION etc. WHEN: 2 or more paragraphs are addressed to one or several causes of action in the complaint, they shall be prefaced by: ANSWER TO THE FIRST CAUSE OF ACTION and so on. If it addresses several causes of action, the paragraphs shall be prefaced accordingly. 2.3 Relief should be specified but it may add a general prayer for such further or other relief as may be deemed just and equitable. 2.4 Date every pleading is required to be dated.

3. SIGNATURE AND ADDRESS- every pleading must be signed by the party OR counsel representing him, stating in either case his ADDRESS which should not be a post office box.

106 107

Supra, Section 11, Rule 6 Supra, Section 13, Rule 6 108 Supra, Section 12, Rule 6 109 Supra, Section 1, Rule 7 15

3.1 NOTE the word OR because a party may litigate / defend PRO SE or for himself without aid or counsel. This applies even if a party is already represented by counsel. 3.2 AN ADDRESS IS REQUIRED for service of pleadings or judgments

3.3 SIGNIFICANCE OF COUNSELS SIGNATURE it is a CERTIFICATE BY HIM THAT: (a) He has read the pleading (b)To the best of his information, knowledge and belief there is good ground to support it (c) It is not interposed for delay 3.4 IF PLEADING IS UNSIGNED It produces NO LEGAL EFFECT. However, the court in its discretion can allow the deficiency to be remedied if: it SHALL APPEAR THAT THE SAME IS DUE TO INADVERTENCE AND NOT INTENDED FOR DELAY 3.5 COUNSEL SUBJECT TO DISCIPLINARY ACTION IN RELATION TO the Rule when (a) He deliberately files an unsigned pleading (b) Signs a pleading in violation of the Rule (c) Alleges scandalous or indecent matter (d) Fails to promptly report to the court a change in his address 4. VERIFICATION is an affidavit that the affiant has read the pleading and that the allegations therein are TRUE and CORRECT of his PERSONAL KNOWLEDGE AND/OR IS BASED ON AUTHENTIC RECORDS. 4.1 IF A PLEADING REQUIRED TO BE VERIFIED CONTAINS A VERIFICATION BASED ON INFORMATION AND BELIEF, OR UPON KNOWLEDGE INFORMATION AND BELIEF, OR LACKS A PROPER VERIFICATION, it shall be treated as an UNSIGNED PLEADING. 4.2 A pleading need not be verified, except when otherwise specifically required by LAW OR RULES110.

4.3 A VERIFICATION IS REQUIRED under rules governing (a) cases covered by the Rules on Summary Procedure (b) Petition for relief from judgment / order111 (c) Petition for review112 (d) Appeal by certiorari 113 (e)Petition for annulment of judgment 114 (f) Injunction115 (g) Receivership 116 (h) Support 117 (i) 69) Certiorari, Prohibition or Mandamus 118 (j) Quo Warranto 119 (k) Expropriation 120 (l) Forcible Entry / Detainer121 (m) Indirect Contempt 122 4.4 An improper verification is cured by amending the pleading with the CORRECT VERIFICATION

5. CERTIFICATION AGAINST FORUM SHOPPING is executed by the plaintiff or principal party who shall certify under OATH in the COMPLAINT or INITIATORY PLEADING ASSERTING A CLAIM OR RELIEF OR IN A SWORN CERTIFICATION ANNEXED THERETO AND SIMULTANEOUSLY FILE THEREWITH: (1) That he has not therefore commenced any action or filed any claim involving the same issues in any COURT, TRIBUNAL OR QUASI-JUDICIAL AGENCY, AND to the best of his knowledge, no such other claim or action is pending therein (2) If there is such other pending action or claim, a complete statement of the present status thereof (3) That if he should thereafter learn that the same or similar action has been filed or is pending, he shall report that fact within 5 days therefrom to the court wherein his complaint / initiatory pleading has been filed.123 5.1 The lack of a certification is not curable by amendment, but such shall be cause for dismissal of the complaint. The dismissal shall be without PREJUDICE unless otherwise provided, upon motion and after hearing. 124 5.2 The NON-COMPLIANCE WITH ANY OF THE UNDERTAKINGS OR SUBMISSION OF A FALSE CERTIFICATE shall constitute indirect contempt without prejudice to corresponding administrative and criminal actions. PROVIDED, that if the acts of the party or counsel clearly constitute WILLFUL and DELIBERATE forum shopping, it shall then be ground for SUMMARY DISMISSAL WITH PREJUDICE, and shall constitute DIRECT CONTEMPT as well as cause for administrative sanctions. 5.3 Forum Shopping exists when as a result of an adverse opinion in one forum, a party seeks a favorable opinion, other than by appeal or certiorari, in another, or when he institutes two or more actions or proceedings grounded on the same cause, on the gamble that one or the other court would make a favorable disposition. The most important factor in determining the existence of forum shopping is the vaxation caused the courts and parties-litigants by a party who asks different courts to rule on the same or substantially the same reliefs.125

110 111

Supra, Section 4, Rule 7 Supra, Section 3, Rule 38 112 Supra, Section 1, Rule 42 113 Supra, Section 1, Rule 45 114 Supra, Section 4, Rule 47 115 Supra, Section 1, Rule 58 116 Supra, Section 1, Rule 59 117 Supra, Section 1, Rule 61
118 119

Supra, Sections 1,2,3, Rule 65 Supra, Section 1, Rule 66 120 Supra, Section 1, Rule 67 121 Supra, Section 3, Rule 70 122 Supra, Section 3, Rule 71 123 Supra, Section 5, Rule 7 124 Castillo v Court of Appeals, 426 SCRA 369 125 Benguet Electric Cooperative, Inc. v Flores, 287 SCRA 449 16

5.3.1 It also occurs when a party attempts to have his action tried in a particular court or jurisdiction where he feels he will receive the most favorable judgment. 5.3.2 It has been said to exist also where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in another. Hence, the following requisites concur: (a) identity of parties, or at least such parties represent the same interests in both actions (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts, and (c) identity of the two preceding particulars is such that any judgment rendered in the other action will, regardless, of which party is successful, amount to res judicata in the action under consideration. 126 5.4 The purpose of the certification against forum shopping is to prohibit and penalize the evils of forum shopping. 127 Forum Shopping is a deplorable practice because it results in unnecessarily clogging of the already heavily burdened docket of the courts.128 5.5 The execution of the certification is required to be accomplished by the petitioner himself as it is the petitioner himself who has actual knowledge of whether or not he has initiated similar actions or proceedings in different courts or agencies. 5.5.1 If there are several plaintiffs, the general rule is that all of them must sign BUT IT MUST BE NOTED that there is jurisprudence to the effect that: (1) the execution by one of the petitioners or plaintiffs in a case constitutes substantial compliance where all the petitioners, being relatives and co-owners of the properties in dispute, share a common interest in the subject matter of the case.129 (2) the case is filed as a collective raising only one cause of action or defense 130 (3) the signing by 1 spouse substantially complies as they have a common interest in the property 131 or is signed by husband alone is substantial compliance as subject of case is recovery of conjugal property132 (4) 2 of the parties did not sign as they were abroad. It was considered reasonable cause to exempt them from compliance with the requirement that they personally execute the certificate133 5.5.2 If the plaintiff or petitioner is a juridical person, the Board may pass a specific resolution allowing a representative to sign.

5.5.3 Counsel has been allowed to sign the certification in the following instances: (a) Where the counsel is the Solicitor General has been deemed to be substantial compliance 134 (b)Certification by acting regional counsel of NPC was accepted because it was his basic function to prepare pleadings and to represent NPC Mindanao as such he was in the best position to know and certify if a similar action was pleading or had been filed135 (c) Certification was signed by counsel. The procedural lapse may be overlooked in the interest of substantial justice.136 (d) Certification was executed by an in house counsel is sufficient compliance with the Rules137 SEE: Ateneo de Naga vs. Bernal, GR 160455, May 9, 2005 The rule in Section 1, Rule 17 is that the plaintiff may dismiss his complaint by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. As a general rule, such dismissal is without prejudice. Suppose P filed a complaint against D, and before service of the answer or of motion for summary judgment, P caused the dismissal of his complaint by filing a notice of dismissal. Months later, P filed the same complaint against D. In the certification on non-forum shopping appended to the second complaint, P failed to mention about the prior filing and dismissal of the first case. Is Ps failure to mention about the prior filing and dismissal of the first case fatal? No. An omission in the certification on non-forum shopping about any event or case which would not constitute res judicata or litis pendentia is not fatal. In the problem presented, the dismissal of the first case would not constitute res judicata precisely because such dismissal is without prejudice to the refilling of the case. (Roxas v. CA, G.R. No. 139337, Aug. 15, 2001.) To be included as 4th paragraph of the answer in Q&A No. 13; p. 62: Also, a case pending before the Ombudsman cannot be considered for purposes of determining forum shopping as the power of the Ombudsman is only investigative in character and its resolution cannot constitute a valid and final judgment because its duty is to file the appropriate case before the Sandiganbayan. (Sevilla v. Laggui, A.M. No. RTJ-01-1612, Aug. 14, 2001.)

CAN THE CERTIFICATION BE FILED LATERGeneral Rule NO Note Uy v. Land Bank GR 136100 July 24, 2000-REINSTATEMENT OF THE CASE AFTER MOTION TO ADMIT CERTIFICATION BUT: Loyola v. CA 245 S 477 one day after, Roadway Express v. CA 264 S 696 14 days before the CA dismissed Petition for Review.
126 127

TADI v Solilapsi, 394 SCRA 269 BA Savings Bank v Sia, 336 SCRA 484 128 Ruiz v Drilon, 209 SCRA 695 129 Cavile v Heirs of Clarito Cavile, 400 SCRA 255, Gudoy v Guadalquiver, 429 SCRA 722 130 HCC Construction and Development Corporation v Emily Homes Subdivision Homeowners Association, 411 SCRA 504 131 Dar v Alonso Legasto, 339 SCRA 306 132 Docena v Lapesura, 355 SCRA 658 133 Hamilton v Levy, 344 SCRA 821 134 Commissioner of Internal Revenue v SC Johnson, 309 SCRA 87 135 Robern Development Corporation v Quitain, 315 SCRA 150 136 Sy Chin v Court of Appeals, 345 SCRA 673 137 Mercury Drug Corporation v Libunao, 434 SCRA 404 17

Shipside v. Ca GR 143377, Feb 20, 2001 motion for reconsideration showing authority of petitioner to execute certification prior to filing. REASON special or compelling reasons justified relaxation of the Rule IN Shipside merits of case justified deviation. DISTINGUISH BETWEEN VERIFICATION / CERTIFICATION Verification -allegations are true and correct based on personal knowledge / authentic records -required in complaints, initiatory pleadings and in some responsive pleadings. -may be cured by amendment or order to verify -may not result in dismissal -may be signed by counsel Certification no action/claim involving the same issues have been filed or is pending required only in complaints/initiatory pleadings. cannot be cured by amendment results in dismissal by the party himself

RULE 8 MANNER OF MAKING ALLEGATIONS IN PLEADINGS HOW ALLEGATIONS ARE MADE IN A PLEADING In general, a pleading must contain in a METHODICAL and LOGICAL form a PLAIN, CONCISE, and DIRECT statement of the ULTIMATE FACTS on which the party pleading relies for his claim or defense138 1. ULTIMATE FACTS are the essential facts constituting the plaintiffs cause of action. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient. Examples: (a) That an obligation has been constituted, that party must comply, that there is no compliance (b)That party is the owner of property, that he has a right to its use/possession, that he has been dispossessed 2. Mere EVIDENTIARY FACTS or those that are necessary for the determination of the ultimate facts are to be omitted. Evidentiary facts are the premises upon which conclusions of ultimate facts are based. Examples: (a)That obligation as covered by promissory note was executed before specified persons, that defendant has several letters indicating intention to/or not to pay (b) How property was acquired 3. LAWS may be pleaded only if the pleading is an Answer.

PLEADING ALTERNATIVE CAUSES OF ACTION OR DEFENSES 1. A party may set forth two or more statements of a claim or a defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of actions or defenses. If two or more statements are made in the alternative and if one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements.139Example: (a) allegations for breach of contract of carriage and tort (b) allegations for breach of contract and fraud (c) defense of failure to repurchase by plaintiff and that property was inherited are inconsistent defenses. 2. other. Overruling of one does not bar other defense. However, if not set up, determination of one shall bar the determination of the

3. The OBJECT OF PROVISION is to relieve a party from making a definite election in cases where his claim or defense might fall within two different substantive classes. SO, a party may state as many claims/defenses as he has regardless of inconsistency. HOW TO PLEAD CONDITIONS PRECEDENT A general averment of the performance or occurrence of all conditions precedent is sufficient. 140 (a) that earnest efforts at a compromise have been exerted, the suit being one between members of the same family (b) that prior resort to conciliation has been undertaken to no avail PLEADING CAPACITY TO SUE AND TO BE SUED The following must be averred: (1) capacity to sue or be sued (2) authority of a party to sue or be sued in a representative capacity (3) legal existence of an organized association of persons that is made a party.141
138 139

Supra, Section 1, Rule 8 Supra, Section 2, Rule 8 140 Supra, Section 3, Rule 8 141 Supra, Section 4, Rule 8 18

1. Note the cross reference to Sections 1 and 3, Rule 3 referring to who may be parties and representative parties, and to Section 1(d), Rule 16 referring to a motion to dismiss on the ground of lack of legal capacity to sue, meaning that a party is not in possession of his civil rights, does not have the qualification to appear, or does not have the character or representation claimed. 2. A party desiring to raise the issue of lack of legal capacity shall do so by specific denial, which shall include such supporting particulars as peculiarly within the pleaders knowledge. HOW TO AVER FRAUD, MISTAKE, CONDITION OF MIND Fraud and mistake must be stated with particularity. Condition of mind, such as malice, intent, knowledge may be averred generally.142 HOW TO AVER/ PLEAD A JUDGMENT/DECISION OF A DOMESTIC/FOREIGN COURT, JUDICIAL/QUASI-JUDICIAL OFFICER TRIBUNAL BOARD It is sufficient that a general allegation of the existence of the judgment is made, without setting forth matter showing jurisdiction to render it.143 Jurisdiction in this case is presumed. IF ACTION/DEFENSE IS BASED ON AN ACTIONABLE DOCUMENT 1. Where the action or defense is based on a written document ( an actionable document) it is pleaded by (a) setting forth the substance of such document in the pleading and attaching the original/copy as an annex OR (b) setting it forth verbatim in the pleading.144 2. AN ACTIONABLE DOCUMENT IS CONTESTED by specifically denying it under oath and setting forth what he claims to be the fact. 2.1 The requirement DOES NOT APPLY IF: (a) adverse party is not/does not appear to be a party to the actionable document. Example: Heirs are sued on a document executed by a person they will inherit from (b) when compliance with an order for an inspection of the original document is refused.145 (c) when the document is not an actionable document but is merely evidence of the claim or existence of the actionable document . Example: demand letters (d) when the party who has the benefit of an implied admission waives the benefit Example: he presents evidence as to genuineness and due execution 3. The EFFECT of not SPECIFICALLY DENYING AN ACTIONABLE DOCUMENT UNDER OATH is that the genuineness and due execution is admitted. MEANING, that it was executed by him/by someone authorized by him, it was in the words/figures set forth in the pleading, and that the formal requirements of law have been observed. THUS, there is no need to present it formally in evidence because it is an admitted fact. 3.1 A PARTY THOUGH IS NOT BARRED FROM INTERPOSING OTHER DEFENSES as long as it is not inconsistent with the implied admission. Example: (a) the defense of forgery would be inconsistent, ON THE OTHER HAND (b) Fraud/Payment are not inconsistent and may be allowed. HOW ARE OFFICIAL ACT/DOCUMENTS AVERRED It is sufficient to aver that document was issued or act done in compliance with law. 146 Example: issuance of certification to file action by Lupon Tagapayapa chair. HOW ARE SPECIFIC DENIALS MADE A specific denial is made 147 by: (a) Specifically denying the material averment in the pleading of the adverse party and setting forth the substance of the matter upon which he relies for such denial (b) Deny only a part of the averment by specifying that so much of it is true and deny the remainder (c) Allegation of lack of knowledge or information sufficient to form a belief as to the truth of the material averment in the pleading of the adverse party. 1. If allegations are not denied in the prescribed manner, a party is deemed to have made a GENERAL DENIAL which is TANTAMOUNT TO AN ADMISSION. 148(Section 11) 1.1 An exception to the rule are allegations that pertain to UNLIQUIDATED DAMAGES

1.2 Note that when the allegations pertain to (a) allegations of usury in a complaint to recover usurious interest,OR (b) genuineness and due execution of an actionable document are required to be made UNDER OATH OTHERWISE THEY ARE ADMITTED. STRIKING OUT OF A PLEADING OR MATTER CONTAINED THEREIN
142 143

Supra, Section 5, Rule 8 Supra, Section 6, Rule 8 144 Supra, Section 7, Rule 8 145 Supra, Section 8, Rule 8 146 Supra, Section 9, Rule 8 147 Supra, Section 10, Rule 8 148 Supra, Section 11, Rule 8 19

If the pleading or any matter therein is SHAM, FALSE, REDUNDANT, IMMATERIAL, IMPERTINENT OR SCANDALOUS, the court can order the pleading or matter contained therein to be stricken therefrom (a) upon motion made by a party before responding to a pleading (b) if no responsive pleading is allowed / permitted by the Rules, upon motion by a party within 20 days after service of the pleading, OR (c) upon the Courts own initiative149 RULE 9 EFFECTS OF FAILURE TO PLEAD The general effect of the failure to plead is that the defenses / objections not so pleaded in an Answer or a Motion to Dismiss are deemed waived. HOWEVER, if it appears from the pleadings or evidence on record that (a) the Court has no jurisdiction over the subject matter (b) there is another action pending between the same parties for the same cause, or (c) the action is barred by prior judgment or statute of limitations, the court shall DISMISS the claim.150 These defenses are not barred if not set up (Section 1) 1. A compulsory counterclaim or a cross-claim not set up shall also be barred. 151 Note that this is in consonance with the requirement of the Rules that a a compulsory counterclaim or cross claim existing at the time of the filing of the answer must be contained therein152 BUT if it arises after the filing of an answer, it may be set up in a supplemental pleading before judgment 153 OR if failure is due to oversight, inadvertence, excusable neglect or when justice requires, it may be set up by amendment with leave of court before judgment. 154 WHAT RESULTS IF DEFENDANT / DEFENDING PARTY FAILS TO ANSWER WITHIN THE TIME ALLOWED If there is failure to plead within the time allowed, the defendant may be declared in default upon compliance with the following: (a) the plaintiff must file a motion to declare the defendant in default (b) serve notice of his motion to defendant, which must include a notice of hearing (c) at the hearing, show proof of failure on the part of the defendant to file his answer within the reglamentary period. 155 Note that a court cannot motu propio declare a defendant in default. ONCE DECLARED IN DEFAULT The court can proceed to render judgment granting the claimant such relief as his pleading may warrant, UNLESS, the Court in its discretion requires the claimant to submit the evidence. Such reception may be delegated to the Clerk of Court, who must be a member of the BAR 1. In addition, the defaulted defendant is entitled to NOTICE OF SUBSEQUENT PROCEEDINGS but HE CANNOT TAKE PART IN THE TRIAL.156 2. EFFECT OF A PARTIAL DEFAULT, where a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer while others do not , THE COURT SHALL TRY THE CASE AGAINST ALL UPON THE ANSWERS THUS FILED AND RENDER JUDGMENT UPON THE EVIDENCE PRESENTED. 157 3. THE EXTENT OF RELIEF THAT MAY BE AWARDED shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages.158 WHAT ARE THE REMEDIES OF A DEFAULTED DEFENDANT The available remedies of a defendant who is declared in default are as follows: 1. MOTION TO SET ASIDE ORDER OF DEFAULT- under oath, filed at any time after notice of declaration in default and before judgment. Defendant must show by an AFFIDAVIT OF MERIT that failure to file an answer was due to FAME and that he has a meritorious defense 2. MOTION FOR NEW TRIAL on the ground of FAME if the trial court has rendered judgment but it has not yet become final 3. APPEAL the judgment by default (not the order as it is interlocutory, and cannot be appealed) within 15 days from notice of judgment. Note: that if in the meantime, a motion to set aside order of defendant has been denied, it can be assigned as an error in the appeal. THE NON FILING THOUGH DOES NOT BAR APPEAL 4. PETITION FOR RELIEF FROM JUDGMENT based on FAME provided no appeal has been taken within 60 days from notice and 6 months from entry of judgment.159 5. ACTION TO ANNUL JUDGMENT based on EXTRINSIC / COLLATERAL FRAUD within 4 years from discovery of the fraud (ONE THAT INDUCES ONE NOT TO PRESENT HIS CASE/PREVENTS FULL AND FAIR HEARING)

149 150

Supra, Section 12, Rule 8 Supra, Section 1, Rule 9 151 Supra, Section 2, Rule 9 152 Supra, Section 8, Rule 11 153 Supra, Section 9, Rule 11 154 Supra, Section 10, Rule 11 155 Supra, Section 3, Rule 9 156 Supra, Section 3 (a), Rule 9 157 Supra, Section 3 (c), Rule 9 158 Supra, Section 3 (d), Rule 9 159 Supra, Rule 38 20

6. CERTIORARI if improperly declared in default OR motion to set aside was denied and is tainted with grave abuse of discretion. Filed within 60 days from notice or judgment order resolution or 60 days from denial (notice) of motion for reconsideration. 160 CASES WHERE NO DEFAULT LIES In the following cases, default does not lie: (a) annulment of marriage (b)declaration of nullity of marriage (c) legal separation (d) expropriation, and (e) forcible entry, illegal detainer and the other actions covered by the Rules on Summary Procedure. In the first three cases, the court shall order the prosecuting attorney to investigate whether or not collusion exists, and if there is no collusion, to intervene for the state in order to see that the evidence so presented is not fabricated.161 RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS WHAT ARE AMENDMENTS Amendments consist of: (1 )Adding or striking out an allegation or the name of any party (2) Corrections of mistakes in the name of a party or mistaken or inadequate allegation or description in any other respect. PURPOSE FOR ALLOWING AMENDMENTS Actual merits of the controversy may speedily be determined without regard to technicalities and in the most expeditious and inexpensive manner. 162 KINDS OF AMENDMENTS The kinds of amendments are: 1. Formal Amendments which are defects in the designation of the parties, other clerical or typographical errors that may summarily be corrected provided no prejudice is caused the adverse party and are allowed at any stage, at the Courts own initiative or on motion. 163 2. ALL OTHER AMENDMENTS ARE considered as SUBSTANTIAL.

WHEN AMENDMENTS CAN BE MADE 1. Formal and Substantial amendments can be made once as a matter of right before a responsive pleading is served, or in case of a Reply, at any time within 10 days after it is served.164 1.1 Note that the FILING OF MOTION TO DISMISS does not bar an amendment as it is not a responsive pleading, but can no longer be made if the order dismissing the complaint has become final. 1.2 Prior to the filing of an answer, the plaintiff has the absolute right to amend the complaint whether a new cause of action or change in theory is introduced.165 2. After the filing of a responsive pleading, Substantial amendments require leave of court, but leave may be refused if it appears to the court that the motion was on made with INTENT TO DELAY. Orders related to leave shall be made upon motion filed in court, with notice to the adverse party and opportunity to be heard.166 2.1 That the amendments should not substantially alter the cause of action or defense is NO LONGER THE RULE as the Rules now allow the pleading of alternative causes of action/defenses 167 and that all such causes or defenses must be pleaded in accordance with the rule on waiver.168 2.2 The Trial Court may refuse leave or amendments when: (a) a responsive pleading has been filed and the motion for leave to amend is made with intent to delay (b) purpose is to confer jurisdiction as the court must first acquire jurisdiction before it can act 169 (c) purpose is to cure the defect of a non-existent cause of action. Example: An amendment of the complaint to correct its having been filed prematurely or when the obligation was not yet due. 2.3 IF NO LEAVE IS OBTAINED, the pleading it has no standing and may be stricken from records

160 161

Supra, Rule 65 Supra, Section 3,(e), Rule 9 162 Supra, Section 1, Rule 10 163 Supra, Section 4, Rule 10 164 Supra, Section 2, Rule 10 165 Remington Industrial Sales Corporation v Court of Appeals, 382 SCRA 499 166 Supra, Section 3, Rule 10 167 Supra, Section 2, Rule 8 168 Supra, Section 1, Rule 9 169 Tirona v Alejo, 367 SCRA 17, Gaspar v Dorado, 15 SCRA 331 21

2.4 PROBLEM: Complaint is filed against several defendants. Some defendants answer, the others have not yet filed their answers. Amendments will be allowed as a matter of right against those who have not filed answers, and with leave of court, as against those who have filed their answers.170 3. Substantial amendments can also be made when it is necessary to conform to the evidence. This occurs when issues are tried with the express or implied consent of parties. If such, they are treated in all respects as if they have been raised in the pleadings 171, thus paving the way for an amendment of the pleadings to conform to the evidence. This is made upon motion of any party, even after judgment THOUGH FAILURE TO AMEND DOES NOT AFFECT THE RESULT OF THE TRIAL. Example: Increased claim for the payment of damages OR made to authorize presentation of evidence. This occurs when evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings amended and shall do so with liberality to authorize presentation of evidence.172 3.1 THUS, the failure of a complaint to state a cause of action may be cured by (1) Presentation of evidence to prove that cause of action followed by an amendment to conform to evidence, OR (2) Evidence is objected to and the trial court sustains the objection, this is then followed by an amendment with leave of court to authorize presentation of evidence. Same remedies may be resorted to WHEN A PARTY FAILS TO RAISE A DEFENSE IN HIS PLEADING. THE EFFECTS OF AN AMENDED PLEADING 1. It supersedes the pleading that it amends

2. Admissions in the superseded pleading may be received in evidence against the pleader because it is not expunged from the records and admissions in the superseded pleading are in the nature of judicial admissions made by a party in the course of the proceedings which do not require proof and ordinarily cannot be contradicted except by showing that it was made through palpable mistake or that no such admission was made.173 3. Claims or defenses alleged in the superseded pleading but not incorporated in the amended pleading shall be deemed waived.174 HOW IS AN AMENDED PLEADING FILED A new copy of the entire pleading incorporating the amendments which shall be indicated by appropriate marks shall be filed.175 1. NOTE that the date of filing of amended pleadings does not retroact to the date of the filing of the original pleading. Hence, the statute of limitations runs until the filing of the amendment, but, an amendment that merely supplements and amplifies facts originally alleged in the complaint relates back to the date of the commencement of the action and is not barred by the statute of limitations that expired after service of the original complaint. Example: The statement of a cause of action is imperfect and is corrected by an amended complaint, the plea of prescription relates to the time of filing BUT the rule will not apply if a new defendant is impleaded in the amended complaint and prior to its filing prescription has set in. WHAT IS A SUPPLEMENTAL PLEADING A supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented Example: Setting up counterclaims after an answer has been filed.176 1. A supplemental pleading is always upon motion, and on such terms as are just and upon reasonable notice and the ADVERSE PARTY IS GIVEN 10 DAYS FROM NOTICE OF ORDER ADMITTING THE SUPPLEMENTAL PLEADING TO PLEAD THERETO. 177 2. A supplemental pleading is meant to supply deficiencies in aid of an original pleading, not to entirely substitute the latter.178 Thus, when the cause of action stated in the supplemental complaint is different from the cause of action mentioned in the original complaint, the court should not admit the supplemental complaint. 179 DISTINCTIONS BETWEEN AN AMENDED PLEADING AND A SUPPLEMENTAL PLEADING (1) An amended pleading is filed either as a matter of right or with leave, a supplemental pleading is always with leave (2) An amended pleading alleges matters occurring before the filing of the original pleading, while a supplemental pleading alleges matters occurring after the filing of the original pleading (3) An amended pleading supersedes the original pleading, while a supplemental pleading allows the original pleading to stand. RULE 11: WHEN RESPONSIVE PLEADINGS ARE TO BE FILED ANSWER TO THE COMPLAINT

170 171

Siasoco v Court of Appeals, 303 SCRA 186 Bernardo v Court of Appeals, 263 SCRA 660 172 Supra, Section 5, Rule 10 173 Supra, Section 4, Rule 129 174 Supra, Section 8, Rule 10 175 Supra, Section 7, Rule 10 176 Supra, Section 9, Rule 11 and Section 2, Rule 9 177 Supra, Section 6, Rule 10 178 Shoemart, Incorporated v Court of Appeals, 190 SCRA 189 179 APT v Court of Appeals, 324 SCRA 533 22

1. Within 15 days after service of summons unless a different period is fixed by the Court. 180 The same period applies to third party complaints. 181 2. If covered by the Rules on Summary Procedure, it is 10 days

3. If the complaint is amended: (a) as a matter of right, within 15 days from being served with a copy (b) if with leave of court, within 10 days from notice of order admitting the same. If no new answer is filed, a previously filed answer may serve as the answer.HOLDS ALSO FOR ANSWERS TO AMENDED COUNTER-CLAIMS, CROSS CLAIMS, THIRD PARTY (ETC) CLAIM OR COMPLAINTS IN INTERVENTION. 182 4. If defendant is a foreign private juridical entity, within 15 days if service of summons is made on the resident agent, within 30 days from receipt of summons by the entity at its home office if received by the government office designated by law.183 5. If it is a complaint in- intervention, within 15 days from notice of the order admitting the complaint in intervention

6. If it is a supplemental complaint, within 10 days from notice of the order admitting the supplemental complaint. The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed.184 7. If it involves a complaint served on a non-resident defendant who is not in the Philippines through any of the modes of extraterritorial service, including by publication, within a reasonable time which shall not be less than 60 days after notice as the court may specify in its order granting leave to effect extra-territorial service of summons ANSWER TO A CROSS CLAIM OR COUNTER CLAIM The answer to a cross claim or a counter-claim shall be filed within 10 days from service. 185 NOTE that compulsory counterclaims need not be answered unless it raises issues not covered by the complaint . NOTE that it is required that a compulsory counterclaim or a cross claim existing at the filing of defendants answer must be included therein BUT, if it matures / or is acquired after serving of answer, it may with the courts permission be presented as such in a supplemental pleading. If already existing and not set up through oversight, inadvertence, or excusable neglect, it may, by leave of court be set up as such by amendment before judgment.186 REPLY It must be filed within 10 days from service of the pleading responded to. 187 Altough the filing of a reply is optional as if one is not filed, all new matters are deemed controverted.188 MAY THE TIME TO PLEAD BE EXTENDED Upon motion and on terms as may be just, the Court it may extend or allow it to be filed after the time fixed by the Rules. 189 The court may also, upon like terms, allow an answer or other pleading t be filed after the time fixed by these Rules. 1. 2. NOTE that in cases covered by the Rules on Summary Procedure, the period cannot be extended nor shortened. In quo warranto cases, the period may be shortened.190

3. A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda, or briefs, let the period lapse without submitting the same or offering an explanation for failure to do so.191 WHEN A COMPLAINT SHOULD BE FILED A complaint is not a responsive pleading. It is to be filed upon accrual of the cause of action or any time thereafter but before it is barred by prescription. RULE 12 BILL OF PARTICULARS WHAT IS A BILL OF PARTICULARS

180 181

Supra, Section 1, Rule 11 Supra, Section 5, Rule 11 182 Supra, Section 3, Rule 11 183 Supra, Section 2, Rule 11, Section 128, Corporation Code 184 Supra, Section 7, Rule 11 185 Supra, Section 4, Rule 11 186 Supra, Sections 8,9, and 10, Rule 11 187 Supra, Section 6, Rule 11 188 Supra, Section 10, Rule 6 189 Supra, Section 11, Rule 11 190 Supra, Section 8, Rule 66 191 Rabanal v Tugade, 383 SCRA 484 23

It is a definitive statement of any matter which is not covered with sufficient definiteness or particularity to enable him to properly prepare his responsive pleading.192 1. The PURPOSE of which is to make more particular or definite the ultimate facts in a pleading but is NOT INTENDED TO SUPPLY EVIDENTIARY MATTERS 2. It is to be resorted to when the complaint is deficient in details with respect to the factual basis of each and every item claimed, but such deficiency is not such as to amount to a failure to state a cause of action as the remedy then is to file a motion to dismiss.193 WHEN SHOULD IT BE FILED Before filing or responding to a pleading or before filing an answer. If pleading is a reply, within 10 days from service thereof WHEN WILL OR WHEN CAN COURT ACT UPON IT Upon filing of the motion that points out the defects complained of, the paragraphs wherein they are contained, and the details desired (it is a litigated motion, thus requires a notice of hearing) the CLERK OF COURT must IMMEDIATELY BRING IT TO THE ATTENTION OF THE COURT, who may deny or grant the motion OUTRIGHT or allow the parties an opportunity to be heard. 194 1. IF GRANTED, whether in WHOLE or in PART, the compliance therewith must be effected within 10 days from notice of order, unless a different period is fixed by the Court. 2. The BILL OF PARTICULARS may be filed either in a separate or in an amended pleading, serving a copy on the adverse party.195 ONCE filed, it becomes part of the pleading for which it is intended. 196 EFFECT OF NON-COMPLIANCE WITH ORDER In case of failure to obey or insufficient compliance, the Court may order the pleading or portions thereof to which the order was directed to be stricken out OR make such order as it deems just.197 HENCE, it may also dismiss for failure of the plaintiff to obey order of the Court.198 The striking out of a complaint by the lower court upon motion of the defendant for failure of the plaintiff to comply with an order requiring him to submit a bill of particulars as a ground for dismissal is equivalent to an adjudication on the merits unless otherwise provided by the court.199 WHEN MUST A RESPONSE / ANSWER BE FILED After service of a bill / definitive pleading OR notice of denial of the motion for a bill of particulars, the moving party has the remaining period that he was entitled to at the time of the filing of the motion, which shall not be less then 5 days in any event. 200 RULE 13 FILING / SERVICE OF PLEADINGS JUDGMENTS / OTHER PAPERS The Rule applies to all pleadings / papers as well as service thereof, except those for which a different mode of service is prescribed. 201 FILING / SERVICE DEFINED FILING is the act of presenting the pleading or other paper to the clerk of court, while SERVICE is the act of providing a party with a copy of the pleading / paper IF A PARTY IS REPRESENTED BY COUNSEL service is made upon counsel or one of them UNLESS service is ordered to be made upon the party by the Court. If there is one counsel for several parties, he is entitled to only one copy served by the opposite side. 202 MODES OF FILING The modes of filing are (1) Presenting the original copies of pleadings, appearances, motions, notices, orders, judgments and all other papers to the clerk of court, OR (2) By registered mail. 203 1. The clerk of court shall if filing be PERSONAL, endorse on the pleading, the date and the hour of filing. If it BY MAIL, the date appearing on the post office stamp / registry receipt shall be date of the filing / deposit of court. The envelope shall be attached to the record. It bears stressing that it is the date of mailing, not the date of receipt of the mail matter, which shall be considered as the date of filing.204 This has been the practice since mail is considered an agent of the Government. 205This is also known as the MAILBOX RULE.
192 193

Supra, Section 1, Rule 12 Sabangan v Manila Railroad Company, 28 SCRA 772 194 Supra, Section 2, Rule 12 195 Supra, Section 3, Rule 12 196 Supra, Section 6, Rule 12 197 Supra, Section 4, Rule 6 198 Supra, Section 3, Rule 17 199 Vda. De Quillosa v Salazar, 14 SCRA 656 200 Supra, Section 5, Rule 12 201 Supra, Section 1, Rule 13 202 Supra, Section 2, Rule 13 203 Supra, Section 3, Rule 13 204 Ansel v Aledo, 420 SCRA 645 205 Supra, Mintu v Court of Appeals, 53 SCRA 114 24

2. The PAPERS that are to served or ARE TO BE FILED / SERVED are JUDGMENTS, RESOLUTIONS, ORDERS, PLEADINGS SUBSEQUENT TO THE COMPLAINT, WRITTEN MOTIONS, NOTICE, APPEARANCES, REMAND, OFFER OF JUDGMENT OR SIMILAR PAPERS SHALL BE FILED AND SERVED UPON AFFECTED PARTIES 206 WHAT ARE THE MODES OF SERVICE The general rule is that PLEADINGS, MOTION, NOTICES, ORDERS, JUDGMENTS AND OTHER PAPERS shall be served PERSONALLY or by MAIL.207 1. IF PERSONALLY served, it may done: (a) by delivering personally a copy to party or his counsel, OR (b) leaving it in his office with a clerk or person having charge thereof, OR (3) IF NO PERSON IS FOUND IN THE OFFICE OR HE HAS NO OFFICE, by leaving a copy between the hours of 8am to 6pm at partys / counsels residence, if known, with a person of sufficient age and discretion residing therein.208 2. IF BY MAIL, by depositing a copy in the post office in a sealed envelope, plainly addressed to the party or counsel, if known, at his address / office, OTHERWISE, at his residence, if known, postage prepaid and with instructions to the postmaster to return the mail to sender after 10 days if UNDELIVERED. If no registry service is available in the locality of the addressee or sender, service may be by ordinary mail.209 2.1 If mailed by PRIVATE CARRIER, the date of actual receipt by the court of such pleading and not date of delivery to the carrier is deemed the date of filing of that pleading.210 3. mail. NOTE THOUGH THAT JUDGMENTS, FINAL ORDERS OR RESOLUTIONS shall be served personally or by registered

3.1 ALSO, if a party is summoned by publication, and he has failed to appear, judgments, final orders / resolutions shall also be served upon him by publication at the expense of the prevailing party.211 4. IF SERVICE CANNOT BE MADE personally or by mail, SUBSTITUTED SERVICE MAY BE AVAILED OF as long as the office and place of residence of the party or his counsel is also unknown, service may be made by delivering a copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery.212 WHEN SERVICE IS COMPLETE Service will be deemed complete: (a) Upon actual delivery if undertaken personally (b) Upon expiration of 10 days after mailing, unless the Court orders otherwise if undertaken by ordinary mail (c) Upon actual receipt by addressee or after 5 days from the date he received the 1st notice of the postmaster, whichever date is EARLIER, if undertaken by registered mail 213 (d) At the time of delivery to the clerk of court, if undertaken by substituted service WHAT IS THE RULE ON PRIORITY OF SERVICE Whenever practicable, service and filing of pleadings and other papers shall be done personally EXCEPT, with papers emanating from the court. A resort to other modes must be accompanied by an explanation why service or filing was not done personally. IF NOT, it may be cause to consider the paper as not filed. 214 1.Where the address of the respondents counsel is 83 kilometers away from the address of petitioners counsel, such distance makes personal service impracticable, and a written explanation why service was not done personally might have been superfluous. Liberal construction has been allowed in cases where the injustice to the adverse party is not commensurate with the degree of thoughtlessness in not complying with the procedure prescribed.215 WHAT CONSTITUTES PROOF OF FILING Proof of filing is shown by: (a) existence of the pleading or other paper in the records of the case (b) If not in the record, but is claimed to be: (1) FILED PERSONALLY by the written / stamped acknowledgment of its filing by the Clerk of Court on a copy, and (2) FILED BY REGISTERED MAIL by the registry receipt and the affidavit of the person who did the mailing containing a FULL STATEMENT OF: (a) Date and place of depositing in the post office in a sealed envelope addressed to the Court, with postage prepaid, and (b) Instructions are given to the postmaster to return the mail to sender after 10 days, if undelivered. 216 WHAT CONSTITUTES PROOF OF SERVICE Proof of service is shown by: (a) Written admission of the party served OR official return of the server, or affidavit of the party serving, containing a full statement of the DATE, PLACE, MANNER OR SERVICE if served personally (b) An affidavit of the person mailing of facts showing compliance with Section 7 of the Rule if served by ordinary mail (c) An affidavit and registry receipt
206 207

Supra, Section 4, Rule 13 Supra, Section 5, Rule 13 208 Supra, Section 6, Rule 13 209 Supra, Section 7, Rule 13 210 Industrial Timber Corporation v NLRC, 233 SCRA 597, Beneco v NLRC, 209 SCRA 55 211 Supra, Section 9, Rule 13 212 Supra, Section 8, Rule 13 213 Supra, Section 10, Rule 13 214 Supra, Section 11, Rule 13 215 Maceda v. De Guzman vda de Macatangay, 481 SCRA 415 216 Supra, Section 12, Rule 13 25

issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof, the unclaimed letter together of the sworn / certified copy of the notice given by the postmaster to the addressee.217 1. If service is by registered mail, proof of service consists of the affidavit of the person mailing and the registry receipt, both of which must be appended to the motion. Absent one or the other, or both, there is no proof of service.218 2. Late filing of the affidavit of service may be considered as substantial compliance with the Rules.219

3. Failure of a party to comply with the required proof of service may be excused where the motion is not a contentious motion and therefore, no right of the adverse party would be affected by the admission thereof. 220 NOTICE OF LIS PENDENS Is an announcement to the world that a particular property (real) is in litigation, serving as a warning that one who acquires the property or an interest therein does at his own risk which is filed with the Office of the Register of Deeds of the place where the property is located. 1. It shall contain (a) the names of the parties (b) object of the action or defense (c) description of the property.221

2. It is only from the time of the filing of the notice for record shall a purchaser or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action and only of its pendency against parties designated by their real names 3. It is available only in an action affecting title or right of possession of real property. Specifically in actions (a) to recover possession of real estate (b)to quiet title (c) to remove a cloud (d) for partition (e) other proceeding of any kind in court directly affecting title to the land or the use or occupation thereof or buildings thereon. 222 WHO MAY AVAIL OF IT The plaintiff or the defendant when affirmative relief is claimed in the answer WHEN MAY IT BE CANCELLED Upon order of the court when: It is shown that it has for the purpose of molesting the adverse party or it is not necessary to protect the rights of the party who caused it to be recorded.223 RULE 14 SUMMONS DEFINED It is a writ issued sealed and signed by the clerk of court upon filing of a complaint and payment of requisite legal fees 224 ISSUED to and DIRECTED to the defendant containing the following: (a) name of the court and of the parties (b) a direction that the defendant answer within the time fixed by the Rules, and (c) notice that unless defendant answers, plaintiff will take judgment by default and may be granted the relief prayed for. ATTACHED THERETO IS A COPY OF THE COMPLAINT AND ORDER FOR THE APPOINTMENT OF A GUARDIAN AD LITEM, IF ANY.225 1. It shall also contain a reminder to the defendant to observe restraint in filing a motion to dismiss and instead allege the grounds thereof as defenses in the answer. 226 WHO SERVES SUMMONS The sheriff, his deputy, or other proper Court Officer, or for justifiable reasons by any suitable person authorized by the court issuing the summons.227 1. An Officer having management of a jail or institution, if a defendant is a prisoner therein is deputized as a special sheriff for service of summons.228 SIGNIFICANCE OF SUMMONS The significance of summons is that it is the primary means by which a Court is able to acquire jurisdiction over the person of the defendant and to give notice that an action has been commenced against him.
217 218

Supra, Section 13, Rule 13 Cruz v Court of Appeals, 388 SCRA 72 219 Ace Navigation, Inc v Court of Appeals, 338 SCRA 70 220 PEA v Caoibes, Jr., 312 SCRA 767 221 Supra, Section 14, Rule 13 222 Viewmaster Construction Corporation v Maulit, 326 SCRA 821, Alberto v Court of Appeals, 334 SCRA 756 223 Lim v Vera Cruz, 356 SCRA 386 224 Supra, Section 1, Rule 14 225 Supra, Section 2, Rule 14 226 A.M. No. 03-1-09-SC 227 Supra, Section 3, Rule 14 228 Supra, Section 9, Rule 14 26

1. Jurisdiction cannot be acquired over the person of the defendant even if he knows of the case against him unless he is validly served with summons 229 OR the defendant voluntarily appears in the action. 2. Voluntary appearance shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.230 2.1 The rule abandons previous rulings of the Supreme Court that a motion to dismiss on the ground of lack of jurisdiction over the person be based solely on that ground, otherwise, it is a voluntary appearance. This is so because of the OMNIBUS MOTION RULE231 that all objections then available be included otherwise they are waived, as the only exceptions are (1) the Court has no jurisdiction over the subject matter; (2) there is another action pending between the same parties for the same cause; (3) or, the action is barred by prior judgment or statute of limitations. 232 These defenses are not barred if not set up. WHAT ARE THE MODES OF SERVICE 1. Service in person on the defendant by handling a copy thereof to the defendant in person, or if he refuses to receive and sign for it, by tendering it to him233 2. Substituted service by leaving a copy of the summons at defendants residence with some person of suitable age and discretion, then residing therein or leaving it at defendants office or regular place of business with some competent person in charge thereof.234 2.1 BUT, it may only be resorted to, if for justifiable causes, the defendant cannot be served personally within a reasonable time. The impossibility of service in person must be indicated in the return, otherwise, substituted service is void. 235 2.2 Service of summons on the defendant shall be by personal service first and only when the defendant cannot promptly be served in person will substituted service be availed of.236 3. Service by publication with leave of court, obtained by the filing of a motion in writing, supported by an affidavit of the plaintiff or some person in his behalf, setting forth the ground that allows resort to it.237 3.1 The grounds that allow service of summons by publication are: (a) Identity of the defendant is unknown OR whereabouts of the defendant is unknown and cannot be ascertained by diligent inquiry 238 (b) Defendant does not reside and is not found in the Philippines but the suit can be maintained against him because it is in REM OR QUASI IN REM 239 (c) Defendant is a Philippine resident but is temporarily out of the country. 240 Note the cross reference with Section 15 and the fact that SUBSTITUTED SERVICE MAY ALSO BE AVAILED OF. 4. Extra-Territorial Service is allowed in suits against a non-resident defendant not found in the Philippines can be made by:

4.1 (a) Personal service (b) Publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address (c) Or any other manner the court may deem sufficient.241 Resort to registered mail has been deemed appropriate. 242 4.2 EXTRA-TERRITORIAL SERVICE CAN BE AVAILED OF when: (a) Action affects the personal status of the plaintiff (b) Action relates to, or the subject of which is property within the Philippines in which the defendant has or claims a lien or interest, actual or contingent (c) When the relief demanded, in whole or in part consists of excluding the defendant from any interest in property located in the Philippines (d) When the defendants property has been attached in the Philippines. 243 4.3 Resort to extra-territorial service requires leave of court.

UPON WHOM MAY SERVICE OF SUMMONS BE MADE Service of summons is to be made upon the defendant. If the defendant is: (a) AN ENTITY WITHOUT JURIDICAL PERSONALITY it is to be served upon any one of them or upon person in charge of the office or place of business maintained in such name BUT such shall not bind individually any person whose connection with the entity has, UPON DUE NOTICE, been severed before the action has brought 244 (b) MINOR, INSANE OR OTHERWISE INCOMPETENT it is to be served upon him personally and
229 230

UCPB v Ongpin, 368 SCRA 464 Supra, Section 20, Rules 14 231 Supra, Section 8, Rule 15 232 Supra, Section 1, Rule 9 233 Supra, Section 6, Rule 14 234 Supra, Section 7, Rule 14 235 Hamilton v Rey, GR 139283, November 15, 2000 236 Samartino v Raon, 383 SCRA 664 237 Supra, Section 17, Rule 14 238 Supra, Section 14, Rule 14 239 Supra, Section 15, Rule 14 240 Supra, Section 16, Rule 14 241 Supra, Section 15, Rule 14, Valmonte v Court of Appeals, 252 SCRA 92 242 Cariaga v Malaya, 143 SCRA 441 243 Supra, Section 15, Rule 14 244 Supra, Section 8, Rule 14 27

his guardian / or guardian ad litem. In addition, in case of a minor, service may also be made on his father or mother 245 (c) REPUBLIC OF THE PHILIPPINES it is to be served on the Solicitor General 246 (d) PROVINCE, CITY,MUNICIPALITY OR SIMILAR PUBLIC CORPORATION it is to be served on the executive head, or on such other officers as the law or court may direct 247 (e) DOMESTIC PRIVATE JURIDICAL ENTITY its is to be served on the president, managing partner, general manager, corporate secretary, treasurer or in house counsel. 248 Note the abandonment of doctrine of substantial compliance. 249 (f) FOREIGN PRIVATE JURIDICAL ENTITY it is to be served upon its resident agent. If there be no resident agent, the Government official designated by law such as the SEC, Insurance Commissioner, Superintendent of Banks. If none, any of its officers or agents in the Philippines. Note the required sequence of service. In addition, if a lawyer enters an appearance without proof of having been engaged by the foreign corporation, no voluntary appearance can be inferred.250 AFTER SERVICE IS COMPLETE, WHAT MUST SERVER DO 1. Within 5 days after completion, a copy of the return must be served, personally or by registered mail, to plaintiffs counsel, and he shall return the summons to the clerk of court who issued it together with proof of service.251 2. PROOF OF SERVICE is the writing executed by the server setting forth (1) the manner, place and date of service; (2) the paper/s which have been served with the process and name of the person who received the same. IT SHALL BE SWORN TO WHEN MADE BY A PERSON OTHER THAN THE SHERIFF / DEPUTY. 252 2.1 IF SUMMON IS BY PUBLICATION, PROOF OF SERVICE CONSISTS OF: (a) Affidavit of printer, foreman, principal clerk editor, business manager or advertising manager, COPY OF PUBLICATION ATTACHED, and (b) Affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid directed to the defendant by registered mail at / to his last known address.253 RULE 15 MOTIONS DEFINED A motion is an application for relief other than a pleading.254 REQUISITES OF A VALID MOTION 1. Shall be in writing except when made in open court or in the course of the hearing or trial. 255 Example: a motion for continuance made in presence of adverse party. 2. It must state the relief sought to be obtained and the grounds on which it is based, and if required by the rules or necessary to prove facts alleged therein, it shall be supported by affidavits or other papers.256 3. It shall be set for hearing by the applicant except when the motion can be acted upon by the court without prejudicing the rights of the adverse party.257 Example: Motion for extension of time to plead 4. It must contain a notice of hearing addressed to all parties concerned, specifying the time, date of the hearing which must not be later than 10 days after the filing thereof. 258 4.1 A motion without a notice of hearing is pro-forma or a mere scrap of paper. It presents no question which the court should decide. The rationale behind the rule is plain: unless the movant sets the time and place of hearing, the court will be unable to determine whether the adverse party agrees or objects to the motion, and if he objects, to hear him on his objection. The objective is to avoid a capricious change of mind in order to provide due process to both parties and ensure impartiality.259 4.2 The absence of the notice of hearing will not toll the running of the reglementary period for appeal. 260

5. It must be served, together with the notice of hearing on the adverse party at least 3 days before the date of hearing UNLESS THE COURT FOR GOOD CAUSE SETS THE HEARING EARLIER.261

245 246

Supra, Section 10, Rule 14 Supra, Section 13, Rule 14 247 Supra, Section 13, Rule 14 248 Supra, Section 11, Rule 14 249 Mason v Court of Appeals, 413 SCRA 303, E.B. Villarosa and Partner Co, Ltd v. Benito, 312 SCRA 65 250 Litton Mills v Court of Appeals, 256 SCRA 696 251 Supra, Section 4, Rule 14 252 Supra, Section 18, Rule 14 253 Supra, Section 19, Rule 14 254 Supra, Section 1, Rule 15, 255 Supra, Section 2, Rule 15 256 Supra, Section 3, Rule 15 257 Supra, Section 4, Rule 15 258 Supra, Section 5, Rule 15 259 Fajardo v Court of Appeals, 354 SCRA 736 260 Cledera v Sarmiento, 39 SCRA 553 261 Supra, Section 4, Rule 15 28

5.1 The purpose of the three day notice rule is to avoid surprise upon the opposite party and to give him time to study and meet the arguments of the motion.262 6. 6.1 6.2 There must be proof of service of every written motion set for hearing otherwise it shall not be acted upon. 263 As a general rule, proof of service is mandatory.264 A judge can act ex-parte on a motion where the rights of the adverse party are not affected.265

WHEN SHOULD MOTIONS BE SET All motions must be scheduled for hearing on Friday afternoons or if it be a non-working holiday, in the afternoon of the next working day UNLESS THE MOTION REQUIRES IMMEDIATE ACTION.266This day is MOTION DAY. WHAT SHOULD A MOTION CONTAIN 1. A motion attacking a pleading (motion to dismiss) order, judgment, or proceedings (motion for reconsideration) shall include all objections then available, and all objections not so included are deemed waived EXCEPT the defenses of Lack of Jurisdiction, Litis Pendentia, Res Judicata, Statute of Limitations. 267 1.1 This is the OMNIBUS MOTION RULE. 268

1.2 The purpose of the Rule is to obviate multiplicity of motions as well as discourage dilatory pleadings. 269 Litigants should not be allowed to reiterate identical motions speculating on the possible change of opinion of the court or judges thereof.270 1.3 It requires the movant to raise all available exceptions in a single opportunity to avoid multiple piecemeal objections. But to apply the statutory norm, THE OBJECTIONS MUST BE AVAILABLE TO THE PARTY AT THE TIME THE MOTION WAS FILED. 271 2. IF MOTION IS ONE FOR LEAVE TO FILE A PLEADING OR MOTION, IT SHALL BE ACCOMPANIED BY THE PLEADING / MOTION SOUGHT TO BE ADMITTED. 272 Example: Motion for leave to admit amended complaint. 3. As to FORM, the Rules applicable to pleadings shall apply to written motions as far as it concerns captions, designation, signature and other matters.273 RULE 16 MOTION TO DISMISS WHEN AND HOW IT CAN BE FILED 1. By Motion, within the time for the filing of an answer but before the filing of an answer.

1.1 The rule is not absolute as a motion to dismiss may still be filed after answer on the ground of (a) lack of jurisdiction (b) litis pendentia (c) lack of a cause of action, and (d) discovery during trial of evidence that would constitute ground for dismissal. 274 2. AS AN AFFIRMATIVE DEFENSE IN THE ANSWER, and in the discretion of the court, a preliminary hearing may be had as if a motion to dismiss has been filed. IF ACTION IS DISMISSED, it shall be without prejudice to the prosecution in the same / separate action of a counter-claim pleaded in the answer.275 WHAT GROUNDS ARE AVAILABLE A motion to dismiss may be made on any of the following grounds: 276 1. 2. 3.
262 263

The court has no jurisdiction over the person of the defending party The court has not jurisdiction over the subject matter of the claims Venue is improperly laid

Remonte v. Bonto, 16 SCRA 257 Supra, Section 6, Rule 15 264 Cruz v Court of Appeals, 388 SCRA 72 265 Sumadchat v Court of Appeals, 111 SCRA 488 266 Supra, Section 7, Rule 15 267 Supra, Section 1, Rule 9 268 Supra, Section 8, Rule 15 269 Dacanay v Alvendia, 30 SCRA 31 270 Miranda v Court of Appeals, 71 SCRA 295 271 PH Credit Corporation v Court of Appeals, 370 SCRA 155 272 Supra, Section 9, Rule 15 273 Supra, Section 10, Rule 15 274 Panganiban v Pilipinas Shell Petroleum Corporation, 395 SCRA 624 275 Supra, Section 6, Rule 16 276 Supra, Section 1, Rule 16 29

3.1 4.

An objection to improper venue must be made before a responsive pleading is filed, otherwise it is deemed waived.277 Plaintiff has no legal capacity to sue

4.1 This means that he is not in exercise of his civil rights, or does not have the necessary qualification to appear or does not have the character / representation he claims AS OPPOSED TO the LACK OF PERSONALITY TO SUE which means that he is NOT the real party in interest, and the basis for dismissal then is NO CAUSE OF ACTION or FAILURE TO STATE A CAUSE OF ACTION. 278 5. 5.1 There is another action pending between the same parties for the same cause This is known as litis pendentia

5.2 The REQUISITES for its application are: (a) Identity of the parties, or at least such as representing the same interests in both actions (b) Identity of rights asserted and reliefs prayed for, the relief being founded on the same facts. Identity in both cases, is such that judgment in the pending case would, regardless of which party is successful amount to res judicata in the other.279 5.3 BETWEEN THE FIRST OR SECOND ACTION / OR LATTER ACTIONS APPLY THE PRIORITY IN TIME RULE BUT RULE MUST YIELD TO THE MORE APPROPRIATE ACTION. Example: An action for declaratory relief to interpret a lease contract was filed before an ejectment case, where the Supreme Court held that the ejectment case is the more appropriate action. 280 5.4 There is a 3RD TEST: INTEREST OF JUSTICE RULE which is a determination of which court would be in a better position to serve the interest of justice considering : (a) nature of the controversy; (b) comparative accessibility of the court to the parties; (c) other similar factors. 281 6. The cause of action is barred by a prior judgment or by the statute of limitations

6.1 The REQUISITES OF RES JUDICATA are: (a) Former judgment must be FINAL (b) Rendered by a court having jurisdiction over the subject matter and the parties (c) It must be a judgment or order on the merits (d)There must be between 1st / 2nd action, identity of parties / subject matter / causes of action 6.2 The DOCTRINE IS FOUNDED ON 2 GROUNDS: (a) Public policy and necessity which makes it in the interest of the state that there should be an end to litigation (b) Litigant should be spared the hardship of being vexed twice for the same cause 6.3 NOTE that there can be no res judicata in support cases as future support cannot be compromised.282

6.4 Statute of Limitations or prescription is a statute establishing a period of time from the accrual of a cause of action within which a right of action must be exercised. If the action is not brought within the period, then it is barred. 7. The pleading asserting the claim states no cause of action.

7.1 The TEST OF SUFFICIENCY OF A CAUSE OF ACTION is: Whether accepting the veracity of the facts alleged in the complaint, the Court can render judgment (valid) upon the same in accordance with the prayer in complaint. 7.2 NO PRESENTATION OF EVIDENCE IS REQUIRED AS THERE IS A HYPOTHETICAL ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT 7.3 FAILURE TO STATE A CAUSE OF ACTION/NO CAUSE OF ACTION DISTINGUISHED FROM LACK OF A CAUSE OF ACTION283: (a) The former refers to insufficiency of allegations, while the latter refers to insufficiency of factual basis (b) The former is raised only in a in a motion to dismiss before responding to a complaint, while the latter can be raised at any time (c) The former allows dismissal to be had at the early stages of the action, while the latter allows dismissal after questions of fact have been resolved after evidence is presented or stipulations / admissions are had. 8. 9. Claim or demand set forth in plaintiffs pleading has been paid, waived, abandoned, or otherwise extinguished Claim on which the action is founded is unenforceable under the provisions of the statute of frauds.

9.1 Statute of Frauds is statute/s that deals with the enforcement and requirements of agreements in particular circumstances. It is descriptive of statutes which require certain classes of contracts to be in writing. 284 10.
277 278

A condition precedent for filing the claim has not been complied with

Fernandez v ICB, 316 SCRA 326 Columbia Pictures, Inc. v Court of Appeals, 261 SCRA 144, Travelwide Assn of the Phil. v. Court of Appeals, 199 SCRA 205 279 Victronics Computer v RTC, 217 SCRA 517 280 Teodoro v Mirasol, 99 Phil 150 281 Roa-Magsaysay v Magsaysay, 98 SCRA 592 282 De Asis v Court of Appeals, 303 SCRA 176 283 Supra, Rule 33 284 Litonjua v Fernandez, 427 SCRA 478 30

10.1 In certain cases, referral of a case to the Lupon is a condition precedent for filing a complaint in court. It is not jurisdictional.285 It may be waived if not raised seasonably in a motion to dismiss.286 RESOLUTION OF A MOTION TO DISMISS 1. It shall BE HEARD287, at the hearing, the parties shall submit arguments on the questions of law and evidence on the questions of law and fact involved EXCEPT THOSE NOT AVAILABLE AT THAT TIME. SHOULD THE CASE GO TO TRIAL, EVIDENCE DURING THE HEARINGS SHALL AUTOMATICALLY BE PART OF THE EVIDENCE OF PARTY PRESENTING THE SAME. 2. After the hearing, Court shall either DISMISS THE ACTION, DENY THE MOTION OR ORDER AMENDMENT OF THE PLEADING, stating clearly and distinctly the reasons for the action taken.288 2.1 It is now mandated that the Court cannot defer resolution of the motion based on the reason that the ground relied upon does not appear to be indubitable or sure 3. IF MOTION IS DENIED, the movant shall file an answer within the balance of the period prescribed by Rule 11, which he was entitled to at the time of serving the motion, but not less than 5 days in any event, COUNTED FROM NOTICE OF DENIAL. IF ORDERED AMENDED, an answer is to be filed within period prescribed by Rule 11, counted from service of amended pleading, unless the court provides a longer period. Note that it is 15 days as no answer has of yet been filed. Hence the amendment is one that is a matter of right.289 3.1 The EFFECT OF DISMISSAL is that subject to the right to appeal, an order granting a motion to dismiss on the grounds of (a) prior judgment or statute of limitations (b) claim / demand has been paid, waived abandoned or otherwise extinguished, or (c) is unenforceable under the statute of frauds SHALL bar refiling of the same.290 RULE 17 - DISMISSAL OF ACTIONS PLAINTIFF DISMISSAL OF HIS OWN COMPLAINT A plaintiff may cause the dismissal of his complaint by: 1. Filing of a notice of dismissal at anytime before service of an answer or motion for summary judgment. Once filed, the court shall issue an order confirming the dismissal, which is without PREJUDICE, unless stated otherwise. BUT, such dismissal will operate as adjudication on the merits when filed by a plaintiff who has once dismissed in a competent court, his action based on or including the same claim.291 This is known as the 2 dismissal rule. 2. Filing a motion to dismiss but such will not result in dismissal without the approval of the court and upon terms and conditions as the court deems proper. BUT, if a counterclaim has been pleaded before service of motion to dismiss the dismissal is limited to the complaint. If shall be without PREJUDICE TO RIGHT OF DEFENDANT to prosecute his counterclaim in a separate action unless within 15 days from notice of the motion he manifests a preference to have it resolved in the same action. UNLESS specified, a dismissal is without prejudice. NOTE also that a CLASS SUIT shall not be dismissed or compromised without the approval of the Court.292 COURT DISMISSAL ON ITS MOTION OR THAT OF DEFENDANT The court can motu propio or upon motion of the defendant dismiss a complaint when: (a)If, for no justifiable reason, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint (b) If, for no justifiable reason, plaintiff fails to prosecute his action for an unreasonable length of time (c) If, for no justifiable reason, plaintiff fails to comply with Rules of Court or any order of the Court. DISMISSAL IS WITHOUT PREJUDICE TO RIGHT OF THE DEFENDANT TO PROSECUTE HIS COUNTERCLAIM IN THE SAME OR SEPARATE ACTION and SHALL HAVE THE EFFECT OF ADJUDICATION ON THE MERITS, UNLESS OTHERWISE DECLARED BY THE COURT.293 1. The REMEDIES OF THE PLAINTIFF are: (a) Appeal the dismissal as it is a FINAL ORDER, or (b) If without prejudice, REFILE THE ACTION as an order dismissing without prejudice is not subject to appeal. 2. At the pre-trial, the court ordered the parties to submit a compromise agreement within a ten day period. The parties were unable to submit the compromise agreement, thus leading to a dismissal. There is nothing in the rules that imposes a sanction for failure to submit a compromise agreement.294 APPLICABILITY OF THE RULE
285 286

Junson v martinez, 405 SCRA 390 Banares v Balising, 328 SCRA 36 287 Supra, Section 2, Rule 16 288 Supra, Section 3, Rule 16 289 Supra, Section 4, Rule 16 290 Supra, Section 5, Rule 16 291 Supra, Section 1, Rule 17 292 Supra, Section 2, Rule 17 293 Supra, Section 3, Rule 17 294 Ruiz, Jr v CA, 212 SCRA 660 31

Rule applies to dismissal by the DEFENDANT of his counterclaims cross-claims or 3rd party claims. Voluntary dismissal by the claimant by notice as under Section 1 of the Rule shall be made before a responsive pleading, motion for summary judgment is served, or if there be none, before introduction of evidence at the trial or hearing.295 RULE 18 PRE-TRIAL WHAT IS PRE-TRIAL It is a procedural devise intended to clarify and limit the basic issues between the parties. Its main objective is to simplify, abbreviate and expedite trial, or otherwise dispense with it.296 It is a conference or hearing at which the court, with the cooperation of the parties, seek to determine definitively what precisely are the factual issues to be tried and how each party intends to establish his position on each disputed factual issue. WHEN CONDUCTED After the last pleading has been served and filed. It shall be the duty of the plaintiff to move ex-parte that the case be set for pretrial.297 1. SC Adm. Circular 3-99 dated January 15, 1999 defined promptly as 5 days.

2. SC Administrative Matter No. 03-1-09, SC, Section A (1.2) Should the plaintiff fail to move ex-parte to set case for pre-trial, the branch clerk of court should issue a notice of pre-trial. 2.1 The same circular also requires that the presiding judge direct the parties to mediation, if possible. If it fails it will schedule the pre-trial BUT IT MAY ALSO SCHEDULE A PRELIMINARY CONFERENCE before the branch clerk of court to assist them in REACHING A SETTLEMENT, PRE-MARKING OF DOCUMENTS AND EXHIBITS AND TO CONSIDER OTHER MATTERS THAT WILL AID IN PROMPT DISPOSITION. The JUDGE is also directed to consider assisting the parties in effecting a settlement given the evidence of the parties. 3. The last pleading is the answer to the original complaint, cross claim, or, third party complaint AND the reply.

NATURE AND PURPOSE Pre-trial is by nature mandatory and the purpose for its conduct is to take up the following matters:298 1. 2. 3. 4. 5. 6. Possibility of amicable settlement / or submission to alternative modes of dispute resolution Simplification of the issues Necessity / desirability of amendment to the pleadings Possibility of obtaining stipulations or admissions of fact and of documents to avoid unnecessary proof Limitation of number of witnesses Advisability of a preliminary reference of issues to a commissioner

7. Propriety of judgment on the pleadings, summary judgment, or dismissing the action if a valid ground therefor be found to exist 8. Advisability of suspending the proceedings 9. Such other matter as may aid in the prompt disposition of the action UPON WHOM NOTICE OF PRE-TRIAL IS TO BE SERVED It shall be served on counsel, or party if not represented by counsel. Counsel is charged with the duty to notify the party.299 WHOSE PRESENCE IS REQUIRED AT PRE-TRIAL The parties and counsel are required to be present during the pre-trial. A party may be excused if: (a) A valid cause is shown therefore (b)A representative shall appear duly authorized in writing to do the following: (1) enter into amicable settlement; (2) submit to alternative modes of dispute resolution; (3) enter into stipulations / admissions of fact / documents. 300 EFFECT OF FAILURE TO APPEAR
295 296

Supra, Section 4, Rule 17 Interlining v Philippine Trust Company, 378 SCRA 521 297 Supra, Section 1, Rule 18 298 Supra, Section 2, Rule 18 299 Supra, Section 3, Rule 18 300 Supra, Section 4, Rule 18 32

1. If plaintiff fails to appear despite DUE NOTICE, he may be declared NON SUITED and the complaint DISMISSED. The
dismissal shall be with prejudice, unless otherwise ordered by the court. HIS REMEDY is to appeal order of dismissal because it is a FINAL resolution. If dismissed without prejudice, he can REFILE the complaint

2. If defendant fails to appear despite due notice, plaintiff IS ALLOWED to present his evidence ex-parte and the court may
render judgment on the basis thereof. 301

3. AS A RULE, THERE CAN BE NO SECOND PRE-TRIAL UNLESS BOTH PARTIES CONSENT. 302
WHAT MUST BE FILED BEFORE PRE-TRIAL A pre-trial brief must be filed and served on the adverse party at least 3 days before the pre-trial containing: 303 1. Statement of willingness to enter into an amicable settlement, the desired terms or to submit to alternative modes of dispute resolution 2. 3. Summary of admitted facts / proposed stipulation of facts Issues to be tried or resolved

4. Number of witnesses / names, abstract of testimonies, approximate number of hours that will be required for presentation of their respective evidence 5. Copies of all documents intended to be presented which statement of the purposes of their offer

6. Manifestation of their having availed of or their intention to avail of discovery procedure, or need for referral of any issues to commissioners 7. Applicable law / jurisprudence

8. Available trial dates of counsel for complete presentation of evidence which must be within a period 3 months from the first day of trial.304 FAILURE TO FILE A PRE-TRIAL BRIEF SHALL HAVE THE SAME EFFECT AS FAILURE TO APPEAR PRE-TRIAL ORDER Proceedings shall be recorded. Upon termination, court shall issue an order which shall recite in detail: (a) matters taken up (b) action taken thereon (c) amendments allowed to the pleadings (d) agreements / admissions made by the parties as to any of the matters taken (e) explicitly defining and limiting the issues to be tried. OBJECT it shall control the subsequent course of the action, UNLESS MODIFIED TO PREVENT MANIFEST INJUSTICE. 305 1. Pre-trial is primarily intended to make certain that all issues necessary to the disposition of a case are properly raised. Thus, to obviate the element of surprise, parties are expected to disclose at a pre-trial conference all issues of law and fact which they intend to raise at the trial, except such as may involve privileged or impeaching matters. The determination of issues at a pretrial conference bars the consideration of other questions on appeal.306 2. NOTE THAT TRIAL SHALL BE LIMITED TO ISSUES STATED IN THE PRE-TRIAL ORDER.307

3. Notwithstanding, courts are not required to resolve all issues raised in pleading unless necessary for the resolution of the case.308 RULE 19 INTERVENTION WHO MAY INTERVENE A person who has a (a) legal interest in the matter in litigation (b) has legal interest in the success of either of the parties (c) has an interest against both or (d) is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or an officer thereof.309
301 302

Supra, Section 5, Rule 18 Young v Court of Appeals, 204 SCRA 584 303 Supra, Section 6, Rule 18 304 Section 6, SC Adm. Circular 3-99, January 15, 1999 305 Supra, Section 7, Rule 18 306 Son vs. Son, 251 SCRA 556; PPA vs. City of Iloilo, 406 SCRA 88 307 Supra, Section 5, Rule 30 308 IBAA vs. IAC, 167 SCRA 450 309 Supra, Section 1, Rule 19 33

1. Examples are (a)an action for payment of money, where personal property of the defendant is attached, a 3 rd person claiming the attached property can intervene (b) action by alleged owners of the land sought to be foreclosed. 2. The interest which entitles a person to intervene in a suit must be in the matter in litigation and of SUCH DIRECT OR/AND IMMEDIATE CHARACTER that intervenor will either GAIN or LOSE by direct legal operation and effect of judgment. 310 3. Intervention does not lie for a transferee pendente lite.311

HOW AND WHEN CAN A PERSON INTERVENE Filing of a motion for leave of court to intervene, attaching thereto a copy of the pleading in intervention, which is then served on the original parties at any time before rendition of judgment by the trial court.312 1. The COURT MAY REFUSE TO GRANT LEAVE WHEN (a) It will unduly delay or prejudice the adjudication of the rights of the original parties. Example: Delay or laches in bringing intervention, OR (b) Intervenors rights may be fully protected in a separate proceeding. Example: Attachment of real property subject of a mortgage 2. The pleadings in intervention are (a) Complaint in Intervention, if he asserts a claim against either or all of the original parties, OR (b) Answer in Intervention, if he unites with the defending party in resisting the claim of the plaintiff. 313 3. If granted, a complaint in intervention is to be replied to within 15 days from notice of the order admitting the same unless a different period is fixed by the court. 4. NO INTERVENTION IS ALLOWED IN LAND REGISTRATION CASES as the remedy is to file an OPPOSITION. Neither is it allowed in cases covered by the Rules on Summary Procedure. 5. Intervention is merely collateral or accessory or ancillary to the principal action and not an independent proceeding. Hence, with the final dismissal of the original action, the complaint in intervention can no longer be acted upon. 314 6. An order denying a motion for intervention is appealable.315 RULE 20 CALENDAR OF CASES MAINTENANCE OF THE COURT CALENDAR The clerk of court, under the direct supervision of a judge, shall keep a calendar for PRE-TRIAL, TRIAL, TRIALS THAT WERE ADJOURNED OR POSTPONED, THOSE WITH MOTIONS TO SET FOR HEARING. In fixing the calendar, PREFERENCE IS GIVEN TO HABEAS CORPUS, ELECTION CASES, SPECIAL CIVIL ACTIONS, AND THOSE REQUIRED BY LAW.316 ASSIGNMENT OF CASES The assignment of cases shall always by raffle done in open session of which adequate notice shall be given to afford interested parties the opportunity to be present. 317 The purpose is to obviate public suspicion regarding assignment of cases to predetermined judges.318 RULE 21 SUBPOENA WHAT IS A SUBPOENA A process directed to a person requiring him to attend and testify at the hearing or trial of an action, or at any investigation conducted by competent authority, or the taking of his deposition KINDS OF SUBPOENA The kinds of subpoena are: (a) SUBPOENA AD TESTIFICANDUM if it directs and requires a person to attend and testify, OR (b) DUCES TECUM if it requires him to bring books/documents/or other things under his control. 319 BY WHOM ISSUED A subpoena is issued by (a) The court before whom the witness is required to attend (b) The court where deposition is to be taken (c) Officer or body authorized by law to do so in connection with investigations that it may conduct (d) Any justice of the Supreme Court/Court of Appeals in any case or investigation pending within the Philippines 320

310 311

Roxas v Dinglasan, 28 SCRA 430 Supra, Section 19, Rule 3 312 Supra, Section 2, Rule 19 313 Supra, Section 3, Rule 19 314 Barangay Matictic v Elbinias, 148 SCRA 83 315 Foster-Gallego v Galang, 435 SCRA 275 316 Supra, Section 1, Rule 20 317 Supra, Section 2, Rule 20 318 Ang v Bello, 163 SCRA 358 319 Supra, Section 1, Rule 21 320 Supra, Section 2, Rule 21 34

1. 2. 3.

A request by a party for the issuance of a subpoena does not require notice to other parties to the action. 321 In taking depositions, the clerk of court shall not issue a subpoena duces tecum without a court order.322 Absent any proceeding, suit or action, commenced or pending before a court, a subpoena may not issue.323

WHEN IS A WITNESS NOT BOUND BY A SUBPOENA 1. Witness resides more than 100 kilometers from his residence to the place where he is to testify by the ordinary course of travel.324 This is also called the VIATORY RIGHT OF A WITNESS or the right not to be compelled to testify in a civil case if he lives more than 100 kilometers from his residence to the place where he is to testify by ordinary course of travel. 1.1 If the viatory right is invoked, a witness can still be compelled to testify by the taking of his deposition in a place within 100 kilometers from where he resides, observing the following steps: (a) Party desiring to take deposition shall give reasonable notice in writing to every other party in the action stating the TIME, PLACE AND NAME/ADDRESS OF PERSON WHOSE DEPOSITION IS TO BE TAKEN. There should be proof of service of the notice (b) Proof of service of notice to take deposition shall be presented to the clerk of court of the place where deposition is to be taken (c) On the basis of such proof of service, the clerk upon authority and under seal of the court, shall issue the subpoena BUT a subpoena duces tecum cannot be issued without an order of the Court (4) Subpoena is to be served on witness whose deposition is to be taken.325 2. Witness is a detention prisoner, if no permission of the court in which his case is pending is obtained or if the witness is a prisoner sentenced to death, reclusion perpetua or life imprisonment and is confined in a penal institution, if authority of the SC to bring out the prisoner has not been obtained. The court should examine and study the application properly to determine if it is being made for a valid purpose.326 FORM AND CONTENTS OF SUBPOENA A subpoena must contain the following: (a) Name of the court (b) Title of action/investigation AND IS TO BE DIRECTED to the person whose attendance is required. IF DUCES TECUM, in addition, it must contain a reasonable description of the books, documents, things demanded which is must appear to the Court to be PRIMA FACIE relevant.327 WHAT ARE THE GROUNDS TO QUASH A SUBPOENA 1. If DUCES TECUM, it may be quashed on the following grounds: (a) It is unreasonable and oppressive (b) Relevancy of the books, documents or things do not appear (c) Person in whose behalf subpoena is issued fails to advance the reasonable costs of the production thereof (d) The witness fees and kilometrage allowed by the rules were not tendered when subpoena was served. Under A.M. No. 04-2-04-SC, witness fees shall be PHP 200.00 a day inclusive of all expenses 2. If AD TESIFICANDUM, it may be quashed on the following grounds: (a) Witness is not bound by the subpoena (b) Witness fees and kilometrage allowed by rules were not tendered when the subpoena was served.328 HOW IS A SUBPOENA SERVED In the same manner as personal or substituted service of summons, original is to be exhibited and delivered to person on whom it is served tendering the fees for one day attendance at the kilometrage allowed by Rules EXCEPT if subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof. Tender must be made so as to allow the witness a reasonable time for preparation or travel to the place of attendance.329 1. 2. If DUCES TECUM, the cost of production of books, papers or things must also be tendered. Under A.M. No. 04-2-04-SC, the fee for service of summons is PHP 100.00 per witness.

CAN A PERSON BE COMPELLED TO APPEAR AND TESTIFY WITHOUT A SUBPOENA Yes, when he is PRESENT IN COURT, in which event it is as if he were in attendance upon subpoena issued by the Court.330 WHAT ARE THE CONSEQUENCES OF DISOBEDIENCE TO A SUBPOENA The consequences of disobedience are: (a) He may be arrested and brought before the Court where his attendance is required, the cost of warrant and seizure shall be paid by the witness if the Court finds disobedience to be willful and without just excuse. 331 (b) Citation in contempt by the court from which the subpoena is issued. It not issued by a Court, then in accordance with the applicable rule / law.332
321 322

Adorio v Bersamin, 273 SCRA 217 Supra, Section 5, Rule 21 323 Collado v Bravo, 356 SCRA 411 324 Supra, Section 10, Rule 21 325 Supra, Section 5, Rule 21 326 Supra, Section 2, Rule 21 327 Supra, Section 3, Rule 21 328 Supra, Section 4, Rule 21 329 Supra, Section 6, Rule 21 330 Supra, Section 7, Rule 21 331 Supra, Section 8, Rule 21 332 Supra, Section 9, Rule 21 35

RULE 22 COMPUTATION OF TIME HOW COMPUTED The day of the act / event from which the designated period of time begins to run is excluded and date of performance included. If the last day falls on a Saturday, Sunday or legal holiday in the place where the Court sits, the time shall not run until the next working day.333 EFFECT OF INTERUPTIONS Allowable period after interruption shall start to run on the day after, notice of the cessation of the cause thereof. The day of the act that caused cessation shall be excluded in the computation of the period. 1. RULE ON COMPUTATION OF TIME DOES NOT APPLY TO PRESCRIPTION OF OFFENSES or PRESCRIPTION OF CAUSES OF ACTION. Hence, if the last day falls on a Saturday, Sunday or legal holiday, it prescribes on the said date. RULES 23 TO 29 MODES OF DISCOVERY WHAT IS DISCOVERY The methods used by the parties to a civil action to obtain information held by the other party that is relevant to the action. PURPOSES OF DISCOVERY The purposes of resort to discovery are: (a) It is a device to narrow down / clarify the basic issues between the parties (b) It is a device to ascertain the facts relative to the issues WHAT ARE THE MODES OF DISCOVERY The modes of discovery (a) Deposition pending action 334 (b) Deposition before action or pending appeal 335(c) Interrogatories to parties336 (d) Request for admission by adverse party337 (e) Production or inspection of documents / things 338 (f) Physical / mental 339 examination of persons WHEN CAN DEPOSITIONS PENDING ACTIONS BE TAKEN 1. WITH LEAVE OF COURT, after jurisdiction has been acquired / obtained over any defendant or over property which is the subject of the action as the issues are not yet joined and disputed facts are not yet clear OR if a person is confined in a prison with LEAVE OF COURT ONLY, on such terms that the Court may prescribe. 2. WITHOUT LEAVE OF COURT, after an answer has been served.340

WHOSE DEPOSITION MAY BE TAKEN, HOW TAKEN, BY WHOM Any person, whether a party or not, upon ORAL EXAMINATION OR WRITTEN INTERROGATORIES upon the initiative of ANY PARTY. SCOPE OF A DEPOSITION GENERALLY, the deponent may be examined regarding any matter, NOT PRIVILEGED, which is RELEVANT TO THE SUBJECT OF THE PENDING ACTION whether it RELATES TO CLAIM OR DEFENSE of any other party. INCLUDING THE EXISTENCE, DESCRIPTION, NATURE, CUSTODY, CONDITION, LOCATION of any BOOKS, DOCUMENTS OR OTHER TANGIBLE THINGS and the IDENTITY and LOCATION of persons having knowledge of relevant facts. 341 1. The limitation as to the taking and scope of a deposition after notice is served for its taking by oral examination, UPON MOTION SEASONABLY FILED by a PARTY OR of the PERSON to be examined, and for GOOD CAUSE shown, the court in which the action is pending may order: (a) Deposition not be taken (b)It be taken only at some designated place other than that stated in the notice (c)It be taken only on written interrogatories (d) That certain matters shall not be inquired into (e) That scope of the examination shall be held without anyone present except the parties to the action, and their officers of counsel (f)That after depositions are sealed, they shall be opened only by order of the court (g)That secret processes, developments or research need not be disclosed (h)That parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the Court (i) That court may make any order which justice requires to protect the party or witnesses from annoyance embarrassment or oppression. 342
333 334

Supra, Section 1, Rule 22 Supra, Rule 23 335 Supra, Rule 24 336 Supra, Rule 25 337 Supra, Rule 26 338 Supra, Rule 27 339 Supra, Rule 28 340 Supra, Section 1, Rule 23 341 Supra, Section 2, Rule 23 342 Supra, Section 16, Rule 23 36

2.

During the taking of the deposition, it shall be taken subject to the following limitations:

2.1 During the taking of the deposition, on motion or petition of any party or the deponent upon showing that the examination is being conducted in BAD FAITH on IN SUCH MANNER as UNREASONABLY to ANNOY EMBARRASS OR OPPRESS the DEPONENT, or a party the COURT where the action is pending or the RTC of the place where deposition is being taken may ORDER the officer taking the examination to cease forthwith or limit the scope as provided in Section 16. 2.2 If terminated, it shall be resumed thereafter only upon order of the Court in which the action is pending. UPON DEMAND of the OBJECTING PARTY/DEPONENT, the taking shall be suspended for the time necessary to make a notice for an order. In granting/refusing such order, the court may impose upon either party or upon the witness the requirement to pay costs/expenses as the Court may deem reasonable.343 BEFORE WHOM MAY DEPOSITIONS BE TAKEN 1. WITHIN THE PHILIPPINES: a judge, notary public, or person authorized to administer oaths, at any time or place if so stipulated in writing by the parties.344 2. IN FOREIGN COUNTRIES: On notice before a secretary of the embassy or legation or the diplomatic minister and his staff, consul general, consul, vice consul or consular agent of the Republic of the Philippines, or before such person or officer as may be appointed by commission or letters rogatory.345 2.1 A Commission is an instrument issued by a court of justice or other competent tribunal to authorize persons to take a deposition or do any other act by authority of such court or tribunal. A Commission is addressed to officers designated by name or descriptive title. 2.2 Letters Rogatory is an instrument sent in the name and by authority of a judge or court to another, requesting the latter to cause to be examined, upon interrogatories filed in a case pending before the former, a witness who is within the jurisdiction of the judge or court to whom such letters are addressed. Letters Rogatory are addressed to a judicial authority in a foreign country AND may be applied for and issued only after a commission has been returned unexecuted. WHO ARE DISQUALIFIED TO TAKE DEPOSITIONS Person who is a relative within the 6th degree of consanguinity / affinity OR employee or counsel of any of the parties OR relative within the same degree or employee of counsel OR is financially interested in the action. 346 KINDS OF DEPOSITIONS HOW TAKEN A. DEPOSITION UPON ORAL EXAMINATION

1. Giving of reasonable notice in writing to every other party to the action, which must state the time / place of the taking of the deposition and the name and address of the person to be examined, if known, IF NOT KNOWN, a general description sufficient to identify him or the particular class or group to which he belongs. ON MOTION OF PARTY UPON WHOM NOTICE IS SERVED, the COURT, for CAUSE, may ENLARGE OR SHORTEN THE TIME.347 2. Officer taking the deposition shall put the witness under oath and shall personally, or by someone acting under his direction and his presence record the testimony of the witness stenographically unless the parties agree otherwise. All objections as to QUALIFICATION OR OFFICER TAKING DEPOSITION, MANNER OF TAKING EVIDENCE PRESENTED, CONDUCT OF PARTIES OR ANY OTHER OBJECTION shall be NOTED ANY EVIDENCE OBJECTED TO SHALL BE TAKEN SUBJECT TO OBJECTIONS. PARTIES SERVED WITH NOTICE, IN LIEU OF PARTICIPATING IN THE TAKING OF DEPOSITION, may submit written interrogatories which the officer taking the deposition shall propound to the witness and record the answers VERBATIM. 348 3. After the taking of the deposition and testimony is transcribed it is submitted to the witness for examination and shall be read to or by him, unless such is waived by the witness and the parties. IF THERE ARE CHANGES IN FORM / SUBSTANCE which the witness desires to make it shall be entered upon the deposition by the officer with a statement as to the reason given by the witness as why they are being made. The deposition is then SIGNED BY THE WITNESS, unless the parties by stipulation waive the signing, or the witness is ill OR cannot be found OR refuses to sign. IF NOT SIGNED, officer shall sign it and state on the record why it was not signed together with reasons. If there is refusal to sign, the EFFECT is that the deposition then may be used fully as though signed, unless on a motion to suppress under Sec 29 (f) {errors or irregularities in preparation}, the Court holds that the reason for refusal to sign require rejection of the deposition in whole or in part. 349
343 344

Supra, Section 18, Rule 23 Supra, Sections 10 and 14, Rule 23 345 Supra, Sections 11, 12, and 14, Rule 23 346 Supra, Section 13, Rule 23 347 Supra, Section 15, Rule 23 348 Supra, Section 17, Rule 23 349 Supra, Section 19, Rule 23 37

4. Once signed, the officer shall certify on the deposition that the witness was duly sworn to by him and that the deposition is a true record of the testimony of the witness. He shall then securely seal the deposition in an envelope endorsed with the title of the action and marked deposition of _______ to be promptly FILED WITH THE COURT WHERE ACTION IS PENDING OR SENT BY REGISTERED MAIL TO THE CLERK THEREOF FOR FILING.350 5. Notice of filing shall then promptly be given by the officer to all parties 351 and upon payment of reasonable charges, he is to furnish copies of the deposition to any party or the deponent. 352 EFFECT OF NON-APPEARANCE 1. IF PARTY GIVING NOTICE FAILS TO APPEAR AND ANOTHER ATTENDS IN PERSON OR BY COUNSEL, the Court may order the party giving notice to pay reasonable expenses incurred to attend, including reasonable attorneys fees. 353 2. IF PARTY GIVING NOTICE DOES NOT SERVE SUBPOENA AND WITNESS DOES NOT APPEAR, Court can order party giving notice to pay reasonable expenses for attendance plus attorneys fees to a party who appears in person or by counsel 354 (Section 24) B. DEPOSITION UPON WRITTEN INTERROGATORIES

1. Party desiring to take the deposition upon WRITTEN INTERROGATORIES shall serve them upon every other party with notice stating: (1) name and address of the person who will answer them (2) descriptive title and address of the person who will take the deposition (3) Within 10 days, party served may serve cross-interrogatories on the party proposing to take the deposition (4) Within 5 days thereafter, the latter may serve re-direct INTERROGATORIES upon the party serving crossinterrogatories (5) within 3 days after being served of re-direct INTERROGATORIES, a party may serve re-cross interrogatories upon party proposing to take deposition.355 2. A copy of the notice and copies of all interrogatories shall be delivered by the party taking the deposition to officer designated in the notice, who shall proceed promptly in the manner provided by Sections 17, 19 and 20 to take the testimony of the witness in response to the interrogatories and to prepare, certify, and file / mail the deposition attaching copies of the notice and interrogatories. 356 3. Officer must promptly give notice of filing / and may furnish copies to parties and deponent upon payment of reasonable charges. 357 NOTE: that Sections 15, 16 and 18 are applicable and that by motion, it can be asked that the deposition be upon oral examination. 4. SEE: Gerochi vs. Dept of Energy GR 159796, April 5, 2005

DISTINGUISHED FROM INTERROGATORIES TO PARTIES UNDER RULE 25 An interrogatory under Rule 25 is allowed UNDER THE SAME CONDITIONS AS SPECIFIED IN SECTION 1, RULE 23 as to when it is to be had and is for the purpose of enabling any party desiring to elicit material facts / relevant facts from any ADVERSE PARTY by the filing and service upon the latter of a written interrogatory to be answered by the party served or if party is public / private corporation or a partnership / association by any officer thereof competent to testify in its behalf. 358 HOW AND WHEN ANSWERED Responses, which must be signed and sworn to, must be filed within 15 days from service, unless the Court on motion and for good cause shown extends or shortens the time359 CAN THEY BE OBJECTED TO Yes, objections may be presented to the court within 10 day after service of notice as in the case of a motion, answers shall then be deferred until objections are resolved, which shall be as early a time as is practicable. 360 HOW MANY INTERROGATORIES No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party.361 SCOPE AND USE
350

Supra, Section 20, Rule 23 Supra, Section 21, Rule 23 352 Supra, Section 22, Rule 23 353 Supra, Section 23, Rule 23 354 Supra, Section 24, Rule 23 355 Supra, Section 25, Rule 23 356 Supra, Section 26, Rule 23 357 Supra, Section 27, Rule 23 358 Supra, Section 1, Rule 25 359 Supra, Section 2, Rule 25 360 Supra, Section 3, Rule 25 361 Supra, Section 4, Rule 25
351

38

It may relate to any matters that can be inquired into under Section 2, Rule 23 and the answers used for the same purpose provided for by Section 4, Rule 23362 EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES Unless thereafter allowed by the court for good cause shown and to prevent failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court or give a deposition pending appeal.363 FURTHER DISTINGUISHING DEPOSITION UPON WRITTEN INTERROGATORIES AND WRITTEN INTERROGATORIES 1. Any person, party or not can be required to or compelled to give a deposition upon written interrogatories, while only the adverse party may be compelled to answer a written interrogatory. 2. A deposition upon written interrogatory is taken before an officer, while an adverse party without appearing before an officer shall answer them in writing and under oath. C. DEPOSITIONS BEFORE ACTION OR PENDING APPEAL UNDER RULE 24 (IN PERPETUAM REI MEMORIAM)

HOW IS A DEPOSITION BEFORE ACTION OBTAINED By the filing of a verified petition by a person desiring to perpetuate his testimony or that of any person in relation to any matter cognizable in any court in the Philippines in the Court in the place of residence of the expected adverse party. 364 1. The CONTENTS OF THE PETITION which shall be entitled in the name of the petitioner and should show: (a) That petitioner expects to be a party to an action in a Court in the Philippines but is presently unable to bring it or cause it to be brought (b) The subject matter of the expected action and his interest therein (c) The facts that he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it (d) The names or description of the person he expects will be adverse parties and their addresses so far as known (e) The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each AND SHALL THEN ASK FOR AN ORDER authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony. 365 2. To Perpetuate means to preserve or make available testimony for later use at a trial by means of deposition.

WHAT IS DONE AFTER PETITION IS COMPLETED Petitioner shall serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition stating that: he will apply to the Court at a time and place stated therein, for the order described in the petition. At least 20 days before the date of the hearing, the Court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. 366 WHAT WILL OCCUR THEREAFTER If the Court is satisfied that the perpetuation of testimony may prevent a failure of justice or delay of justice, it shall make an order designating or describing the persons whose depositions are to be taken, specifying the subject and whether it will be upon oral execution or written interrogatories under Rule 23.367For purposes of applying Rule 23, references to the court in which the action is pending shall be deemed to refer to thecourt in which petition for such deposition is filed. 368 USE OF DEPOSITION Deposition taken under the Rule or although not so taken, it would be admissible in evidence, it may be used in any action involving the same subject matter contained in petition subsequently brought in accordance with Sections 4 and 5 of Rule 23.369 WHEN DEPOSITIONS PENDING APPEAL ARE TAKEN If appeal is taken from a judgment of a Court including the CA in proper cases or before the taking of an appeal if the time therefore has not yet expired. The Court in which judgment was rendered may allow taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said Court. HOW TAKEN Party makes a motion in said Court for leave to take depositions upon the said notice and service thereof as if the action was pending therein MOTION states (1) name and addresses of persons to be examined and substance of testimony to be elicited (2) reasons for perpetuating testimony.

362 363

Supra, Section 5, Rule 25 Supra, Section 6, Rule 25 364 Supra, Section 1, Rule 24 365 Supra, Section 2, Rule 24 366 Supra, Section 3, Rule 24 367 Supra, Section 4, Rule 24 368 Supra, Section 5, Rule 24 369 Supra, Section 6, Rule 24 39

If Court finds that it is proper to avoid failure or delay of justice it may allow the depositions to be taken and used in the same manner and under same conditions as prescribed for depositions in pending actions. 370 EFFECT OF TAKING DEPOSITIONS A party shall not be deemed to make a person his own witness by taking his deposition. 371 EFFECT OF USING DEPOSITIONS If introduced in evidence in whole/part for any purpose OTHER THAN contradicting or impeaching the deponent, such makes the deponent the witness of the party introducing the deposition BUT it does not apply to the use of an adverse party of a deposition as described in Par. (b) Section 4 of Rule 23.372 USE OF DEPOSITION When can it be used? at the trial, upon the hearing of a motion or an interlocutory proceeding ANY PART or ALL OF A DEPOSITION, so far as admissible under the rules of evidence may be used AGAINST any party who was present, or represented at the taking or had due notice thereof, in ACCORDANCE WITH THE FOLLOWING: a. May be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness

b. Deposition of a party or any one who at the time of the taking was an officer, director, or managing agent of a public/private corporation partnership/association which is a party may be used by an adverse party for any purpose c. Deposition of a witness, party or not, may be used by any party for any purpose if the court finds that: (1) witness is dead (2)witness resides more than 100 kilometers from the place of trial/hearing or is out of the Philippines UNLESS, it appears that his absence is procured by the party offering the deposition (3) witness is unable to attend/testify because of age, sickness, infirmity or imprisonment (4) party offering the deposition has been unable to procure the attendance of the witness by subpoena (5) upon application and notice, exceptional circumstances exist as to make it desirable in the interest of justice and with due regard to the importance of presenting the testimony of witness in open court, to allow the deposition to be used. d. If only a part of the deposition is offered in evidence by a party, the adverse party may require him to introduce all of which is relevant to the part introduced, and any party may introduce the other parts. 373 WHEN DOES THE DEPOSITION BECOME EVIDENCE OR WHEN CAN IT BE USED AS EVIDENCE 1. If the deponent is a party, the opposing party can use it to prove his claim or defense. It may also be used to impeach or contradict the party deponent if he testifies. 2. If the deponent is only a witness, his deposition can only be used to impeach/contradict him if he testifies BUT if Paragraph (c ) of Section 4 applies, it can be used for any purpose. WHEN DEPOSITIONS ARE PRESENTED CAN THEY BE OBJECTED TO- WHEN Subject to the provisions of Section 29, OBJECTION may be made at the TRIAL or HEARING to receive in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. 1. As to notice are waived unless written objection is promptly served upon the party giving the notice

2. As to disqualification of the officer is waived unless make before the taking of the deposition or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. 3. As to competency relevancy of evidence objections as to competency of the witness or competence, relevancy or materiality of the evidence/testimony are not waived by the failure to make them before or during the taking of the deposition UNLESS the ground of the objection is one which a right have been OBVIATED or REMOVED IF PRESENTED AT THAT TIME 4. As to oral examination and other particulars Errors and irregularities occurring at the oral examination in the manner of taking, the form of the questions and answers, in the oath/affirmation, or the conduct of the parties and errors of any kind which might be obviated, removed or cured it promptly, prosecuted, are WAIVED, unless reasonable objection thereto is made at the taking of the deposition. 5. As to from of written interrogatories objections are waived unless served in writing upon party propounding them within the time allowed for the serving of succeeding cross or other interrogatories and within 3 days after service of the last interrogatory authorized. 6. As to manner of preparation objections as to the manner in which the testimony is transcribed, or the deposition is prepared, signed certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer are WAIVED, unless a motion to suppress the deposition or part thereof is made with reasonable promptness after such defect is, or with due diligence, might have been ascertained. 374
370

Supra, Section 7, Rule 24 Supra, Section 7, Rule 23 372 Supra, Section 8, Rule 23 373 Supra, Section 4, Rule 23 374 Supra, Section 29, Rule 23
371

40

HOW IS A DEPOSITION ACTUALLY USED AND ONCE A DEPOSITION HAS BEEN USED, WHAT CAN ADVERSE/ OTHER PARTIES DO 1. Generally, the deponent is called to testify. Hence he may be examined/cross-examined as permitted at the trial under Sections 3 to 18, Rule 132.375 2. At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party.376 This is called rebutting a deposition. IS USE OF THE DEPOSITION LIMITED TO THE ACTION/PENDING ACTION WHEN IT WAS TAKEN No, because substitution of parties does not affect the right to use depositions previously taken, when the action is DISMISSED and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor. 377 RULE 26 REQUESTS FOR ADMISSIONS WHAT IS A REQUEST FOR ADMISSION It is a written request for the (1) admission of the genuiness of any material and relevant document described in and exhibited with the request or (2) the truth of any material or relevant matter of fact set forth in the request. A party may file and serve a request for admission upon any other party at any time after the issues have been joined.378 EFFECT OF FILING AND SERVICE UPON ANY OTHER PARTY Each of the matters of which an admission is requested shall be deemed admitted UNLESS, within a period designated in the request, which shall not be less than 15 days after service thereof or such period which the Court will allow on motion, the party served files and serves upon the requesting party a sworn statement, either denying specifically the matters is setting forth in detail the reason why he cannot truthfully either admit / deny. Objections if any shall be submitted to the Court within the period for complying and prior to filing of the Sworn Statement compliance is then deferred until objections are resolved which should be done as early as practicable. 379 EFFECT OF ADMISSIONS It is for the purpose of the pending action only and shall not constitute an admission by him for any purpose or used against him in any other proceeding380 THOUGH any admission, express or implied may be allowed by the court to be withdrawn or amended upon such terms as may be just.381 EFFECT OF FAILURE TO SERVE Unless otherwise allowed by the Court for good cause and to prevent failure of justice, a party who fails to serve a request for admission of material / relevant facts at issue on the adverse party, which are or ought to be within the latters personal knowledge, shall not be permitted to present evidence on such facts.382 RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS ON THINGS HOW On motion of any party showing GOOD CAUSE, the COURT where the action is pending MAY ORDER, specifying the time, place and manner AND prescribing such terms and conditions as are just: 1. Any party to produce and permit the inspection, copying, photographing, by or on behalf of a having party of any designated DOCUMENT, PAPERS, BOOKS, ACCOUNTS, LETTERS, PHOTOGRAPHS, OBJECTS OR TANGIBLE THINGS NOT PRIVILEGED which CONSTITUTE OR CONTAIN EVIDENCE MATERIAL TO ANY MATTER INVOLVED IN THE ACTION which are in his possession and control, OR 2. Permit entry upon designated land or other property in his possession / control for the purpose of INSPECTING, MEASURING, SURVEYING, TAKING PHOTOGRAPHS of the property or any designated RELEVANT OBJECT or OPERATION thereon.383
375 376

Supra, Section 3, Rule 23 Supra, Section 9, Rule 23 377 Supra, Section 5, Rule 23 378 Supra, Section 1, Rule 26 379 Supra, Section 2, Rule 26 380 Supra, Section 3, Rule 26 381 Supra, Section 4, Rule 26 382 Supra, Section 5, Rule 26 383 Supra, Section 1, Rule 27 41

RESORTED TO DETERMINE CONTENTS, STATUS OR PRESERVATION OF THE SAME. RULE 28 PHYSICAL / MENTAL EXAMINATION OF PERSONS WHEN AVAILED OF In an action in which the MENTAL / PHYSICAL condition of a party is in controversy, a court in its discretion, can order him to submit to physical / mental examination by a physician.384 1. It can be ordered ONLY upon motion for good cause shown, with NOTICE to the party to be examined and to all other parties, specifying the time, place, manner, condition and scope of the examination and person/s by whom it is to be made. 385 2. ONCE EXAMINATION IS COMPLETED, the party examined may request that a detailed written report of the examining physician setting forth his findings / conclusions. 2.1 If requested and delivered, the party causing examination to be made is entitled to request and receive from examined party a like report of the same mental / physical examination / condition PREVIOUSLY OR THEREAFTER MADE. 2.2 If request is refused, the court on motion may order delivery by the party examined on such terms as are just. If the physician fails / refuses to make such report, his testimony may be excluded if his testimony is offered at trial. 386 2.3 NOTE a WAIVER OF PRIVILEGE that is caused by requesting and obtaining a report of the examination ordered or by taking the deposition of the examiner, party examined WAIVES ANY PRIVILEGE he may have in that action or any other involving the same controversy regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental / physical examination. 387 This refers primarily to the privilege between doctor and patient. RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY 1. If he refuses to answer upon being directed to do so or refuses to be sworn, it will constitute CONTEMPT OF COURT. A citation in contempt shall ensue after the following steps have been followed or observed: a. If the party/deponent refuses to answer any question upon oral examination, the deposition may be completed on other matters or adjourned as the proponent may prefer. b. The proponent may then apply for an order to compel an answer in the proper court where the deposition is being taken. This is also applicable to interrogatories. c. If granted, the court can order that answer be made and if it finds that refusal is without substantial justification it may impose upon deponent / counsel advising that no answer be given or both reasonable expenses and attorneys fees in obtaining the order. If denied and the court finds application was filed without substantial justification proponent / counsel advising application or both may in the same manner be sanctioned.388 2. Other consequences (applicable to Sec 1, Rule 29, Rule 27 and Rule 28) the Court may issue an:

a. order that the matters regarding which the questions are asked, character / description of thing or land / contents of a paper or physical / mental condition of a party shall be taken to be established in accordance with the claim of the party obtaining the order. b. order refusing to allow the disobedient party to support / oppose designated claims / defenses or prohibiting him from introducing in evidence the designated things / documents or items of testimony or from introducing evidence of physical / mental condition. c. order striking out pleadings or parts thereof or staying proceedings until the order is obeyed, dismissing the action or proceeding or any part thereof, or rendering judgment by default against the disobedient party. d. In lieu or in addition to orders, the disobedient party can be ordered arrested except in relation to a physical / mental examination. 389 OTHER SANCTIONS 1. Expenses on refusal to admit if requested party serves a sworn denial and party serving request proves genuineness / truth, he may apply for an order directing the requested party to pay expenses incurred in making proof plus attorneys fees. Order is issued except if court finds good reasons for denial or admissions were of no substantial importance. 390

384 385

Supra, Section 1, Rule 28 Supra, Section 2, Rule 28 386 Supra, Section 3, Rule 28 387 Supra, Section 4, Rule 28 388 Supra, Sections 1 and 2, Rule 29 389 Supra, Section 3, Rule 29 390 Supra, Section 4, Rule 29 42

2. Failure of a party to willfully appear before the officer taking the deposition, after being served with a proper notice, or fails to serve answers to written interrogatories properly served, court may on motion and notice: (a)Strike out all or any part of the pleading of that party (b) Dismiss the action / proceeding / part thereof (c) Enter judgment by default against that party, (d) and ,in its discretion, order payment of reasonable expenses and attorneys fees 391 BUT no expenses or fees are to be assessed against the Republic of the Philippines. 392

RULE 30 TRIAL NOTICE OF TRIAL Upon entry of a case in the trial calendar the clerk shall notify the parties of the date of the trial in such manner as to ensure receipt of the notice at least 5 days before such date.393 MAY TRIAL BE POSTPONED / ADJOURNED Courts may adjourn a trial from day to day, and to any stated time as the expeditious and convenient transaction of business may require but it shall have no power to adjourn for a longer period than one month for each adjournment, nor more than three months in all, except when authorized in writing by the Court Administrator of the Supreme Court.394 IF MOTION TO POSTPONE IS DUE TO ABSENCE OF EVIDENCE Can only be granted upon affidavit showing the materiality / relevancy of the evidence and that due diligence has been used to procure it, BUT, if the adverse party admits the facts to be given in evidence, or even if he objects or reserves the right to object to their admissibility, the trial shall not be postponed.395 IF DUE TO ILLNESS OF PARTY OR COUNSEL May be granted, if it appears upon affidavit or sworn certification that the presence of party / counsel at the trial is indispensable and that character of illness is such as to render non-appearance excusable.396 WHAT IS THE ORDER OF TRIAL Subject to Section 2, Rule 31 on separate trials and unless the court orders for special reasons, it shall be limited to the issues stated in the pre-trial order and shall proceed as follows: 1. Plaintiff adduces evidence in support of his complaint 2. Defendant adduces evidence in support of his defense, counterclaim, crossclaim and 3rd party complaint 3. Third party defendant, if any, shall adduce evidence of his defense, counterclaim, crossclaim and 4th party complaint. 4. Fourth party, and so forth, if any, shall adduce evidence of the material facts pleaded by them. 5. Parties against whom any counterclaim/crossclaim has been pleaded shall adduce evidence in support of their defense, in the order prescribed by the Court. 6. The parties may then respectively adduce rebutting evidence, unless the Court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case. 7. Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or submit memoranda or any further pleadings. If several defendants or 3rd party defendants and so forth, having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence.397 MAY THERE BE AN AGREEMENT UPON THE FACTS AND SUBMISSION OF THE CASE FOR JUDGMENT WITHOUT INTRODUCTION OF EVIDENCE Yes, provided it be in writing. If the parties agree only on some facts, trial shall be held as to the disputed facts 398 BUT, no judgment based on stipulation of facts is allowed in legal separation, annulment of marriage and declaration of nullity. NOTE: that in the same cases, neither is there judgment by default, judgment on the pleadings, summary judgment, judgment upon confession, judgment upon compromise, judgment based on stipulation of facts. WHAT ARE TO BE MADE OF RECORD All proceedings, including any statement made by the judge with reference to the case, or to any of the parties, witnesses or counsel shall be made of record in the stenographic notes.399 WHO IS TO RECEIVE EVIDENCE
391 392

Supra, Section 5, Rule 29 Supra, Section 6, Rule 29 393 Supra, Section 1, Rule 30 394 Supra, Section 2, Rule 30 395 Supra, Section 3, Rule 30 396 Supra, Section 4, Rule 30 397 Supra, Section 5, Rule 30 398 Supra, Section 6, Rule 30 399 Supra, Section 7, Rule 30 43

The judge is required to personally receive the evidence. But in default / ex-parte or when parties agree in writing it may be delegated to the clerk of court who is member of the bar though he has no power to resolve objections to any question or admission of exhibits . Such shall be resolved by the court upon submission of his report and transcripts within 10 days from termination of the hearing. 400 CAN ACTIONS BE SUSPENDED Actions may be suspended as governed by the provisions of the Civil Code 401: (a)if willingness to discuss a compromise is expressed by one or both parties (b)if it appears that one of the parties, before the commencement of an action / proceeding, offered to discuss a possible compromise but the other party refused the offer.402 RULE 31 CONSOLIDATION OR SEVERANCE WHEN CAN CONSOLIDATION TAKE PLACE? When actions involving a common question of law or fact are pending before the court, it may order joint hearing or trial of any or all the matters in issue in the actions, it may order all actions consolidated. Then it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs / delay403 MAY THERE BE CONSOLIDATION ALTHOUGH ACTIONS ARE PENDING IN DIFFERENT COURTS Yes, involving the consolidation of civil action WITH criminal action, if filed before criminal action and trial has not yet commenced. 404 PURPOSE OF ALLOWING CONSOLIDATION The purpose of allowing consolidation is to avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clearing of dockets, simplify the work of trial court, save unnecessary expenses / costs. 1. NOTE though that if actions involve a common question of law or fact because they arise from a single cause of action between the same parties, the remedy is dismissal on litis pendentia, not consolidation. WHEN CAN SEPARATION TAKE PLACE AND WHAT DOES IT COVER Covers any claim, cross-claim, counterclaim or third party claim or any separate issue or of any number of claims, cross-claims, counter claims, third party complaints, or issues in furtherance of convenience or to avoid prejudice.405 RULE 32 TRIAL BY COMMISSIONER WHEN RESORTED TO Trial by commissioners may be resorted to upon order of the court, which will then refer any or all issues when: (a)Parties agree in writing and the commissioner may either be agreed upon or appointed by the Court (b) When parties do not consent, on courts own motion or upon application of either party, if may be directed in the following: (1) Trial of an issue of fact requires examination of a long account (2) The taking of an account is necessary for the information of the court before judgment or for carrying judgment / or order into effect (3)A question of fact, other than upon the pleadings arises upon motion or otherwise, in any stage of the case, or for carrying a judgment or order into effect.406 1. The term commissioner may include a referee, an auditor or examiner407

2. A commissioner is designated or authorized by an ORDER OF REFERENCE which will specify or limit his powers, direct him to report only on or upon particular issues or do or perform particular acts, receive or report evidence only and fix date for beginning / closing hearings and for the filing of the report. 2.1 He shall then have and exercise the power to: (a)Regulate the proceeding before him (b)Do all acts and take all measures necessary or proper for the efficient performance of his duties upon the order (c)Issue subpoenas (d) Swear witnesses (e)Unless otherwise provided, rule upon the admissibility of evidence408 3. THE TRIAL / HEARING SHALL PROCEED IN ALL RESPECTS AS IT WOULD BE HELD IN COURT.

PROCEDURE 1.
400

Commissioner takes oath and be sworn to a faithful and honest performance of his duties409

Supra, Section 9, Rule 30 Supra, Section 8, Rule 30 402 Civil Code, Article 2030 403 Supra, Section 1, Rule 31 404 Section 1, Rule 111 of the Rules on Criminal Procedure 405 Supra, Section 2, Rule 31 406 Supra, Section 1, Rule 32 407 Supra, Section 2, Rule 32 408 Supra, Section 3, Rule 32 409 Supra, Section 4, Rule 32
401

44

2. Upon receipt of the Order of Reference, and unless otherwise stipulated he shall forthwith set a time and place for the first meeting of the parties and counsel within 10 days after the date of the order of reference, and shall notify parties / counsel410 3. If parties / counsel fail to appear, he may proceed ex-parte or in his discretion, adjourn the proceedings, giving notice to the absent party or counsel of the adjournment 411 4. He shall avoid delay as he is duty bound to proceed with all reasonable diligence. Either party on notice to other parties and the commissioner may apply for a court order to expedite proceedings / report412 5. If witness refuses to obey a subpoena or give evidence. It shall constitute contempt of the appointing court 413

6. Upon completion of trial / hearing / proceeding he shall file with the court has report in writing upon the matters submitted to him by the order of reference. When powers are not specified or limited, he shall set forth his findings of fact and conclusions of law in his report. He shall also attach all exhibits, affidavits, depositions, paper and transcripts of the testimonial evidence given414 7. Notice is then given by the clerk to the parties of the filing of the report, they shall then be allowed 10 days within which to signify objections to the findings in the report, is so desired. 7.1 NOTE: Objections to the report based on grounds available to the parties during the proceedings before the commissioner, other than as to the findings / conclusions, shall not be considered unless made before the commissioner. 415 8. Upon expiration of the period, the report shall be set for hearing, after which the court shall issue an order adopting, modifying, or rejecting the report in whole or in part or recommitting it with instructions or requiring the parties to present further evidence to the commissioner 416 9. If the parties stipulate that the commissioners findings of facts shall be final, only questions of law shall be thereafter considered. 417 9.1 Note that the findings of the commissioner are merely advisory and are not absolutely binding upon the court.418

EXPENSES / COMPENSATION They shall be reasonable as warranted by the circumstances and are to be taxed as costs against the defeated party or apportioned as justice requires419 WHEN REFERENCE TO COMMISSIONERS IS REQUIRED BY THE RULES Reference to commissioners is required in the following cases: (a)Expropriation under Rule 67 to determine just compensation (b)Partition under Rule 69, when parties cannot agree as to the manner of partition. RULE 33 DEMURRER TO THE EVIDENCE WHO FILES AND WHEN FILED The defendant is the party who may move for the dismissal of the action after presentation by the plaintiff of evidence ON THE GROUND that upon the facts and the law, plaintiff has shown no right to relief.420 EFFECTS OF FILING AND RESOLUTION 1. If granted, the action is dismissed, BUT if appealed and reversed, he loses his right to prevent evidence and judgment is rendered in favor of the plaintiff421 1.1 An order dismissing a case for insufficiency of evidence is a judgment on the merits, it is imperative that it be a reasoned decision and distinctly stating therein the facts and the law on which it is based.422 2. If denied, defendant may present his evidence as it does not constitute a waiver of right to do so.

410 411

Supra, Section 5, Rule 32 Supra, Section 6, Rule 32 412 Supra, Section 8, Rule 32 413 Supra, Section 7, Rule 32 414 Supra, Section 9, Rule 32 415 Supra, Section 10, Rule 32 416 Supra, Section 11, Rule 32 417 Supra, Section 12, Rule 32 418 Eternal Gardens Memorial Park Corporation v Court of Appeals, 282 SCRA 553 419 Supra, Section 13, Rule 32 420 Supra, Section 1, Rule 33 421 Quebral v Court of Appeals, 252 SCRA 353 422 Nicos Industrial Corporation v Court of Appeals, 206 SCRA 127 45

3. It is an error on the part of the Court of Appeals to order REMAND, if dismissal is elevated to it on appeal, it must decide on the evidence adduced by the plaintiff.423 DISTINGUISHED FROM CRIMINAL CASES (a) In both civil and criminal actions, the basis for both is the insufficiency of evidence. (b) In a civil action, dismissal by demurrer is by motion only, while in a criminal action, dismissal by demurrer is upon the courts initiative or motion giving the prosecution an opportunity to be heard. (c) In a civil action, leave is not required prior to filing, while in a criminal action leave may / may not be obtained. If obtained no waiver of right to present evidence if denied and if there is no leave, it is a waiver (d) In a civil action, if granted, plaintiffs remedy is appeal, while in a criminal action, if granted, there is no appeal as such will constitute double jeopardy. RULE 34 JUDGMENT ON THE PLEADINGS JUDGMENT ON THE PLEADINGS Can be had if the ANSWER fails to tender an issue or otherwise admits the material allegations of the complaint 424 1. There is no MOTU PROPIO RENDITION OF JUDGMENT as it is always by motion.

2. An answer fails to tender an issue when it fails to comply with the requirements of specific denial or is deemed to have admitted the allegations in the complaint 425 3. An answer admits the material allegations when it expressly confesses the truthfulness thereof or where it omits to deal with them all. 4. NOTE that when an answer raises factual issues involving damages, it is not proper to render judgment on the pleadings as presentation of evidence is required. WHO MAY MOVE FOR JUDGMENT ON THE PLEADINGS Only the plaintiff in original complaint, or of the counter-claim, or of the cross claim, or of the third party complaint may so move for judgment on the pleadings. WHEN NOT ALLOWED Judgment on the pleadings is not allowed in cases of: (a)Declaration of nullity of marriage (b) Annulment of marriage (c)Legal separation. In these cases, the plaintiff is required to prove the material facts regardless of whether the answer tenders an issue. RULE 35 SUMMARY JUDGMENT WHAT IS SUMMARY JUDGMENT Is a devise for weeding out sham claims or defenses at an early stage of the litigation thereby avoiding the expense / loss of time involved in a trial. Its very object is to separate what is formal or pretended in denial or averment from what is genuine and substantial so that only the latter may subject a suitor to the burden of trial. 1. This is also known as ACCELERATED JUDGMENT 426

WHO MAY MOVE FOR SUMMARY JUDGMENT AND WHEN Either plaintiff or defendant may move for a summary judgment: 1. If plaintiff or claimant (of original complaint / counterclaim / cross-claim), he may file the motion at any time after the pleading in answer to his claim has been filed on the ground that although there is an apparent issue, the same is SHAM / FALSE427 .Example: Answer admits obligation but states that the amount is wrong or less than that claimed. If plaintiff has proof that there is written acknowledgment that as of a date or period prior to that of the filing, the defendant was aware of the true amount, there can be summary judgment. 2. If movant is the defending party, he may file the motion at any time before or after he files his answer on the ground that plaintiffs claim against him is SHAM or FALSE 428 3. An issue is sham or false if it is not genuine. GENUINE means that the issue of fact is one that calls for the presentation of evidence.429 4.
423 424

In either case, the motion must be filed along with supporting affidavits, depositions or admissions.

Radiowealth Finance Company v Del Rosario, 335 SCRA 288 Supra, Section 1, Rule 34 425 Supra, Sections 8,9 and 11, Rule 8 426 Monterey Foods Corporation v Eserjose, 410 SCRA 627, Puyat v Zabarte, 352 SCRA 738 427 Supra, Section 1, Rule 35 428 Supra, Section 2, Rule 35 429 Excelsa Industries v Court of Appeals, 247 SCRA 560 46

5.

The PROCEDURE for the filing and resolution of a motion for summary judgment is as follows:

1. Plaintiff/Defendant serves on the defendant/plaintiff a copy of the motion at least 10 days before the date of hearing specified in the motion. 2. The defendant/plaintiff MAY serve opposing affidavits, depositions or admissions at least 3 days before the date of the hearing. 3. Court hears the motion.

4. If after hearing, it finds that the motion filed by PLAINTIFF justified, thus there is no genuine issue as to any material fact, it will render summary judgment for the plaintiff. If not, it will deny, set the case for pre-trial, then trial. If filed by the defendant and is justified, the complaint is dismissed, otherwise the case proceeds with the filing of answer or pre-trial is set and conducted. FORM OF AFFIDAVITS / SUPPORTING DOCUMENTS 1. They shall be made on personal knowledge, setting forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Certified copies of all papers / parts thereof shall be attached and served therewith.430 2. If affidavits have been determined to the satisfaction of the court that they are presented in bad faith or solely for the purpose of delay, the Court may forthwith order the offending party to pay reasonable expenses which may have been incurred by the other party, including attorneys fees. It may also find / adjudge, after hearing, that attending party / counsel are guilty of contempt. 431 EFFECT OF THE RENDITION OF SUMMARY JUDGMENT 1. The aggrieved party may appeal the summary judgment as such is final judgment as defined by Section 1, Rule 41.

2. IF DENIED, it is not appealable as order of denial of motion is interlocutory THOUGH certiorari may lie if the rendering of a summary judgment is clear, plain and patent but the court refuses or declines to render it. WHEN CAN THERE BE A PARTIAL SUMMARY JUDGMENT When the Court finds that a judgment cannot be rendered upon the whole case or for all the reliefs because there are controverted facts which require trial. A PARTIAL SUMMARY JUDGMENT is not appealable and shall be taken together with the judgment that a trial court will render after trial. Thus it cannot be executed.432 DISTINGUISHED FROM JUDGMENT ON THE PLEADINGS (a) A Judgment on the Pleadings is available when there is no genuine issue as answer fails to tender an issue or otherwise admits material allegations, while Summary Judgment is available when there is an apparent issue but is a sham, fictitious or false (b) A Judgment on the Pleadings is based exclusively on the pleadings (complaint / answer), while Summary Judgment is based not only on pleadings but also on affidavits, depositions and admissions, showing that except as to damages there is no genuine issue (c) A Judgment on the Pleadings can be filed only after an answer has been filed, while in Summary Judgment, there may or may not be an answer (d) A Judgment on the Pleadings can only be had by the plaintiff, while in Summary Judgment, either plaintiff or defendant may move for it (e) a motion for Judgment on the Pleadings is required to be served on adverse party at least 3 days prior to the hearing, while a motion for Summary Judgment requires service at least 10 days prior to the hearing 1. Judgment on the Pleadings is a judgment on facts as pleaded, Summary Judgment is a judgment as summarily proven by affidavits, depositions, admissions. If an answer tenders an issue, there can be no Judgment on the Pleadings but there can be Summary Judgment, if issue/s is later shown to be false, sham or fictitious. RULE 36 JUDGMENTS, FINAL ORDERS, AND ENTRY THEREOF REQUISITES OF A JUDGMENT/FINAL ORDER The requisites of a judgment or final order are: (1) It must be in writing (2) It must be personally and directly prepared by the judge (3) It must state clearly and distinctly the facts and the law on which it is based (4) It must be signed by the judge (5) It must be filed with the clerk of court.433 1. NOTE that a judge who has been reassigned can pen a decision as long he is still an incumbent judge.434

WHEN IS JUDGMENT RENDERED

430

Supra, Section 5, Rule 35 Supra, Section 6, Rule 35 432 Supra, Section 4, Rule 35 433 Supra, Section 1, Rule 36 434 ABC Davao Auto Supply v Court of Appeals, GR 113296, January 16, 1998
431

47

Ordinarily after trial, except in judgment on the pleadings, summary judgment, judgment by compromise, judgment based on stipulation of facts, judgment upon confession, order of dismissal in instances when it considered as an adjudication on the merits, judgment in cases covered by the Rules of Summary Procedure. 1. It is the filing of the judgment or final order with the clerk of court that constitutes RENDITION OF JUDGMENT, not the date of the writing of the decision or judgment, nor the signing thereof or even promulgation thereof. 435 2. A MEMORANDUM DECISION is one which adopts by references findings of facts and conclusions of law contained in the decision of an inferior tribunal. Note that this does not violate the rule as to statement of the facts and law. This kind of a decision can only be rendered by an appellate court. 3. A SIN PERJUICIO JUDGMENT is one which is without a statement of facts and is to be supplemented later by the final judgment. Such a judgment is void. DUTY OF THE CLERK OF COURT WHEN JUDGMENT BECOMES FINAL If no appeal or motion for reconsideration or new trial is brought within the time provided, the judgment / final order shall forthwith be entered by the clerk in the BOOK OF ENTRIES OF JUDGMENT. The date of finality shall be deemed the date of entry and shall contain the dispositive portion and signed by the clerk which a certificate that such judgment / final order has become final and executory.436 1. Note that date of entry retroacts to date of finality. Hence, both occur simultaneously by operation of law.

2. JUDGMENTS THAT ARE FINAL AND EXECUTORY CAN BE CORRECTED but limited only to NUNC PRO TUNC amendments or those that are merely clerical or typographical. 3. Correction or amendment is also allowed if purpose is to clarify an ambiguity caused by an omission or mistake, judgment / final order. 4. A COMPROMISE after finality of a judgment is allowed. The basis of the allowance is the principle of novation, which is a mode of extinguishing an obligation.437 Pet for extraordinary relief- GR 167651, San Pablo vs. marina May 10, 2005 JUDGMENTS MAY BE 1. Given for or against one or more several plaintiffs or for or against one or more several defendants. Courts, when justice demands require parties on each side to file adversary proceedings as between themselves to determine their ultimate rights / obligations. 438 2. In an action against several defendants, the courts if proper may render judgment against one or more, leaving the action to proceed against the others.439 Example: Judgment against a surety for admitted liability. 3. Separate judgments may be rendered when more than one claim for relief is presented, the court at any stage upon determination of the issues material to a particular claim and all counter claims arising therefrom may render a separate judgment disposing of the claim and proceeding with the others. BUT, it may stay execution or enforcement until rendition of subsequent judgment/s and may prescribe such conditions to secure benefit thereof to the party in whose favor the judgment is rendered. 440 Example: It may occur when causes of action have been joined 4. Judgment against entity without juridical personality it shall set forth the individual names / proper names if known of persons composing it.441 RULE 37 NEW TRIAL OR RECONSIDERATION WHEN FILED A motion for new trial or reconsideration may be filed within the period for taking an appeal. 442 GROUNDS FOR A MOTION FOR NEW TRIAL 1. Fraud, Accident, Mistake, Excusable Negligence which ordinary prudence could not have guarded against and by reason of which the aggrieved party was probably impaired in his rights. 1.1 Fraud should be extrinsic or collateral, which refers to such acts that prevents a party from having a trial / presenting his case in court. It refers to all kinds of deceptions, whether through insidious machination, manipulation or concealment or misrepresentation
435 436

Castro v Malazo, 99 SCRA 164 Supra, Section 2, Rule 36 437 Magbanua v. Uy, 458 SCRA 185 438 Supra, Section 3, Rule 36 439 Supra, Section 4, Rule 36 440 Supra, Section 5, Rule 36 441 Supra, Section 6, Rule 36 442 Supra, Section 1, Rule 37 48

that leads another party to error.443 Examples are: false promise to compromise or connivance of lawyer with adverse party. This does not include INTRINSIC FRAUD or acts of a party at trial that prevents fair determination. Examples are: perjury, falsification. 1.2 Accident is a fortuitous event, circumstance, or happening; an event happening without any human agency or if happening wholly or partly through human agency, is an event which under the circumstances is unusual or unexpected by the person to whom it happens.444 sickness of a party, lack of notice when sent to other address. 1.3 Mistake refers to some unintentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence. It pertains generally to mistake of fact, not of law.445 failure to answer / act because he believed it unnecessary because of a compromise or other document. 1.4 Excusable 446Negligence is an excusable omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affiants, would do; or the reasonable doing of something which a prudent or reasonable man would not do. failure is really that of the party or counsel non submission on time because of distance traveled. 2. Newly Discovered Evidence, which the aggrieved party could not with reasonable diligence, have discovered or produced at the trial and which would probably alter the result. 2.1 Hence, the requisites are: (a)Evidence is discovered after trial (b)Such could not have been discovered and produced at the trial with reasonable diligence (c) Evidence is material NOT cumulative, corroborative, or impeaching, and is of such weight that, if admitted, could probably change the judgment.447 GROUNDS FOR MOTION FOR RECONSIDERATION The grounds for a motion for reconsideration are: (a) Award of excessive damages (b) decision or final order (c) Decision / final order is contrary to law HOW FILED / CONTENTS It shall be made in writing stating the ground/s, written notice of which shall be served by the movant on the adverse party. Insufficiency of evidence to justify the

1. If the Motion for New Trial is based on Fraud, Accident, Mistake or Excusable Negligence, it should be supported by
affidavits of merit, which may be rebutted by affidavits. The requirement of an affidavit is essential because obviously a new trial would be a waste of the courts time if the complaint turns out to be groundless or the defense ineffective.448 2. If based on NEWLY DISCOVERED EVIDENCE it should be supported by affidavits of the witnesses by whom such evidence is expected to be given or by duly authenticated documents which are proposed to be introduced as evidence. 3. If MOTION FOR RECONSIDERATION, it should point out specifically the finding / conclusions which are not supported by the evidence / contrary to law, making express reference to testimonial / documentary evidence or provisions alleged to be contrary to such findings or conclusions. 3.1 IF NOT, the motion is considered a PRO FORMA MOTION. It does not toll the reglementary period of appeal. 449 Note also that such a motion without notice of hearing and proof of service has the same effect450 IF A MOTION FOR NEW TRIAL IS FILED, WHAT ENSUES Court may either deny or set aside the judgment or final order and grant a new trial451 1. IF denied, another motion be filed, if it is based on a ground NOT EXISTING NOR AVAILABLE when the first motion has filed.452 Note that a motion for new trial is an omnibus motion, thus it should include all grounds then available as those not included are deemed waived. 2. IF granted, the effects are (a) original order / judgment is vacated (b) the action shall stand trial de novo (c) recorded evidence, insofar as material or competent to establish the issues, shall be used at the new trial without need to retake therein453 IF MOTION FOR RECONSIDERATION IS FILED WHAT ENSUES Court may deny or amend its judgment / final order if it finds that excessive damages are awarded, or that it is contrary to the evidence or the law454

443 444

Maestrado v Court of Appeals, 327 SCRA 678 Jarco Marketing v Court of Appeals, 321 SCRA 375 445 Agan v Heirs of Sps. Andres and Diosdada Nueva, 418 SCRA 421 446 Mckee v Intermediate Appellate Court, 211 SCRA 517 447 Marikina Valley Development Corporation v Court of Appeals, 294 SCRA 273 448 Yap v Tanada, 163 SCRA 464 449 Marina Properties Corporation v Court of Appeals, 294 SCRA 273, Cledera v Sarmiento, 39 SCRA 552 450 Firme v Reyes, 92 SCRA 713 451 Supra, Section 3, Rule 37 452 Supra, Section 5, Rule 37 453 Supra, Section 6, Rule 37 454 Supra, Section 3, Rule 37 49

1. If denied no second motion for reconsideration is allowed of the judgment or final order. NOTE THOUGH that if the subject is not a judgment / final order or is an interlocutory order which does not dispose of a case completely but leaves something more to be done upon its merits, a 2nd motion for reconsideration may be allowed. 2. The filing of a second motion for reconsideration is a prohibited pleading. Thus it does not toll the running of the reglementary period of appeal.455 OTHERS 1. The periods for resolving the motions are: (a) MTC / RTC within 30 days from the time it is submitted for resolution 456 (b) Court of Appeals- within 60 days after if declares it submitted for resolution (c) Supreme Court- no period is prescribed 2. THE DENIAL OF BOTH MOTIONS IS NOT APPEALABLE, IT IS THE JUDGMENT / FINAL ORDER THAT IS APPEALABLE. 457 RULE 38 RELIEF FROM JUDGMENT, ORDERS OR OTHER PROCEEDINGS GROUNDS UPON WHICH IT IS TO BE BASED Judgment / final order is entered, or proceeding is thereafter taken against him through FRAUD, ACCIDENT, MISTAKE, EXCUSABLE NEGLIGENCE. This means that the FAILURE TO ACT ON JUDGMENT / FINAL ORDER / PROCEEDING ARE DUE TO Fraud, Accident, Mistake or Excusable Negligence. This also applies to a failure to take an appeal is due. 1. 2. The object to the petition is that the judgment, order, or proceeding be set aside or that the appeal be given due course. The petition must be VERIFIED. 458

3. The other ways by which a final and executory judgment may be set aside is by Petition for Certiorari under Rule 65 and Rule 46 and by Annulment of Judgment under Rule 47.459 4. The petition is premised on equity. It should therefore be granted only in exceptional cases. Petitioner must be able to prove fraud, accident, mistake or excusable negligence and the existence of a good and substantial cause of action or defense, as the case may be.460 5. 6. It cannot be availed of if there is another remedy in law461and is available only against a final and executory judgment. 462 Note though that is the case is covered by the Rules on Summary Procedure, a petition for relief is a prohibited pleading.463

WHEN AND WHERE FILED 1. It is to be filed within 60 days after he learns of the judgment final order / proceeding but not more than 6 month after such judgment / final order was entered or such proceeding taken.464 1.1 A few days after expiration of the 60 day period is not entirely fatal as long as it is still filed within the 6 months period. 465

1.2 But if it is a judgment by compromise, the 6 months period runs from date of rendition, because a judgment upon a compromise is immediately executory and considered to have been entered on the date it was approved by the trial court.466 1.3 The 6 months period is reckoned from entry of judgment or final order, not from its rendition or finality 467while from learning means from notice of judgment or final order468 2. taken. It is to be filed in the same case and in the same court where the judgment / final order was entered or where proceeding is

PROCEDURE 1. Filing of verified petition accompanied by affidavits showing FAME and the facts showing the petitioners good and substantial cause of action or defense, as the case may be (grounds constituting his cause of action / defense)
455 456

Hongria v Hongria-Juarde, 425 SCRA 504 Supra, Section 4, Rule 37 457 Barnes v Reyes, 411 SCRA 538 458 Supra, Sections 1 and 2, Rule 38 459 Arcelona v Court of Appeals, 280 SCRA 20 460 Torno v Intermediate Appellate Court, 166 SCRA 742 461 Alquesa v Cavada, Jr. 3 SCRA 428 462 Valencia v Court of Appeals, 352 SCRA 72 463 Sta Lucia Realty and Development Corporation v Court of Appeals, 343 SCRA 214 464 Supra, Section 3, Rule 38 465 Mago v Court of Appeals, 303 SCRA 600 466 Manipor v Ricafort, 407 SCRA 298 467 Bayog v Natino, 258 SCRA 378 468 Prudence Realty and Development Corporation v Court of Appeals, 231 SCRA 379 50

2. Order issued requiring adverse party to answer within 15 days from receipt 469 and if warranted a writ of preliminary Injunction may be issued.470 3. 4. Adverse party answers, but if he does not, he cannot be declared in default. Court hears and may grant relief if the allegations are true or deny if not true.

4.1 If granted, the assailed final order / judgment / proceeding is set aside and proceedings taken as if a timely motion for new trial has been granted. 471 There are in effect two hearings: the first is as to the merits of the petition, the second is as the merits of the principal case. 4.2 If denied, the order is not appealable 472 but may be subject of certiorari under Rule 65

5. Court hears the case as if a timely motion for new trial or reconsideration has granted. If the subject is denial of an appeal, the lower court shall be required to give due course to the appeal and elevate the records as if a timely and proper appeal has been made.473 6. Judgment is rendered and is appealable

DISTINGUISHED FROM A MOTION FOR NEW TRIAL They are distinguished as follows: (a) a motion for new trial is filed before judgment becomes final, while a petition for relies if filed after a judgment becomes final (b) a motion for new trial applies to judgments / final orders, while a petition for relief includes proceedings (c) the grounds for a motion for new trial includes newly discovered evidence, while a petition for relief is limited to FAME (d) a motion for new trial is filed within the period for perfecting an appeal, while a petition for relief is filed within 60 days from knowledge but within 6 months from entry of judgment (e) a motion for new trial if denied allows an appeal, while a petition for relief from judgment does not allow an appeal (f) a motion for new trial is a legal remedy, while a petition for relief is a remedy in equity (g) a motion for new trial requires no verification, while a petition for relief needs to be verified. RULE 39 EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS TWO KINDS OF EXECUTION 1. COMPULSORY is one which issues as a matter of right, or motion, upon a judgment or order that disposes of the action or proceeding UPON EXPIRATION of the period to appeal, if no appeal is taken therefrom / is perfected. It also issues when appeal is duly perfected and finally resolved. a. It may be applied for in the court of origin, on motion of judgment obligee submitting certified true copies of the judgment / final orders / orders sought to be enforced and ENTRY thereof, with notice to the adverse party. There is no need for return of records. b. It may also be applied for in the appellate court, on motion in the same case, when the interest of justice so requires, direct the court of origin to issue the writ of execution in the event of the refusal of the court of origin to issue the writ. 474 c. A motion is required as there may be questions / disputes as to finality or amounts to be stated in the writ.

2. DISCRETIONARY is one that is issued, on motion, of the prevailing party for good reasons. This is also known as EXECUTION PENDING APPEAL / EXCEPTIONAL EXECUTION 475 a. It is filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of the motion. 476 The COURT, may in its discretion, order execution of judgment / final order even before the expiration of the period to appeal. If the trial court has lost jurisdiction, it is to be filed with the appellate court. a.1 A court LOSES JURISDICTION when there is perfected appeal and the period to appeal has expired. When a record on appeal is required, it loses jurisdiction OVER THE SUBJECT OF THE APPEAL upon perfection of the appeal and expiration of the period to appeal. a.2 The REQUISITES OF EXECUTION PENDING APPEAL are: (1) A motion by the prevailing party with notice to the adverse party (2)There must be good reason for execution pending appeal (3) The good reason must be stated in a special order. They must constitute superior circumstances demanding urgency which will outweigh the injury or damage should the losing party secure a reversal of the judgment on appeal. 477EXAMPLES OF GOOD REASONS are: deterioration of the goods, prevailing partys

469 470

Supra, Section 4, Rule 38 Supra, Section 5, Rule 38 471 Supra, Section 6, Rule 38 472 Supra, Section 1(b), Rule 41 473 Supra, Section 7, Rule 38 474 Supra, Section 1, Rule 39 475 Supra, Section 2, Rule 39 476 Philippine Nails & Wires Corpoation v Malayan Insurance Company, 397 SCRA 431 477 Jaca v Davao Lumber Company, 113 SCRA 107 51

inability to enjoy the decision, or its becoming illusory. In a recent case, OLD AGE was found to be a good reason. 478 NOTE: corporations financial distress was not considered a good reason. b. DISCRETIONARY EXECUTION BE STAYED upon approval by the proper court of a sufficient supersedeas bond filed by the party against whom it is directed CONDITIONED UPON THE PERFORMANCE OF THE JUDGMENT / FINAL ORDER allowed to be executed in case finally sustained in whole in part. The bond may then be proceeded against on motion with notice to the surety.479 BUT, the mere filing of a bond by a successful party allow execution pending appeal nor constitute good ground. 480 b.1 There are JUDGMENTS NOT STAYED BY APPEAL such as judgments in injunction, to include a judgment dissolving it481 receivership, accounting and support and such other judgments as are now or hereafter be declared to be immediately executory, shall be enforceable upon their rendition, they shall not be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court. IF STAYED, it shall be upon such terms as to bond or otherwise as may be considered proper for the security / protection of the rights of the adverse party. ON APPEAL THOUGH, the appellate court may make an order suspending, modifying, restoring or granting the injunction, receivership, accounting or award of support.482 b.2 Judgments in Forcible Entry / Illegal Detainer, if against the defendant are immediately executory. 483 The same is true of a judgment by compromise. 484 b.3 IF THERE ARE SEPARATE JUDGMENTS / OR SEVERAL OR PARTIAL JUDGMENTS, they may executed under the same terms and conditions as execution of a judgment / final order pending appeal. 485 b.4 IF EXECUTION IS GRANTED BUT JUDGMENT / FINAL ORDER IS REVERSED ON APPEAL totally / partially or annulled, on appeal or otherwise, the trial court, on motion, may issue orders of reparation or restitution of damages as equity and justice may warrant under the circumstances.486 The phrase or otherwise applies to reversal after a petition for relief has been granted under Rule 38 and upon a favorable judgment in a petition for annulment of judgment under Rule 47 b.5 The Court of Appeals has no authority to issue immediate execution pending appeal of its own decision. Discretionary execution applies only to a judgment or final order of the trial court.487 WHAT ARE / OR MAY BE THE SUBJECT OF EXECUTION Only judgments or final orders, or one which disposes of the whole subject matter or terminates a particular proceeding or action, leaving nothing to be done but to enforce by execution that which has been determined. AS OPPOSED TO -Interlocutory orders which cannot be enforced by execution, one that does not dispose of a case completely, but leaves something to be done on the merits. 1. An EXCEPTION is a judgment for support pendente lite.488

2. Distinguishing a final judgment or order from one which has become final and executory. A final judgment is one that finally disposes of a case, leaving nothing more to be done by the court in respect thereto. It is an adjudication on the merits. Once rendered, the task of the court is ended, as far deciding the controversy or determining rights and liabilities of litigants. Nothing more is to be done but to await the parties next move, and ultimately, to cause execution of the judgment once it becomes final and executory.489 HOW CAN A FINAL JUDGMENT / ORDER BE ENFORCED A final and executory judgment may be enforced by (1) By motion within 5 years from date of entry of judgment (2)By action after the lapse of 5 yrs from date of entry of judgment but before barred by statute of limitations, which is 10 years. This is known as action to revive judgment.490 1. The revived judgment may also be enforced by motion within 5 yrs from date of entry, and thereafter by action before it is barred by the statute of limitations. The purpose of the action is not to re-examine the issues as the cause of action is the judgment itself and not the merits of the original action. 491 2. RECONCILING WITH ACTIONS UPON A JUDGMENT under Article 1144, NCC WHICH PRESCRIBES IN 10 YEARS. The Rules of Court refer to the manner of execution of the judgment. 3. Note that this is not applicable in land registration cases or other special proceedings, IN CIVIL ACTIONS ONLY.

478 479

FEBTC v Toh, Sr. 404 SCRA 590 Supra, Section 3, Rule 39 480 International School v. Court of Appeals, 309 SCRA 474 481 ITC v PTA, 341 SCRA 90 482 Supra, Section 4, Rule 39 483 Supra, Section 19, Rule 70 484 Litton v Court of Appeals, 263 SCRA 40, AFPMBAI v Court of Appeals, 311 SCRA 143 485 Supra, Section 2 (b), Rule 39 486 Supra, Section 5, Rule 39 487 Heirs of the late Justice JBL Reyes v Demetria, 374 SCRA 206 488 Supra, Section 5, Rule 61 489 Denso Philippines, Incorporated v IAC, 148 SCRA 280 490 Supra, Section 6, Rule 39 491 Laperal v Ocampo, 410 SCRA 339 52

4. There are however instances when judgment / final order can still be enforced by motion even after lapse of 5 years when the delay is caused or occasioned by the actions of the judgment obligee or incurred for his benefit or advantage. 492 The liberal construction of the rule resulting in non inclusion of the period of delay occasioned by the acts of the judgment oblige in the counting of the period was resorted to as strict adherence to the letter of the law would result in absurdity and manifest injustice.493 ISSUANCE, FORM, CONTENTS OF A WRIT OF EXECUTION A writ of execution shall (1)Issue in the name of RP from the Court that granted the judgment (2) State the name of court, case number, title, and dispositive portion (3) Require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms, in the manner herein provided: (a) execution be against property of judgment obligor, to satisfy judgment with interest, out of his real or personal property (b) if against real or personal property, in the hands of personal representatives, heirs, devisees, legatees, tenants trustees of the judgment obligor, to satisfy the judgment, with interest, out of such property (c) if it be for sale of real / personal property, to sell it, describing it, and apply the proceeds in conformity with the judgment, the material parts of which shall be recited in the writ (d) if it be for delivery of the possession of real / personal property, to deliver the possession of the same, describing it, to the party entitled thereto and to satisfy any costs, damages, rents, profits covered by the judgment out of the personal property of the person against whom it was rendered, and if no sufficient personal property be present, out of real property (e) in all cases, the writ shall specifically state the amount of interest, costs damages, rents, profits due as of the date of issuance of the writ aside from the principal obligation under judgment494 MANNER OF EXECUTION I. FOR SUMS OF MONEY 1. Immediate payment on demand from judgment obligor payable in cash of certified bank check payable to the obligee or any form acceptable to him plus lawful fees to be turned over to the clerk of court of the court that issued the writ. If judgment obligee is not present to receive the amounts, it shall be delivered by judgment obligor to the sheriff, turning in all amounts on the same day to the clerk of court or if not practicable, to deposit in the nearest government depository bank of Regional Trial Court in the locality, then arrangements are then made for remittance to clerk of court issuing the writ for delivery to the judgment obligee. IN NO CASE SHALL SHERIFF DEMAND PAYMENT BY CHECK PAYABLE TO HIM

2. Satisfaction by levy if not paid in cash, the sheriff shall levy on the properties of judgment obligor of any kind / nature
which may be disposed of for value and not otherwise exempt from execution giving obligor the option to immediately choose which property or part thereof may be levied upon to satisfy judgment. If not sheriff shall levy on personal properties first, if any, then on real properties if insufficient to answer for judgment. Sheriff can only sell sufficient portion of the personal / real property levied upon when there is more property then is sufficient to satisfy judgment, on so much of it to satisfy judgment is to be sold. The conduct of the SALE SHALL FOLLOW THE PROCEDURE LAID DOWN BY THE RULES TO IMPLEMENT SALE OF PROPERTY. 2.1 EFFECT OF LEVY. A levy on execution shall create lien in favor of the judgment obligee over the right, title and interest of the judgment obligor in such property at the time of levy subject to liens / encumbrances then existing effect then on 3 rd persons depends on when their liens / encumbrances if any, was annotated or interposed.495 2.2 PROBLEM if LEVY is made beyond the period of 5 years from entry of judgment. The same is NOT VALID as lifetime or a writ of execution is 5 years from date of entry of judgment.496

3. Garnishment of debts and credits. The officer may levy on debts due the judgment obligor and other credits. Examples: bank deposits, financial interests, royalties, commissions, and other personal property. These are not capable of normal delivery and are in the possession and control of third parties. 3.1 Levy shall be made by serving notice on the person owing such debts or having in his possession or control such credits to which the judgment obligor is entitled. 3.2 The garnishee, shall then make a written report to the court from service of notice stating whether or not the judgment obligor has sufficient funds or credits to satisfy the judgment the garnished amount shall then be delivered directly to the judgment obligee within 10 working days from service of notice on him requiring delivery less lawful fees to be paid directly to the Court. 3.3 If there are 2 or more garnishees the judgment obligor shall have the right to indicate the garnishee/s who shall deliver, otherwise it shall be the choice of the judgment obligee.497 (Section 9) 4. Writ is to be returned to the Court issuing it immediately after judgment has been satisfied in part or in whole. If not / cannot be satisfied in full within 30 days from receipt of the writ, the officer shall report to the court and state the reason therefor. Such writ
492 493

Camacho v Court of Appeals, 287 SCRA 611 Republic v Court of Appeals, 260 SCRA 344 494 Supra, Section 8, Rule 39 495 Supra, Section 12, Rule 39 496 Supra, Section 14, Rule 39 497 Supra, Section 9, Rule 39 53

will continue to be in effect during the period within which judgment may be enforced by motion, the officer shall then make a report to the Court every 30 days on the proceedings taken thereon until the judgment is satisfied in full or its effectivity expires. The returns / reports shall set forth the proceedings taken, filed with the court and copies promptly furnished parties.498 II. FOR SPECIFIC ACTS499

1. If CONVEYANCE, DELIVERY OF DEEDS OR OTHER SPECIFIC ACTS party is directed to comply if he fails to do so within the period specified, court may direct the act to be done at the cost of the disobedient party, by some other person appointed by the court and when so done it is as if done by the disobedient party. If it involves real / personal property located in the Philippines, the court in lieu of directing a conveyance thereof may by an order divest title and vest it in others, which shall have the force and effect of a conveyance executed in due form of law. 2. If for SALE OF REAL/PERSONAL PROPERTY the property is to be sold, describing it, and apply the proceeds in conformity with the judgment. 2.1 a. The procedure is as follows: Notice must be given as follows:

1. Perishable property posting of written notice (of time, place, sale) in 3 public places preferably in conspicuous areas of the municipal/city hall, post office, public market, for such a time as may be reasonable depending on circumstances. 2. Personal property posting of written notice in 3 public places for not less than 5 days.

3. Real property posting of written notice in 3 public places for at least 20 days, describing the property, where it is to be sold, and if assessed value is in excess of PHP 50,000.00, publishing the notice in a newspaper of general circulation once a week for 2 consecutive weeks. IN ALL CASES written notice is also given to judgment obligor at least 3 days before the sale except in (a) notice is given at any time in the same manner as personal service of pleadings. 500 4. The CONTENTS OF NOTICE are the place, date exact time not earlier than 9:00 am or later than 2:00 pm. The place may be agreed upon, if not, Real/Personal property not capable of manual delivery shall be sold at the Office of the Clerk of Court of Regional or Municipal Trial Court issuing the writ. If capable of manual delivery, where personal property is located. 5. If there is a sale WITHOUT NOTICE, the officer is liable for punitive damages in the amount of PHP 5,000 in addition to actual damages sustained by injured person. IF DEFACED / REMOVED before the sale / satisfaction of the judgment, the person so defacing or removing shall be liable to pay PHP 5,000.00 plus actual damages. These are recoverable upon motion.501 b. All sales shall be by public auction. This applies also when property is levied upon. Sale is made to the highest bidder, to start at the exact time stated in the notice. 1. If sufficient property has been sold, no more shall be sold and any excess property / proceeds shall be delivered to the judgment obligor or his representative, unless otherwise directed by the court EXAMPLE- other debts due to be paid 2. If sale is of real property consisting of several known lots they must be sold separately or if claimed by a 3rd person, he may require it to be sold separately. 3. Personal property capable of manual delivery it must be sold within view of those attending and in such parcels so as to bring the highest price. 4. The judgment obligor, if present may direct the order in which the property is to be sold when such property consists of several parcels / known lots which can be sold to advantage separately. 5. No officer or his deputies, can be a purchaser, nor be interested directly or indirectly in any purchase at such sale.502

6. By written consent of both judgment obligor / obligee or their duly authorized representatives, the auction sale may be adjourned to any date or time agreed by them. Without an agreement officer may adjourn from day to day if it becomes necessary. 503 WHAT HAPPENS WHEN A PURCHASER REFUSES TO PAY Officer may again sell the property to the highest bidder and shall not be responsible for any loss occasioned thereby, like when it is resold for less. But, the court may order the refusing purchaser to pay unto the Court such loss, and punish him with contempt if he
498 499

Supra, Section 14, Rule 39 Supra, Section 10, Rule 39 500 Supra, Section 15, Rule 39 501 Supra, Section 17, Rule 39 502 Supra, Section 19, Rule 39 503 Supra, Section 22, Rule 39 54

disobeys. Payment shall inure to the benefit of party entitled to execution, unless he has been satisfied, in which case to the judgment obligor. IN ADDITION: officer may thereafter reject all bids of such purchaser.504 CAN JUDGMENT OBLIGEE PURCHASE Yes, and if no 3rd party claim has been filed, he need not pay the amount if it does not exceed the amount of his judgment. If it does he shall only pay the excess. 505 EFFECT OF PAYMENT BY JUDGMENT OBLIGOR BEFORE SALE OF PROPERTY ON EXECUTION Sale is prevented by the payment required by execution and cost incurred therein506 WHAT HAPPENS IF PROPERTY IS CLAIMED BY THIRD PERSON Third person is called a third party claimant. He is one who claims title to, or right of possession of the property levied upon by the sheriff. NOTE: there may be a 3rd party claimant in execution, preliminary attachment and replevin. WHAT DOES 3RD PARTY CLAIMANT DO He can file a 3rd party claim or a terceria by executing an affidavit showing his title thereto, or right of possession over the property being levied upon, stating therein the grounds of such title or right, serving a copy thereof to the sheriff and judgment obligee. If filed, sheriff is not obliged to proceed unless the judgment obligee files an indemnity bond in an amount not less than value of the property. No action on the bond may enforced by the third party claimant unless filed within 120 days from date of the filing of the bond. If bond is filed 3rd party claimant may vindicate his claim within the period OR he may institute a separate action to vindicate his claim BUT nothing also prevents the judgment obligee from claiming damages in the same or separate action against a 3 rd party claimant who files a frivolous / spurious claim. If writ is issued in the name of the RP, no bond is required. Officer is to be represented by the SOLGEN, and if damages are assessed, it is to be paid out of the National Treasury. 507 C. AFTER SALE, CONVEYANCE MADE AS FOLLOWS

I. REAL PROPERTY a certificate of sale is given stating the description of the property, price paid for each distinct lot / parcel, whole price paid and a statement that the right of redemption shall or will expire one year from date of registration of the certificate. 508 MAKING MENTION OF THE EXISTENCE OF A 3RD PARTY CLAIM, IF ANY509 Note: the requirement of mentioning a 3rd party claim, if any, applies also to conveyance over personal property. THE PARTIES ENTITLED TO REDEEM ARE: a. Judgment obligor, or his successor in interest, in whole or any part of the property

b. A creditor having a lien by virtue of an attachment, judgment, mortgage on the property sold or on some part thereof, subsequent to the lien under which the property is sold. Such redeeming creditor is called a REDEMPTIONER. 510 TIME AND MANNER OF REDEMPTION The judgment obligor / redemptioner may redeem the property from the purchaser at any time within 1 year from registration by paying the amount of purchase, plus 1% interest per month at the time of redemption, together with the amounts of assessments / taxes paid at the purchase and interest on the same at the same rate, AND, if the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment, the amount of the lien plus interest. Property so redeemed may be redeemed within 60 days after the last redemption upon payment of the sum paid, w/ 2% interest thereon plus taxes / assessments paid, and amount of liens held by redemptioner prior to his own. AND SO FORTH. Written notice however of redemption must be given to the officer who made the sale and duplicate with the Registry of Deeds and if any assessments / taxes / prior liens are paid, notice must also be given to above parties OTHERWISE, redemption can be effected without paying taxes / assessments / liens. NOTE: Proof required of redemption under Section 30 PROOF REQUIRED OF REDEMPTION A redemptioner must produce to the officer, or person from whom he seeks to redeem, and serve with notice to the officer- a copy of judgment or final order, certified by the clerk of court. Mortgage / other lien certified copy by the Register of Deeds / or memorandum thereof and affidavit showing amount due on the lien.511
504 505

Supra, Section 20, Rule 39 Supra, Section 21, Rule 39 506 Supra, Section 18, Rule 39 507 Supra, Section 16, Rule 39 508 Supra, Section 25, Rule 39 509 Supra, Section 26, Rule 39 510 Supra, Section 27, Rule 39 511 Supra, Section 30, Rule 39 55

IF JUDGMENT OBLIGOR REDEEMS He must make all the payments required to effect a redemption by a redemptioner. Thereupon, no further redemption is allowed and he is restored to his estate. The person upon whom redemption payment is made shall execute a Certificate of Redemption after payment. Certificate is then filed with the Office of the Registry of Deeds.512 WHO IS ENTITLED TO THE USE OF REAL PROPERTY PENDING REDEMPTION 1. Person in possession at the time of sale or entitled to possession afterwards may continue to use it in the same manner as it was previously used, or to use in the ordinary course of husbandry or to make necessary repairs to buildings thereon while he occupies the property, BUT the court in proper cases, may restrain the commission of waste on the property by injunction on the application of the purchaser / judgment obligee with or without notice. 513 2. Rents, earnings and income shall belong to the judgment obligor until the expiration of his period for redemption. Neither shall the purchaser or judgment obligee be entitled to the same when such property is in the possession of a tenant. 514 IF NO REDEMPTION IS MADE If no redemption is made within one year from date of registration, the purchaser is entitled to possession and conveyance; OR if so redeemed whenever 60 days has elapsed and no other redemption is made and the time for redemption has expired, the last redemptioner is entitled to possession and conveyance. BUT, in all cases the judgment obligor is entitled to have the entire period of one year. Officer shall execute the deed / or his successor in interest with the same effect. Once done, the purchaser / redemptioner shall be substituted to and acquire all the rights title and interest and claim of the judgment obligor to the property as of the time of the levy. Possession shall then be given unless property is held by a 3 rd party adverse to the judgment obligor.515 Manner of effecting transfer of possession is by writ of possession. 516 IF THE SALE IS SUBSEQUENTLY RENDERED INFFECTIVE If the purchaser of real property or his successor in interest fails to recover possession or is evicted therefrom AS A CONSEQUENCE OF: irregularities in the proceedings concerning the sale, judgment has been reversed or set aside (RE: RELIEF),property is exempt from execution , or, 3rd person has vindicated his right to the property HE MAY on motion in the same action OR in a separate action recover from the judgment obligee the price paid with interest, or so much thereof as has not been delivered to the judgment obligor OR, he may on motion have the judgment revived in his name (if redemptioner) for the whole price with interest, or so much thereof as has been delivered to the judgment obligor Judgment revived shall have the same force and effect as an original judgment would have as of the date of revived and no more.517 II. PERSONAL PROPERTY -

a. If capable of Manual Delivery, the officer must deliver the property and if desired, execute and deliver a certificate of sale, which shall conveys all right with the judgment obligor had in such property as of date of levy on execution or preliminary attachment. 518 b. If Incapable of Manual Delivery, the officer must execute and deliver a certificate of sale and such shall convey all rights to purchaser as of the date of levy on execution or preliminary attachment. 519 3. If for DELIVERY OR RESTITUTION OF REAL PROPERTY officer shall demand of the person against whom judgment is rendered and all persons claiming rights under him to peaceably vacate the property within 3 working days and restore possession thereof to the judgment obligee OTHERWISE, officer shall oust all such persons thereon, with assistance from peace officers employing reasonable means and place the judgment obligee in possession. Any costs, damages, rents, profits shall be satisfied in the same manner as a judgment for money. 4. If for REMOVAL OF IMPROVEMENTS officer shall not destroy, demolish or remove except upon special order of the court, issued upon motion / hearing and after the judgment obligee had failed to remove within a reasonable time fixed by the rules. 5. If for DELIVERY OF PERSONAL PROPERTY officer shall take possession and forthwith deliver it to party entitled thereto and satisfy any judgment for money as herein provided. 520 EXECUTION OF SPECIAL JUDGMENTS Performance of an act other than those enumerated in Section 9 and 10, a certified copy of the judgment shall be attached to the writ of execution and served upon party against whom it is rendered, or upon any person required thereby, or by law, to obey the same if such party / person disobeys they may be punished for contempt. 521 EXAMPLE: Injunction, Quo warranto
512 513

Supra, Section 29, Rule 39 Supra, Section 31, Rule 39 514 Supra, Section 32, Rule 39 515 Supra, Section 33, Rule 39 516 Cometa v IAC, 151 SCRA 563, AutoCorp Group v Court of Appeals, 437 SCRA 678 517 Supra, Section 34, Rule 39 518 Supra, Section 23, Rule 39 519 Supra, Section 24, Rule 39 520 Supra, Sections 9 and 10, Rule 39 521 Supra, Section 11, Rule 39 56

WHAT ARE THE PROPERTIES EXEMPT FROM EXECUTION Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution: (a) The judgment obligors family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith; (b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood;

(c) Three horses, or three cows, or three carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation; (d) His necessary clothing and articles for ordinary personal use, excluding jewelry;

(e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos; (f) Provisions for individual libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value; (h) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood; (i) So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the four months preceding the levy as are necessary for the support of his family; (j) (k) Lettered gravestones; Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance;

(l) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government; (m) Properties specially exempted by law.

But no article or species of property mentioned in this section shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon.522 Claims for exemption from execution of properties must be presented before its sale on execution by the sheriff.523 WHAT HAPPENS TO EXECUTION UPON THE DEATH OF A PARTY It may issue or be enforced: a. In case of death of judgment obligee, upon application of his executor or administrator

b. In case of death of judgment obligor, against his executor, administrator, or successor in interest, IF it be for recovery of real or personal property or enforcement of a lien. c. Death of judgment obligor after execution is actually levied upon any of his property, the same may be sold for the satisfaction of the judgment obligation and the officer must account to the executor or administrator for any surplus, if any. 524 AS BETWEEN SEVERAL PERSONS AGAINST WHOM EXECUTION IS DIRECTED There is a right to contribution or reimbursement if: more than a due portion of the judgment is satisfied out of the proceeds of the sale of the property of one of them, OR, one pays, without sale, more than his proportion. AND, if judgment is upon an obligation of one of them, as security for another, and the surety pays the amount, or any part thereof, either by sale of property or before a sale, he may compel repayment from the principal. 525 WHAT ARE THE OTHER REMEDIES OF THE JUDGMENT OBLIGEE IF EXECUTION IS NOT CARRIED OUT OR JUDGMENT IS NOT SATISFIED 1. Examination of the judgment obligor concerning his property and income before the court or a commissioner and proceedings may thereafter may be had for the application of his property or income towards satisfaction of judgment BUT no obligor can be required to appear before a court or commissioner outside the province or city where he resides.526
522 523

Supra, Section 13, Rule 39 Gomez v Gealone, 203 SCRA 474 524 Supra, Section 7, Rule 39 525 Supra, Section 35, Rule 39 526 Supra, Section 36, Rule 39 57

2. Examination of the obligor of the judgment obligor upon proof shown to the satisfaction of the court that a person, corporation or other juridical entity has property of the judgment obligor or is indebted to him, the Court may by order require the person, corporation or juridical entity to appear before the Court / commissioner and be examined concerning the same. The service of the order shall bind all credits due the judgment obligor and all money / property of the judgment obligor in the possession / control of the person, corporation or juridical entity. Notice of all proceedings may also be required by the court.527 Obligor of judgment obligor may thereafter pay after writ of execution on property has been issued, the amount of his debt or so much thereof as may be necessary to satisfy the judgment and the sheriffs receipt shall constitute sufficient discharge for the amount so paid or directed to be credited by the judgment obligee on the execution528 In relation to both remedies party or other person may be compelled to appear by subpoena and failure to obey an order, subpoena or be sworn or answer as a witness or subscribe to a deposition is punishable by contempt. 529 3. Order for application of property and income to satisfaction of judgment. it may include his property or money due the judgment obligor, not exempt from execution, in his hands or other person, corporation or juridical entity may be applied to satisfaction of judgment subject to any prior rights over such property. ALSO, if upon investigation of current income and expenses, the earnings of judgment obligor are more than necessary for the support of his family, the court may order that judgment be paid by monthly installments, failing in which he may be punished for indirect contempt. 530 4. Appointment of a receiver for the property of the judgment obligor, it may also forbid a transfer or other disposition of or interference with the property of the judgment obligor not exempt from execution. 531 Thereafter, there can be a sale by the receiver upon order of ascertainable interest (or the real estate itself) of a judgment obligor in real estate in the place where proceedings are had as mortgagor / mortgagee or otherwise and if his interest can be ascertained without controversy, the receiver may be ordered to sell and convey such interest or real estate or the interest of the obligor therein. All proceedings to be approved by the Court before execution of the deed.532 In relation to the foregoing, IF IT APPEARS THAT A PERSON OR CORPORATION, ALLEGED TO HAVE PROPERTY OF THE JUDGMENT OBLIGOR DENIES OR CLAIMS INTEREST IN THE PROPERTY ADVERSE TO HIM, The Court may: (1) order judgment obligee to institute an action against such person or corporation for the recovery of such interest or debt (2) forbid a transfer / disposition of such interest / debt within 120 days from notice of the order (3) punish disobedience of such order as for contempt. The order may be modified or vacated at any time by the court that issued it, or by the court in which the action is brought, upon terms as may be just.533 WHAT IS TO BE DONE AFTER JUDGMENT IS SATISFIED Entry of satisfaction of judgment by the Clerk of Court in Court Docket and Execution Book upon RETURN OF WRIT INDICATING SATISFACTION / ON ADMISSION OF SATISFACTION BY JUDGMENT OBLIGEE / COUNSEL 534 It can also be entered upon demand of judgment obligor when judgment is satisfied in fact OR upon notice / motion court may order entry without admission535 EFFECT OF JUDGMENTS OR FINAL ORDERS 1. Effect of a judgment / final order rendered by a court in the Philippines, having jurisdiction to pronounce the same.

(a) In case of a judgment / final order against a specific thing, or in respect to probate of a will or administration of the estate of a deceased person, or in respect to personal, political or legal condition / status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will, administration status or relationship of the person. HOWEVER, probate or granting of letters of administration shall only be prima facie evidence of the death of the testator. 536 (b) Other cases, judgment / final order is with RESPECT TO THE MATTER DIRECTLY ADJUDGED OR AS TO ANY MATTER THAT COULD HAVE BEEN RAISED IN RELATION THERETO is CONCLUSIVE BETWEEN THE PARTIES AND THEIR SUCCESSORS IN INTEREST BY TITLE SUBSEQUENT TO THE COMMENCEMENT OF THE ACTION OR SPECIAL PROCEEDING LITIGATING FOR THE SAME THING, UNDER THE SAME TITLE AND IN THE SAME CAPACITY. 537

527 528

Supra, Section 37, Rule 39 Supra, Section 39, Rule 39 529 Supra, Section 38, Rule 39 530 Supra, Section 40, Rule 39 531 Supra, Section 41, Rule 39 532 Supra, Section 42, Rule 39 533 Supra, Section 43, Rule 39 534 Supra, Section 44, Rule 39 535 Supra, Section 45, Rule 39 536 Supra, Section 47 (a), Rule 39 537 Supra, Section 47 (b), Rule 39 58

(c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment / final order which appears on its face to have been so adjudged or which was actually and necessarily included therein or necessary thereto.538 1.1 Paragraphs (a) and (b) are illustrative of the concept of res judicata that is also known as bar by prior judgment. This exists when between the first case where judgment is rendered, and the second case where such judgment is invoked, there is identity of parties, subject matter, and cause of action. When all three are present, the judgment on the merits rendered in the first constitutes an absolute bar to the subsequent action. 1.2 Paragraph (c) is illustrative of what is known as conclusiveness of judgment, when between the first case wherein judgment was rendered and the second case wherein such judgment is invoked, there is only identity of parties, but there is no identity of cause of action, the judgment is thus conclusive in the second case, only as to the matters actually and directly controverted and determined, and not as to matters merely involved therein.539 1.3 CONCLUSIVENESS OF JUDGMENT, also known as PRECLUSION OF ISSUES or COLLATERAL ESTOPPEL espouses that issues actually and directly resolved in a former suit cannot again be raised in any future case between the same parties involving a different cause of action. 540 1.4 The doctrine of The law of the case states that whatever has once been irrevocably established as the controlling legal rule of decision between the same parties, whether correct on general principles or not, so long as the facts on which the decision was predicated continue to be the facts of the case before the court.541 2. (a) (b) title. Effect of a foreign judgment/final order If upon a specific thing, the judgment / final order is conclusive upon title to the thing If against a person it is presumptive evidence of a right between the parties and their successors in interest by subsequent

In either case, judgment / final order may be repelled by evidence of want of jurisdiction, want of notice, collusion, fraud, clear mistake of fact / law.542 3. Effect of judgment against a surety

When a judgment is rendered against a party who stands as surety for another, the latter (principal) is also bound from the time he has notice of the action or proceeding, and an opportunity at the suretys request to join in the defense. 543 APPEALS Rule 40 Appeals from MTC to RTC WHERE CAN AN MTC DECISION BE APPEALED A judgment / final order of the Municipal Trial Court is appealable to the Regional Trial Court exercising jurisdiction over the area to which the Municipal Trial Court pertains. 1. In the appeal, the case title remains, but party appealing is designated as appellant, while the adverse party is designated as the party-appellee.544 WHEN CAN APPEAL BE TAKEN 15 days after notice to the appellant. If record on appeal is required 30 days after notice BUT period can be interrupted by a motion for reconsideration or for new trial, though no motion to extend time for its filing is allowed. 545 1. Note the fresh period rule that is now applicable to an appeal under Rule 40, Rule 41, Rule 43 and Rule 45, which allows a party intending to appeal another 15 days from receipt of an order denying a motion for reconsideration or new trial to file an appeal
546

HOW IS APPEAL TAKEN 1. By notice of appeal indicating parties, judgment or final order appealed from statement of the material dates showing timeliness of the appeal.
538 539

Supra, Section 47 (c), Rule 39 Oropeza Marketing Corporation v Allied Banking Corporation, 393 SCRA 278 540 Tan v Court of Appeals, 363 SCRA 444 541 Boiser v NTC, 169 SCRA 542 Supra, Section 48, Rule 39 543 Supra, Section 46, Rule 39 544 Supra, Section 1, Rule 40 545 Supra, Section 2, Rule 40 546 Neypes v Court of Appeals, GR 141524, September 14, 2005 59

2. By record on appeal in special proceedings or cases allowing for multiple appeals, like probate or partition. The record on appeal shall contain the following: a. Full name of the parties stated in the caption including the judgment / final order from which appeal is taken b. In chronological order, copies of all pleadings, petitions, motions, and all interlocutory orders as are related to the appealed judgment / final order for proper understanding of the issue. c. Data to show that appeal was filed on time d. If issue of fact is to be raised, it should include reference the documentary evidence by exhibit taken on the issue specifying the documentary evidence by exhibit nos. or letters and testimonial evidence by the names of the witnesses. If the whole of it is included, a statement to such effect is sufficient. e. If more than 20 pages include a subject index 547 NOTE that the requirement for a Approval of record on appeal548 the trial court may approve it, if no objection is filed by the appellee or upon its motion / appellee direct its amendment by the inclusion of omitted matters which are deemed essential to the determination of the issue of law or facts involved is the appeal.If amendment is ordered, which the appellant must comply with within the period stated, any extension or if none, within 10 days, submitting the redrafted record for the approval of the Court. Where both parties are appellants, they may file a joint record on appeal.549 3. Regardless of the mode of appeal, the adverse party is to be furnished with a copy.

WHEN PERFECTED As determined by Section 9, Rule 41: 1. If by notice of appeal, it is perfected upon the filing of the notice in due time. The court loses jurisdiction upon perfection and expiration of the time of appeal of other parties. 2. If by record on appeal, it is perfected upon approval of record on appeal filed in due time. Court loses jurisdiction upon approval and expiration of time to appeal of other parties. In either case, prior to transmittal of the records, the court may issue orders: (a)protection and preservation of the rights of the parties not involving any matter litigated by the appeal (b)approve compromises (c) permit appeals of indigent litigants (d)order execution pending appeal (e) allow withdrawal of appeal.550 This is power is known as RESIDUAL JURISDICTION 3. In both cases, DOCKET FEES / OTHER FEES are also to be paid to the clerk of court of the court that rendered judgment. Proof payment of the same shall be transmitted to the appellant court together with the records / record on appeal. 551 a. Late payment of docket fees may be admitted when a party shows a willingness to abide by the Rules by immediately paying the docket fee six days after filing a notice of appeal and beyond the period for perfecting an appeal.552 b. Where delay in the payment of docket fee was not due to a desire to delay or defeat the ends of justice, late payment thereof which causes no prejudice to anyone should not result in the dismissal of the appeal.553 a. THE RECORD/RECORD ON APPEAL IS TRANSMITTED by the clerk of court within 15 days from perfection, together with transcripts / exhibits, which he will certify as complete. A copy of the transmittal shall be furnished the parties. 554 WHAT HAPPENS UPON TRANSMITTAL TO THE RTC Within 15 days from notice, appellant shall submit a memorandum briefly discussing errors imputed to the lower court, copy furnished the adverse party. Within 15 days from receipt of appellants memorandum, appellee may file his own memorandum. Failure of appellant shall be ground for dismissal of the appeal. Upon filing / expiration, the case is submitted for decision on the basis of the record in Municipal Trial Court and the memoranda submitted by the parties.555 1. NOTE that if an appeal is taken from an order of the lower Court dismissing the case without trial on the merits, the Regional Trial Court may affirm or reverse it as the case may be: a. In case it is affirmed and ground of dismissal is lack of jurisdiction over the subject matter of the case, the Regional Trial Court, if it has jurisdiction, shall try the case on the merits as if the case was originally filed with it. In case of reversal, it shall be remanded back for further proceedings. b. If it was tried on the merits, without jurisdiction, the RTC on appeal shall not dismiss the case if it has original jurisdiction, but shall decide the case in accordance with Section 7, without prejudice to the admission of amended pleadings and additional evidence in the interest of justice.556
547 548

Supra, Section 6, Rule 41 Supra, Section 7, Rule 41 549 Supra, Section 8, Rule 41 550 Supra, Section 4, Rule 40 551 Supra, Section 5, Rule 40 552 Mactan Cebu International Airport Authority v Mangubat, 312 SCRA 466 553 Lopez v Court of Appeals, 75 SCRA 401 554 Supra, Section 6, Rule 40 555 Supra, Section 7, Rule 40 556 Supra, Section 8, Rule 40 60

RULE 41 APPEALS FROM REGIONAL TRIAL COURTS An appeal may be taken from a judgment /final order that completely disposes of a case, or a particular matter therein when declared by the Rules to be appealable BUT NO APPEAL CAN BE TAKEN FROM: (a) Order denying a motion for new trial or reconsideration. An appeal of judgment/final order is remedy or certiorari under Rule 65 (b) (c) (d) Order denying a petition for relief from judgment or similar motion. Certiorari under Rule 65 is remedy Interlocutory order. Certiorari under Rule 65 or mandamus is remedy Order disallowing or dismissing an appeal. Mandamus or petition for relief from judgment is the remedy

(e) Order denying a motion to set aside judgment by consent confession, compromise on the ground of fraud, mistake, duress or any ground vitiating consent. A petition for relief or a petition to annul judgment under Rule 47 or Certiorari under Rule 65 is the remedy (f) Order of execution. Certiorari under Rule 65 is the remedy

(g) Judgment / final order in separate claims, counterclaims, cross claims 3rd party claims, while main case is pending, unless the court allows an appeal therefrom. The object is facilitate the trial of all issues. (h) Order dismissing an action without prejudice. The remedy is to refile or certiorari under Rule 65.557

NOTE: That declaration of presumptive death not appealable by the state, neither by other party. Remedy of the spouse declared presumptively dead is to file affidavit of reappearance. See Article 41, Family Code WHAT ARE THE MODES OF APPEAL OF A JUDGMENT OR FINAL ORDER OF A REGIONAL TRIAL COURT558 (a) Ordinary appeal refers to an appeal by notice of appeal of the decision of the Regional Trial Court in cases decided in the exercise of its original jurisdiction raising question of fact or mixed questions of law and fact 1. The period of ordinary appeal is 15 days from notice of judgment / final order appealed from. If requiring a record on appeal, it is 30 days. Said periods are interrupted by a motion for new trial or reconsideration but no extension of time for their filing is allowed. NOTE: That in habeas corpus cases the period is 48 hours from notice of judgment or final order 559 NOTE ALSO: The application of the fresh period rule. 2. Appellate court docket fees / lawful fees shall be paid within the period for taking an appeal to the clerk of court of the court that rendered judgment BUT failure to pay is a ground for dismissal of the complaint 560 3. If Appeal is by NOTICE OF APPEAL, it must indicate parties, judgment or final order appealed from, and include a statement of the material dates showing timeliness of the appeal. 561 or if by RECORD ON APPEAL it must comply with the requirements as previously discussed in an appeal from the Municipal Trial Court to the Regional Trial Court.562 4. PERFECTION OF APPEAL IS AS DISCUSSED under Rule 40.563 Subsequently, it is the DUTY OF CLERK OF COURT OF THE LOWER COURT within 30 days after perfection of all appeals to: (a) verify correctness of the original record / record on appeal and make a certification as to correctness (b) verify completeness of records transmitted to appellate court (c) If incomplete, take necessary measures as may be required to complete the records, availing of the authority that he or the court may exercise for this purpose. (d) transmit the records to the appellate court. (e) then furnish parties of his transmittal. 564 4.1 IF EFFORTS TO COMPLETE FAIL, it shall be indicated in the letter of transmittal which exhibits / transcripts are not included, the reasons why they were not transmitted and the steps taken to make them available. 4.2 It is likewise required that the transcripts be transcribed565 and that the transmittal to include proof of payment of docket fees.

4.3 Prior to transmittal of record / record on appeal, the court may motu propio or on motion to dismiss the appeal for having been take out of time OR for non payment of docket and other lawful fees within the reglementary period.566 If transmitted already, the Court of Appeals may dismiss.
557 558

Supra, Section 1, Rule 41 Supra, Section 2, Rule 41 559 Supra, Section 3, Rule 41 560 Supra, Section 13, Rule 41 561 Supra, Section 5, Rule 41 562 Supra, Sections 6,7,8, Rule 41 563 Supra, Section 9, Rule 41 564 Supra, Section 10, Rule 41 565 Supra, Section 11 and 12, Rule 41 566 Supra, Section 13, Rule 41 61

5.

Other procedural requirements and disposition of the appeal are governed by Rule 44:

5.1 The title of the case shall remain, party appealing shall be referred to as appellant / adverse party-appellee. 567 Counsel / guardians ad litem of parties shall likewise be considered as such in Court of Appeals, when others appear or are appointed, notice shall be filed and furnished adverse parties.568 5.2 If the RECORDS are not transmitted to the Court of Appeals within 30 days after perfection of the appeal, either party may file a motion with the Regional Trial Court, with notice to the other, for transmittal. 569 5.3 UPON RECEIPT BY THE COURT OF APPEALS, the clerk shall docket the case and notify the parties. If appeal is by record on appeal, within 10 days from receipt of notice, appellant must file with the clerk of court 7 clearly legible copies of approved record on appeal and proof of service thereof to adverse party of 2 copies. Any unauthorized, alteration, omission or addition shall be ground for dismissal of the appeal.570 The Clerk of the CA should also ascertain the completeness of the records. If incomplete, he shall inform the court and recommend measures to complete the record within the shortest possible time BUT if it cannot be completed due to insuperable or extremely difficult circumstances. The court, on its own or upon motion, may declare the record sufficient to decide issues and explain reason for such declaration. 571 5.4 ONCE DONE, Briefs are to be filed: (a) The Appellants Brief must be filed within 45 days from notice that all evidence, documentary / testimonial are attached to the record, 7 copies of the brief are to be filed attaching proof of service of 2 copies to adverse party.572 Where there are several parties, each counsel representing one or more but not all may be served with 1 copy. If several counsel represent one party, service may be made on any one of them. 573 The CONTENTS OF THE APPELLANTS BRIEF are: (1) subject index (2)assignment of errors (3) statement of the case (4)statement of facts (5)statement of issues (6) arguments (7) relief (8) if not by record on appeal, an appendix, copy of judgment / final order appealed. 574 (b) The Appellees Brief is to be filed within 45 days from receipt of Appellants Brief. It is required that 7 copies be filed with proof of service of 2 copies on appellant. The CONTENTS OF APPELLEES BRIEF are: (1) subject index (2) statement of facts, either a statement of acceptance or counterstatement of facts (3) Arguments 575 (c) A Reply Brief may be filed by appellant within 20 days from receipt of the Appellees Brief.576 NO EXTENSION OF TIME TO FILE BRIEFS is allowed except for good and sufficient cause, and only if filed before expiration of the time sought to be extended 577 IN LIEU OF BRIEFS, MEMORANDA is required in certiorari, prohibition, madamus, quo warranto, hebeas corpus within a non-extendible period of 30 days from notice that all evidence is attached to the record. Failure of appellant to file his memoranda is ground to dismiss the appeal.578 5.5 QUESTIONS OF LAW OR FACT MAY BE RAISED in the appeal, whether or not a motion for new trial has been filed and must within the issues framed by the parties.579 As a rule, a party who deliberately adopts a certain theory upon which the case is tried and decided by the lower court will not be permitted to change his theory on appeal. Points of law, theories, issues, and arguments not brought to the attention of the lower court need not be , and ordinarily not be, considered by a reviewing court, as these cannot be raised for the first time at such late stage. Basic considerations of due process underlie this rule.580 6. In Criminal Cases, note the possibility of the filing of two notices of appeal when the penalty imposed by the Regional Trial Court is life imprisonment or reclusion perpetua, appeal is by notice to the Court of Appeals, and by notice again to the Supreme Court. If the penalty is death, it is automatically reviewed by the Supreme Court, but such shall be made by the Court of Appeals, which shall render judgment, then certify it to the Supreme Court, who will then enter the same.581 (b) Petition for Review is an appeal to the Court of Appeals of judgment / final order of the Regional Trial Court in the exercise of its appellate jurisdiction under Rule 42 1. It is initiated by the filing of a Verified Petition for Review with the Court of Appeals, paying at the same time to the Clerk of Court of Appeals the corresponding docket fees and lawful fees, depositing 500 for costs, furnishing the Regional Trial Court and adverse party with a copy of the Petition. 2. It is to be filed within 15 days from notice of decision sought to be reviewed or denial of motion for new trial or motion for reconsideration. UPON PAYMENT OF DOCKET FEES AND DEPOSIT AND BEFORE EXPIRATION OF THE PERIOD, the Court of Appeals may grant an extension of 15 days. No further extension can be given unless for the most compelling reason, but in no case to exceed 15 days. 582
567 568

Supra, Section 1, Rule 44 Supra, Section 2, Rule 44 569 Supra, Section 3, Rule 44 570 Supra, Section 4, Rule 44 571 Supra, Sections 4 and 5, Rule 44 572 Supra, Section 7, Rule 44 573 Supra, Section 11, Rule 44 574 Supra, Section 13, Rule 44 575 Supra, Section 14, Rule 44 576 Supra, Section 9, Rule 44 577 Supra, Section 12, Rule 44 578 Supra, Section 10, Rule 44 579 Supra, Section 15, Rule 44 580 BPI v Leobrera, 416 SCRA 15 581 People v. Mateo, 433 SCRA 640, AM No. 00-5-03-SC, October 15, 2004 582 Supra, Section 1, Rule 42 62

3. FORM, CONTENTS, NUMBER OF COPIES. 7 copies are to be filed, indicating the original copy intended for the Court of Appeals containing (a)full names of parties, without impleading the lower court / judges (b)specific material dates indicating that it is filed on time (c) statement of matters, issues, specification of errors of fact / law and reasons / arguments relied upon (d)accompanied by clearly legible duplicate copies or true copies of judgment of the lower courts, certified correct by Regional Trial Court clerk of court, pleadings and other material portions supporting the allegations of the petition (e) certification against forum shopping / verification. NOTE: Failure to pay fees or comply with the requirements shall be sufficient ground for dismissal.583 4. The appeal is deemed PERFECTED upon timely filing of the petition and payment of docket fees. The RTC loses jurisdiction upon perfection of the appeal and lapse of time to appeal by the other parties. The Regional Trial Court continues to have RESIDUAL JURISDICTION until the same has been given DUE COURSE.584 5. NOTE that except in cases covered by the Rule on Summary Procedure, appeal shall stay the judgment / final order unless Court of Appeals or the Rules provide otherwise 6. ONCE FILED, the Court of Appeals may: (a) Require the respondent to file a comment, not a motion to dismiss, within 10 days from notice (b)Dismiss the petition if found to be patently without merit, prosecuted manifestly for delay, or questions raised therein are too unsubstantial to require consideration.585 7. The COMMENT should be filed in 7 copies, accompanied by certified true copies of such MATERIAL PORTIONS OF THE RECORD AND OTHER SUPPORTING DOCUMENTS, stating: (a)Statement of whether or not he accepts the statement of matters (b) Point out the insufficiencies / inaccuracies (c) State reasons why it should not be given due course. Copy of which must be served on adverse party.586 8. A petition is given DUE COURSE when upon the filing of the comment or expiration of the period to file, the Court of Appeals finds PRIMA FACIE that the lower court has committed an error of fact / law that will warrant a reversal / dismissal. CONSEQUENTLY, the Court of Appeals, if it deems necessary, will order the elevation by the clerk of the Regional Trial Court of the entire record within 15 days from notice.587 9. IT IS SUBMITTED FOR DECISION after the filing of last pleading or memorandum. Prior to that though, the Court of Appeals may set it for oral argument / or require memoranda to be submitted within a period of 15 days from notice. 588 (c) Appeal by Certiorari or Petition for Review on Certiorari which should involve a pure question of law direct to the Supreme Court under Rule 45 1. A Question of Law is one that requires interpretation or application of a law, while a Question of Fact is one that pertains to a resolution of a factual dispute. 1.1 There is a question of law in a given case when the doubt or difference arises as to what the law is pertaining to a state of acts, and there is a question of fact when the doubt arises as to the truth or falsity of alleged facts.589 2. This is initiated by the filing of a Verified Petition for Review on Certiorari raising only questions of law. This mode of appeal is available to question judgment / resolutions of the Court of Appeals, the Sandiganbayan, a Regional Trial Court, and other Courts whenever authorized by law.590 3. The TIME FOR FILING is 15 days from notice of the judgment, final / order, or resolution or of denial of petitioners motion for new trial / reconsideration. On motion and with full payment of docket fees and deposit of costs, the Supreme Court on justifiable reason may grant an extension of 30 days within which to file the petition. Docket fees and proof of service of the petition on the lower court and adverse party must accompany the filing of the petition. 591 4. 18 copies of the petition are required to be filed, indicating the original copy for the court. It should contain: (a) full names of parties (petitioner / respondent) without impleading court / judge (b) indicate material dates (c)concise statements of the matters involved and the reason / arguments relied upon for the allowance of the petition (d) clearly legible copies of judgment / final order / reconsideration or certified true copy and other material portion supporting the record (e) Certificate against forum shopping and verification592 5. UPON FILING, the Supreme Court can:

5.1 DISMISS (1) for failure to comply with the requirements regarding payment, proof of service, contents and documents (2) on its own initiative because it is without merit, prosecuted for delay, or issues are too unsubstantial to require consideration, OR

583 584

Supra, Sections 2 and 3, Rule 41 Supra, Section 8, Rule 42 585 Supra, Section 4, Rule 42 586 Supra, Section 5, Rule 42 587 Supra, Section 6, Rule 41 588 Supra, Section 9, Rule 42 589 Manila Bay Club Corporation v Court of Appeals, 245 SCRA 715 590 Supra, Section 1, Rule 45 591 Supra, Sections 2 and 3, Rule 45 592 Supra, Section 4, Rule 45 63

5.2 ALLOW REVIEW, which is not a matter of right but is discretionary, when there are special / important reasons therefor: EXAMPLES- (1) when the court a quo has decided a matter of substance not therefore determined by the Supreme Court or decided in a way not in accord with the law or applicable decisions of the Supreme Court (2) when court a quo has so far departed from the accepted and usual course judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision. 593 6. If given DUE COURSE, the Supreme Court can: (a) Require elevation of the records / or specified portions thereof within 15 days from notice 594 (b) Require filing of pleadings, briefs, memoranda or documents as it may deem necessary within periods / conditions it may consider appropriate and impose sanctions for non-filing / non-compliance or unauthorized filing. This ALSO applies to a determination as to whether it should be dismissed or denied. 595 The RULE APPLIES TO BOTH CIVIL / CRIMINAL ACTIONS, except in cases where penalty is death, reclusion perpetua / life imprisonment. 596 7. The exceptions to the general rule that only questions of law may be raised in a petition for review are:(a) when the conclusion is a finding grounded entirely on speculation, surmises, or conjectures; (b) when the inference made is manifestly mistaken, absurd, or impossible; (c) where there is a grave abuse of discretion; (d) when the judgment is based on a misapprehension of facts; (e) when the findings of fact are conflicting; (f) when the Court of Appeals, in making its findings, went beyond the issue of the case and the same is contrary to the admissions of both appellant and appellee; (g) when the findings of the Court of Appeals are contrary to those of the trial courts; (h) when the findings of facts are conclusions without citation of specific evidence on which they are based; (i) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondents; (j) when the finding of fact of the Court of Appeals is premised on the supposed absence of evidence but is contradicted by the evidence on record; and (k) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion. 597 (d) By Petition for Review under Rule 43 in a case decided by the Regional Trial Court sitting as a commercial court.598 1. Applies primarily to appeals from the Court of Tax Appeals and other quasi-judicial agencies to the Court of Appeals, but is not applicable to judgments / final orders under the Labor Code.599 2. The appeal can include questions of fact, law or mixed questions of law and fact.600

3. The appeal shall be taken within fifteen (15) days from notice if the award, judgment, and final order of resolution, or from the date of its last publication, if publication is required by law for its effectivity, or of the denial of the petitioners motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo. Only one (1) motion for reconsideration shall be allowed. Upon proper motion and the payment of the payment of the full amount of the docket fee before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days.601 4. All other procedural matters and requirements are similar to a Petition for Review under Rule 42 EXCEPT that an appeal under this Rule shall not stay the award, judgment, final order or resolution unless the Court of Appeals deems otherwise.602 7. In summary judicial proceedings under the Family Code, there is no reglementary period within which to perfect an appeal, precisely because judgments rendered thereunder, by express provision of Section 247 of the Family Code, are immediately final and executory.603 Appeal by notice of appeal is erroneous. The Court of Appeals should have dismissed as it had no jurisdiction to review on appeal. Per Justice Panganiban, Certiorari under Rule 65 is the remedy of the State. PROCEDURE WITH THE COURT OF APPEALS RULE 46 ORIGINAL CASES FILED WITH THE COURT OF APPEALS Parties are to be designated as petitioner / respondent 604 and is to apply to cases of Certiorari, Prohibition, Mandamus, Quo Warranto and to petitions for annulment of judgment under Rule 47605 CONTENTS OF PETITION FILING EFFECTS OF NON COMPLIANCE Petitions filed before the Court of Appeals must contain the following: (1) identification of the parties, a concise statement of matters involved, the factual background of the case, and the grounds relied upon for the relief prayed for (2)statement of material dates, AND IN A PETITION UNDER RULE 65, material dates are dates of notice of judgment or final order, when a motion for new trial or reconsideration was filed, if any, and when notice of denial was received (3) clearly legible duplicate originals or certified true copy of

593 594

Supra, Sections 5 and 6, Rule 45 Supra, Section 8, Rule 45 595 Supra, Section 7, Rule 45 596 Supra, Section 9, Rule 45 597 Martinez v Court of Appeals, 358 SCRA 38 598 A.M. No. 04-9-07-SC, September 14, 2004 599 Supra, Sections 1 and 2, Rule 43 600 Supra, Section 3, Rule 43 601 Supra, Section 4, Rule 43 602 Supra, Section 12, Rule 43 603 Republic v Bernardez-Lorino, 449 SCRA 57 604 Supra, Section 1, Rule 46 605 Supra, Section 2, Rule 46 64

the attachments (4)certification against forum shopping (5)docket fees / deposit for cost. 606 FAILURE TO COMPLY IS SUFFICIENT GROUND FOR DISMISSAL OF PETITIONS A certified true copy is one the certification of which is made by the proper clerk of court or his duly authorized representative. 607 HOW DOES THE COURT ACQUIRE JURISIDICTION Jurisdiction over the person or the respondent is acquired by service of order or resolution indicating initial action on the petition or voluntary submission to jurisdiction. 608 ACTION TO BE TAKEN BY THE COURT OF APPEALS 1. The COURT may dismiss the petition outright with specific reasons OR require the filing of a comment within 10 days from notice. ONLY PLEADINGS REQUIRED CAN BE FILED OTHERS CAN ONLY BE FILED WITH LEAVE OF COURT.609 2. If factual issues are to be resolved, the Court of Appeals can conduct hearings or delegate reception of evidence on such issues to any of its members or to an appropriate court / agency / office. 610(Section 6, Rule 46) 3. If comment is not filed, it may be decided on the basis of the record without prejudice to any disciplinary action against disobedient party.611 4. The COURT, IF THE PETITION IS NOT DISMISSED OUTRIGHT:

4.1 Can call the parties / counsel to a preliminary conference, the object of which is to : (a) consider compromise agreements, except when case is not allowed to be compromised (b) define, simplify and clarify issues (c)formulate stipulation of facts and admissions of documentary exhibits, limit the number of witnesses in cases falling within its original jurisdiction or those within its appellate jurisdiction where a motion for new trial is granted on newly discovered evidence (d) other matters that may aid in prompt disposition of the case.612 4.2 Record of proceedings is made and a RESOLUTION embodying actions shall be issued613 which shall be binding upon parties and control subsequent proceedings unless within 5 days from notice, it can be shown by valid cause why it should not be followed or there is need for modifications to prevent manifest injustice614 4.3 At it own instance or by motion, to hear the parties in oral argument on the merits of the case or on any material incident AND is limited to such matters as the court may specify in its order or resolution. 615 4.4 In the conduct of oral arguments, unless authorized, only 1 counsel may argue for a party. Duration, sequence and all related matters shall be as directed by the Court.616 4.5 MOTIONS THOUGH ARE NOT TO BE SET FOR HEARING, AND UNLESS DIRECTED BY THE COURT, NO HEARING OR ORAL ARGUMENTS shall be allowed in support thereof. The adverse party may file objections within 5 days from notice, then upon expiration of the period, it is submitted for resolution. 617 RULE 50 - GROUNDS FOR DISMISSAL BY THE COURT OF APPEALS In ALL CASES THAT COME BEFORE IT, and besides on a finding that the case is without merit, prosecuted for delay or issue is too unsubstantial to merit consideration, ON MOTION OF THE COURT OR OF THE APPELLEE, it may dismiss the petition on the basis of: 1. Failure of record on appeal to show on its face that appeal was taken within period fixed by the Rules. 2. Failure to file notice of appeal or record on appeal within period within the period prescribed by the Rules. 3. Failure to pay docket fees as provided under Section 5, Rule 40 and Section 4, Rule 41. 4. Unauthorized alterations, omissions, additions on record on appeal as provided under Section 4, Rule 44 5. Failure of appellant to serve and file required number briefs or memoranda within provided time by these Rules 6. Absence of specific assignment of errors or page references to the record as required by Section 13, par. a,c,d, and f of Rule 44 7. Failure of appellant to take necessary steps for the correction or completion of the records within time limited by the Court 8. Failure to appear at preliminary conference under Rule 48, or comply with orders, circulars or directives of the Court without justifiable cause 9. The fact that order / judgment appealed from is not appealable.618
606 607

Supra, Section 3, Rule 46 Paras v Baldado, 354 SCRA 141 608 Supra, Section 4, Rule 46 609 Supra, Section 5, Rule 46 610 Supra, Section 6, Rule 46 611 Supra, Section 7, Rule 46 612 Supra, Section 1, Rule 48 613 Supra, Section 2, Rule 48 614 Supra, Section 3, Rule 48 615 Supra, Section 1, Rule 49 616 Supra, Section 2, Rule 49 617 Supra, Section 3, Rule 49 618 Supra, Section 1, Rule 50 65

DISMISSAL OF IMPROPER APPEAL 1. An appeal under Rule 41 from the Regional Trial Court to the Court of Appeals raising only questions of law shall be dismissed as issues purely of law are not reviewable by the Court of Appeals 2. An appeal by notice of appeal instead of petition for review from a Regional Trial Court exercising appellate jurisdiction shall be dismissed 3. An appeal erroneously taken to Court of Appeals shall not be transferred but shall be dismissed outright.619 WITHDRAWAL OF AN APPEAL An appeal may be withdrawn as of right at any time before the filing of the appellees brief. Thereafter, only upon discretion of the Court.620 RULE 51 - JUDGMENT When submitted for judgment: 1. IN ORDINARY APPEALS: a. Where no hearing on merits is held, upon filing of the last pleading, brief, memoranda or expiration of period to file. b. Where a hearing is held, upon termination of hearing or upon filing of the last pleading, memoranda as may be required or permitted, or expiration of period to file 2. IN ORIGINAL ACTIONS / PETITIONS FOR REVIEW a. Where no comment is filed, upon expiration of the period to file comment b. Where no hearing, same as 1 (a) c. Where hearing is held, same as 1 (b)621 3. Judgment is rendered by members of the court who participated in the deliberations on the merits before assignment to a member for writing of the decision.622 4. Participation of all 3 justices shall be necessary at deliberation and unanimous vote shall be required for pronouncement. If not, the clerk shall enter the vote of dissenting justices in the record. Thereafter, Chairman of the division refers it to the Presiding Justice, who will designate 2 justices by raffle to sit temporarily and to form a special division of five (5) justices. The participation of all is required for deliberation. Concurrence of majority is required for pronouncement. 623 Note: That in rendering judgment, harmless errors or those which do not affect the substantial rights of the parties 624 or errors that are not assigned will not be considered unless they affect jurisdiction, validity of judgment, and of proceedings. 625 4.1 HARMLESS ERROR DOCTRINE means that any error or defect which does not affect substantial rights will be disregarded by the reviewing court or tribunal. It is followed to deal with evidence improperly admitted during trial wherein its damaging quality and impact to the substantial rights of the litigant are examined. If deemed slight and insignificant, the error is disregarded. 626 It is not a ground for granting of a new trial or for setting aside, modifying, or disturbing a judgment or final order unless the refusal appears to the Court inconsistent with substantial justice. 5. JUDGMENTS OF THE COURT OF APPEALS IN THE EXERCISE OF APPELLATE JURISDICTION MAY affirm, reverse, or modify the judgment or final order appealed from. It may also order or direct a new trial to be held or that further proceedings be taken. 627 The decision must state clearly and distinctly the findings of fact and conclusions of law on which it is based, which may be contained in the resolution itself or adopted from those set forth in the judgment, final order appealed from. 628 6. PROCEDURE AFTER JUDGMENT IS:

6.1 After signing by the justices, it shall be delivered to the clerk of court, who shall indicate thereon the date of promulgation and cause true copies thereof to be served upon the parties or counsel.629 2. If no appeal, or motion for new trial or reconsideration is filed within the period, the judgment or final resolution shall be entered in the book of Entries of Judgment. Judgment or final resolution shall be deemed executory as of the date of entry. The record shall contain the dispositive portion, signed by the clerk with a statement that it is final and executory.630 3. Execution shall as a rule issue upon a motion in the proper court upon its entry. In appealed cases, where the motion is filed with the Court of Appeals at the time that it is in possession of the original records or record on appeal, the resolution granting the motion shall be transmitted to the lower court from which the case originated, together with certified copy of the judgment to be
619 620

Supra, Section 2, Rule 50 Supra, Section 3, Rule 50 621 Supra, Section 1, Rule 51 622 Supra, Section 2, Rule 51 623 Supra, Section 3, Rule 51 624 Supra, Section 6, Rule 51 625 Supra, Section 8, Rule 51 626 People v Teehankee, 269 SCRA 54. 627 Supra, Section 4, Rule 51 628 Supra, Section 5, Rule 51 629 Supra, Section 9, Rule 51 630 Supra, Section 10, Rule 51 66

executed, with a directive to said court to issue the proper writ for its enforcement. In original actions, the writ shall be accompanied by a certified true copy of the entry of judgment and addressed to appropriate officer for enforcement. 631 RULE 52- MOTIONS FOR RECONSIDERATION BEFORE THE CA Judgments of the Court of Appeals can be the subject of reconsideration within fifteen (15) days from notice thereof, with proof of service to the adverse party. 632 1. No second motion for reconsideration will be entertained.633 2. It is to be resolved within sixty (60) days from submission for resolution 634 and while pending, shall stay the execution unless for good reason, court directs otherwise.635 RULE 53- MOTION FOR NEW TRIAL It can be filed at any time after appeal from the lower court has been perfected and before the Court of Appeals loses jurisdiction, on the ground of newly discovered evidence WHICH COULD NOT HAVE BEEN DISCOVERED PRIOR TO THE TRIAL IN THE COURT BELOW BY THE EXERCISE OF DUE DILIGENCE AND WHICH IS OF SUCH A CHARACTER AS WOULD PROBABLY CHANGE THE RESULT. The motion must be accompanied by affidavits showing the facts constituting the grounds and the newly discovered evidence.636 The Court of Appeals shall then consider the evidence and that adduced at the trial, to determine if it will grant or refuse a new trial, or make such order, with notice to both parties, as to the taking of further testimony, either orally in court, by depositions, or render such other judgment as ought to be rendered upon terms it may deem just. 637 IF GRANTED, the procedure shall be the same as that granted by a Regional Trial Court. 638 Motion should be resolved within 90 days from the date it is declared to be submitted.639 OTHER MATTERS RULE 54 Internal Business Allotment of cases shall be among the different divisions for hearing and decision. The Court of Appeals En Banc shall make proper orders or rules to govern allotment, the constitution of such divisions, the regular rotation of justices, filling of vacancies, and other matters. Such will continue in force and repealed or altered by it or the Supreme Court.640 A majority of the court shall constitute a quorum for sessions en banc and a majority of the members present shall be necessary to pass a resolution. Three members of a division shall constitute a quorum for sessions of a division and the affirmative vote of three members shall be necessary for pronouncement of judgment/resolution, which shall be reached in consultation among them before the writing of the opinion by any member of the division. 641 RULE 55 Publication of Judgment/Final Order/Resolution Judgments and Final Resolutions shall be published in the Official Gazette and in the Reports officially authorized by the Court, in the language originally written, together with a syllabi. If not so published, a memoranda shall be made and published in the like manner. 642 The publication is to be prepared by the Reporter. 643 Those of the Supreme Court are called Philippine Reports, while those of the Court of Appeals are called Court of Appeals Reports. 644 RULE 47-ANNULMENT OF JUDGMENT Annulment of judgment covers judgments of the Regional Trial Court for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies ARE NO LONGER AVAILABLE THROUGH NO FAULT OF THE PETITIONER 645 1. An important condition for the availment is that the petitioner failed to move for new trial, or appeal from, or file a petition for relief against, or take other appropriate remedies through no fault attributable to him. If he failed to avail of the other remedies
631 632

Supra, Section 11, Rule 51 Supra, Section 1, Rule 52 633 Supra, Section 2, Rule 52 634 Supra, Section 3, Rule 52 635 Supra, Section 4, Rule 52 636 Supra, Section 1, Rule 53 637 Supra, Section 2, Rule 53 638 Supra, Section 4, Rule 53 639 Supra, Section 3, Rule 53 640 Supra, Section 1, Rule 54 641 Supra, Section 2, Rule 54 642 Supra, Section 1, Rule 55 643 Supra, Section 2, Rule 55 644 Supra, Section 3, Rule 55 645 Supra, Section 1, Rule 47 67

through his own fault, he would then benefit from his inaction or negligence. 646 He must allege non availment of other remedies through no fault of the petitioner, otherwise the petition will be dismissed.647 1.1 Note that the correctness of the judgment is not in issue as a petition for annulment is not in issue.648 1.2 It is a remedy that may be availed of by those who are not even parties to the judgment or to annul even judgments that have been fully executed.649 2. It is available only on grounds of: (a) EXTRINSIC FRAUD but only when it was not availed of or could have been availed of in a motion for new trial or petition for relief OR (b)LACK OF JURISDICTION 2.1 There is extrinsic fraud when the unsuccessful party had been prevented from exhibiting fully his case, by fraud or deception practice upon him by his opponent, as keeping him away from the court, or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff.650 3. The period for its filing if based on extrinsic fraud is within 4 years from its discovery, or if based on lack of jurisdiction before it is barred by laches or estoppel.651 FILING / CONTENTS OF THE PETITION Filing is by verified petition alleging therein with particularity, the facts and the law relied upon for annulment as well as supporting petitioners good and substantial cause of action / defense, as the case may be. Containing (1) certified true copy of judgment / final order / resolution shall be attached to the original copy intended for the court (2) affidavits of witnesses (3) certification against forum shopping 652 WHAT THE COURT OF APPEALS WILL DO UPON FILING 1. If no substantial merit, it will be dismissed outright with specific reasons for such dismissal.

2. If prima facie merit be found, it shall be given due course and summons shall be served on the respondent. IF SO, procedure in ordinary civil cases shall be followed but reception may be referred to a member of the Court or a Regional Trial Court judge.653 EFFECT OF JUDGMENT IN A PETITION FOR ANNULMENT It shall set aside the questioned judgment / final order / resolution and render the same null and void without prejudice to the refiling of the original action in the proper court . However, where it is set aside by reason of extrinsic fraud, the court on motion, may order the trial court to try the case again as if a timely motion for new trial has been granted therein.654 The prescriptive period for the refiling of the original action shall be deemed suspended from the filing of such original action until finality of the judgment of annulment. HOWEVER, the prescriptive period is or shall not be suspended where extrinsic fraud is attributable to the plaintiff is original action. 655 SCOPE OF RELIEF It may include award of damages, attorneys fees and other relief. If already executed, restitution or other relief as justice / equity may warrant. 656 IF ALSO APPLIES TO A PETITION TO ANNUL JUDGMENT / FINAL ORDER OF A MUNICIPAL TRIAL COURT BUT IS FILED WITH REGIONAL TRIAL COURT and treated as an ordinary civil action. 657 All sections except Section 5 pertaining to dismissal or determination of prima facie merit shall apply. RULE 65- CERTIORARI / PROHIBITION AND MANDAMUS WHAT IS CERTIORARI Special Civil Action against a tribunal board or officer exercising judicial or quasi-judicial function which is alleged in a verified petition filed by an aggrieved party to have acted without jurisdiction or in excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction, AND there is no appeal, or any plain speedy and adequate remedy in the ordinary course of law, praying for the judgment annulling / modifying the proceedings of such, tribunal board officer, tribunal and granting such incidental reliefs as law and justice may require.658 DISTINGUISHED FROM PETITION FOR REVIEW ON CERTIORARI Certiorari as distinguished from a Petition for Review on Certiorari: (a) In the former, the issue is whether the lower court acted without, in excess of or with grave abuse of discretion, while in the latter the issue is based on questions of law (b) in the former,
646 647

Manipor v Ricafort, 407 SCRA 298 Ancheta v Ancheta, 424 SCRA 725 648 Republic v Heirs of Sancho Magdato, 340 SCRA 115 649 Malolos v Dy, 325 SCRA 827 650 Leonardo v ST Best, 422 SCRA 347 651 Supra, Section 3, Rule 47 652 Supra, Section 4, Rule 47 653 Supra, Sections 5 and 6, Rule 47 654 Supra, Section 7, Rule 47 655 Supra, Section 8, Rule 47 656 Supra, Section 9, Rule 47 657 Supra, Section 10, Rule 47 658 Supra, Section 1, Rule 65 68

it is addresses an interlocutory order prior to appeal of a judgment when there is no appeal or any other speedy or adequate remedy, while the latter involves a review of judgment/final order/ resolution on the merits (c) the former is filed within 15 days from notice of judgment / order, while the latter is filed not later than 60 days from notice of the resolution sought to be assailed or denial of a motion for reconsideration (d) the former shall stay the judgment /final order or award, while the latter does not stay the order or resolution unless a temporary restraining order or preliminary injunction is issued (e) In the former, the petitioner/respondent are the original parties in the case and the lower court is not impleaded, while in the latter, the aggrieved party is the petitioner against the against the lower court, agency and the prevailing party (f) the former does not require the filing of a motion for reconsideration prior to filing, while the latter requires a motion for reconsideration prior to filing (g) in the former, the court is exercising appellate jurisdiction, while in latter, it is exercising original jurisdiction (h) the former can only be filed in the Supreme court, while the latter may be filed with Supreme Court, Court of Appeals, or the Regional Trial Court EXCEPTIONS TO REQUIREMENT AS TO MOTION FOR RECONSIDERATION PRIOR TO FILING A PETITION FOR CERTIORARI UNDER RULE 65 (1)order is a patent nullity court a quo has no jurisdiction (2) questions have been raised in certiorari have been duly raised and passed upon by lower court (3)urgent necessity for resolution (4)where a motion for reconsideration will be useless (5)petitioner is deprived of due process, there is extreme urgency for relief (6) in criminal case, relief from order of arrest is urgent, and grant of relief by trial court is not probable (7) proceedings in lower court are a nullity for lack of due process (8) issue is purely of law or where public interest is involved. WHAT IS PROHIBITION Special civil action against a tribunal, corporation, board, or person exercising JUDICIAL QUASI JUDICIAL MINISTERIAL FUNCTION which is alleged by an aggrieved party to be acting or about to act without jurisdiction, in excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction and there is no appeal, or any plain, speedy and adequate remedy in the ordinary course of the law praying that judgment be rendered commanding the respondent to desist from further proceeding in the action or proceeding therein or otherwise granting such incidental reliefs as law and justice may require.659 DISTINGUISHED FROM CERTIORARI In CERTIORARI the object is to correct the respondents acts by annulling proceedings, while in PROHIBITION it is to prevent the commission of an act by stopping proceedings. In the former, the assailed acts have already been done, while in the latter the assailed acts are about to be done or are being done. In the former, the respondent performs judicial or quasi- judicial, while in the latter, the respondent performs judicial, quasi-judicial functions or ministerial functions. WHAT CONSTITUTES JUDICIAL AND QUASI-JUDICIAL POWER 1. The exercise of judicial function is to determine what the law is, and what the legal rights of parties are, with respect to a matter is controversy; and whenever an office is clothed with that authority, and undertakes to determine those questions, he acts judicially.660 2. A quasi-judicial act or function is a judicial act or function performed by one who is not a judge.

WHAT CONSTITUTES GRAVE ABUSE OF DISCRETION Capricious and whimsical exercise of judgment as may be equivalent to lack or excess of jurisdiction. WHAT IS MANDAMUS A special civil action against a tribunal, corporation, board, or officer alleged in a verified petition filed by an aggrieved party to have unlawfully neglected the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station, or unlawfully excluded another from the use and enjoyment of a right or office to which such other is entitled, and there is no plain, speedy or adequate remedy in the ordinary course of the law, praying that judgment be rendered commanding the respondent, immediately or at some other time specified by the Court to do the act required to be done to protect the rights of the petitioner, pay damages sustained by reason of the wrongful acts. 2 ASPECTS OF MANDAMUS The aspects of Mandamus are: (a) respondent unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station OR (b) respondent unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled. 1. The legal right of the plaintiff (petitioner) to the thing demanded must be well defined, clear and certain. The corresponding duty of the defendant (respondent) to perform the required act must also be clear and specific. 661 2. Mandamus lies only to compel performance of a ministerial duty but not to compel performance of a discretionary duty. 662 In granting mandamus, respondent is commanded to perform the particular act or required to be done and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent.

659 660

Supra, Section 2, Rule 65 Municipal Council of Lemery, Batangas v Provincial Board of Batangas, 56 PHIL 260 661 Enriquez, Jr v Bidin, 47 SCRA 183 662 Calderon v Sol, 215 SCRA 876 69

3. An act is ministerial when officer or tribunal performs in a given state of facts, in a prescribed manner in obedience to the mandate of a legal authority without regard to the exercise of his own judgment. If given the authority to decide how and when, it is discretionary. 4. Mandamus does not lie to correct / enforce contractual obligations.

HOW DISTINGUISHED FROM CERTIORARI/PROHIBITION In MANDAMUS, the respondent is exercising ministerial power and he has unlawfully neglected to perform it or excluded a party from occupying or enjoying the privilege of an office to which he is lawfully entitled and the object is to COMPEL action, while in CERTIORARI, the respondent is exercising judicial or quasi-judicial powers without jurisdiction or with grave abuse of discretion amounting to an excess or lack of jurisdiction and the object is to CORRECT. In PROHIBITION , the respondent is exercising judicial, quasi-judicial or ministerial powers and he is acting or about to act without jurisdiction or with grave abuse of discretion amounting to an excess or lack of jurisdiction, and the object is to PREVENT WHEN MAY IT BE FILED Not later than 60 days from notice of the assailed judgment, order or resolution. BUT if a timely motion for reconsideration is filed, whether required or not, the 60 days period shall be counted from notice of the denial of the motion. 663 An extension may be granted for compelling reasons but in no case to exceed 15 days. WHERE ELSE CAN BE FILED OTHER THAN THE COURT OF APPEALS The petition may be filed in the Supreme Court, the Regional Trial Court if relates to an act / omission of a lower court, corporation, board, officer or person within its territorial jurisdiction, or the Sandiganbayan, if in aid of its appellate jurisdiction IT IS FILED WITH THE COURT OF APPEALS Whether or not in aid of its appellate jurisdiction, when it involves acts / omissions of quasi-judicial body, unless otherwise provided. PARTIES TO BE IMPLEADED In addition to the public respondents, the petition shall also join the person/s interested in sustaining the proceedings and it shall be the duty of the private respondent to appear and defend both in his behalf and that of the public respondents and cost awarded shall be against private respondent only. Unless otherwise directed by the court, the public respondents shall not appear or file an answer or comment. If elevated to a higher court the public respondents shall be nominal parties, and unless directed shall not appear or participate in the proceedings therein. 664 ORDER TO COMMENT If petition is sufficient in form or substance, a comment will be required, not a motion to dismiss. 665 Orders expediting proceedings / temporary restraining order / injunctions for the preservation of the rights of the parties may be issued BUT the filing of the petition shall not interrupt the course of the principal case unless a Temporary Restraining Order or Injunction is granted enjoining the public respondent from further proceeding.666 ACTIONS THAT MAY BE TAKEN SUSBEQUENTLY Court may hear or require filing of memoranda. If it finds the allegations to be true, it shall render judgment for the relief prayed for or to which petitioner is entitled. It may also dismiss if patently without merit, prosecuted manifestly for delay or issues are too unsubstantial to require consideration. 667 (Section 8) SERVICE / ENFORCEMENT OF JUDGMENT Certified copy of judgment shall be served in such manger as the court may direct and disobedience thereto shall be punished as contempt. Execution may issue for any damages / cost in accordance with Section 1, Rule 39.668 RULE 66 -QUO WARRANTO Quo Warranto is a special civil action brought by verified petition in the name of the Republic of the Philippines against: (a) person who usurps, intrudes into or unlawfully holds or exercises a public office, positions or franchise (b) public officer who performs an act that constitutes a ground fro forfeiture of his office (c) an association that acts as a corporation within the Philippines without legally being incorporated or without lawful authority to act.669
663 664

Supra, Section 4, Rule 65, as Amended by A.M. 00-2-03-SC Supra, Section 5, Rule 65 665 Supra, Section 6, Rule 65 666 Supra, Section 7, Rule 65 667 Supra, Section 8, Rule 65 668 Supra, Section 9, Rule 65 669 Supra, Section 1, Rule 66 70

1.

It literally means by what authority.670

2. An individual can bring a quo warranto action in his name when he is claiming to be entitled to a public office or position usurped or exercised by another may bring an action. 671 3. A quo warranto action MUST be commenced by the Solicitor General or Public Prosecutor when directed by the President or upon complaint or otherwise he has good reason to believe that a cause can be established by proof. 672 If by complaint, a request for indemnity for expenses and costs may be required to be deposited.673 3. BESIDES the Court of Appeals, the action can be brought before the Supreme Court, a Regional Trial Court exercising jurisdiction over the area where the respondent/s reside BUT, if the Solicitor General commences the action, he may bring it before a Regional Trial Court in Manila, the Court of Appeals or the Supreme Court.674 4. WHEN FILED: within 1 year from accrual of the cause of action (ouster or right to hold position) Damages if recoverable must be in another action filed within 1 year from entry of judgment.675 5. PARTIES and CONTENTS of the petition: When the action is against the person for usurping a public office, position or franchise, the petition shall set forth the name of the person who claims to be entitled thereto, if any with an averment of his right to the same and that the respondent is unlawfully in possession thereof. All persons who claim to be entitled may be made parties, and their respective rights may be determined in the same action.676 6. REDUCTION OF TIME for pleadings and other proceedings may be directed by the Court to secure the most expeditious determination of the matters involved therein consistent with the rights of the parties. It can also take precedence over other civil matters pending before the Court.677 7. A JUDGMENT where the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position or franchise shall state that he be OUSTED AND ALTOGETHER EXCLUDED THEREFROM, and that the rights of the PETITIONER OR RELATOR, meaning the real party in interest, be determined as justice requires. 678 It can also include a judgment for costs679 8. The RIGHTS of a person entitled to public office include the right to demand of the respondent all books and papers in his custody or control appertaining to the office, otherwise he may be punished for contempt. 680Note: the damages aspect must be brought in another action. DISTINGUISH BETWEEN QUO WARRANTO AND ELECTION PROTEST In QUO WARRANTO the issue is the disqualification / ineligibility of the proclaimed candidate, in a PROTEST the issue is an irregularity in the election. If in the former, if the respondent is ineligible, the petitioner does not occupy the position, while in the latter, the protestant can occupy the position if he obtains a plurality of the votes. DISTINGUISH BETWEEN QUO WARRANTO AS TO NATURE OF POSITION In quo warranto involving an ELECTIVE POST the issue is the eligibility of candidate elected, while in that involving an APPOINTIVE POST the issue is the legality of appointment. In the former, if the respondent is found ineligible, the found ineligible, 2nd highest vote getter, even if eligible cannot be declared elected, while in the latter, the resolution shall determine who has been legally appointed and declare who is entitled to occupy the office. RULE 56 PROCEDURE IN THE SUPREME COURT ORIGINAL CASES The cases cognizable by the Supreme Court are Certiorari, Mandamus, Prohibition, Quo Warranto, Habeas Corpus, Disciplinary Actions against members of the Judiciary and Attorneys, Cases affecting Ambassadors, Public Ministers or Consuls.681 In resolving the cases, applicable rules in the Court of Appeals are also applicable in the Supreme Court.682 APPEALED CASES

670 671

Tecson v Comelec, 424 SCRA 277 Supra, Section 5, Rule 66 672 Supra, Section 2, Rule 66 673 Supra, Section 3, Rule 66 674 Supra, Section 7, Rule 66 675 Supra, Sections 10 and 11, Rule 66 676 Supra, Section 6, Rule 66 677 Supra, Section 8, Rule 66 678 Supra, Section 9, Rule 66 679 Supra, Section 12, Rule 66 680 Supra, Section 10, Rule 66 681 Supra, Section 1, Rule 56 682 Supra, Section 2, Rule 56 71

The only mode of appeal to the Supreme Court is by Petition for Review on Certiorari, except in criminal cases where penalty is death, reclusion perpetua, and life imprisonment 683 NOTE: Except in appeal of criminal cases where penalty is death, reclusion perpetua, life imprisonment, appeal by Notice of Appeal, will be dismissed 684 AND if by certiorari from the Regional Trial Court to the Supreme Court, raising issues of fact may be referred to the Court of Appeals for decision or appropriate action. Determination of the Supreme Court as to whether or not there are issues of fact is FINAL. All appealed cases shall be governed by and disposed of in accordance with the applicable provisions of the Constitution, Rule 45 (Petition for Review on Certiorari) Rule 48 (Preliminary Conference), Sections 1 (When submitted) 2 (Who renders judgment) and 5 to 11 ( Form to Execution) Rule 51, Rule 52 (Motion for Reconsideration) and Rule 56.685 GROUNDS FOR DISMISSAL OF AN APPEAL Motu propio or upon motion of respondent, it may be dismissed on (1) failure to take appeal within the reglementary period (2) lack of merit (3) failure to pay docket and lawful fees (4) failure to comply with requirements of proof of service and documents (5) failure to comply with any circular, directive or order of the Supreme Court without justifiable cause (6) error in the choice or mode of appeal (7) that it is not appealable to the Supreme Court686 IF SUPREME COURT OPINION IS EQUALLY DIVIDED OR NECESSARY MAJORITY CANNOT BE OBTAINED It will be deliberated further. If after deliberation, no decision is reached, the original action commenced in the court shall be dismissed. If appealed, it shall stand affirmed. If on incidental matters, it shall be denied. 687 PROVISIONAL REMEDIES RULE 57 PRELIMINARY ATTACHMENT WHAT IS PRELIMINARY ATTACHMENT It is a provisional remedy issued upon order of the court where the action is pending to LEVY upon the properties of the defendant therein, the same to be held thereafter by the sheriff as security for the satisfaction of whatever judgment might be rendered in favor of the attaching creditor. It can also extend to property of the defendant in the hands of 3 rd persons or money owed by 3rd persons to the defendant. This is also known as GARNISHMENT If judgment has become final and executory, there is a final attachment which is also known as Levy on Execution WHEN CAN IT BE AVAILED OF At any time before entry of judgment. DISTINCTIONS BETWEEN PRELIMINARY ATTACHMENT AND GARNISHMENT In PRELIMINARY ATTACHMENT there are two parties, the plaintiff or proper party and the defendant, while in GARNISHMENT, there is an additional party in the person of the garnishee. In the former, property is actually seized and a lien is created thereon, while in the latter, there is no actual seizure. GROUNDS 1. Action for recovery of money or damages other than moral / exemplary, on a cause of action that arise from law, contract, quasi contract, delict, or quasi-delict against a party who is about to depart from the Philippines with intent to defraud creditors. 2. Action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, an officer of a corporation, or an attorney, factor, broker, agent or clerk in the COURSE OF HIS EMPLOYMENT as such, or by any person in a FIDUCIARY CAPACITY, or for WILLFUL VIOLATION of such duty. 3. Action to recover possession of property unjustly or fraudulently taken, detained or converted when the property, or any part thereof, has been concealed, removed or disposed of to prevent its being found or taken by the applicant or authorized person. 4. Action against a party guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought or in the performance thereof. 4.1 The fraud should be committed either upon contracting the debt or incurring the obligation sued upon or in the performance thereof. A debt is fraudulently contracted if at the time of contracting it, the debtor has a preconceived plan or intention not to pay.688
683 684

Supra, Section 3, Rule 56 Supra, Section 6, Rule 56 685 Supra, Section 4, Rule 56 686 Supra, Section 5, Rule 56 687 Supra, Section 7, Rule 56 688 FCY Construction Group Incorporated v Court of Appeals, 324 SCRA 270 72

5. 6.

Action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud creditors. Action against a party who does not reside and is not found in the PI or on whom summons may be served by publication. 689

HOW APPLIED FOR 1. Generally, by motion or is incorporated in the complaint, accompanied by an affidavit, containing the following: (a) It is executed by the applicant / or some person who is aware or personally knows the facts (b)A sufficient cause of action exists (c) That ground/s as stated in Section 1 (d) There is no other sufficient security for the claim sought to be enforced by the action (e) The amount due the applicant or value of the property that he is entitled to recover, IS AS MUCH AS THE SUM for which the ORDER is granted, above all legal counterclaims 690 2. A BOND must then be executed to the adverse party in the amount fixed by the court, CONDITIONED that the latter will pay all costs which may be adjudged and all damages sustained by reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto.691 WHEN ISSUED / BY WHOM Either ex parte or on motion with notice and hearing, by the court in which action is pending, by the Court of Appeals or the Supreme Court and must require the Sheriff to attach so much of the property in the Philppines of the party against whom it is issued NOT EXEMPT FROM EXECUTION as may be sufficient to satisfy claim UNLESS other party makes a deposit or gives a bond in an amount equal to that fixed in the order, exclusive of costs. Note: that several writs may be issued at the same time to the sheriffs of the courts of different judicial regions.692 1. IT IS ISSUED EX-PARTE when the ground is justified further by the fact that the defendant might abscond or dispose of his property before the writ is issued. It CAN TAKE PLACE even before he is summoned BUT note that it cannot be enforced unless it is preceded or contemporaneously accompanied by SERVICE OF SUMMONS, together with complaint, application for attachment, affidavit, bond, order and the writ itself. This is the PRIOR OR CONTEMPORANEOUS RULE. NOTE: An Alias summons belatedly filed cannot be deemed to have cured the FATAL DEFECT in the enforcement of the writ of preliminary attachment. 693 2. The prior or contemporaneous rule does not apply when: (a) Summons could not be served personally or by substituted service despite diligent efforts (b) Defendant is a resident but temporarily out of the PhiIippines (c) Defendant is a nonresident of the Philippines (d) It is an action in rem or quasi in rem 2.1 An IN REM action is directly against the thing to determine title to or affect its interest, while a QUASI-IN-REM is a proceeding against the thing for satisfaction a claim against a person by adjudication of rights against property over which jurisdiction can be obtained BY WHOM / HOW ENFORCED 1. By the sheriff, without delay and with all reasonable diligence
694

1.1 Note that Rule 57 does not provide any lifetime for a writ of preliminary attachment unlike a writ of execution. law provides are enforcing the writ without delay and making sheriffs return thereon without delay.

What the

2. He may attach only such property not exempt from execution, as may be sufficient to satisfy the demand UNLESS defendant makes a deposit or give a counter bond in an amount equal to the bond fixed by the court or to the value of the property attached. 695 NOTE: That the attachment shall proceed nevertheless until there have been proceedings undertaken to discharge the attachment. If found to be insufficient / or is not filed, a NEW ORDER OF ATTACHMENT MAY BE APPLIED FOR.696 3. Attachment should be in accordance with the following:

a. If real property, it requires the filing with the Office of the Register of Deeds of a copy of the order together with notice that property or interest therein is attached. b. c. If personal property capable of manual delivery taking it and safely keeping it in custody after issuance of proper receipt. If stocks / shares / interest in companies, by leaving with the president or managing agent a copy of the writ and notice.

d. If debts, credits, bank deposits and other like personal properties not capable of manual delivery leaving with such persons owing debt, holding credits or in possession a copy of the writ and notice.

689 690

Supra, Section 1, Rule 57 Supra, Section 3, Rule 57 691 Supra, Section 4, Rule 57 692 Supra, Section 2, Rule 57 693 Mangila v Court of Appeals, 387 SCRA 162 694 Roque v Court of Appeals, 93 SCRA 540 695 Supra, Section 5, Rule 57 696 Supra, Section 12, Rule 57 73

e. If interest is in the estate of a decedent, by virtue of his being an heir, legatee, or devisee, by serving the writ / notice on executor or administrator. f. If in custodia legis copy of writ is filed if the proper court or quasi-judicial agency and notice served on the custodian of the property. 697 3.1 Effect of attachment of debts, credits and similar personal property persons who have them are liable to the applicant for the amount of such credits UNTIL the attachment is discharged, judgment is satisfied or debts are paid698 (Section 8) 3.2 Effect if on property belonging the estate of the decedent, it will not impair the powers of the executor / administrator or representative BUT they shall report the attachment to the court when any petition for distribution is filed and in the order made upon such petition the property may be awarded to the heir / legatee / devisee , but the property attached shall be delivered to the sheriff, subject to the claim of the heir, legatee, devisee or person claiming under him.699 (Section 9) 3.3 THERE CAN ALSO BE EXAMINATION OF THESE PERSONS TO DETERMINE IF THERE ARE PROPERTIES THAT MAY BE ATTACHED IN THEIR POSSESSION700 4. Sheriff shall also make a RETURN without delay, containing full statement of his proceedings under the writ and a complete inventory of property attached, together with a copy of a counter-bond if one has been filed, furnishing copies thereof on the applicant. 701 5. a. Property is to be held and disposed of in the following manner: If judgment is recovered by the attaching party

1. Paying to obligee proceeds of all sales of perishable property or others sold pursuant to order of the court as shall be necessary to satisfy the judgment. 2. If there is a balance, selling so much of the real or personal property as may be necessary to satisfy the balance, if enough for that purpose, remains in the hands of the sheriff or clerk of court. Note that there can be an EARLY SALE if it is made to appear to the court in which the action is pending that the property attached is perishable, or that the interest of all the parties to the action will be subserved by the sale of the properties at public auction, the proceeds to be deposited with the court to abide the judgment.702 3. Collecting from all persons having in their possession credits belonging to the obligor or debts due him

A REPORT / RETURN of all proceedings must be filed with the court and copies furnished all parties. 703 4. If there be a balance, he proceeds to collect as upon ordinary execution. If there be a surplus, it must be returned.

5. If judgment becomes executory, the surety/ies shall become charged on the counter-bond and bound to pay the judgment obligee upon demand, the amount due on the judgment, which amount can be recovered after notice and summary hearing in the same action. 704 6. If money was deposited in LIEU of a bond, it is applied under direction of the Court and if judgment is against attaching party, the whole sum deposited is refunded. 705 b. If judgment is for adverse party

1. All proceeds of sales or money collected by the sheriff and property attached shall be delivered to the party whose properties were attached and the order of attachment discharged. 2. Claim for damages before trial, perfection of appeal, or judgment becomes executory, with due notice to the attaching party and surety setting forth the facts showing his right to damages in instances where there is improper, irregular or excessive attachment, are to be awarded after hearing and is to be included in the judgment in the main case. 2.1 If the judgment favorable to him is rendered by the appellate court, he must claim the damages during the pendency of the appeal by filing the application in the appellate court, before the judgment becomes executory. The appellate court may allow the application to be heard and decided by the trial court. 2.2 NOTHING, likewise, prevents the party against whom attachment is issued from recovering in the same action the damages awarded to him from any property of the attaching party not exempt from execution should the bond or deposit be insufficient. 706
697 698

Supra, Section 7, Rule 57 Supra, Section 8, Rule 57 699 Supra, Section 9, Rule 57 700 Supra, Section 10, Rule 57 701 Supra, Section 6, Rule 57 702 Supra, Section 11, Rule 57 703 Supra, Section 15, Rule 57 704 Supra, Section 17, Rule 57 705 Supra, Section 18, Rule 57 706 Supra, Section 20, Rule 57 74

WHAT ARE THE REMEDIES OF A PARTY WHOSE PROPERTIES ARE ATTACHED 1. Discharge the attachment by making a cash deposit or counter bond. 707 NOTE: That bond may be subject to RECOVERY by attaching party; 2. Discharge or set aside the attachment on the ground that it was improperly issued or irregularly enforced, OR bond is insufficient OR what has been attached is excessive, the discharge is only for the excess.708 3. Claim for damages on account of improper, irregular, or excessive attachment. 709

NOTE: a motion to discharge / dissolve is not allowed if the preliminary attachment is issued on a ground which is at the same time the applicants cause of action as that is TANTAMOUNT TO TRIAL ON MERITS. Example: action for money, property embezzled, party guilty of fraud in incurring the obligation WHAT HAPPENS IF PROPERTY IS CLAIMED BY A 3RD PERSON Claim is to be initiated by affidavit. Upon filing, the sheriff not under obligation to keep the property, unless attaching party files a bond. No claim for damages for the taking or keeping of the property may be filed / enforced against the bond unless the action is filed within 120 days from date of the filing of the bond. 710 RULE 58 PRELIMINARY INJUNCTION A Preliminary Injunction isan order granted at any stage of an action or proceeding prior to judgment or final order, requiring a party or a court, agency, person to refrain from a particular act or acts. It may also require the performance of an act, if such it is called a preliminary mandatory injunction. 711 1. Note that Injunction may also exist as a cause of action. This is best illustrated by the appropriate remedies for obligations to do or not to do. Obligations to do, the remedy is specific performance. Obligation not to do, remedy is injunction. PRIMARY PURPOSE OF INJUNCTION Is to preserve the status quo or the last actual, peaceable, uncontested status which precedes the pending controversy. WHO MAY GRANT Court where the action is pending. If pending in the Court of Appeals or the Supreme Court, it may be issued by the Court or any member thereof.712 GROUNDS FOR ISSUANCE 1. The applicant is entitled to the relief demanded, and the whole or part of the relief consists in restraining the commission / continuance of the act/s complained of, or in requiring the performance of an act/s, for a limited period or perpetually. 2. OR The commission / continuance / non performance of the act/s during litigation will probably work injustice to the applicant,

3. That a party, court, agency or a person is doing, threatening, or is attempting to do or is procuring or suffering to be done, some act/s in violation of the rights of the applicant respecting the subject of the action and tending to render judgment ineffectual.713 REQUISITES FOR ISSUANCE OF AN INJUNCTION 1. 2. Existence of a right to be protected Acts against which the injunction is to be directed are violative of the right

These must clearly appear in the allegations in the complaint OTHERWISE it may be ground for its outright denial for INSUFFICIENCY, which is apparent in the application itself OR if already granted, may be dissolved. 714 MAY IT BE ISSUED EX-PARTE Its issuance requires (1) a hearing (2) reception of evidence with opportunity to cross (3) finding that prohibited acts are threatened to be committed or that irreparable injury would be inflicted upon the applicant.
707 708

Supra, Section 12, Rule 57 Supra, Section 13, Rule 57 709 Supra, Section 20, Rule 57 710 Supra, Section 14, Rule 57 711 Supra, Section 1, Rule 58 712 Supra, Section 2, Rule 58 713 Supra, Section 3, Rule 58 714 Supra, Section 6, Rule 58 75

IF GREAT / IRREPARABLE INJURY WOULD RESULT BEFORE THEN: the Court BY WAY OF EXCEPTION TO THE RULE ON NON EX-PARTE ISSUANCE (1) can issue a Temporary Restraining Order for 20 days after a summary hearing OR If it is of extreme urgency, it may issue ex-parte a 72 hour Temporary Restraining Order. The lifetime of a Temporary Restraining Order is 20 days if issued by a trial court, 60 days if issued by the Court of Appeals, and until further orders if issued by the Supreme Court. Note that within the 20 day effectivity period of the Temporary Restraining Order, the court must order the party or person to show cause why the injunction should not be granted, determine also whether or not the preliminary injunction should be granted, and accordingly issue the order. 715 HOW OBTAINED A preliminary injunction or temporary restraining order is obtained upon (1) filing of a verified application showing facts entitling the applicant to the relief demanded, (2) unless exempted, filing of a bond in an amount fixed by the court, to the effect that applicant will pay all damages that may be sustained if the court should finally decide that applicant was not entitled thereto (3) if included in a complaint / initiatory pleading it shall be raffled only after notice to and in the presence of the adverse party. In any event, notice shall be preceeded by or contemporaneously accompanied by service of summons, together with affidavit and bond (PRIOR OR CONTEMPORANEOUS RULE) but such will not be applicable if defendant / adverse party cannot be served personally / substituted service, temporarily absent or is a non-resident. The matter shall thereafter be acted upon only after all parties are heard in a summary hearing, conducted within 24 hours after sheriffs return of service.716 GROUNDS FOR OBJECTION / DISSOLUTION 1. The application may be denied or if granted, dissolved, upon showing of insufficiency, or while entitled to an injunction, the issuance or continuance thereof will cause irreparable damage to the person enjoined while the applicant can be compensated for the damages and a bond is filed OR if it appears that extent is too great, it may be modified. 717 2. It may also be dissolved on objection to the sufficiency of the bond, or upon finding of insufficiency, the failure of surety to justify or filing of a sufficient bond. If it the objection is to the bond of the party enjoined, the injunction shall be granted or restored.
718

JUDGMENTS OR ORDERS IN INJUNCTION 1. ORDER DISCHARGING IS IMMEDIATELY EFFECTIVE

2. A Final Injunction is granted if it appears that the applicant is entitled to have the act/s permanently enjoined or confirming the preliminary mandatory injunction.719 3. Judgments eventually rendered may include damages against a party and sureties. 720

4. No injunction can issue against the acts of a co-equal court, except in a 3 rd party claim where claimant vindicates his right by a separate action. RULE 59 RECIEVERSHIP WHEN IS A RECEIVER APPOINTED 1. When it appears from a verified application, and as such other proof as the court may require, that the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding as such property / fund is in danger of being lost, removed or materially injured unless a receiver be appointed to administer and preserve it. 2. When it appears in an action by the mortgagee for the foreclosure of mortgagee that the property is in danger of being wasted, dissipated or materially injured and that its value is probably insufficient to discharge the mortgage debt or that the parties have so stipulated in the mortgage contract. 3. When after judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid in execution when the execution is returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment or otherwise carry the judgment into effect. 4. Whenever in other cases, it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering or disposing of property in litigation. WHO APPOINTS A RECEIVER The court where action is pending or the Court of Appeals, the Supreme Court or a member thereof. During appeal, the appellate court may allow the application for the appointment to be filed in the court of origin, which can also decide on the same to be subject to the control of said court.721
715 716

Supra, Section 5, Rule 58 Supra, Section 4, Rule 58 717 Supra, Section 6, Rule 58 718 Supra, Section 7, Rule 58 719 Supra, Section 9, Rule 58 720 Supra, Section 8, Rule 58 721 Supra, Section 1, Rule 59 76

1. A receiver of real or personal property, which is the subject of the action, may be appointed by the court when it appears from the pleadings or such other proof as the judge may require, that the party applying for such appointment has: (a) an actual interest in it, and (b) that (a) such property is in danger of being lost, removed, or materially injured; or whenever it appears to be the most convenient and feasible means of preserving or administering the property in litigation. 722 2. A receiver is a person appointed by the court or by a quasi-judicial administrative agency, in behalf of all the parties for the purpose of preserving and conserving the property and preventing its possible destruction or dissipation, if it were left in the possession of any of the parties. It is the duty of the receiver to administer the assets of the receivership estate; and in the management and disposition of the property committed to his possession, he acts in a fiduciary capacity and with impartiality toward all interested persons. 723 3. A receiver is not an agent or representative of any party to the action. He is an officer of the court exercising his functions in the interest of neither plaintiff nor defendant, but for the common benefit of al the parties in interest. He performs his duties subject to the control of the Court, and every question involved in the receivership may be determined by the court taking cognizance of the receivership proceedings. Thus, unauthorized contracts of a receiver do not bind the court in charge of receivership. They are the receivers own contracts and not recognized by the court as contracts of the receivership. 724 WHAT ARE THE POWERS OF THE RECIEVER Subject to the control of the court, HE CAN: (a) Bring and defend actions in his own name (b)Take and keep possession of the properties in controversy (c)To receive rent (d)Collect debts, including power to compound and compromise them, to pay debts (e)Make transfers (f) To divide money or other property (g) Other acts as may be authorized by the court 1. Funds though may only be invested by order of the court upon written consent of all parties. No action may be filed by or against the receiver without leave of court to prevent harassment.725 2. Should there be refusal / neglect to deliver property to a receiver it is punishable by contempt and shall be liable for the money or value of the property, plus damages sustained as a consequence of the refusal / neglect.726 HOW APPLIED FOR 1. By verified application. Note that more than 1 receiver may be applied for and appointed by the court. NOTE: That receivership may be a principal action or an ancillary remedy. 2. If application is granted the receiver shall await the filing by the applicant of a bond executed to the party against whom the application is presented in an amount fixed by the Court to the effect that the applicant will pay such party all damages that he may sustain by reason of the appointment in case the same has been procured without SUFFICIENT CAUSE and the court in its discretion may require an additional bond to be filed as further security for damages.727 3. The APPLICATION may be denied or receiver discharged when the adverse party files a bond executed to the APPLICANT to the effect that such party will pay to the applicant all damages he may suffer by reason of acts, omissions or other matters specified as grounds in the application If may also be discharged if it is shown that appointment was obtained without sufficient cause.728 4. BEFORE entering upon his duties, the receiver shall be sworn to perform them faithfully and shall file a bond executed to such person and in amount fixed by the court, to the effect that he will faithfully discharge his duties and obey orders from the Court.729 5. Copies of bonds ( Applicant and Reciever OR Adverse Party) shall be served on each interested party who may except to its sufficiency or the surety. If found to be insufficient or is not justified and a bond sufficient in amount and surety is not filed, the application shall be denied and the receiver discharged. If adverse partys bond is the one excepted to or found insufficient, the receiver shall be appointed or reappointed as the case may be.730 WHEN TERMINATED When the court, motu propio or upon motion, shall determine that the necessity for a receiver no longer exists, it shall alter due notice, settle all accounts, direct delivery of the funds / property in his possession to the person adjudged to be entitled to receive them and order the discharge of the receiver from further duty. He is to be allowed compensation as circumstances will warrant to be taxed against defeated party or apportioned as justice may require.731 Any judgment may include the amount, if any, to be awarded any party upon any bond.732
722 723

Commodities Storage & Ice Plant Corp. versus Court of Appeals, 274 SCRA 439 Arranza versus B.F. Homes, Inc., 333 SCRA 799 724 Pacific Mechandising Corp., versus Consolacion Insurance & Surety Co., Inc., 73 SCRA 564 725 Supra, Section 6, Rule 59 726 Supra, Section 7, Rule 59 727 Supra, Section 2, Rule 59 728 Supra, Section 3, Rule 59 729 Supra, Section 4, Rule 59 730 Supra, Section 5, Rule 59 731 Supra, Section 8, Rule 59 732 Supra, Section 9, Rule 59 77

RULE 60 REPLEVIN WHAT IS REPLEVIN It is a form of a principal remedy and provisional remedy / relief. It is also a mixed action partly in rem as far as the claim for recovery of personal property and in persona as far as the claim of damages, the object of which is recovery of possession of personal property applied for at the commencement of the action or at any time before answer by the party praying for recovery of personal property.733 HOW 1. Filing of Affidavit containing the following: (a) that applicant is the owner of the property claimed, particularly describing it, or is entitled to possession of the same (b)that property is a wrongfully detained by the adverse party, alleging the cause of detention according to the best of his knowledge, information or belief (c) that property has not been distrained or taken for a tax assessment or payment of fine or seized under execution, preliminary attachment or in custodia legis, or if so seized, it is exempt from seizure / custody (d) actual market value NOTE: Not the probable value as declared by the applicant. Should there be a dispute, it is to be resolved by the Court. 2. Filing of bond in double the value of the property for return of the property to the adverse party and payment of such sum as he may recover from the applicant 3. UPON FILING OF AFFIDAVIT AND BOND, the writ of replevin shall issue requiring the sheriff to forthwith take the property in custody.734 3.1 IN TAKING CUSTODY if concealed, he may demand delivery, if not delivered, he may cause the building / enclosure to be broken. Once in possession, it must be kept in a secure place and shall be responsible for its delivery to the party entitled thereto upon receipt of his fees and expenses. 735 REMEDIES FOR RETURN OF PROPERTY 1. Objection to the sufficiency of the bond / surety but he cannot immediately require delivery OR at any time before delivery to the applicant, by filing a bond (redelivery bond) executed to the applicant in double the value of the property as stated in the applicants affidavit. MANNER OF DISPOSITION BY SHERIFF 1. If within 5 days after taking of the property, the adverse party does not object to sufficiency of the bond / sureties OR he objects and the court affirms its approval of the bond or approves a new bond OR if he requires return but his bond is objected to (adverse party) and he does not forthwith file an approved bond THE SHERIFF SHALL DELIVER THE PROPERTY TO THE APPLICANT IF FOR ANY REASON IT IS NOT DELIVERED, IT MUST BE RETURNED TO ADVERSE PARTY.736 2. If claimed by a 3rd PARTY by affidavit, the sheriff is not bound to keep and deliver the property unless applicant / agent on demand of the sheriff files a bond approved by the Court to indemnify the 3 rd party claimant in a sum not less than the value of the property under replevin. In case of disagreement as to value, the court shall determine the same. Note that no action on the bond may be enforced unless filed within 120 days from filing. The sheriff shall not be liable for damages for the taking and keeping of the property to any such 3rd party if the bond is filed. Nothing also prevents the 3rd party claimant or the applicant from vindicating their rights or claims in the same action or in a separate action. If writ is issued in the name of RP, no bond is required and the sheriff is to be represented by the SOLGEN and damages so adjudged are paid out of the National Treasury. 737 3. SHERIFF must make return within 10 days after taking of the property.738

4. The JUDGMENT BY THE COURT shall include a determination who has a better right of possession to and value of the property and render judgment in the alternative for delivery thereof to the party entitled or its value in case delivery cannot be made, and also for damages as either party may prove, with costs. Any amount awarded a party upon any bond shall be claimed, ascertained and granted as provided by Section 20 of Rule 57.739 4. 5. A WRIT OF REPLEVIN may be served anywhere in the PI

RULE 61 SUPPORT PENDENTE LITE WHEN FILED AND HOW


733 734

Supra, Section 1, Rule 60 Supra, Sections 2 and 3, Rule 60 735 Supra, Section 4, Rule 60 736 Supra, Section 6, Rule 60 737 Supra, Section 7, Rule 61 738 Supra, Section 8, Rule 61 739 Supra, Sections 9 and 10, Rule 61 78

At the commencement of the proper action or proceeding or at any time prior to a judgment or final order a verified application may be filed by a party stating the grounds for the claim and the financial conditions of both parties, accompanied by affidavits, depositions, or other authentic documents in support thereof.740 1. It is also available in criminal cases when: (a) child is born to offended party allegedly because of the crime (b) civil liability arising from the criminal action includes support for the offspring (c) civil aspect has not been waived, reserved or instituted prior to filing of criminal action. This application may be filed successively by the offended party, her parents, grandparents, guardian or the State in the corresponding criminal case during its pendency.741 PROCEDURE: 1. Upon filing of verified application it shall be served on the adverse party, who shall have 5 days to comment unless a different period is fixed by the court. It shall also be verified and accompanied by affidavits, depositions, authentic documents. 742 2. Hearing shall then be conducted no more than 3 days after comment is filed or the period expires. 743

3. Court shall determine provisionally the pertinent facts and render such orders as justice and equity may require, having due regard to the probable outcome of the case and such other circumstances. 3.1 IF GRANTED, it shall fix the amount of money to be provisionally paid or such other forms or support as should be provided taking into account the necessities of the applicant AND resources or means of the adverse party AND the terms or mode for providing support. 3.2 IF DENIED, the principal case shall be tried and decided as early as possible. 744

HOW ENFORCED If adverse party fails to comply, the court shall, motu propio or on motion, issue an order of execution without prejudice to his liability for contempt. ALSO, if support be paid by a 3rd person, after due notice and hearing in the same case, he may obtain a writ of execution to enforce his right of reimbursement against the person ordered to provide support.745 RESTITUTION IF upon judgment / final order The court finds that the person who has been providing support is not liable therefor it shall order the recipient to return the amounts paid plus interest from dates of actual payment without prejudice to the right of the recipient to obtain reimbursement in a separate action from the person legally obliged to give support. Should the recipient fail to reimburse, the person who provided the same, may, in a separate action, seek reimbursement thereof from the person obliged to give support. 746 SPECIAL CIVIL ACTIONS RULE 62 - INTERPLEADER WHEN PROPER Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest whatever in the subject matter, or an interest which in whole or in part is not disputed by the claimants, he may bring an action against the conflicting claimants to interplead and litigate their several claims among themselves.747 PROCEDURE: 1. Upon filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one another. If the interest of justice requires, it may order the subject matter be paid or delivered to the court.748 2. Summons shall then issued to claimants, together with a copy of the complaint and order. 749

3. Within the time for the filing of an answer, motions to dismiss may be filed, if denied the claimant must file an answer within the period remaining but in no case less than 5 days. If not, he may be declared in default and thereafter the court may render judgment barring him from any claim in respect of the subject matter. They may also file counter-claims, cross-claims, 3 rd party claims, and other responsive pleadings.750

740

Supra, Section 1, Rule 61 Supra, Section 6, Rule 61 742 Supra, Section 2, Rule 61 743 Supra, Section 3, Rule 61 744 Supra, Section 4, Rule 61 745 Supra, Section 5, Rule 61 746 Supra, Section 7, Rule 61 747 Supra, Section 1, Rule 62 748 Supra, Section 2, Rule 62 749 Supra, Section 3, Rule 62 750 Supra, Sections 4 and 5, Rule 62
741

79

4. After the pleadings of the conflicting claimants have been filed, pre-trial conducted, the court shall proceed to determination and adjudication of their respective claims. The docket and other lawful fees paid by a party who filed the complaint, as well as costs / expenses of litigation shall constitute a lien or charge upon the subject matter, unless the court orders otherwise.751 RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES WHAT IS DECLARATORY RELIEF It is a special civil action brought before the Regional Trial Court ONLY by a person interested in a DEED, WILL, CONTRACT or OTHER WRITTEN INSTRUMENT, or whose rights are affected by a STATUTE, EXECUTIVE ORDER OR REGULATION, ORDINANCE or any government regulation BEFORE BREACH THEREOF, asking the court to DETERMINE ANY QUESTION OF CONSTRUCTION OR VALIDITY arising, and for a declaration of his rights OR duties thereunder. 752 1. ACTIONS for REFORMATION OF INSTRUMENT, TO QUIET TITLE OR REMOVE CLOUDS THEREFROM, or to CONSOLIDATE OWNERSHIP UNDER Art 1607 NCC may be brought as civil actions for declaratory relief. 2. NOTE THAT AN ACTION FOR DECLARATORY RELIEF may be brought only before a breach / violation of the statute or instrument. If already brought AND a breach / violation is committed before final termination, it is converted into an ordinary civil action. The parties may then file such pleading as may be necessary or proper.753 WHO ARE THE ALLOWED PARTIES 1. All persons who have or claim an interest which would be affected by the declaration shall be made parties and NO DECLARATION shall as except as otherwise provided in these RULES prejudice the rights of persons not parties to the action. 2. If involving validity of a statute, executive order, regulation, or any other government regulation. The solicitor general shall be notified and is entitled to be heard upon such question. 754 3. If local government ordinance, the corresponding attorney / prosecutor of the Local Government Unit shall be similarly notified and heard. If alleged to be unconstitutional, the Solicitor General shall be notified and heard.755 ACTION BY THE COURT Except in actions falling under the 2nd paragraph of Section 1, the court, motu propio, or on motion, may refuse to exercise the power to declare rights and to construe instruments in any case WHERE A DECISION WOULD NOT TERMINATE THE CONTROVERSY ON UNCERTAINTY THAT GAVE RISE TO THE ACTION, or in any case, WHERE THE DECLARATION / CONSTRUCTION is not NECESSARY and PROPER under the circumstances. 756 RULE 64 REVIEW OR JUDGMENTS / FINAL ORDER OF THE COMELEC AND COA A judgment / final order of COMELEC / COA is to be brought by the aggrieved party to the Supreme Court under Rule 65 but the period for filing is 30 days from notice of the judgment or final order sought to be reviewed. The filing of a motion for new trial / recon if allowed under the procedural rules of the COMELEC / COA will toll the period. If denied, the aggrieved party only has the remaining period which is no case shall be less than 5 days in any event, reckoned from notice of denial. 757 1. Note that only judgments/final orders of the COMELEC en banc can be brought to the SC. What is exercised is the power of review. 2. The bringing of a petition, shall not stay the execution of the judgment, final order or resolution unless directed otherwise by the Supreme Court.758 RULE 67 EXPROPRIATION SEE RP vs. Gingoyon GR 166429, Jan 14, 2005 Rule 67 contemplates two (2) separate final orders, namely: 1. 2. order of expropriation (Section 4, Rule 67) and order of just compensation (Section 8, Rule 67).

An expropriation suit is incapable of pecuniary estimation and falls within the jurisdiction of the Regional Trial Courts. (Barangay San Roque vs. Heirs of Francisco Pastor, 334 SCRA 127).
751 752

Supra, Sections 6 and 7, Rule 62 Supra, Section 1, Rule 63 753 Supra, Section 6, Rule 63 754 Supra, Section 3, Rule 63 755 Supra, Section 4, Rule 63 756 Supra, Section 5, Rule 63 757 Supra, Sections 1,2, and 3, Rule 64 758 Supra, Section 8, Rule 64 80

Public purpose which will justify expropriation of property generally means such activity which will serve as convenience, safety, welfare, advantage, or benefit to the entire community, and not to a particular individual, class or group of persons. Public use is one which confers some benefit or advantage to the public. It is not confined to actual use by the public. It includes the right of use by the public, whether it is exercised by one or some or many members of the public. Public use contemplates indirect public benefit or advantage (Estate of Salud Jimenez vs. Phil. Export Processing Zone, 349 SCRA 240). It must be considered in its general concept of meeting a public need or a public exigency. Manosca vs. CA, 252 SCRA 412). At present, whatever may be beneficially employed for the general welfare satisfies the requirement of public use. (Reyes vs. NHA, 395 SCRA 494).

WHAT IS EXPROPRIATION The taking of private property for public purpose upon the payment of just compensation. It is also known as exercise of the power of eminent domain. HOW EXERCISED Filing of a verified complaint which shall state with certainty the right and the purpose of expropriation, describing the real / personal property sought to be expropriated, joining as defendants all persons claiming / owning or occupying any part thereof or interest therein. Note that the subject can be either real / personal property.759 WHERE FILED Regional Trial Court, regardless of value as it is an action which is incapable of pecuniary estimation. UPON FILING, MAY PLAINTIFF TAKE POSSESSION Plaintiff, upon making a deposit in or with an authorized government depository of an amount equal to the assessed value of the property for purposes of taxation may take possession of the real property. If it involves personal property, its value as provisionally ascertained. 760 1. Note that under Section 19 of the Local Government Code, the LGU can take possession upon deposit with the court of FIFTEEN PERCENT of the Fair Market Value based on the current tax declaration. UPON FILING AND SERVICE 1. The DEFENDANT MAY FILE: (a)A Manifestation that he has no objection or defense to the action, OR (b) An Answer stating all objections and defenses to the taking of the property. No, counterclaim, cross claim or 3rd party complaint shall be allowed in the answer or any subsequent pleading.761 2. AFTER, the case now proceeds to a determination of:

2.1 Authority of the plaintiff to expropriate. Thereafter, the court may dismiss the petition or issue an order of expropriation. The order is appealable BUT SHALL NOT PREVENT DETERMINATION OF JUST COMPENSATION,IF GRANTED AND PLAINTIFF CANNOT DISMISS OR DISCONTINUE EXCEPT ON TERMS THAT COURT DEEMS JUST AND EQUITABLE as there is entry already.762 2.2 NOTE the right of plaintiff to enter into the property and appropriate shall not be DELAYED by an APPEAL. But if appellate court determines that no right of expropriation exists. It shall order the RTC to enforce restoration and determine the damages that the defendant sustained.763 3. Just compensation is then determined by no more than 3 court appointed commissioners. If the Court accepts their report, it will render judgment based thereon. Such judgment is also appealable. 764 3.1 IF upon determination of just compensation, the ownership is uncertain or claims are conflicting, the court may order sum / sums paid to be given to the Court for the benefit of the person adjudged in the same proceeding to be entitled thereto BUT, payment will be required to be given to the defendant or the court before plaintiff can enter into or retain the property.765 4. The JUDGMENT shall state definitely, by an adequate description, the particular property or interest therein expropriated and the nature of the public use or purpose for which it is expropriated, a certified copy of which judgment shall be recorded in the registry of deeds and its effect shall to be shall to be vest in the plaintiff title to the real estate for public use or purpose.766

759 760

Supra, Section 1, Rule 67 Supra, Section 2, Rule 67 761 Supra, Section 3, Rule 67 762 Supra, Section 4, Rule 67 763 Supra, Section 11, Rule 67 764 Supra, Sections 5,6,7, and 8, Rule 67 765 Supra, Section 9, Rule 67 766 Supra, Section 13, Rule 67 81

RIGHT OF PLAINTIFF UPON PAYMENT / TENDER The plaintiff shall have the right to enter into the property and expropriate for public use or retain it if already entered. If defendant or counsel absent themselves from the court or decline to receive the amount, it shall be deposited in the court and shall have the effect of ACTUAL PAYMENT. 767 WHO PAYS FOR COSTS All costs, except that incurred by rival claimants, shall be paid by the plaintiff unless an appeal is taken therefrom by the owner of the property and the judgment is affirmed. Costs shall include the fees of the commissioners. 768 RULE 68 FORECLOSURE OF REAL ESTATE WHAT SHOULD BE STATED IN THE COMPLAINT/PETITION The complaint in foreclosure of a mortgage or other encumbrance shall set forth: (a)Date and due execution of the mortgage (b) Its assignments, if any (c)Names/residences of mortgagor/mortgagee (d)Description of the mortgaged property (e) Statement of the date of the note or other documentary evidence of the obligation secured by the mortgage (f)Amount claimed to be unpaid (g)Name/residences of persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants. 769 WHAT COURT CAN DO After trial, if the court shall find the facts to be true, it shall ASCERTAIN THE AMOUNT DUE THE PLAINTIFF AND RENDER JUDGMENT FOR THE SUM WITH AN ORDER FOR IT TO BE PAID BY ADVERSE PARTY TO THE COURT OR JUDGMENT OBLIGEE WITHIN A PERIOD OF NOT LESS THAN NINETY (90) DAYS NOR MORE THAN ONE HUNDRED TWENTY DAYS (120) FROM ENTRY OF JUDGMENT, AND THAT IN DEFAULT, THE PROPERTY SHALL BE SOLD AT PUBLIC AUCTION. This period is known as MORTGAGORS EQUITY OF REDEMPTION. 770 DISTINGUISHING EQUITY OF REDEMPTION FROM RIGHT OF REDEMPTION Equity of Redemption is the equitable right of the mortgagor to redeem, while Right of Redemption is the statutory right of the mortgagor to redeem. The former is available before auction sale, while the latter is available after auction sale. The former is available only judicial foreclosure, while the latter is available only in extra-judicial foreclosure, but by exception is allowed in judicial foreclosure when the mortgagee is the PNB or a bank or a banking institution. The period for the exercise of the former is within 90 days but no more than 120 days from entry of foreclosure judgment, while in the latter it is one year from redemption is within one year from date of registration of the sheriffs certificate of sale, except when the mortgagor is a juridical person, in which case, the right to redeem must be exercised until, but not after, the registration of the certificate of sale with the applicable register of deeds which in no case shall be more than three months after foreclosure, whichever is earlier.771 WHAT HAPPENS IF NOT PAID 1. Upon motion, the court shall order the property sold in the manner prescribed under Rule 39, such SALE shall not affect the rights of persons holding prior liens/encumbrances on the property or parts thereof. 2. Upon motion, sale shall be CONFIRMED, and such shall operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law. 2.1 Note that when judicial foreclosure is resorted to there is no right of redemption EXCEPT when the law allows a redemption. EXAMPLE: Section 47 of the Philippine General Banking Law which allows a one year period for redemption. 3. Upon finality of the order of confirmation or upon expiration of the period of redemption when allowed by law, the purchaser at auction is entitled to possession unless a third party is holding it adversely to the judgment obligor, in which case, the purchaser at the auction sale may secure a writ of possession from the Court ordering the sale.772 3.1 What is to be registered is the order of confirmation. If there is no right of redemption, the title of the mortgagor is cancelled and a new one issued in the name of the purchaser. 3.2 If with right of redemption, the annotation is to await final deed of sale executed by Sheriff.773 (Section 7)

4. PROCEEDS OF THE SALE shall, after deducting the costs, be paid to the persons foreclosing the mortgage. If there be a balance or residue, it shall be paid to the junior encumbrancers, in the order of priority ascertained by the Court, if none or there still be a balance or residue after payment, to the mortgagor.774

767 768

Supra, Section 10, Rule 67 Supra, Section 12, Rule 67 769 Supra, Section 1, Rule 68 770 Supra, Section 2, Rule 68 771 Section 47, Philippine General Banking Law 772 Supra, Section 3, Rule 68 773 Supra, Section 7, Rule 68 774 Supra, Section 4, Rule 68 82

5. If debt is not all due, as soon as a sufficient portion of the property has been sold to pay the total amount, the sale shall terminate. Afterwards, no more shall be sold, BUT if property cannot be sold in portions, the entire property is to be sold with rebate of interest if proper when the full debt is paid.775 6. Deficiency judgments, if there is a balance, upon motion, the court shall render judgment against the defendant for the balance, upon which execution may issue. If balance is due at the time of rendition of judgment OR at such time as the remaining balance becomes due under the terms of the original contract, which time shall be stated in the judgment. 776 7. Note that the provisions of Section 31 as to use of premises by obligor, Section 32 as to rents still due the obligor, and Section 34 as to recovery of price if sale is not effective of Rule 39 are applicable as far as the former are not inconsistent. 777 RULE 69 PARTITION OBJECT OF PARTITION Separate, divide and assign a thing that is held in common among those to whom it may belong. The remedy may be availed of regardless of whether it involves real or personal property, or both WHO CAN FILE AND HOW Any person, having the right to compel partition of real estate may file, setting forth therein the nature and extent of his title, adequate description of the property, joining as defendants all other persons interested in the property.778 1. An action for partition and accounting under Rule 69 is in the nature of a quasi in rem779.

PROCEDURE 1. If after trial, it finds for the plaintiff, it will order partition. Thereupon, if they AGREE, the parties may undertake the partition among themselves by proper instruments. The court shall thereupon confirm the partition so agreed by the parties. Such partition and order of confirmation shall then be recorded in the registry of deed of the place where the property is situated. A final order decreeing partition and accounting may be appealed by the party aggrieved thereby.780 2. If they fail to agree, the Court shall appoint not more than 3 commissioners, commanding them to set-off to the plaintiff and each party in interest such part and proportion of the property as the court will direct.781 2.1 Before discharging their duties, the commissioners shall take an oath that they will faithfully discharge their duties, and in so doing they shall view and examine the real property , shall hear the preferences of the parties, determine the comparative value of the property, and shall set apart the same to the parties in lots or parcels as will be most advantageous and equitable, having due regard to the improvements, situation and quality of the different parts thereof.782 2.2 If the property cannot be divided without prejudice to the interest of the parties, the court may order it assigned to one of the parties willing to take the same, provided he pays to the other parties such amount as determined by the commissioners to be equitable, unless one of the interested parties asks that the property be sold instead. 783 2.3 A report should thereupon be made by the commissioners and filed with the court, which shall then give the parties 10 days within which to file heir objections to the findings. No proceeding shall pass title to the property or bind the parties until the court shall have accepted the report and rendered judgment thereon. Note though that the court has the option to accept or re-commit the matter to the commissioners. 784 3. If actual partition of the property is made, judgment shall state definitely the metes and bounds and adequate description of the property, the particular portion allocated to each party and its effect is to vest to each party in the action in severalty the portion of real estate assigned to him. If the whole property is assigned to one after payment to the others, judgment has the effect of vesting in the party making payment the whole of the real estate free from any interest of the other parties. If the property is sold and proceeds divided, judgment has the effect of vesting the property or portion sold in the purchaser free from any interest of the parties to the action. 785Judgment may include recovery from the other of just share of rents and profits received by the other from the real estate in question786 and costs equitably apportioned among the parties.787 DISTINGUISHING BETWEEN ORDER OF PARTITION AND JUDGMENT OF PARTITION

775 776

Supra, Section 5, Rule 68 Supra, Section 6, Rule 68 777 Supra, Section 8, Rule 68 778 Supra, Section 1, Rule 69 779 Valmonte v Court of Appeals, 52 SCRA 92 780 Supra, Section 2, Rule 69 781 Supra, Section 3, Rule 69 782 Supra, Section 4, Rule 69 783 Supra, Section 5, Rule 69 784 Supra, Sections 6 and 7, Rule 69 785 Supra, Section 11, Rule 69 786 Supra, Section 8, Rule 69 787 Supra, Section 10, Rule 69 83

The Order of Partition finding that plaintiff is entitled to partition, and after which, if the parties agree, they may partition subject to confirmation by the court, while Judgment of Partition is the judgment rendered pursuant to the commissioners report after it is accepted by the court. BOTH THOUGH ARE APPEALABLE RULE 70- FORCIBLE ENTRY, ILLEGAL/UNLAWFUL DETAINER WHAT IS FORCIBLE ENTRY An action brought when a person is deprived of possession of land/building by FORCE, INTIMIDATION, THREAT, STRATEGY, OR STEALTH. WHAT IS UNLAWFUL DETAINER An action brought by a lessor, vendor, vendee or other person against whom possession of land/building is unlawfully withheld after expiration or termination of the right to hold possession, by virtue of a contract, express or unpaid. Such action must be brought within one year after withholding such possession. Also known as an accion interdictal which seeks to recover possession de facto or physical, actual or material possession. Note that it is the character or nature of the defendants possession which will determine which of the two actions is appropriate. UNLAWFUL DETAINER OR FORCIBLE ENTRY OR ACCION INTERDICTAL DISTINGUISHED From Accion Publiciana which is a plenary action to recover right of possession that is brought after one year from accrual of the cause of action in a Regional Trial Court and Accion Reivindicatoria which is an action to recover ownership, including possession. Note: In addition to restitution of possession, damages and costs may also be recovered.788 WHAT IS REQUIRED FOR THE ACTION TO BE FILED 1. In Illegal Detainer ,unless otherwise stipulated, the lessor can proceed against lessee only after demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee, or by serving written notice of such demand upon the person found within the premises, or by posting such notice on the premises if no person is found thereon and the lessee fails to comply within 15 days in the case of land or 5 days in case of building. 789 1.1 2. If action is terminate the lease due to the expiration of its term, demand is not a prerequisite.790 No demand is required in Forcible Entry cases.

WHEN, WHERE FILED AND NATURE OF PROCEEDINGS Cases of Forcible Entry/Unlawful Detainer are to be filed within one year from date of actual entry or date of last demand before the Municipal Trial Court and shall be covered by the Rules on Summary Procedure, irrespective of the amount of damages or unpaid rentals, unless they are covered by agricultural tenancy laws or otherwise provided by law.791 PROCEDURE TO BE FOLLOWED 1. The only allowable pleadings are the complaint, compulsory counterclaim and cross-claim pleaded in the answers and answers thereto. All pleadings are to be verified.792 2. Upon filing of the complaint, the court may, from an examination of the allegations in the complaint and such evidence attached thereto, dismiss the complaint on any of the grounds for a motion to dismiss which are apparent therein. If not dismissed, it shall proceed to issue summons.793 3. If summons is issued, the defendant shall file his answer within 10 days from receipt, serving a copy thereof to the plaintiff. Affirmative or negative defenses not pleaded are deemed waived, except lack of jurisdiction over the subject matter. Crossclaims or counterclaims not asserted are barred. If the answer contains crossclaims or counterclaims, answers thereto are to be filed within 10 days from service of the answer in which they are pleaded.794 4. Failure to answer the complaint within the period above provided, the court, motu proprio, or on motion of the plaintiff, shall render judgment as may be prayed for therein: Provided, however, That the court may in its discretion reduce the amount of damages and attorneys fees claimed for being excessive or otherwise unconscionable. This is without prejudice to the applicability of Section 3, Rule 9 of the Rules of Court, if there are two or more defendants.795
788 789

Supra, Section 1, Rule 70 Supra, Section 2, Rule 70 790 Lanuza v Munoz, 429 SCRA 562 791 Supra, Section 3, Rule 70 792 Supra, Section 4, Rule 70, Article II, Section 3 (a) and (b), Rules on Summary Procedure 793 Supra, Section 5, Rule 70, Article II, Section 4, Rules on Summary Procedure 794 Supra, Section 6, Rule 70, Article II, Section 5, Rules on Summary Procedure 795 Supra, Section 7, Rule 70, Article II, Section 6, Rules on Summary Procedure 84

5. A preliminary conference is then scheduled not later than 30 days after the last answer is filed. The provision of Rule 18 on pre-trial shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule. The failure of the plaintiff to appear in the preliminary conference shall be a cause for the dismissal of his complaint. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with Section 6 hereof. All cross-claims shall be dismissed. If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with Section 6 hereof. This Rule shall not apply where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference. No postponement shall be granted except for highly meritorious grounds and without prejudice to sanctions which the court may deem to impose.796 6. Within 5 days after the termination of the preliminary conference, an order shall be issued by the court stating the following matters: (a) Whether the parties have arrived at an amicable settlement, and if so, the terms thereof (b)The stipulations or admissions entered into by the parties (c) Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall be rendered within thirty (30) days from issuance of the order (d) A clear specification of material facts which remain controverted; and (e) Such other matters intended to expedite the disposition of the case.797 7. Within 10 days from receipt of the order, the parties shall submit the affidavits of their witnesses, evidences and position papers setting forth the law and the facts relied upon.798 The affidavits submitted shall only state the facts of direct personal knowledge of the affiant which are admissible in evidence and must indicate their competence to testify. A violation may subject the party or counsel to disciplinary action and will be cause to expunge the inadmissible affidavit or portion thereof from the record. 799 8. The following petitions, motions, or pleadings are PROHIBITED and shall not be allowed to be filed:

(a) Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to comply with the preceding section pertaining to referral to the Lupon for conciliation. The case may then be dismissed WITHOUT PREJUDICE and may be revived upon showing of compliance. 800 The filing of a motion to dismiss after an answer is filed does not violate the rules. What is proscribed is a motion to dismiss that stops the running of the period for the filing of an answer and cause undue delay.801 (b) Motion for a bill of particulars; (c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; (e) Motion for extension of time to file pleadings, affidavits or any other paper; (f) Memoranda; (g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; (h) Motion to declare the defendant in default; (i) Dilatory motions for postponement; (j) Reply; (k) Third-party complaints; and (l) Interventions. 802 9. Note that a PRELIMINARY MANDATORY INJUNCTION may be granted by the court upon motion presented within 5 days from the filing of the complaint to restore him in possession, which should be decided by the court within 30 days from filing thereof803 AND upon motion of the plaintiff, within 10 days from perfection of an appeal to the Regional Trial Court to restore him in possession if the court is satisfied that the appeal of the defendant is FRIVOLOUS or DILATORY, or that his (plaintiffs) appeal is prima facie meritorious.804 10. The court shall then render judgment within 30 days after receipt of the last affidavits and position papers, or the expiration of the period for filing the same.
796 797

Supra, Section 8, Rule 70, Article II, Section 7, Rules on Summary Procedure Supra, Section 9, Rule 70, Article II, Section 8, Rules on Summary Procedure 798 Supra, Section 10, Rule 70, Article II, Section 9, Rules on Summary Procedure 799 Supra, Section 14, Rule 70, Article II, Section 20, Rules on Summary Procedure 800 Supra, Section 12, Rule 70, Article IV, Section 18, Rules on Summary Procedure 801 Heirs of Olivas v Flor, 161 SCRA 393 802 Supra, Section 13, Rule 70, Article IV, Section 19, Rules on Summary Procedure 803 Supra, Section 15, Rule 70, Article II, Section 10, Rule on Summary Procedure 804 Supra, Section 20, Rule 70 85

However, should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the said matters within ten (10) days from receipt of said order. Judgment shall be rendered within fifteen (15) days after the receipt of the last clarificatory affidavits, or the expiration of the period for filing the same. The court shall not resort to the clarificatory procedure to gain time for the rendition of the judgment.805 11. Should the defense of OWNERSHIP be raised, the court shall only consider the same if the issue of possession cannot be resolved without deciding the issue of ownership. It shall thus be resolved only to determine possession and any judgment shall be conclusive only on possession and shall not be a bar to another action between the parties respecting the title to the land or building 806 12. The judgment to be rendered by the court in favor of the plaintiff shall include restitution of the premises, the sum justly due as arrears of rent or as reasonable compensation for the use of the premises, attorneys fees and costs. If the allegations are not true, it shall render judgment for the defendant for recovery of cost. If a counterclaim is established, the court shall render judgment for the sum found in arrears from either party and award costs as justice requires. 807 The judgment is APPEALABLE to the appropriate Regional Trial Court, which shall decide the case on the basis of the entire record of the proceedings in the court of origin and such memoranda or brief as may be submitted or required808 Note the ruling in the case of Azcuna Jr. vs. CA, GR No. 116665, March 20, 1996 allowing recovery of liquidated damages. 13. If judgment is rendered against the defendant, the execution shall issue immediately upon motion, unless an appeal has been perfected AND the defendant to stay execution files a sufficient supersedeas bond if there are rentals in arrears 809, approved by the court and executed in favor of the defendant to pay rents, damages and costs accruing down to the time of the judgment appealed from, AND UNLESS, during the pendency of the appeal, he deposits with the appellate court the amount of the rent due from time to time under the contract or the reasonable value for use and occupation adjudged by the court on or before the 10th day of each succeeding month or period.810 Note that there is no necessity for a motion for the court to fix the supersedeas bond as the amount of the same can be ascertained from the judgment. Also, if the records of the case have already been transmitted to the appellate court, the supersedeas bond may be filed with the appellate court.811 14. The judgment of the appellate court shall however be subject to immediate execution without prejudice to a further appeal812

SALIENT PORTIONS OF KATARUNGANG PAMBARANGAY LAW All DISPUTES require conciliation except in the following: (1) where one party is the government or any subdivision or instrumentality thereof (2) where one party is a public officer or employee, and the dispute relates to the performance of his official functions (3) offenses punishable by imprisonment exceeding 1 year or a fine exceeding P 5000.00 (4) offenses where there is no private offended party (5) where the dispute is brought by or against a corporation, partnership or juridical entity (6) where the dispute involves real properties located in different cities or municipalities UNLESS the parties agree to submit their differences to amicable settlement by an appropriate lupon (7) where dispute involves parties who actually reside in barangays of different cities or municipalities, EXCEPT when the barangays actually adjoin each other and the parties agree to submit their differences to amicable settlement by an appropriate lupon (8) such other classes of disputes which the President may determine in the interest of justice or upon recommendation by the Secretary of Justice (Section 408, PD 1508). (9) disputes arising from the implementation of the CARP (10) Employer-Employee disputes (11) action to annul a judgment upon a compromise. Note however that while no petition, complaint, action or proceeding within the authority of the lupon shall be filed directly with the court or any government office for adjudication UNLESS there has been a confrontation before the lupon chairman or pangkat, and that no conciliation or settlement has been reached as certified by the lupon secretary or pangkat secretary, or unless the settlement has been repudiated within 10 days from its date by a statement sworn before the punong barangay to the effect that his consent is vitiated by fraud violence or intimidation ( Section 418, PD 1508), the following cases may be filed directly: (1) accused in under detention (2) person has otherwise been deprived of personal liberty calling for habeas corpus proceedings (3) when action is coupled with a provisional remedy (4) where action may otherwise be barred by prescription (Section 412, PD 1508) The proper VENUE for conciliation is as follows: (1) if between persons actually residing in the same barangay-before the lupon of the said barangay (2) if between actual residents of different barangays within the same city of municipality- before the lupon where the respondent resides, if there be several respondents- before the lupon where anyone of them resides at the election of the complainant (3) if involving real property or any interest therein- the barangay lupon where the property or larger portion is located (4) if arising in the workplace where the contending parties are employed or at the institution where such parties are enrolled for study- before the lupon of the barangay where the workplace or institution is located. Any OBJECTIONS TO VENUE shall be raised before the Punong Barangay, otherwise they are waived. Legal questions may be submitted to the Secretary of Justice or his duly designated representative whose ruling thereon shall be binding. The procedure for settlement is (1) initiation of complaint, orally or in writing, to the lupon chairman of the barangay (2) mediation by lupon chairman on the next working day from receipt of the complaint, failing in which within 15 days from the first meeting, he shall forthwith set a date for the constitution of the pangkat (3) the pangkat shall convene not later than 3 days from constitution to hear the
805 806

Supra, Section 11, Rule 70, Article Supra, Sections 16 and 18, Rule 70 807 Supra, Section 17, Rule 70 808 Supra, Section 18, Rule 70 809 Supra, Section 8, Rule 70 and De Laureano v. Adil, 72 SCRA 146 810 Supra, Section 19, Rule 70 811 Chua v Court of Appeals, 286 SCRA 437 812 Supra, Section 21, Rule 70 86

parties and explore the possibility of an amicable settlement within 15 days from the day it convenes, which period is extendible for another 15 days, except in clearly meritorious cases. Note however, that while prescription does not run upon filing of the complaint and shall resume only upon receipt of the complaint or certificate of repudiation, or certification to file action, the interruption shall not exceed 60 days from filing of the complaint with the punong barangay. (Section 410, PD 1508) The FORM of the amicable settlement shall be in writing, in a language/dialect known to the parties, signed by them and attested by the lupon/pangkat chairman (Section 411, PD 1508). This shall have the force and effect of a final judgment of a court upon expiration of 10 days from date thereof unless repudiation has been made or a petition to nullify the award has been filed before the proper court. This does not apply to cases already pending but subsequently referred to the lupon for amicable settlement under the last paragraph of Section 408,as the same is submitted back to the court to serve as basis for rendition of judgment. (Section 416, PD 1508). The award or settlement may be enforced by execution by the lupon within 6 months from the date of the settlement. After the lapse of the said period, by action in the appropriate city of municipal court. (Section 417, PD 1508) Note however that if a settlement is not complied with, the injured party may bring an action against the offending party to recover the original amount of his claim, thereby rescinding the compromise under Article 2041 of the Civil Code which was held to qualify Article 2037 of the Civil Code as to the effect of a compromise being considered as constituting res judicata. 813 REVISED RULE ON SUMMARY PROCEDURE RESOLUTION OF THE COURT EN BANC DATED OCTOBER 15, 1991 PROVIDING FOR THE REVISED RULE ON SUMMARY PROCEDURE FOR METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS. Pursuant to Section 36 of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129) and to achieve an expeditious and inexpensive determination of the cases referred to herein, the Court Resolved to promulgate the following Revised Rule on Summary Procedure: I APPLICABILITY SECTION 1. Scope: - This rule shall govern the summary procedure in the Metropolitan Trial Courts in Cities, the Municipal Trial Courts, and the Municipal Circuit Trial Courts in the following cases falling within their jurisdiction: A. Civil Cases: (1) All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered. Where attorneys fees are awarded, the same shall not exceed twenty thousand pesos (P20,000). (2) All other cases, except probate proceedings, where the total amount of plaintiffs claim does not exceed one hundred thousand pesos (P100,000) or, two hundred thousand pesos (P200,000) in Metropolitan Manila, exclusive of interest and costs. (As amended by A.M. No. 02-11-09-SC, dated Nov. 12, 2002; this amended took effect on November 25, 2002) B. Criminal Cases: (1) Violations of traffic laws, rules and regulations; (2) Violations of the rental law; (3) Violations of municipal or city ordinances; (4) Violations of Batas Pambansa Blg 22814 (5) All other criminal cases where the penalty prescribed by law for the offense charged is imprisonment not exceeding six months, or a fine not exceeding one thousand pesos (P1,000), or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom: Provided, however, That in offenses involving damage to property through criminal negligence, this Rule shall govern where the imposable fine does not exceed ten thousand pesos (P10,000). This rule shall not apply to a civil case where the plaintiffs cause of action is pleaded in the same complaint with another cause of action subject to the ordinary procedure; nor to a criminal case where the offense charged is necessarily related to another criminal case subject to ordinary procedure. SEC. 2. Determination of applicability. Upon the filing of a civil or criminal action, the court shall issue an order declaring whether or not the case shall be governed by this Rule. A patently erroneous determination to avoid the application of the Rule of Summary Procedure is a ground for disciplinary action. II CIVIL CASES SEC. 3. Pleadings.
813 814

Chavez v Court of Appeals, GR 159411, March 18, 2005 A.M. 00-11-01-SC, April 15, 2003 87

A. Pleadings, allowed. The only pleadings allowed to be filed are the complaints, compulsory counterclaims and cross-claims pleaded in the answer, and the answers thereto. B. Verification. All pleadings shall be verified.

SEC. A. Duty of court. After the court determines that the case falls under summary procedure, it may, from an examination of the allegations therein and such evidence as may be attached thereto, dismiss the case outright on any of the grounds apparent therefrom for the dismissal of a civil action. If no ground for dismissal is found, it shall forthwith issue summons which shall state that the summary procedure under this Rule shall apply. NOTE: That any of the grounds for dismissal under Rule 16 apply although no motion to dismiss can be filed except on the grounds of lack of jurisdiction and non-compliance with the requirement on conciliation. NOTE: That the prohibition as to the filing of a motion to dismiss exists prior to the filing of an answer but a dismissal grounded on any of the causes stated in Rule 16 can only be effected prior to the issuance of the court of summons and not after an answer has been filed (Heirs of Ricardo Olivas vs. Flor, 161 SCRA 393) SEC. 5. Answer. Within ten (10) days from service of summons, the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed waived, except for lack of jurisdiction over the subject matter. Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred. The answer to counterclaims or cross-claims shall be filed and served within ten (10) days from service of the answer in which they are pleaded. SEC. 6. Effect of failure to answer. Should the defendant fail to answer the complaint within the period above provided, the court, motu proprio, or on motion of the plaintiff, shall render judgment as may be prayed for therein: Provided, however, That the court may in its discretion reduce the amount of damages and attorneys fees claimed for being excessive or otherwise unconscionable. This is without prejudice to the applicability of Section 4, Rule 18 of the Rules of Court, if there are two or more defendants. NOTE: Rendition by the court of judgment on account of failure to file an answer or to appear during the preliminary conference may not require a motion (Sordan vs. De Guzman, A.M. No. MTJ-00-1296, October 5, 2000) SEC. 7. Preliminary conference; appearance of parties. Not later than thirty (30) days after the last answer is filed, a preliminary conference shall be held. The rules on pre-trial in ordinary cases shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule. The failure of the plaintiff to appear in the preliminary conference shall be a cause for the dismissal of his complaint. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with Section 6 hereof. All cross-claims shall be dismissed. If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with Section 6 hereof. This Rule shall not apply where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference. SEC. 8. Record of preliminary conference. Within five (5) days after the termination of the preliminary conference, the court shall issue an order stating the matters taken up therein, including but not limited to: (a) Whether the parties have arrived at an amicable settlement, and if so, the terms thereof; (b) The stipulations or admissions entered into by the parties; (c) Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall be rendered within thirty (30) days from issuance of the order; (d) A clear specification of material facts which remain controverted; and (e) Such other matters intended to expedite the disposition of the case. SEC. 9. Submission of affidavits and position papers. Within ten (10) days from receipt of the order mentioned in the next preceding section, the parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them. SEC. 10. Rendition of judgment. Within thirty (30) days after receipt of the last affidavits and position papers, or the expiration of the period for filing the same, the court shall render judgment. However, should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the said matters within ten (10) 88

days from receipt of said order. Judgment shall be rendered within fifteen (15) days after the receipt of the last clarificatory affidavits, or the expiration of the period for filing the same. The court shall not resort to the clarificatory procedure to gain time for the rendition of the judgment. NOTE: That hearings are not necessary unless for the purpose of clarifying certain material facts. III CRIMINAL CASES Sec. 11. How commenced. The filing of criminal cases falling within the scope of this Rule shall be either by complaint or by information; Provided, however, That in Metropolitan Manila and in Chartered Cities, such cases shall be commenced only by information, except when the offense cannot be prosecuted de officio. The complaint or information shall be accompanied by the affidavits of the complainant and of his witnesses in such number of copies as there are accused plus two (2) copies of the courts files. If this requirement is not complied with within five (5) days from date of filing, the case may be dismissed. Sec. 12 Duty of court. (a) If commenced by complaint. On the basis of the complaint and the affidavits and other evidence accompanying the same, the court may dismiss the case outright for being patently without basis or merit and order the release of the accused if in custody. (b) If commenced by information. When the case is commenced by information, or is not dismissed pursuant to the next preceding paragraph, the court shall issue an order which, together with copies of the affidavits and other evidence submitted by the prosecution, shall require the accused to submit his counter-affidavit and the affidavits of his witnesses as well as any evidence in his behalf, serving copies thereof on the complainant or prosecutor not later than ten (10) days from receipt of said order. The prosecution may file reply affidavits within ten (10) days after receipt of the counter-affidavits of the defense. Sec. 13 Arraignment and trial. Should the court, upon a consideration of the complaint or information and the affidavits submitted by both parties, find no cause or ground to hold the accused for trial, it shall order the dismissal of the case; otherwise, the court shall set the case for arraignment and trial. If the accused is in custody for the crime charged, he shall be immediately arraigned and if he enters a plea of guilty, he shall forthwith be sentenced. Sec. 14 Preliminary conference. Before conducting the trial, the court shall call the parties to a preliminary conference during which a stipulation of facts may be entered into, or the propriety of allowing the accused to enter a plea of guilty to a lesser offense may be considered, or such other matters may be taken up to clarify the issues and to ensure a speedy disposition of the case. However, no admission by the accused shall be used against him unless reduced to writing and signed by the accused and his counsel. A refusal or failure to stipulate shall not prejudice the accused. Sec. 15 Procedure of trial. At the trial, the affidavits submitted by the parties shall constitute the direct testimonies of the witnesses who executed the same. Witnesses who testified may be subjected to cross-examination, redirect or re-cross-examination. Should the affiant fail to testify, his affidavit shall not be considered as competent evidence for the party presenting the affidavit, but the adverse party may utilize the same for any admissible purpose. Except on rebuttal or surrebuttal, no witness shall be allowed to testify unless his affidavit was previously submitted to the court in accordance with Section 12 hereof. However, should a party desire to present additional affidavits or counter-affidavits as part of his direct evidence, he shall so manifest during the preliminary conference, stating the purpose thereof. If allowed by the court, the additional affidavits of the prosecution or the counter-affidavits of the defense shall be submitted to the court and served on the adverse party not later than three (3) days after the termination of the preliminary conference. If the additional affidavits are presented by the prosecution, the accused may file his counter-affidavits and serve the same on the prosecution within three (3) days from such service. Sec. 16. Arrest of accused. The court shall not order the arrest of the accused except for failure to appear whenever required. Release of the person arrested shall either be on bail or on recognizance by a responsible citizen acceptable to the court. Sec. 17 Judgment. Where a trial has been conducted, the court shall promulgate the judgment not later than thirty (30) days after the termination of trial. COMMON PROVISIONS SEC. 18 Referral to Lupon. Cases requiring referral to the Lupon for conciliation under the provisions of Presidential Decree No. 1508 where there is no showing of compliance with such requirement, shall be dismissed without prejudice, and may be revived only after such requirement shall have been complied with. This provision shall not apply to criminal cases where the accused was arrested without a warrant. SEC. 19. Prohibited pleadings and motions. The following pleadings, motions, or petitions shall not be allowed in the cases covered by this Rule: 89

(a) Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter, or failure to comply with the preceding section; (b) Motion for a bill of particulars; (c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; NOTES: A motion for reconsideration can be filed when the case is already pending before the appellate court. (Jakihaca vs.Aquino, 181 SCRA 67). A motion for reconsideration of rulings or pertaining to other incidents, NOT OF THE JUDGMENT, is allowed ( Lucas vs. Fabros, 324 SCRA 1) (e) Motion for extension of time to file pleadings, affidavits or any other paper; (f) Memoranda; (g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; (h) Motion to declare the defendant in default; (i) Dilatory motions for postponement; NOTE: If motion is well grounded, it may be allowed. (j) Reply; (k) Third-party complaints; and (l) Interventions. SEC. 20. Affidavits. The affidavits required to be submitted under this Rule shall state only facts of direct personal knowledge of the affiants which are admissible in evidence, and shall show their competence to testify to the matters stated therein. A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action, and shall be cause to expunge the inadmissible affidavit or portion thereof from the record. SEC. 21. Appeal. The judgment or final order shall be appealable to the appropriate regional trial court which shall decide the same in accordance with Section 22 of Batas Pambansa Blg. 129. The decision of the regional trial court in civil cases governed by this Rule, including forcible entry and unlawful detainer, shall be immediately executory, without prejudice to a further appeal that may be taken therefrom. NOTE: That immediate execution requires proof that the losing party has been served with notice of judgment (Dy vs. CA, 191 SCRA 585) and that notice of the motion for execution to the adverse party is required ( Limpo vs. CA, 333 SCRA 575) SEC. 22. Applicability of the regular rules. The regular procedure prescribed in the Rules of Court shall apply to the special cases herein provided for in a suppletory capacity insofar as they are not inconsistent herewith. SEC. 23. Effectivity. This revised Rule on Summary Procedure shall be effective on November 15, 1991. RULE 71 CONTEMPT WHAT IS CONTEMPT Willful disobedience or open disrespect of the orders, authority, or dignity of a court or judge acting in judicial capacity by disruptive language or conduct or by failure to obey the orders of the court KINDS OF CONTEMPT 1. DIRECT CONTEMPT consists of misbehaviour in the presence of or so near a court as to obstruct or interfere with the proceedings before the same, it includes, disrespect, offensive personalities against others, refusal to be sworn or answer as a witness, or to subscribe to an affidavit/deposition when lawfully required to do so. This kind of contempt may be SUMMARILY ADJUDGED and be punished by a fine not exceeding P 2,000.00 or imprisonment of not exceeding 10 days or BOTH if it be by a Regional Trial Court or a fine not exceeding P 200.00 or imprisonment not exceeding 1 day or BOTH if it be by a Municipal Trial Court. The remedy therefrom is certiorari/ prohibition, in which case the judgment is suspended pending the petition provided the petitioner files a bond fixed by the court which rendered the judgment and conditioned that he will abide by and perform the judgment should the petition be decided against him. 815

815

Supra, Sections 1 and 2, Rule 71 90

1.1 It is direct contempt if a pleading contains derogatory, offensive or malicious statements against a particular judge when submitted in the same court where the judge is presiding. If submitted elsewhere, it is indirect contempt. 816 2. INDIRECT CONTEMPT consists of (a) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions; (b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto; (c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under Section 1 of this Rule; (d) Any improper conduct tending, directly or indirectly to impede, obstruct, or degrade the administration of justice; (e) Assuming to be an attorney or an officer of a court, and acting as such without authority; (f) Failure to obey a subpoena duly served; (g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. But nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent into court, or from holding him in custody pending such proceedings.817 2.1 This kind of contempt may be initiated motu propio by the court against which the contempt was committed by an order or any formal charge requiring the respondent to show cause why he should not be punished for contempt. In other cases, it shall be commenced by verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon FULL COMPLIANCE WITH REQUIREMENTS FOR FILING INITIATORY PLEADINGS in the court concerned. If the charges are related to the principal action pending before the court, the petition shall so allege such fact but it shall be DOCKETED, HEARD AND DECIDED SEPARATELY, unless the court in its discretion orders consolidation of the charge and principal action for joint hearing and decision.818 2.2 The charge shall be filed in the Regional Trial Court if the contempt is committed against it or a court of equal or higher rank or against an officer appointed by it. If against a lower court, it may be filed in the Regional Trial Court in the place where the lower court sits or in such lower court, subject to appeal to the Regional Trial Court.819 This kind of contempt is punishable by a fine not exceeding P 30,000.00 or imprisonment not exceeding 6 months or both, if committed against a Regional Trial Court. If against a Municipal Trial Court, by a fine not exceeding P 5,000.00 or imprisonment not exceeding 1 month. If it consists in a violation of a writ of injunction, TRO or status quo order, he may also be ordered to make complete restitution. A writ of execution may be issued to enforce a fine. 820 If it consists in refusal or omission to do an act within his power to perform, he may be imprisoned by order of the court until it is performed. 821 2.3 A judgment for indirect contempt is appealable to the Regional Trial Court, but execution shall not be suspended without the filing of a bond. 822 2.4 An order dismissing a contempt charge or exoneration from such, is not appealable. 823

OTHERS 1. If no hearings are held forthwith and the respondent has been taken into custody, he may be released upon payment of a bond, but if he fails to appear on the hearing of the charge, he may be ordered arrested and the bond forfeited.824 2. If already imprisoned, the court may discharge the respondent if public interest will not be prejudiced by the release. 825

APPLICABILITY OF THE RULE The rules apply to persons, entities, bodies or agencies exercising quasi-judicial powers or shall have suppletory effect to their rules. The RTC of the place where the contempt is committed shall have jurisdiction. 826 DEFINING CRIMINAL AND CIVIL CONTEMPT It is criminal contempt when the purpose is to vindicate the authority of the court and protect its outraged dignity. It is civil contempt when there is failure to do something ordered by the court to be done for the benefit of another party.827 In fact, it has been declared that the motion for extension of time within which a party may plead is not a litigated motion where notice to the adverse party is necessary to afford the latter an opportunity to resist the application, but an ex parte motion made to the court in behalf of one or the other of the parties to the action, in the absence and usually without the knowledge of the other party or parties.
816 817

Ang v Castro, 136 SCRA 453 Supra, Section 3, Rule 71 818 Supra, Section 4, Rule 71 819 Supra, Section 5, Rule 71 820 Supra, Section 7, Rule 71 821 Supra, Section 8, Rule 71 822 Supra, Section 11, Rule 71 823 In Re, Mison, Jr, 33 SCRA 30 824 Supra, Sections 6 and 9, Rule 71 825 Supra, Section 10, Rule 71 826 Supra, Section 12, Rule 71 827 Yasay v Recto, 313 SCRA 739 91

(Commercial Union Assurance Company Limited, et. al. vs. Lepanto Consolidated Mining Company, et. al., L-43342. October 30, 1978, 86 SCRA 79, 95-96; Amante vs. Sunga, et. al., L-40491, May 28, 1975, 64 SCRA 192, 195) Therefore, as long as it is filed within the period sought to be extended, a request for extension of time may be filed ex parte and granted without the usual formalities applicable to motions in general. (Moya vs. Barton, 76 Phil. 831).

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