GENERAL PRINCIPLES

CONCEPT OF REMEDIAL LAW

Remedial law is that branch of law which prescribes the method of enforcing rights or obtaining redress for their invasion (Bustos v. Lucero, 81 Phil. 640).

Remedial statute or statutes: (1) Relating to remedies or modes of procedure;(2) Do not take away or create vested rights;(3) BUT operate in furtherance of rights already

existing. (Riano citing Systems Factor Corporation v NLRC (2000))

Source

Remedial law is basically contained in the Rules of Court. Circulars of the Supreme Court implementing the Rules of Court (e.g. Rules on Summary Procedure) also contain remedial law.

The Rules of Court, promulgated by authority of law, have the force and effect of law, if not in conflict with positive law (Inchausti & Co v de Leon (1913)]. The rule is subordinate to the statute, and in case of conflict, the statute will prevail. [Shioji v Harvey (1922)].

Applicability

The Rules of Court is applicable in ALL COURTS, EXCEPT as otherwise provided by the SC [Rule 1, Sec. 2].

It governs the procedure to be observed in CIVIL or CRIMINAL actions and SPECIAL proceedings [Rule 1, Sec. 3].

It does not apply to the following cases: 1. Election cases,2. Land registration cases,3. Cadastral cases4. Naturalization cases,5. Insolvency proceedings6. Other cases not herein provided for

Except by analogy or in a suppletory character and whenever practicable and convenient [Rule 4, Sec. 4]

Prospectivity/ Retroactivity

The Rules of Court are not penal statutes and cannot be given retroactive effect [Bermejo v Barrios (1970)].

Rules of procedure may be made applicable to actions pending and undetermined at the time of their passage, and are deemed retroactive in that sense and to that extent. [In the Matter to Declare in Contempt of Court Hon. Simeon Datumanong (2006)].

The Rules of Court shall govern cases brought after they take effect, and also all further proceedings then pending, EXCEPT to the extent that in the opinion of the Court their application would not be feasible or would work injustice. [Riano citing Rule 114]

SUBSTANTIVE LAW VIS-À-VIS REMEDIAL LAW

Substantive Law - creates, defines and regulates rights and duties regarding life, liberty or property which when violated gives rise to a cause of action (Bustos v. Lucero, 81 Phil. 640)

SUBSTANTIVE LAW REMEDIAL LAWIt is that part of the law

which creates, defines, or regulates rights,

concerning life, liberty or property or the powers of

agencies or instrumentalities for the administration of public

affairs

It refers to the legislation providing means or

methods whereby causes of action may be

effectuated, wrongs redressed, and relief

obtainedIt is also called Adjective

LawIt makes vested rights

possibleIt has no vested rights

It is prospective in application

It governs acts and transactions which took

place (retroactive)

It cannot be enacted by the SC

The SC is expressly empowered to promulgate

procedural rules

RULE MAKING POWER OF THE SUPREME COURT

Judicial Power includes the duty of the courts of justice to settle actual controversies involving rights, which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government (Sec. 1, Art. VIII, 1987 Constitution)

The power of judicial review is the SC’s power to declare a law, treaty, international or executive agreement, presidential decree, proclamation, order, instruction, ordinance, or regulation unconstitutional

Sec. 5(5), Art. VIII, of the 1987 Constitution provides that that the Supreme Court shall have the power to:

1. promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts;

2. admission to the practice of law;3. the Integrated Bar;4. and legal assistance to the underprivileged

Limitations on the rule-making power of the Supreme Court

Sec 5(5) of Art. VIII of the Constitution sets forth the limitations to the power:

1. That the rules shall provide a simplified and inexpensive procedure for speedy disposition of cases;

2. That the rules shall be uniform for courts of the same grade; and

3. That the rules shall not diminish, increase or modify substantive rights.

Power of the Supreme Court to Amend and Suspend Procedural Rules

Power to Amend Remedial Laws1. The constitutional faculty of the Court to

promulgate rules of practice and procedure necessarily carries with it the power to overturn judicial precedents on points of remedial law through the amendment of the Rules of Court. [Pinga v Heirs of Santiago (2006)].

2. The SC has the sole prerogative to amend, repeal, or even establish new rules for a more simplified and inexpensive process, and the speedy disposition of case [Neypes v CA (2005)]

Power to Suspend Remedial Laws1. It is within the inherent power of the Supreme

Court to suspend its own rules in a particular case in order to do justice [De Guia v De Guia (2001)].

2. When the operation of rules will lead to an injustice or if their application tends to subvert and defeat instead of promote and enhance justice, their suspension is justified [Republic v CA (1978)].

3. There is no absolute rule as to what constitutes good and sufficient cause that will merit suspension of the rules. The matter is discretionary upon the Court [Republic v Imperial Jr. (1999)].

4. The bare invocation of "the interest of substantial justice" is not a magic wand that will automatically compel this Court to suspend procedural rules [Ramos v Sps Lavendia (2008)].

5. Procedural rules are not to be belittled or dismissed simply because their non-observance may have resulted in prejudice to a party's substantive rights. Like all rules, they are required to be followed except only for the most persuasive of reasons when they may be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed. [Polanco v Cruz (2009)].

NATURE OF PHILIPPINE COURTS

Meaning of a Court

A court is an organ of the government belonging to the judicial department, the function of which is the application of the laws to controversies brought before it (and) as well as the public administration of justice.

Generally, the term describes an organ of the government consisting of one person or of several persons, called upon and authorized to administer justice. It is also the place where justice is administered. [Riano citing Black’s and Am. Jur. and C. J. S.]

Court as Distinguished from a Judge

COURT JUDGEA tribunal officially assembled under authority of law

An officer of such tribunal

An organ of the government with a

personality separate from the person or judge

The judge is the one who “sits” in court

A being in imagination comparable to a

corporation

A physical and natural person

May be considered an office

A public officer

The circumstances of the court are not affected by the circumstance that would affect the judge. The continuity of a court and the efficacy of its proceedings are not affected by the death, resignation, or cessation from the service of the judge presiding over it. In other words, the judge may resign, become incapacitated, or be disqualified to hold office, but the court remains. The death of the judge does not mean the death of the court [Riano citing ABC Davao Auto Supply v. CA (1998)].

Classification of Philippine Courts 1. Courts of original and appellate jurisdiction 2. Courts of general and special jurisdiction 3. Constitutional and statutory courts4. Courts of law and equity 5. Superior and Inferior Courts6. Courts of record and not of record

Courts of original and appellate jurisdiction

Courts of original jurisdiction – Those courts in which, under the law, actions or proceedings may be originally commenced.

Courts of appellate jurisdiction – Courts which have the power to review on appeal the decisions or orders of a lower court. [Regalado]

Courts of general and special jurisdiction

Courts of general jurisdiction – Those competent to decide their own jurisdiction and to take cognizance of all kinds of cases, unless otherwise provided by the law or Rules.

Courts of special or limited jurisdiction – Those which have no power to decide their own jurisdiction and can only try cases permitted by statute. [Regalado]

Constitutional and statutory courts

Constitutional courts – Those which owe their creation and existence to the Constitution and, therefore cannot be legislated out of existence or deprived by law of the jurisdiction and powers unqualifiedly vested in them by the Constitution. e.g. Supreme Court; Sandiganbayan is a constitutionally-mandated court but created by statute.

Statutory courts – Those created, organized and with jurisdiction exclusively determined by law. [Regalado]

Courts of law and equity

Courts of Law- Those courts which administer the law of the land. They settle cases according to law.

Courts of Equity- Those courts which rules according to the precepts of equity or justice. They settle cases according to the principles of equity referring to principles of justice, fainess and fair play.

Philippine courts are both courts of law and equity. Hence, both legal and equitable jurisdiction is dispensed with in the same tribunal [U.S. v. Tamparong (1998)]

Superior and Inferior Courts

Superior courts – Courts which have the power of review or supervision over another and lower court.

Inferior courts – Those which, in relation to another court, are lower in rank and subject to review and supervision by the latter. [Regalado]

Courts of record and not of record

Courts of record – Those whose proceedings are enrolled and which are bound to keep a written record of all trials and proceedings handled by them. [Regalado] One attribute of a court of record is the strong presumption as to the veracity of its records that cannot be collaterally attacked except for fraud. All Philippine courts, including inferior courts, are now courts of record. [Riano]

Courts not of record – Courts which are not required to keep a written record or transcript of proceedings held therein.

Principle of Judicial Hierarchy

The judicial system follows a ladderized scheme which in essence requires that lower courts initially decide on a case before it is considered by a higher court. Specifically, under the judicial policy recognizing hierarchy of courts, a higher court will not entertain direct resort to it unless the redress cannot be obtained in the appropriate courts. [Riano citing Santiago v. Vasquez (1993)]

The principle is an established policy necessary to avoid inordinate demands upon the Court’s time and attention which are better devoted to those matters within its exclusive jurisdiction, and to preclude the further clogging of the Court’s docket [Lim v. Vianzon (2006)].

When the doctrine/principle may be disregarded: A direct recourse of the Supreme Court’s original jurisdiction to

issue writs (referring to the writs of certiorari, prohibition, or mandamus) should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. [Mangahas v. Paredes (2007)]. The Supreme Court may disregard the principle of hierarchy of courts if warranted by the nature and importance of the issues raised in the interest of speedy justice and avoid future litigations [Riano].

Doctrine of Non-Interference or Doctrine of Judicial Stability

The principle holds that courts of equal and coordinate jurisdiction cannot interfere with each other’s orders [Lapu-lapu Development and Housing Corp. v. Group Management Corp.(2002)] The principle also bars a court from reviewing or interfering with the judgment of a co-equal court over which it has no appellate jurisdiction or power of review [Villamor v. Salas (1991)].

The doctrine of non-interference applies with equal force to administrative bodies. When the law provides for an appeal from the decision of an administrative body to the SC or CA, it means that such body is co-equal with the RTC in terms of rank and stature, and logically beyond the control of the latter [Phil Sinter Corp. v. Cagayan Electric Power (2002)].

General Rule: No court has the authority to interfere by injunction with the judgment of another court of coordinate jurisdiction or to pass upon or scrutinize and much less declare as unjust a judgment of another court

Exception: The doctrine of judicial stability does not apply where a third party claimant is involved

JURISDICTIONJURISDICTION IN GENERAL

Jurisdiction is defined as the authority to try, hear and decide a case [Tolentino v. Leviste (2004)].

Judicial power includes the duty of the courts of justice: [Art 8, Sec. 1, Constitution]

1. To settle actual controversies involving rights which are legally demandable and enforceable;

2. To determine WON there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any government branch/ instrumentality.

All courts exercise judicial power. Only the Supreme Court is the court created by the Constitution [Art 8, Sec. 1, Constitution]. The Sandiganbayan is a Constitutionally mandated court, but it is created by statute. [PD 1486]

REQUISITES FOR A VALID EXERCISE OF JURISDICTION1. Court must have jurisdiction over the persons of

the parties2. It must have jurisdiction over the subject matter

of the controversy 3. It must have jurisdiction over the res4. It must have jurisdiction over the issues

JURISDICTION OVER THE PARTIES

The manner by which the court acquires jurisdiction over the parties depends on whether the party is the plaintiff or the defendant.

The mode of acquisition of jurisdiction over the plaintiff and the defendant applies both to ordinary and special civil actions.

How jurisdiction over the PLAINTIFF is acquired - Jurisdiction over the plaintiff is acquired by filing of the complaint or petition. By doing so, he submits himself to the jurisdiction of the court [Davao Light & Power Co., Inc. v CA (1991)].

How jurisdiction over the DEFENDANT is acquired - Acquired by the

1. Voluntary appearance or submission by the defendant or respondent to the court or

2. By coercive process issued by the court to him, generally by the service of summons [de Joya v. Marquez (2006), citing Regalado]

NOTE: In an action in personam, jurisdiction over the person is necessary for the court to validly try and decide the case, while in a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided the latter has jurisdiction over the res [Alba v. CA (2005)].

JURISDICTION OVER THE SUBJECT MATTER

Jurisdiction over the subject matter is the power to deal with the general subject involved in the action, and means not simply jurisdiction of the particular case then occupying the attention of the court but jurisdiction of the class of cases to which the particular case belongs (Riano citing CJS).

It is the power to hear and determine cases of the general class to which the proceedings in question belong [Reyes v. Diaz (1941)]

Jurisdiction versus the exercise of jurisdiction

Jurisdiction: the authority to hear and determine a cause — the right to act in a case. [Arranza v. BF Homes (2000)].

‘Exercise of Jurisdiction.’: the exercise of this power or authority

Jurisdiction is distinct from the exercise thereof. Jurisdiction is the authority to decide a case and not the decision rendered therein. When there is jurisdiction over the subject matter, the decision on all other questions arising in the case is but an exercise of jurisdiction. [Herrera v. Baretto et al (1913)]

Error of Jurisdiction as distinguished from Error of Judgment

Error of jurisdiction Error of judgment

It is one where the act complained of was issued by the court without or in

excess of jurisdiction [Cabrera v. Lapid (2006)].

It is one which the court may commit in the

exercise of its jurisdiction [Cabrera v. Lapid (2006)].

It includes errors of procedure or mistakes in

the court’s mistakes in the court’s findings

[Banco Filipino Savings v. CA (2000)]

Correctible only by the extraordinary writ of

certiorari [Cabrera v Lapid (2006)]

Correctible by appeal [Cabrera v Lapid (2006)]

Renders a judgment void or voidable [Rule 16 Sec. 1,

Rule 65]

Ground for reversal only if it is shown that

prejudice has been caused [Banco Español-

Filipino v Palanca (1918)]

How conferred and determined:1. Jurisdiction being a matter of substantive law, the

statute in force at the time of the commencement of the action determines the jurisdiction of the court.

2. It is conferred only by the Constitution or the law.

3. Jurisdiction CANNOT be:a. Fixed by agreement of the parties; b. Cannot be acquired through, or waived,

enlarged or diminished by, any act or omission of the parties;

c. Neither can it be conferred by the acquiescence of the court [Regalado citing De Jesus v Garcia (1967)].

d. Cannot be subject to compromise [Civil Code, Art 2035]

4. Jurisdiction over the subject matter is determined by the allegations of the complaint and the reliefs prayed for. [Gulfo v. Ancheta (2012)]

5. It is not affected by the pleas set up by the defendant in the answer or in the answer or in a motion to dismiss. [Sindico v. Diaz (2004)].

6. Once attached to a court, it cannot be ousted by subsequent statute. a. Exception: The statute itself conferring new

jurisdiction expressly provides for retroactive effect. [Southern Food v. Salas (1992)]

7. The filing of the complaint or appropriate initiatory pleading and the payment of the prescribed docket fee vest a trial court with jurisdiction over the subject matter or the nature of the action [CB v. CA (1992)](2008 Bar Exam).a. Exception: Non-payment of docket fee does

not automatically cause the dismissal of the case on the ground of lack of jurisdiction as long as the fee is paid within the applicable prescriptive or reglementary period, more so when the party involved demonstrates a willingness to abide by the rules prescribing such payment. [Go v. Tong (2003)]

Doctrine of Primary Jurisdiction

Courts cannot and will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact [Paloma v. Mora (2005)].

Objective is to guide a court in determining whether it should refrain from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court [Riano citing Omictin v. CA (2007)]

Doctrine of Adherence of Jurisdiction

Also known as doctrine of continuity of jurisdiction

The court, once jurisdiction has been acquired, retains that jurisdiction until it finally disposes of the case [Bantua v. Mercader (2001)].

As a consequence, jurisdiction is not affected by a new law placing a proceeding under the jurisdiction of another tribunal, EXCEPT:

1. Where there is an express provision in the statute

2. The statute is clearly intended to apply to actions pending before its enactment [Riano citing People v. Cawaling (1998)].

Objections to Jurisdiction over the Subject Matter

When it appears from the pleadings or evidence on record that the court has no jurisdiction over the subject matter, the court shall dismiss the same. (Sec. 1, Rule 9)

The court may on its OWN INITIATIVE object to an erroneous jurisdiction and may ex mero motu take cognizance of lack of jurisdiction at any point in the case and has a clearly recognized right to determine its own jurisdiction [Fabian v. Desierto (1998)].

Earliest opportunity of a party to raise the issue of jurisdiction is in a motion to dismiss filed before the filing or service of an answer. Lack of jurisdiction over subject matter is a ground for a motion to dismiss. If no motion is filed, the defense of lack of jurisdiction may be raised as an affirmative defense in the answer. [Riano citing Sec. 1(b) and 6 of Rule 16].

Jurisdiction over the subject matter may be raised at any stage of the proceedings, even for the first time on appeal. When the court dismisses the complaint for lack of jurisdiction over the subject matter, it is common reason that the court cannot remand the case to another court with the proper jurisdiction. Its only power is to dismiss and not to make any other order.

Effect of Estoppel on Objections to Jurisdiction

General Rule: Estoppel does not apply to confer jurisdiction to a tribunal that has none over a cause of action. Jurisdiction is conferred by law. Where there is none, no agreement of the parties can provide one. Settled is the rule that the decision of a tribunal not vested with appropriate jurisdiction is null and void. [SEAFDEC-AQD v. NLRC (1992)]

Exception: Participation in all stages of the case before the trial court, that included invoking its authority in asking for affirmative relief, effectively barred petitioner by estoppel from challenging the court’s jurisdiction. [Soliven v. Fastforms (2004)]

JURISDICTION OVER THE ISSUES

It is the power of the court to try and decide issues raised in the pleadings of the parties.

An issue is a disputed point or question to which parties to an action have narrowed down their several allegations

and upon which they are desirous of obtaining a decision. Where there is no disputed point, there is no issue.

Generally, jurisdiction over the issues is conferred and determined by:

1. The pleadings of the parties. The pleadings present the issues to be tried and determine whether or not the issues are of fact or law.

2. Stipulation of the parties as when in the pre-trial, the parties enter into stipulations of facts and documents or enter into agreement simplifying the issues of the case.

3. Waiver or failure to object to the presentation of evidence on a matter not raised in the pleadings. Here the parties try with their express or implied consent or issues not raised by the pleadings. The issues tried shall be treated in all respects as if they had been raised in the pleadings.

JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION

Jurisdiction over the res refers to the court’s jurisdiction over the thing or the property which is the subject of the action.

Jurisdiction over the res may be acquired by the court 1. By placing the property or thing under its

custody (custodia legis) a. The seizure of the thing under legal process

whereby it is brought into actual custody of law

b. Example: attachment of property. 2. Through statutory authority conferring upon it

the power to deal with the property or thing within the court’s territorial jurisdiction a. Institution of a legal proceeding wherein the

power of the court over the thing is recognized and made effective

b. Example: suits involving the status of the parties or suits involving the property in the Philippines of non-resident defendants.

JURISDICTION OF THE METROPOLITAN TRIAL COURTS AND MUNICIPAL TRIAL

COURTS

JURISDICTION OF THE MTCs IN CIVIL CASES

Exclusive Original Jurisdiction1. If the amount involved does not exceed P300,000

outside Metro Manila or does not exceed P400,000 in Metro Manila in the following cases: a. Actions involving personal property b. Probate Proceeding (testate and intestate)

based on gross value of the estate c. Admiralty and maritime cases d. Demand for money

NOTE: Do not include Interest, Damages of whatever kind, Attorney’s fees, Litigation Expenses, and Costs (IDALEC). However, in cases where the claim for damages is the main cause of action, or one of the causes of action, the amount of such claim shall be considered in determining the jurisdiction of the court.

2. Actions involving title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not exceed P20,000 outside Metro Manila or does not exceed P50,000 in Metro Manila

3. Inclusion and exclusion of voters

4. Those governed by the Rules on Summary Procedurea. Forcible entry and unlawful detainer (FEUD)

(1) With jurisdiction to resolve issue of ownership to determine ONLY issue of possession (provisional only)

(2) Irrespective of the amount of damages or unpaid rentals sought to be recover

(3) Where attorney’s fees are awarded, the same shall not exceed P20,000

b. Other civil cases, except probate proceeding, where the total amount of the plaintiff’s claim does not exceed P200,000 in MM, exclusive of interests and costs.

Special Jurisdiction over petition for writ of habeas corpus OR application for bail in criminal cases in the absence of all RTC judges in the province or city

Delegated Jurisdiction to hear and decide cadastral and land registration cases where:

1. There is no controversy over the land 2. In case of contested lands, the value does not

exceed P100, 000:a. The value is to be ascertained:

(1) By the claimant’s affidavit (2) By agreement of the respective

claimants, if there are more than one(3) From the corresponding tax declaration

of the real property

NOTE: MTC decisions in cadastral and land registration cases are appealable in the same maner as RTC decisions

1st level courts: a. Metropolitan Trial Court – Metro Manila;b. Municipal Trial Courts in Cities – situated in cities c. Municipal Circuit Trial Court – composed of

multi-salad. Municipal Trial Courts – in one municipality

JURISDICTION OVER SMALL CLAIMS, SUMMARY PROCEDURE, AND BARANGAY

CONCILIATION

JURISDICTION OVER SMALL CLAIMS

MTCs, MeTCs and MCTCs shall have jurisdiction over actions for payment of money where the value of the claim does not exceed P100,000 exclusive of interest and costs (Sec. 2, AM 08-8-7-SC, Oct. 27, 2009).

Actions covered are1. Purely civil in nature where the claim or relief

prayed for by the plaintiff is solely for payment or reimbursement of sum of money, and

2. The civil aspect of criminal actions, either filed before the institution of the criminal action, or reserved upon the filing of the criminal action in court, pursuant to Rule 111 (Sec. 4, AM 08-8-7-SC).

These claims may be:1. For money owed under the contracts of lease,

loan, services, sale, or mortgage;2. For damages arising from fault or negligence,

quasi-contract, or contract; and3. The enforcement of a barangay amicable

settlement or an arbitration award involving a money claim pursuant to Sec. 417 of RA 7160 (LGC).

CASES COVERED BY RULES ON SUMMARY PROCEDURE

All cases of forcible entry and unlawful detainer (FEUD), irrespective of the amount of damages or unpaid rentals sought to be recovered. Where attorney‘s fees are awarded, the same shall not exceed P20,000;

All other cases, except probate proceedings where the total amount of the plaintiff‘s claim does not exceed P100,000 (outside Metro Manila) or P200,000 (in Metro Manila), exclusive of interest and costs.

Prohibited Pleadings:1. Motion to dismiss the compliant except on the

ground of lack of jurisdiction;2. Motion for a bill of particulars;3. Motion for new trial, or for reconsideration of a

judgment, or for reopening of trial;4. Petition for relief from judgment;

5. Motion for extension of time to file pleadings, affidavits, or any other paper;

6. Memoranda;7. Petition for certiorari, mandamus, or prohibition

against any interlocutory order issued by the court;

8. Motion to declare the defendant in default;9. Dilatory motions for postponement;10. Reply;11. Third-party complaints; and12. Interventions. [Sec. 14, Prohibited pleadings and

motions]

CASES COVERED BY THE RULES ON BARANGAY CONCILIATION

The Lupon of each barangay shall have the authority to bring together the parties actually residing in the same municipality or city for amicable settlement of all disputes

EXCEPT:1. Where one party is the government or any

subdivision or instrumentality thereof2. 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 one (1) year or a fine exceeding P5,000

4. Offenses where there is no private offended party5. Where the dispute involves real properties

located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon

6. Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon

7. Such other classes of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice

8. Any complaint by or against corporations, partnerships, or juridical entities. The reason is that only individuals shall be parties to barangay conciliation proceedings either as complainants or respondents

9. Disputes where urgent legal action is necessary to prevent injustice from being committed or further continued, specifically:a. A criminal case where the accused is under

police custody or detentionb. A petition for habeas corpus by a person

illegally detained or deprived of his liberty or one acting in his behalf

c. Actions coupled with provisional remedies, such as preliminary injunction, attachment, replevin and support pendente lite

d. Where the action may be barred by statute of limitation

10. Labor disputes or controversies arising from employer-employee relationship

11. Where the dispute arises from the CARL12. Actions to annul judgment upon a compromise

which can be directly filed in court.

NOTE: It is a condition precedent under Rule 16; can be dismissed but without prejudice

JURISDICTION OF THE REGIONAL TRIAL COURTS, FAMILY COURTS, AND SHARI’A

COURTS

JURISDICTION OF THE RTC IN CIVIL CASES

General Original Jurisdiction All cases not within the exclusive jurisdiction of any court/tribunal/person/ body exercising judicial or quasi-judicial functions

Exclusive Original Jurisdiction1. The action is incapable of pecuniary estimation

a. Such as rescission of contract, action to revive judgment, declaratory relief (1st part), support, expropriation)

b. If the action is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and jurisdiction over the action will depend on the amount of the claim. [RCPI v. CA (2002)]

c. If the basic issue is something other than the right to recover a sum of money, if the money claim is purely incidental to, or a consequence of, the principal relief sought, the action is one where the subject of the litigation may not be estimated in terms of money. [Soliven v. Fastforms (1992)]

2. Title to, possession of, or interest in, real property with assessed value exceeding P20,000 outside Metro Manila, or exceeds P50,000 in Metro Manila a. Except: Forcible entry and unlawful detainer

cases

3. If the amount involved exceeds P300,000 outside Metro Manila or exceeds P400,000 in Metro Manila in the following cases: a. Admiralty and maritime cases b. Matters of Probate (testate and intestate)c. Other actions involving personal propertyd. Demand for money

NOTE: The exclusion of the term “damages of whatever kind” in determining the jurisdictional amount under Sec. 19(8) and Sec. 33 (1) of BP 129, as amended by RA 7691, applies to cases where the damages are merely incidental to or a consequence of the main cause of action. However, if the claim for damages is the main cause of action, or one of the causes of action, the amount of such claim shall be considered in determining the jurisdiction of the court.[Admin Circ. 09-94]

4. All actions involving the contract of marriage and family relations

JURISDICTION OF FAMILY COURTS (RA 8369)a. Petitions for guardianship, custody of

children and habeas corpus involving children

b. Petitions for adoption of children and the revocation thereof

c. Complaints for annulment of marriage, declaration of nullity of marriage and those relating to status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership of gains

d. Petitions for support and/or acknowledgment

e. Summary judicial proceedings brought under the provisions of EO 209 (Family Code)

f. Petitions for declaration of status of children as abandoned, dependent or neglected children, petitions for voluntary or involuntary commitment of children, the suspension, termination or restoration of parental authority and other cases cognizable under PD 603, EO 56 (1986) and other related laws

g. Petitions for the constitution of the family home

NOTE: In areas where there are no Family Courts, the above-enumerated cases shall be adjudicated by the RTC (RA 8369)

5. To hear and decide intra-corporate controversies, as per Sec. 52, Securities and Regulations Codea. Cases involving devises or schemes

employed by or any acts, of the board of directors, business associates, its officers or partnership, amounting to fraud and misrepresentation which may be detrimental to the interest of the public and/or of the stockholders, partners, members of associations or organizations registered with the SEC

b. Controversies arising out of intra-corporate or partnership relations, between and among stockholders, members or associates; between any or all of them and the corporation, partnership or association of which they are stockholders, members or associates, respectively; and between such corporation , partnership or association and the state insofar as it concerns their individual franchise or right to exist as such entity

c. Controversies in the election or appointments of directors, trustees, officers or managers of such corporations, partnerships or associations

d. Petitions of corporations, partnerships or associations to be declared in the state of suspension of payments in cases where the

corporation, partnership of association possesses sufficient property to cover all its debts but foresees the impossibility of meeting them when they respectively fall due or in cases where the corporation, partnership of association has no sufficient assets to cover its liabilities, but is under the management of a Rehabilitation Receiver or Management Committee.

Concurrent Jurisdiction1. With the Supreme Court in actions affecting

ambassadors, other public ministers and consuls2. With the SC and CA in petitions for certiorari,

prohibition and mandamus against lower courts and bodies in petitions for quo warranto, habeas corpus, and writ of continuing mandamus on environmental cases

3. With the SC, CA and Sandigabayan in petitions for writs of habeas data and amparo

4. With Insurance Commissioner – claims not exceeding P100,000

Appellate Jurisdiction over cases decided by lower courts in their respective territorial jurisdictions EXCEPT decisions of lower courts in the exercise of delegated jurisdiction.

Special Jurisdiction - SC may designate certain branches of RTC to try exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban land reform cases not falling within the jurisdiction of any quasi-judicial body and other special cases in the interest of justice.

JURISDICTION OF THE SHARI’A COURTS

Exclusive Jurisdiction1. All cases involving custody, guardianship,

legitimacy, paternity and filiation arising under the Code of Muslim Personal Laws;

2. All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of wills, issuance of letters of administration of appointment administrators or executors regardless of the nature or aggregate value of the property;

3. Petitions for the declaration of absence and death for the cancellation and correction of entries in the Muslim Registries;

4. All actions arising from the customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations; and

5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus and all other auxiliary writs and processes in aid of its appellate jurisdiction

Concurrent Jurisdiction1. Petitions of Muslim for the constitution of the

family home, change of name and commitment of an insane person to an asylum

2. All other personal and legal actions not mentioned in par 1 (d) wherein the parties involved are Muslims except those for forcible entry and unlawful detainer, which shall fall under the exclusive jurisdiction of the MTC.

3. All special civil actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims

Cases Cognizable1. Offenses defined and punished under PD 10832. Disputes relating to:

a. Marriageb. Divorce c. Betrothal or breach of contract to marry d. Customary dowry (mahr)e. Disposition and distribution of property

upon divorce f. Maintenance and support and consolatory

gifts (mut’a)g. Restitution of marital rights

3. Disputes relative to communal properties

NOTE: The Shari’a District Court or the Shari’a Circuit Court may constitute an Agama Arbitration Council to settle certain cases amicably and without formal trial.

The Council is composed of the Clerk of Court as Chairperson and a representative of each of the conflicting parties.

JURISDICTION OF THE SANDIGANBAYAN

Original Jurisdiction in all cases involving:1. Violations of RA 3019 (Anti-Graft and Corrupt

Practices Act)2. Violations of RA 1379 (Anti-Ill-Gotten Wealth

Act)3. Sequestration cases (E.O. Nos. 1,2,14,14-A)4. Bribery (Chapter II, Sec. 2, Title VII, Book II, RPC)

where one or more of the principal accused are occupying the following positions in the government, whether in permanent, acting or interim capacity at the time of the commission of the offense:a. Officials of the executive branch occupying

the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 (RA 6758)

b. Members of Congress and officials thereof classified as G-27 and up under RA 6758

c. Members of the Judiciary without prejudice to the provisions of the Constitution

d. Chairmen and Members of the Constitutional Commissions without prejudice to the provisions of the Constitution

e. All other national and local officials classified as Grade 27 and higher under RA 6758

f. Other offenses or felonies committed by the public officials and employees mentioned in Sec. 4(a) of RA 7975 as amended by RA 8249 in relation to their office

g. Civil and criminal cases filed pursuant to and in connection with EO Nos. 1, 2, 14-A (Sec. 4, RA 8249)

NOTE: Without the office, the crime cannot be committed.

Appellate Jurisdiction Over final judgments, resolutions or orders of the RTC whether in the exercise of their original or appellate jurisdiction over crimes and civil cases falling within the original exclusive jurisdiction of the Sandiganbayan but which were committed by public officers below Salary Grade 27.

Concurrent Original Jurisdiction with SC, CA, and RTC for petitions for writs of habeas data and amparo

NOTE: The requisites that the offender the offender occupies salary Grade 27 and the offense must be intimately connected with the official function must concur for the SB to have jurisdiction

JURISDICTION OF THE COURT OF TAX APPEALS

UNDER RA 9282 and RULE 5, AM 05-11-07 CTA

Exclusive Original or Appellate Jurisdiction to Review by Appeal:

1. Decisions of CIR in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the NIRC or other laws administered by BIR;

2. Inaction by CIR in cases involving disputed assessments, refunds of IR taxes, fees or other charges, penalties in relation thereto, or other matters arising under the NIRC or other laws administered by BIR, where the NIRC or other applicable law provides a specific period of action, in which case the inaction shall be deemed an implied denial;

3. Decisions, orders or resolutions of the RTCs in local taxes originally decided or resolved by them in the exercise of their original or appellate jurisdiction;

4. Decisions of the Commissioner of Customs a. in cases involving liability for customs duties,

fees or other charges, seizure, detention or release of property affected, fines, forfeitures or other penalties in relation thereto, or

b. other matters arising under the Customs law or other laws, part of laws or special laws administered by BOC;

5. Decisions of the Central Board of Assessment Appeals in the exercise of its appellate jurisdiction over cases involving the assessment and taxation of real property originally decided by the provincial or city board of assessment appeals;

6. Decision of the secretary of Finance on customs cases elevated to him automatically for review from decisions of the Commissioner of Customs

which are adverse to the government under Sec. 2315 of the Tariff and Customs Code;

7. Decisions of Secretary of Trade and Industry in the case of non-agricultural product, commodity or article, and the Secretary of Agriculture in the case of agricultural product, commodity or article, involving dumping duties and counterveiling duties under Secs. 301 and 302, respectively, of the Tariff and Customs Code, and safeguard measures under RA 8800, where either party may appeal the decision to impose or not to impose said duties.

Exclusive Original Jurisdiction1. Over all criminal cases arising from violation of

the NIRC and the TCC and other laws, part of laws, or special laws administered by the BIR or the BOC where the principal amount of taxes and fees, exclusive of charges and penalties claimed is less than P1M or where there is no specified amount claimed (the offenses or penalties shall be tried by the regular courts and the jurisdiction of the CTA shall be appellate);

2. In tax collection cases involving final and executory assessments for taxes, fees, charges and penalties where the principal amount of taxes and fees, exclusive of charges and penalties claimed is less than P1M tried by the proper MTC, MeTC and RTC.

Exclusive Appellate Jurisdiction1. In criminal offenses

a. Over appeals from the judgment, resolutions or orders of the RTC in tax cases originally decided by them, in their respective territorial jurisdiction, and

b. Over petitions for review of the judgments, resolutions or orders of the RTC in the exercise of their appellate jurisdiction over tax cases originally decided by the MeTCs, MTCs, and MCTCs in their respective jurisdiction.

2. In tax collection cases a. Over appeals from the judgments,

resolutions or orders of the RTC in tax collection cases originally decided by them in their respective territorial jurisdiction; and

b. Over petitions for review of the judgments, resolutions or orders of the RTC in the exercise of their appellate jurisdiction over tax collection cases originally decided by the MeTCs, MTCs and MCTCs in their respective jurisdiction.

JURISDICTION OF THE COURT OF APPEALS

JURISDICTION OF THE COURT OF APPEALS IN CIVIL CASES

Exclusive Original Jurisdiction in actions for annulment of judgments of the RTC

Concurrent Original Jurisdiction

1. With SC to issue writs of certiorari, prohibition and mandamus against the RTC, CSC, CBAA, other quasi-judicial agencies mentioned in Rule 43, and the NLRC (however, this should be filed first with the CA as per St. Martin Funeral Home case), and writ of kalikasan.

2. With the SC and RTC to issue writs of certiorari, prohibition and mandamus against lower courts and bodies and writs of quo warranto, habeas corpus, whether or not in aid of its appellate jurisdiction, and writ of continuing mandamus on environmental cases.

3. With SC, RTC and Sandiganbayan for petitions for writs of amparo and habeas data where the action involves public data or government office

Exclusive Appellate Jurisdiction1. By way of ordinary appeal from the RTC and the

Family Courts.2. By way of petition for review from the RTC

rendered by the RTC in the exercise of its appellate jurisdiction.

3. By way of petition for review from the decisions, resolutions, orders or awards of the CSC, CBAA and other bodies mentioned in Rule 43 and of the Office of the Ombudsman in administrative disciplinary cases.

4. Over decisions of MTCs in cadastral or land registration cases pursuant to its delegated jurisdiction; this is because decisions of MTCs in these cases are appealable in the same manner as decisions of RTCs.

JURISDICTION OF THE SUPREME COURT

JURISDICTION OF THE SUPREME COURT IN CIVIL CASES

Exclusive Original Jurisdiction in petitions for certiorari, prohibition and mandamus against the CA, COMELEC, COA, CTA, Sandiganbayan

Concurrent Original Jurisdiction1. With Court of Appeals in petitions for certiorari,

prohibition and mandamus against the RTC, CSC, Central Board of Assessment Appeals, NLRC, Quasi-judicial agencies, and writ of kalikasan, all subject to the doctrine of hierarchy of courts.

2. With the CA and RTC in petitions for certiorari, prohibition and mandamus against lower courts and bodies and in petitions for quo warranto, and writs of habeas corpus, all subject to the doctrine of hierarchy of courts.

3. With CA, RTC and Sandiganbayan for petitions for writs of amparo and habeas data

4. Concurrent original jurisdiction with the RTC in cases affecting ambassadors, public ministers and consuls.

Appellate Jurisdiction1. By way of petition for review on certiorari

(appeal by certiorari under Rule 45) against CA, Sandiganbayan, RTC on pure questions of law and CTA in its decisions rendered en banc.

2. In cases involving the constitutionality or validity of a law or treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation, legality of a tax, impost, assessment, toll or penalty, jurisdiction of a lower court; and

3. All cases in which the jurisdiction of any court is in issue;

4. All cases in which an error or question of law is involved

5. The SC may resolve factual issues in certain exceptional circumstances (Josefa v. Zhandong, 2003)a. The conclusion is grounded on speculations/

surmises /conjecturesb. The inference is manifestly

mistaken/absurd/impossible;c. There is grave abuse of discretion;d. The judgment is based on a misapprehension

of facts;e. The findings of fact are conflicting;f. There is no citation of specific evidence on

which the factual findings are based;g. The finding of absence of facts is

contradicted by the presence of evidence on record;

h. The findings of the CA are contrary to those of the trial court;

i. The CA manifestly overlooked certain relevant and undisputed facts that, if properly considered, would justify a different conclusion;

j. The findings of the CA are beyond the issues of the case;

k. Such findings are contrary to the admissions of both parties.

TOTALITY RULE

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 claims of action, irrespective of whether the causes of action arose out of the same or different transactions (Sec. 33[1], BP 129).

COMMENCEMENT OF ACTIONS TO TRIAL

ACTIONS

ACTIONS IN GENERAL: An ordinary suit in a court of justice by which one party prosecutes another for the enforcement/ protection of a right or the prevention/redress of a wrong [Santos v. Vda. De Caparas, (1959)]

An action is a formal demand of one’s legal rights in a court of justice in the manner prescribed by the court or by the law. Determinative fact which converts a claim into an action or suit is the filing of the same with a court of justice. (Herrera)

Action v. Cause of Action

CAUSE OF ACTION ACTION

A cause of action is the basis of the action filed

[Rule 2, Sec.1]

Fact or combination of facts which affords a party a

right to judicial interference in his

behalf. [Into v. Valle (2005)]

Ordinary suit in a court of justice, by which one party prosecutes another for the enforcement or protection

of a right, or the prosecution or redress of a

wrong

Kinds of Action

1. Civil or Criminala. Civil – one by which a party sues another for

the enforcement or protection of a right, or the prevention or redress of a wrong

b. Criminal – one by which the State prosecutes a person for an act or omission punishable by law

2. Ordinary or Special – both are governed by the rules of ordinary civil actions, subject to the specific rules prescribed for a special civil action a. Special b. Ordinary – may be classified as:

(1) As to place(a) Transitory – action founded on privity

of contract between parties; brought in the place where the party resides

(b)Local – action founded on privity of estate only and there is no privity of contract; brought in a particular place

(2) As to object – or against which the action is directed, actions may be classified as:(a) In personam; (b) In rem; or(c) Quasi in rem

(3) As to cause or foundation(a) Real, or(b) Personal

ORDINARY CIVIL ACTIONS: An ordinary civil action is one that is governed by the rules for ordinary civil actions [Rule 1, Sec. 3(a) par 2]

SPECIAL CIVIL ACTIONS: A special civil action is one that is subject to the specific rules prescribed for a special civil action; it is also governed by the rules for ordinary civil actions [Rule 1, Sec. 3(a) par 2]

CRIMINAL ACTIONS: A criminal action is one by which the State prosecutes a person for an act or omission punishable by law. [Rule 1, Sec. 3(b)]

CIVIL ACTIONS vs. SPECIAL PROCEEDINGS

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. [Rule 1, Sec. 3(a) par 1]

A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. [Rule 1, Sec. 3 (c)]

Action Special Proceeding

As to Parties

Involves 2 or more partiesInvolves at least 1 party

or 2 or moreparties in proper cases

As to cause of actionInvolves a right and a

violation of such right by the defendant which

causes some damage/prejudice upon

the plaintiff

May involve a right, but there need not be a

violation of this right

As to formalities

Requires the application of legal remedies in

accordance with the prescribed rules

Requires no such formalities, as it

may be granted upon application

As to governing rulesOrdinary rules of

procedureSpecial rules of

procedureAs to appeal from an interlocutory

OrderCannot be directly and

immediately appealed to the appellate court until

after final judgment on the merits

Can be immediately and directly appealed to the

appellate court

PERSONAL ACTIONS AND REAL ACTIONS

Real Actions: Actions affecting title to or possession of real property, or interest therein. [Rule 4, Sec. 1 par 1]

Personal Actions: All other actions are personal actions. [Rule 4, Sec.2]

Importance of Distinction: For purposes of determining venue of the action (Riano)

1. Real actions 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. [Rule 4, Sec.1]

2. Personal actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant, where he may be found, at the election of the plaintiff. [Rule 4, Sec.2]

NOTE: Not every action involving a real property is a real action because the realty may only be incidental to the subject matter of the suit. To be a real action, it is not enough that the action must deal with real property. It is important that the matter in litigation must also involve any of the following issues: title to, ownership, possession, paritition, foreclosure or mortgage or any interest in real property. (Riano)

Real actionPersonal

actionMixed action

Ownership or possession of

real property is involved

Personal property is

sought to be recovered or damages for

breach of Contract or the

enforcement of a contract are

sought

Both real and personal

properties are involved

Founded on privity of real

estate

Founded on privity of contract

Founded on both

Filed in the court where the

property (or any portion thereof)

is situated

Filed in the court where the plaintiff or any

of the defendants

resides, at the plaintiff’s option

The rules on venue of real

actions govern

LOCAL AND TRANSITORY ACTIONS

Local action Transitory actionOne that could be

instituted in one specific place [Manila Railroad v. Attorney-General (1911)]

One that could be prosecuted in any one of

several places [Manila Railroad v. Attorney-

General (1911)]

Venue depends upon the location of the property involved in the litigation

(Riano)

Its venue depends upon the residence of the

plaintiff or the defendant at the option of the

plaintiff (Riano)

E.g. Action to recover real property

E.g. Action to recover sum of money

If action is founded on privity of contract between parties, then the action is transitory

But if there is no privity of contract and the action is founded on privity of estate only, such as a covenant that runs with the land in the hands of remote grantees, then the action is local and must be brought in the place where the land lies

ACTIONS IN REM, IN PERSONAM, AND QUASI IN REM

ACTION IN REMACTION IN PERSONAM

ACTION QUASI IN REM

Directed against the thing itself

Directed against particular persons

Directed against

particular persons

Jurisdiction over the person of the

defendant not required

Jurisdiction over the person of

defendant required

Jurisdiction over the

person of defendant is not required

as long as jurisdiction

over the res is required

Proceeding to determine the

state or condition of a

thing

Action to impose a responsibility or liability upon a person directly

Proceeding to subject the

interest of a named

defendant over a

particular property to an obligation or

lien burdening it

Judgment is binding on the whole world

Judgment is binging only upon impleaded parties or their successors

in interest

Judgment binging upon

particular persons

E.g. Probate proceeding,

cadastral proceeding

E.g. Specific performance,

action for breach of contract

E.g. Action for partition;

foreclosure of real estate mortgage

The question of whether the trial court has jurisdiction depends on the nature of the action, i.e., whether the action is in personam, in rem, or quasi in rem. [Riano citing Biaco v. Philippine Countryside Rural Bank (2007)]

The distinction is important to determine whether or not jurisdiction over the person of the defendant is required and consequently to determine the type of summons to be employed. [Riano citing Gomez v. Court of Appeals (2004)]

INDEPENDENT CIVIL ACTIONS

Rule 111, Sec 3: When civil action may proceeded independently. — In the cases provided for in Articles 32,

33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action.

CAUSE OF ACTION

CAUSE OF ACTION: A cause of action is the act or omission by which a party violates a right of another. [Rule 2, Sec.2]

Every ordinary civil action must be based on a cause of action [Rule 2, Sec. 1]

A cause of action stems from the sources of obligations under Art. 1156, CC - Law, Contract, Quasi-contract, Acts and omissions punishable by law and Quasi-delict. [Sagrada Orden etc v. National Coconut Corporation (1952)]

Elements of a Cause of Action:1. Plaintiff’s legal right;2. Defendant’s correlative obligation to respect

plaintiff’s right;3. Defendant’s act/omission in violation of

plaintiff’s right [Ma-ao Sugar Central v. Barrios (1947)]

RIGHT OF ACTION vs. CAUSE OF ACTION (Regalado)

Right of actionCause of action

The remedial right or right to relief granted by law to a party to institute an action against a person

who has committed a delict or wrong against

him

The delict or wrongful act or omission committed by the defendant in violation

of the primary rights of the plaintiff

Right to sue as a consequence of the delict

The delict or wrong

Whether such acts give him right of action

determined by substantive law

Determined by the averments in the pleading

regarding the acts committed by the

defendant

There can be no right of action without a cause of action being first established [Regalado citing Español v. The Chairman of PVA (1985)]

FAILURE TO STATE CAUSE OF ACTION

There is a failure to state a cause of action if the pleading asserting the claim states no cause of action. This is a ground for a motion to dismiss. [Rule 16, Sec.1(g)]

It is submitted that the failure to state a cause of action does not mean that the plaintiff has “no cause of action.” It only means that the plaintiff’s allegations are insufficient for the court to know that the rights of the plaintiff were violated by the defendant. [Riano]

There is a failure to state a cause of action if allegations in the complaint taken together, do not completely spell out the elements of a particular cause of action. [Riano]

A failure to state a cause of action is not the same as an absence or a lack of cause of action. The former refers to an insufficiency in the allegations of the complaint while the latter refers to the failure to prove or to establish by evidence one’s stated cause of action. [Riano]

TEST OF THE SUFFICIENCY OF A CAUSE OF ACTION

Whether or not admitting the facts alleged, the court could render a valid verdict in accordance with the prayer of the complaint [Santos v. de Leo (2005)]

SPLITTING A SINGLE CAUSE OF ACTION; EFFECTS

Definition: The act of instituting two or more suits on the basis of the same cause of action. [Rule 2, Sec.4]

The act of dividing a single or indivisible cause of action into several parts or claims and bringing several actions thereon. (Regalado)

The test of singleness of cause of action lies in the singleness of the delict or wrong violating the rights of one person.

For a single cause of action or violation of a right, the plaintiff may be entitled to several reliefs. It is the filing of separate complaints for these several reliefs that constitutes splitting up of the cause of action which is proscribed by Rule 2, Sec. 3 and 4. [City of Bacolod v. SM Brewery (1969)]

Effects:1. The filing of one or a judgment upon the merits in

any one is available as a ground for the dismissal of the others. [Rule 2, Sec.4]

2. Filing of the 1st complaint may be pleaded in abatement of the 2nd complaint, on the ground of litis pendentia; or

3. A judgment upon the merits in any of the complaints is available as ground for dismissal of the others based on res judicata.

4. A Motion to Dismiss under Rule 16 (litis pendentia or res judicata) may be filed in order that the complaint may be dismissed.

Ratio: A party may not institute more than one suit for a single cause of action. [Rule 2, Sec. 3]

1. To prevent repeated litigation between the same parties in regard to the same subject or controversy;

2. To protect the defendant from unnecessary vexation. Nemo debet vexare pro una et eadem causa (No man shall be twice vexed for one and the same cause);

3. To avoid the costs and expenses incident to numerous suits. [City of Bacolod v. SM Brewery (1969)]

JOINDER OF CAUSES OF ACTION

It is the assertion of as many causes of action as a party may have against another in one pleading alone. It is also the process of uniting 2 or more demands or rights of action in one action. [Riano citing Rule 2, Sec. 5 and CJS]

By a joinder of actions, or more properly, a joinder of causes of action is meant the uniting of two or more demands or rights of action in one action, the statement of more than one cause of action in a declaration [Ada v. Baylon (2012)]

SPLITTING OF CAUSES JOINDER OF CAUSESThere is a single cause of action

Contemplates several causes of action

Prohibited Encouraged

It causes multiplicity of suits and double vexation on part of defendant

It minimizes multiplicity of suits and inconvenience on the parties

Ratio: To avoid a multiplicity of suits and to expedite disposition of litigation at minimum cost [Ada v. Baylon (2012)]

The rule however is purely permissive as the plaintiff can always file separate actions for each cause of action. [Baldovi v. Sarte, (1917)]

Joinder shall not include special civil actions governed by special rules. [Ada v. Baylon (2012)]

Requisites [Rule 2, Sec. 5]:1. The party joining the causes of action must

comply with the rules on joinder of parties;2. The joinder shall not include special civil actions

or actions governed by special rules;3. Where causes of action are between the same

parties but pertain to different venues/jurisdictions, the joinder may be allowed in the RTC provided one of the causes of action are within the RTC’s jurisdiction and the venue lies therein;

4. TOTALITY RULE - Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction.

MISJOINDER OF CAUSES OF ACTION (Rule 2, Sec. 6)

Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined cause of action may, on motion or motu propio, be severed and proceeded with separately. However, if there is no objection to the improper joinder or the court did not motu proprio direct a severance, then there exists no bar in the simultaneous adjudication of all the erroneously joined causes of action. However, this rule exists only when the court trying the case has jurisdiction over all of the causes of action therein notwithstanding the misjoinder of the same. This is because if the court has no jurisdiction to try the misjoined action, then the same must be severed and if

not so severed, any adjudication rendered by the court with respect to the same would be a nullity. [Ada v. Baylon (2012)]

There is no sanction against non-joinder of separate causes of action since a plaintiff needs only a single cause of action to maintain an action (Regalado).

In case of misjoinder of causes of action, the cause of action erroneously joined need only be separated and dismissed, without affecting the action with regard to other causes of action (Regalado).

PARTIES TO CIVIL ACTIONS

REQUIREMENTS FOR A PERSON TO BE A PARTY TO A CIVIL ACTION:

For a Person to be a Party to a Civil Action:1. He must be a natural or juridical person or an

entity authorized by law 2. He must have legal capacity to sue; and3. He must be the real party-in-interest

A party must be a natural or juridical person or an entity authorized by law

- Only natural and juridical persons may be parties - See Art. 44, NC- Entities authorized by law may also be parties,

e.g.:a. Partnership has a juridical personality

separate and distinct from that of each of the partners, even in case of failure to comply with the requirements in Art 1772 NCC (Art. 1768 NCC)

b. Labor organizations organized in accordance with law may file a complaint or petition in court in representation of its members (Art 242 LC)

c. As to properties of the Roman Catholic Church, the Archbishop or diocese to which they belong may be a party (Ponce v. Roman Catholic)

Legal Capacity to Sue

Legal capacity to sue or be sued means that the party is free from general disability (e.g. minority or insanity) or, in case of juridical entities, that it must be duly registered in accordance with law

Under Sec. 4, Rule 8, legal capacity to sue must be averred

Lack of legal capacity to sue

Lack of legal personality to sue

The plaintiff’s general disability to sue, such as on account of minority, insanity, incompetence,

lack of juridical personality or any other general disqualifications

The plaintiff is not the real party in interest

It can be a ground for a MTD [Rule 16 (1) (d)]

It can be used as ground for a MTD based on the failure of complaint to state a cause of action.

[Rule 16 (1) (g)]

Real- Party in Interest

Interest within the meaning of the Rules of Court means material interest or an interest in issue to be affected by the decree or judgment of the case, as distinguished from mere curiosity about the question involved. [Ang v. Sps. Ang (2012)]

PARTIES TO A CIVIL ACTION

Plaintiff – one having an interest in the matter of the action or in obtaining the relief demanded. The term may either refer to the claiming party, counter-claimant, cross-claimant, or third-party plaintiff

Defendant – one claiming an interest in the controversy or the subject thereof adverse to the plaintiff. Term may also include:

1. An unwilling co-plaintiff or one who should be joined as plaintiff but refuses to give his consent thereto (Sec. 10, Rule 3)

2. The original plaintiff becoming a defendant to the original counterclaim of defendant; and

3. One necessary to a complete determination or settlement of the questions involved therein

REAL PARTIES IN INTEREST

Who is a real party-in-interest: (Rule 3, Sec. 2)1. The party who stands to be benefited/injured by

the judgment in the suit; 2. The party entitled to the avails of the suit.

Rules:1. Every action must be prosecuted or defended in

the name of the real party in interest. [Rule 3, Sec.2]

2. The party’s interest must be direct, substantial and material [Sumalo v. Litton (2006)].

3. Husband and wife shall sue and be sued jointly, except as provided by law [Rule 3, Sec. 4]

4. A minor or a person alleged to be incompetent may sue or be sued, with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem. [Rule 3, Sec. 5]

5. Minors (represented by their parents) are real parties in interest under the principle of intergenerational responsibility. [Oposa v. Factoran (1993)]

6. If a party becomes incompetent/ incapacitated during the pendency of the action, the action survives and may be continued by/against the incompetent/ incapacitated assisted by his legal guardian or guardian ad litem [Rule 3, Sec. 18]

Failure to Name Real Party in Interest a. Effect: a motion to dismiss may be filed on the

ground that the complaint states no cause of action (a) If a complaint is filed for and in behalf of a

plaintiff who is not authorized to do so, the complaint is not deemed filed

b. Remedies:(1) Amendment of pleadings (Alonso v. Villamor,

1910); or(2) Complaint may be deemed amended to

include the real party-in-interest (Balquidra v. CFI Capiz, 1977)

c. Exception: A real litigant may be held bound as a party even if not formally impleaded provided he had his day in court (Albert v. University Publishing Co., 1958)

INDISPENSABLE PARTIES

Who: An indispensable party is a real party-in-interest without whom no final determination can be had of an action. [Rule 3, Sec.7]

A party who has such an interest in the controversy or subject matter that a final adjudication cannot be made, in his absence, without injuring or affecting that interest. [Riano]

The joinder of a party becomes compulsory when the one involved is an indispensable party. [Riano citing Rule 3, Sec.7]

A person is NOT an indispensable party if his interest in the controversy or subject matter is separable from the interest of the other parties, so that it will not necessarily be directly or injuriously affected by a decree which does not complrete justice between them. [Riano]

REPRESENTATIVE AS PARTIES

Who: Those acting in fiduciary capacity, such as a trustee/guardian/executor/administrator or a party authorized by law or ROC. (Rule 3, Sec. 3)

The beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest.

General Rule: An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal.

Exception: If the contract involves things belonging to the principal. [Art. 1883, CC]

NECESSARY PARTIES

Who: One who is not indispensable but 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 (Rule 3, Sec. 8)

Indispensable parties v. Necessary parties

Indispensable parties [Rule 3, Sec. 7]

Necessary parties [Rule 3, Sec. 8]

Must be joined under any and all conditions, his

presence being a sine qua non for the exercise of

judicial power

Should be joined whenever possible; the action can proceed even in their absence because their

interest is separable from that of the indispensable

partyNo valid judgment if

indispensable party is not joined.

The case may be determined in court but

the judgment therein will not resolve the entire

controversy if a necessary party is not joined

They are those with such an interest in the

controversy that a final decree would necessarily affect their rights so that the court cannot proceed without their presence.

They are those whose 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.

Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader is under obligation to:

1. Set forth the name of the necessary party, if known, and

2. State the reason why the necessary party is omitted. [Riano citing Rule 3, Sec. 9 par 1]

The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party [Rule 3, Sec. 9 par 3]

INDIGENT PARTIES

Who: An indigent is one who has no money or property sufficient and available for food, shelter, and basic necessities (Rule 3, Sec. 21)

Authority to Litigate as Indigent Party- May be granted upon an ex parte application and

hearing- It shall include an exemption from payment of

docket and other lawful fees (e.g. fees for TSN)

NOTE: The amount of docket and other lawful fees is a lien on any judgment rendered in favor of indigent party, unless court otherwise provides.

Adverse party may contest: Authority may be contested by the adverse party at any time before judgment is rendered

- If the court determines after hearing that the party declared indigent has sufficient income or property, the proper docket and other lawful fees shall be assessed and collected by the clerk of court

ALTERNATIVE DEFENDANTS

Where the plaintiff is uncertain against whom of several persons he is entitled to relief, he may join any or all of them in the alternative, although a right to relief against one may be inconsistent with a right to relief against the other. (Rule 3, Sec. 13)

COMPULSORY AND PERMISSIVE JOINDER OF PARTIES

Compulsory Joinder of Indispensable Parties (Rule 3, Sec. 7) - Parties in interest without whom no final

determination can be had of an action shall be joined either as plaintiffs or defendants

Joinder of INDISPENSABLE PARTIES are mandatory

Effect of Absence of Indispensable Parties:1. It is the duty of the court to stop the trial and to

order the inclusion of such party (Cortez v. Avila). Such an order is unavoidable

2. Absence of an indispensable party renders all subsequent actuations of the court null and void, for want of authority to act, not only as to the present parties but even as to those present

Permissive Joinder (Rule 3, Sec. 6) - Parties can be joined, as plaintiffs or defendants, in one single complaint or may themselves maintain or be sued in separate suits.

Requisites of Permissive Joinder: 1. Right to relief arises out of the same transaction

or series of transactionsa. Transaction - not only a stipulation or

agreement but any event resulting in wrong, without regard to whether the wrong has been done by violence, neglect, or breach of contract

b. Series of transaction – transactions connected with the same subject of the action

2. There is a question of law or fact common to all the plaintiffs or defendants

3. Such joinder is not otherwise proscribed by the rules on jurisdiction and venue

Distinguished from Joinder of Causes of Action- In joinder of causes of action, it is enough if the

cause of action arises out of the same contract- Unlike permissive joinder of parties, in joinder of

causes of action, there is no need for a common question of fact or law

MISJOINDER AND NON-JOINDER OF PARTIES

A party is misjoined when he is made a party to the action although he should not be impleaded.

A party is not joined when he is supposed to be joined but is not impleaded in the action. (Riano)

Effect: 1. Neither misjoinder nor non-joinder of parties is a

ground for dismissal of an action. [Rule 3, Sec. 11]a. Non-joinder of an indispensable party is not

a ground for outright dismissal. Reasonable opportunity must be given for his inclusion by amendment of the complaint [Cortez v Avila (1957)].

b. In case of non-joinder of a necessary party, if the court should find the reason for such omission unmeritorious, it may order the inclusion of such omitted necessary party

2. 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 as are just. [Rule 3, Sec.11]

Objections to defects in parties: Objections to defects in parties should be made at the earliest opportunity.

- The moment such defect becomes apparent, a motion to strike the names of the parties must be made.

- Objections to misjoinder cannot be raised for the first time on appeal [Lapanday Agricultural & Development Corporation v. Estita (2005)]

CLASS SUIT

Requisites: (Rule 3, Sec. 12)1. Subject matter of the controversy is one of

common/general interest to many persons;2. The persons are so numerous that it is

impracticable to join them all as parties (i.e. impracticable to bring them all before the court);

3. Parties bringing the class suit are sufficiently numerous and representative of the class and can fully protect the interests of all concerned;

4. The representative sues/defends for the benefit of all.

Any party in interest shall have the right to intervene to protect his individual interest. [Rule 3, Sec. 12]

If a class suit is improperly brought, the action is subject to dismissal regardless of the cause of action [Rule 16, Sec 1 (d)].

A taxpayer's suit or a stockholder's derivative suit is in the nature of a class suit, although subject to the other requisites of the corresponding governing law especially on the issue of locus standi. [Regalado]

There is no class suit in an action filed by associations of sugar planters to recover damages in behalf of individual sugar planters for an allegedly libelous article in an international magazine. There is no common or general interest in reputation of a specific individual. Each of the sugar planters has a separate and distinct reputation in the community not shared by the others. [Riano citing Newsweek, Inc. v. Intermediate Appellate court (1986)]

A class suit does not require a commonality of interest in the questions involved in the suit. What is required by the Rules is a common or general interest in the subject matter of the litigation. [Riano citing Mathay v. Consolidated Bank &Trust Company (1974)]

Class Suit Permissive Joinder of Parties

There is a single cause of action pertaining to numerous persons.

There are multiple causes of action separately belonging to several

persons.

Class Suit Derivative Suit

When the subject matter An action brought by

of the controversy is one of common or general

interest to many persons, and the parties are so

numerous that it is impracticable to bring

them all before the court, one or more may sue or defend for the benefit of

all. [Rule 3, Sec. 12]

minority shareholders in the name of the

corporation to redress wrongs committed

against it, for which the directors refuse to sue.

It is a remedy designed by equity and has been the principal defense of the minority shareholders against abuses by the

majority.

In a derivative action, the real party in interest is the corporation itself, not the shareholders who actually

instituted it [Lim v. Lim Yu (2001))

SUITS AGAINST ENTITES WITHOUT JURIDICAL PERSONALITY

Requisites: (Rule 3, Sec. 15)1. There are 2 or more persons not organized as a

juridical entity;2. They enter into a transaction;3. A wrong is committed against a 3rd person in the

course of such transaction.

Effect: Persons associated in an entity without juridical personality may be sued under the name by which they are generally/commonly known, but they cannot sue under such name. [Rule 3, Sec. 15]

The service of summons may be effected upon all the defendants by serving upon any of them, or upon the person in charge of the office or place of business maintained under such name. [Rule 14, Sec. 8]

EFFECT OF DEATH OF PARTY LITIGANT

Survival or Death of Action

The question as to whether an action survives or not depends on the nature of the action and the damage sued for

1. Causes of Action that SURVIVE the decedenta. The wrong complained of affects primarily

and principally property and property rights b. Injuries to the person are merely incidental c. E.g. Purely personal actions like support

3. Causes of Action which DO NOT SURVIVEa. The injury complained of is to the person b. Property and property rights affected are

incidental c. E.g. actions to recover real and personal

property or to enforce liens thereon

Substitution of Parties: For causes of action that survive the death of the party, there is substitution of parties

Counsel’s duty:1. Inform court within 30 days after such death of

the fact thereof; 2. Give the name and address of the legal

representatives.

NOTE: Failure to comply with this duty is a ground for disciplinary action.

Court’s duty: in case of death, the court if the action survives, shall order, upon proper notice, the legal representative of the deceased to appear and to be substituted for the deceased within a period of 30 days or within such time as may be granted.

- If there is notice of death, court should await appointment of legal representative; otherwise, subsequent proceedings are void. Period of filing of brief is suspended.

If no legal representative is named or if the one so name shall fail to appear within the specified period, the court may order the opposing party to procure the appointment of an executor or administrator for the estate.

The substitute defendant need not be summoned. The order of substitution shall be served upon the parties substituted for the court to acquire jurisdiction over the substitute party [Ferreria v Vda de Gonzales (1986)].

Death or separation of a party who is a public officer [Rule 3, Sec. 17]

Requisites:1. Public officer is a party to an action in his official

capacity;2. During the pendency of the action, he either

dies/resigns or otherwise ceases to hold office;3. It is satisfactorily shown to the court by any

party, within 30 days after the successor takes office, that there is a substantial need to continue/maintain the action and

4. The successor adopts/continues (or threatens to do so) his predecessor’s action

5. The party or officer affected was given reasonable notice of the application therefore and accorded an opportunity to be heard.

Action on Contractual Money Claims [Rule 3, Sec. 20]

Requisites:1. The action must primarily be for recovery of

money/debt or interest thereon;2. The claim arose from express/implied contract; 3. Defendant dies before the entry of final judgment

in the court in which the action was pending.4. The defendant’s death will not result in the

dismissal of the action.

The deceased shall be substituted by his legal representatives in the manner provided for in Rule 3, Sec. 16, and the action will continue until the entry of final judgment.

However, execution shall not issue in favor of the winning plaintiff. It should be filed as a claim against the decedent’s estate without need of proving the claim.

Transfer of Interest During Pendency of Action [Rule 3, Sec. 19]

General rule: The rule does not consider the transferee an indispensable party. Hence, the action may proceed without the need to implead him.

Exception: When the substitution by or joinder of the transferee is ordered by court.

The case will be dismissed if the plaintiff’s interest is transferred to defendant unless there are several plaintiffs, in which case the remaining plaintiffs can proceed with their own cause of action.

VENUE

Venue is the place, or the geographical area where an action is to be filed and tried. In civil cases, it relates only to the place of the suit and not to the jurisdiction of the court. [Riano citing Manila Railroad Company v. Attorney General (1911)]

Choosing the venue of an action is not left to a plaintiff’s caprice; the matter is regulated by the Rules of Court. [Ang v. Sps. Ang (2012)]

VENUE VERSUS JURISDICTION

Venue Jurisdiction

Place where the action is instituted

Power of the court to hear and decide a case

May be waived

Jurisdiction over the subject matter and over

the nature of the action is conferred by law and

cannot-be waivedProcedural Substantive

May be changed by the written agreement of the

parties

Is fixed by law and cannot be the subject of the

agreement of the partiesEstablishes a relation between plaintiff and

defendant, or petitioner and respondent

Establishes a relation between the court and

the subject matter

Not a ground for a motu propio dismissal (except

in cases of summary procedure; Rule 4, Rule on

Summary Procedure)

Lack of jurisdiction over the subject matter is a

ground for a motu proprio dismissal.

VENUE OF REAL ACTIONS

1. 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. [Rule 4, Sec. 1(1)]

2. Forcible entry and detainer actions shall be commenced and tried in the municipal court of the municipality or city wherein the real property involved, or a portion thereof, is situated. [Rule 4, Sec. 1(2)]

3. If the property is located at the boundaries of 2 places, file the case in either place (at the plaintiff’s option).

4. If the case involves 2 properties located in 2 different places:a. If the properties are the object of the same

transaction, file it in any of the 2 places;b. If they are the objects of 2 distinct

transactions, separate actions should be filed in each place unless properly joined.

VENUE OF PERSONAL ACTIONS

At the plaintiff’s election: [Rule 4, Sec. 2] 1. Where the plaintiff or any of the principal

plaintiffs resides;2. Where the defendant or any of the principal

defendants resides; 3. In case of a non-resident-defendant, where he

may be found.

NOTE: The plaintiff or the defendant must be residents of the place where the action has been instituted at the time the action is commenced. [Ang v. Sps. Ang (2012)]

The residence of a person is his personal, actual or physical habitation or his actual residence or place of abode, which may not necessarily be his legal residence or domicile provided he resides therein with continuity and consistency. [Boleyley v. Villanueva]

A corporation cannot be allowed to file personal actions in a place other than its principal place of business unless such place is aso the residence of a co-plaintiff or defendant. [Clavecilla Radio v. Antillon]

VENUE OF ACTIONS AGAINST NON-RESIDENTS (Rule 5, Sec. 3)

Non-resident FOUND in the Philippines:1. For personal actions – Where the plaintiff resides2. For real actions – Where the property is located

NOTE: The alternative venues granted to plaintiffs in Sec. 2, Rule 4 is not available to a non-resident

Non-resident NOT FOUND in the Philippines: An action may be filed ONLY when the case involves:

1. Personal status of plaintiff – File at the place where plaintiff resides

2. Any property of said defendant located in the Philippines – File at the place where the property (or any portion thereof) is situated/found

NOTE: When there is more than one defendant or plaintiff, the residences of the PRINCIPAL parties should be the basis for determining proper venue (Herrera)

WHEN THE RULES ON VENUE DO NOT APPLY (Rule 4, Sec. 4)

Rules on Venue DO NOT apply:1. If a specific rule/law provides otherwise (e.g.

action for damages arising from libel); 2. If there is a stipulation as to venue which is

permitted if the parties have validly agreed(1) in writing(2) before the filing of the action(3) on the exclusive venue

EFFECTS OF STIPULATIONS ON VENUE

To be binding, the parties must have agreed on the exclusive nature of the venue of any prospective action between them. The agreement of parties must be restrictive and not permissive. [Regalado]

In the absence of qualifying restrictive words (e.g. “only/solely/exclusively in such court”), venue stipulation is merely permissive; that is, the stipulated venue is in addition to the venue provided for in the rules. [Polytrade Corp. v. Blanco (1969)]

The mere stipulation on the venue of an action, however, is not enough to preclude parties from bringing a case in other venues. The parties must be able to show that such stipulation is EXCLUSIVE. In the absence of qualifying or restrictive words, the stipulation should be deemed as merely an agreement on an additional forum, not as limiting venue to the specified place. [Riano citing Spouse Lantin v. Lantion, (2006)]

The court may declare agreements on venue as contrary to public policy if such stipulation unjustly denies a party a fair opportunity to file suit in the place designated by the Rules [Regalado, citing Hoechst Philippines v Torres (1978)].

OTHER RULES ON VENUE

Improper Venue - The Court may not motu propio dismiss an action on the ground of improper venue. [Dacoycoy v. IAC (1991)]

EXCEPTION: In summary procedures

Change of Venue - The SC has the power to change the venue to prevent a miscarriage of justice. [Art. 8, Sec. 5, 1987 Constitution]

Waiver of Venue - Until and unless the defendant objects to the venue in a motion to dismiss prior to a responsive pleading, the venue cannot truly be said to have been improperly laid since for all intents and purposes, the venue though technically wrong may yet be considered acceptable to the parties for whose convenience the rules on venue had been devised. Although venue is mandatory, it is waivable. [Diaz v. Adiong (1993)]

Means of waiving venue:1. Where parties validly agreed in writing before

the filing of the action on the exclusive venue thereof [Rule 4, Sec 4 (b)]; and

2. Failure to raise improper venue as affirmative defense or in motion to dismiss

PLEADINGS

DEFINITION

Pleadings are the written statements of the respective claims and defenses of the parties, submitted to the court for appropriate judgment [Rule 6, Sec. 1]

Pleading v. Motion

PLEADING MOTIONPurpose: to submit a claim or defense for appropriate

judgment

Purpose: to apply for an order not included in the

judgment

May be initiatoryCannot be initiatory as

they are always made in a case already filed in court

Always filed before judgment

May be filed even after judgment

Only 9 kinds of pleading are allowed by the rules

Any application for relief not by a pleading is a

motion

Must be writtenMay be oral when made in open court or in the course

of a hearing or trial

KINDS OF PLEADINGS

Kinds of Pleadings Allowed (Rule 6, Sec. 2)1. Complaint 2. Answer3. Counterclaim 4. Cross-claim 5. 3rd-party Complaint 6. Complaint-in-intervention 7. Reply

COMPLAINT(Rule 6, Sec. 3)

Definition - The pleading alleging the plaintiff’s cause/s of action. It should contain a concise statement of the ultimate facts constituting the plaintiff’s cause/s of action, not evidentiary facts or legal conclusions.

Contents – Statement of ultimate facts on which the plaintiff relies for his claim:

1. It must be in a methodical and logical form 2. Plain, concise, and direct 3. Statement of mere evidentiary facts are omitted

(Rule 8, Sec. 1)

Function1. Its function is to inform the defendant clearly and

definitely of claims made against him so that he may be prepared to meet the issues at trial.

2. It should inform the defendant of all material facts on which the plaintiff relies to support his demand.

3. It should state the theory of a cause of action which forms the bases of plaintiff’s claim of liability. [Tantuico v. Republic (1991)]

Ultimate Facts - Essential facts constituting the plaintiff’s cause of action. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient. [Remitere v. Montinola (1966)]

Non-Ultimate Facts:1. Evidentiary or immaterial facts; 2. Legal conclusions, conclusions or inferences of

facts from facts not stated, or incorrect inferences or conclusions from facts stated;

3. Conclusions of law alleged in the complaint are not binding on the court.

4. The details of probative matter or particulars of evidence, statements of law, inferences and arguments.

Test of Sufficiency of the Facts alleged in the Complaint: WON upon the averment of facts, a valid judgment may be properly rendered [Pamintan v. Costales (1914)].

ANSWER (Rule 6, Sec. 4)

Definition - The pleading where the defendant sets forth his affirmative/negative defenses. It may also be the response to a counterclaim or a cross-claim.

Two kinds of Defenses that may be set forth in the Answer (Rule 6, Sec. 5) –

1. Negative Defenses - Specific denials of the material facts alleged in the pleading of the claimant essential to his cause of action. A denial is not specific just because it is so

qualified (Agton v. CA) A general denial will be deemed an

admission of the averments in the complaint; it has to be specific

Modes of Denial (Sec. 10, Rule 8)a. Defendant must specify each material

allegation of fact the truth of which he does not admit

b. If pleader decides to deny only a part or a qualification of an averment, he shall specify so much of it as true and deny the remainder

c. If pleader is without knowledge or information sufficient to form a belief as to the truth of a material averment, he shall so state

2. Affirmative Defenses - Allegations of new matters which, while hypothetically admitting the material allegations in the claimant’s pleading, would nevertheless prevent/bar recovery by him. It includes fraud, prescription, release, payment and any other matter by way of confession and avoidance.

Negative Pregnant - Denial pregnant with an admission. It is a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It is in effect an admission of the averment it is directed to. [Philamgen v. Sweet Lines (1993)]

While it is a denial in the form its substance actually has the effect of an admission because of a too literal denial of the allegation sough to be denied. This arises when the pleader merely repeats the allegations in a negative form.

Insufficient denial or denial amounting to admissions:1. General denial; and2. Denial in the form of a negative pregnant

COUNTERCLAIM

Definition - Any claim which a defending party may have against an opposing party.

1. A counterclaim is in the nature of a cross-complaint. Although it may be alleged in the answer, it is not part of the answer.

2. Upon its filing, the same proceedings are had as in the original complaint.

3. For this reason, it must be answered 10 days from service [Rule 11, Sec 4]

How to Raise Counterclaims

1. By including it in the Answera. A compulsory counterclaim or a cross-claim

that a defending party has AT THE TIME he files his answer shall be contained therein. [Rule 11, Sec. 8]

b. Exception: Pleadings may be amended under Rule 11, Sec. 10:(1) By leave of court;(2) Before judgment;(3) On the grounds of:(4) Oversight;(5) Inadvertence;(6) Excusable neglect;(7) When justice requires.

2. By filing after the Answer (Rule 11, Sec. 9)a. Counterclaims/cross-claims arising AFTER

the answer, b. How done:

(1) By filing a supplemental pleading before judgment

(2) WITH court’s permission

Rules on Counterclaims 1. In an original action before the RTC, the

counterclaim may be considered compulsory regardless of the amount. [Rule 6, Sec. 7]

2. In the case of Agustin v. Bacalan (1985), if a counterclaim is filed in the MTC in excess of its jurisdictional amount, the excess is considered waived.

3. But in Calo v. Ajax (1968), the remedy where a counterclaim is beyond the jurisdiction of the MTC is to set off the claims and file a separate action to collect the balance.

Kinds of Counterclaims

Compulsory counterclaim Permissive counterclaim

One which arises out of or is necessarily connected with the transaction or occurrence -that is the subject matter of the

opposing party's claim.

It does not arise out of nor is it necessarily connected with the subject matter of

the opposing party's claim.

Does not require for its adjudication the presence of third parties of whom the court cannot acquire

jurisdiction.

May require for its adjudication the presence

of third parties over whom the court cannot

acquire jurisdiction.Barred if not set up in the

action.Not barred even if not set

up in the action.

Need not be answered; no default.

Must be answered, otherwise, the defendant

can be declared in default.

No need for separate docket fees

Since permissive, it requires the payment of

docket fees (Sun Insurance v. Asuncion, 1989)

Compulsory Counterclaim

1. Requisites:a. It must arise out of, or be necessarily

connected with, the transaction/occurrence that is the subject matter of the opposing party's claim;

b. It does not require for its adjudication the presence of 3rd parties of whom the court cannot acquire jurisdiction;

c. It must be within the court’s jurisdiction both as to the amount and the nature. [Regalado, citing Quintanilla v CA (1997)]

2. General Rule: A compulsory counterclaim not set up in the answer is deemed barred.a. Exceptions:

(1) If it is a counterclaim which either matured or was acquired by a party after serving his answer. In this case, it may be pleaded by filing a supplemental answer or pleading before judgment. [Rule 11, Sec. 9]

(2) When a pleader fails to set up a counterclaim through oversight, inadvertence, excusable negligence, or when justice so requires. He may, by leave of court, set-up the counterclaim by amendment of the pleading (Rule 11, Sec. 10)

3. A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default, principally because the issues raised in the counterclaim are deemed automatically joined by the allegations in the complaint. [Gojo v. Goyala (1970)]

4. The filing of a MTD and the setting up of a compulsory counterclaim are incompatible remedies.

a. In the event that a defending party has a ground for dismissal and a compulsory counterclaim at the same time, he must choose only one remedy.

b. If he decides to file a MTD, he will lose his counterclaim. But if he opts to set up his counterclaim, he may still plead his ground for dismissal as an affirmative defense in his answer.

c. If any of the grounds to dismiss under Rule 17, Sec. 3 arise, the proper recourse for a defendant who desires to pursue his compulsory counterclaim in the same proceeding is not a MTD.

d. Instead, he should only move to have the plaintiff declared non-suited on the complaint so that the latter can no longer present his evidence thereon, and simultaneously move that he be declared as in default on the compulsory counterclaim, and reserve the right to present evidence ex parte on his compulsory counterclaim. [BA Finance v. Co (1993)]

Permissive Counterclaim

1. Counterclaim is permissive if it does not arise out of, nor is necessarily connected with, the subject matter of the opposing party’s claim a. This is not barred even if not set up in the

actionb. Must have independent jurisdictional ground

(Herrera). Hence, the filing of a separate docket fee.

2. Test to determine whether a counterclaim is compulsory or permissive: LOGICAL RELATIONSHIP TESTa. Where conducting separate trials of the

respective claims would entail substantial duplication of effort and time and involves many of the same factual and legal issues. [Meliton v. CA (1992)]

3. NOTE: If the counterclaim matures AFTER the Answer, it is merely PERMISSIVE

Effect on Counterclaim when Complaint is Dismissed - Under Section 3, Rule 17, dismissal of action due to plaintiff’s fault shall be without prejudice to the defendant’s right to prosecute his counterclaim in the same/separate action.

CROSS-CLAIM

Requisites:1. A claim by one party against a co-party;2. It must arise out of the subject matter of the

complaint or of the counterclaim;3. The cross-claimant is prejudiced by the claim

against him by the opposing party.

General Rule: A cross-claim is always compulsory. A cross-claim not set up shall be barred. [Rule 9, Sec. 2]

Exceptions: Permissive Cross-Claims1. When it is outside the court’s jurisdiction;2. If the court cannot acquire jurisdiction over 3rd

parties whose presence is necessary for the adjudication of said cross-claim. In this case, the cross-claim is considered permissive.

3. Cross claim that may mature or may be acquired AFTER service of Answer

Effect on Cross-Claim when Complaint is Dismissed - The dismissal of the complaint carries with it the dismissal of a cross-claim which is purely defensive, but not a cross-claim seeking an affirmative relief. [Torres v. CA (1973)]

Improper Cross-Claims1. Where the cross-claim is improper, the remedy is

certiorari (Malinao v. Luzon Surety, 1964) 2. The dismissal of a cross-claim is unappealable

when the order dismissing the complaint becomes final and executory (Ruiz, Jr. v. CA, 1993)

3. A cross-claim is not allowed after declaration of default of cross-claimant (Tan v. Dimayuga, 1962) It would be tantamount to setting aside the order of default because then the cross-claimant would re-obtain a standing in court as party litigant

Counter-Counterclaims and Counter-Cross-Claims (Rule 6, Sec. 9)

1. Counter-Counterclaim - A claim asserted against an original counter-claimant.

2. Counter-Cross-claim - A claim filed against an original cross-claimant.

THIRD (FOURTH, ETC.) PARTY COMPLAINTS (Rule 6, Sec. 11)

Definition - It is a claim that a defending party may, with leave of court, file against a person not a party to the action for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim.

There could also be a 4th/etc.-party complaint with the same purpose and function.

Cross-claim Counterclaim3rd Party

complaint

Against a co-party

Against an opposing party

Against a person not a party to the

actionMust arise out

of the transaction that is the

subject matter of the

original action or of a counterclaim

therein

May arise out of or be necessarily

connected with the transaction or the subject matter of

the opposing party’s claim (compulsory

counterclaim), or it may not

(permissive

Must be in respect of the

opponent’s (plaintiff’s)

claim

counterclaim)No need for a leave of court

No need for leave of court

Leave of court is needed

3rd-party complaintComplaint in intervention

Brings into the action a 3rd person who was not

originally a partySame

Initiative is with the person already a party to

the action

Initiative is with a non-party who seeks to join

the action

3rd-party complaint Counterclaim

Need not be within the jurisdiction of the court

trying the main case

Must be within the jurisdiction of the court

trying the main caseDiminishes/defeats the recovery sought by the

opposing party

Need not diminish/defeat the recovery sought by

the opposing partyCannot exceed the amount

stated in the original complaint

May exceed in amount or be different in kind from

that sought in the original complaint

Basis of Third-Party Complaint - Under this Rule, a person not party to an action may be impleaded by the defendant either:

1. On allegation of liability to the latter2. On the ground of direct liability to the plaintiff; or 3. Both (1) and (2)

Situation in (1) is covered by the phrase “contribution, indemnity or subrogation”, while (2) and (3) are subsumed under the catch-all phrase (Samala v. Victor, 1989)

Tests to Determine Whether the 3rd-Party Complaint is in Respect of Plaintiff’s Claim (Capayas v. CFI, 1946)

1. WON it arises out of the same transaction on which the plaintiff's claim is based, or although arising out of another/different transaction, is connected with the plaintiff’s claim;

2. WON the 3rd-party defendant would be liable to the plaintiff or to the defendant for all/part of the plaintiff’s claim against the original defendant;

3. WON the 3rd-party defendant may assert any defenses which the 3rd-party plaintiff has or may have to the plaintiff’s claim.

Additional Rules1. Leave of court to file a 3rd-party complaint may

be obtained by motion under Rule 15.2. Summons on 3rd (4th/etc.) – party defendant

must be served for the court to obtain jurisdiction over his person, since he is not an original party.

3. Where the trial court has jurisdiction over the main case, it also has jurisdiction over the 3rd-party complaint, regardless of the amount

involved as a 3rd-party complaint is merely auxiliary to and is a continuation of the main action. [Republic v. Central Surety (1968)]

4. A 3rd-party complaint is not proper in an action for declaratory relief.

COMPLAINT-IN-INTERVENTION

Pleadings-in-Intervention (Rule 19, Sec. 3)1. Complaint-in-intervention – If intervenor asserts

a claim against either or all of the original parties. 2. Answer-in-intervention – If intervenor unites

with the defending party in resisting a claim against the latter.

Definition - INTERVENTION is a remedy by which a third party, not originally impleaded in a proceeding, becomes a litigant therein to enable him to protect or preserve a right or interest which may be affected by such proceeding.

Its purpose is "to settle in one action and by a single judgment the whole controversy (among) the persons involved." [First Philippine Holdings v. Sandiganbayan (1996); Rule 19]

When Allowed - Intervention shall be allowed when a person has:

1. A legal interest in the matter in litigation;2. Or in the success of any of the parties;3. Or an interest against the parties; and4. When he is so situated as to be adversely affected

by a distribution or disposition of property in the custody of the court or of an officer thereof. [First Philippine Holdings v. Sandiganbayan (1996)]

Not an Independent Action - Intervention is not an independent action, but is ancillary and supplemental to an existing litigation. [First Philippine Holdings v. Sandiganbayan (1996)]

1. It is neither compulsory nor mandatory but only optional and permissive. [Mabayo v. CA (2002)]

2. The Court has full discretion in permitting or disallowing intervention, which must be exercised judiciously and only after consideration of all the circumstances obtaining in the case. [Mago v. CA (1999)]

3. It is not an absolute right as it can be secured only in accordance with the terms of applicable statute or rule. [Office of Ombudsman v. Samaniego (2010)]

Meaning of Legal Interest - Interest must be of a direct and immediate character so that the intervenor will either gain or lose by the direct legal operation of the judgment. The interest must be actual and material, a concern which is more than mere curiosity, or academic or sentimental desire; it must not be indirect and contingent, indirect and remote, conjectural, consequential or collateral. [Virra Mall Tenants v. Virra Mall (2011)]

Requisites for Valid Intervention1. There must be a motion for intervention filed

before rendition of judgment by the trial court.

2. Movant must show in his motion that he has a: a. Legal interest in (1) the matter of litigation,

(2) the success of either of the parties in the action or (3) against both parties.

b. That the movant 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

c. That the intervention must not unduly delay or prejudice the adjudication of the rights of the original parties and that the intervenor’s rights may not be fully protected in a separate proceeding.

How to Intervene1. With leave of court, the court shall consider the 2

factors2. Motion to intervene may be filed at any time

before rendition of judgment by trial court 3. Copy of the pleadings-in-intervention shall be

attached to the motion and served on the original parties

Time to Intervene: (Rule 19, Sec. 2)1. General Rule: The motion to intervene must be

filed at any time before the rendition of judgment by the trial court

2. Exceptions:a. With respect to indispensable parties,

intervention may be allowed even on appeal (Falcasantos v. Falcasantos)

b. When the intervenor is the Republic (Lim v. Pacquing)

c. Intervention may be allowed after judgment where necessary to protect some interest which cannot otherwise be protected, and for the purpose of preserving the intervenor’s right to appeal (Pinlac v. CA)

Remedy for Denial of Motion for Intervention1. The movant may file a motion for reconsideration

since the denial of a motion for intervention is an interlocutory order.

2. Alleging grave abuse of discretion, movant can also file a certiorari case.

REPLY

Definition - The plaintiff’s response to the defendant's answer. The function of which is to deny or allege facts in denial or in avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. (Rule 6, Sec. 10)

Effect of Failure to Reply 1. General Rule - Filing a reply is merely optional.

New facts that were alleged in the answer are deemed controverted should a party fail to reply thereto.

2. Exception – When a Reply is necessarya. To set up affirmative defenses on the

counterclaim (Rosario v. Martinez)b. Where the answer alleges the defense of

usury in which case a reply under oath

should be made; otherwise, the allegation of usurious interest shall be deemed admitted [Rule 8, Sec. 8; Sun Bros. v. Caluntad]

c. Where the defense in the answer is based on an actionable document, a reply under oath must be made; otherwise, the genuineness and due execution of the document shall be deemed admitted. [Rule 8, Sec. 11; Toribio v. Bidin]

PLEADINGS ALLOWED IN SMALL CLAIM CASES AND CASES COVERED BY THE RULES OF SUMMARY PROCEDURE

Under the Revised Rules on Summary Procedure – The only pleadings allowed to be filed are: (Sec. 3)

1. Complaints2. Compulsory counterclaims and cross-claims

pleaded in the Answer; and3. Answers thereto

Prohibited Pleadings, Motions, or Petitions (Sec. 19)1. 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 required barangay conciliation proceedings;

2. Motion for a bill of particulars;3. Motion for new trial, or for reconsideration of a

judgment, or for opening of trial;4. Petition for relief from judgment;5. Motion for extension of time to file pleadings,

affidavits or any other paper; 6. Petition for certiorari, mandamus, or prohibition

against any interlocutory order issued by the court;

7. Motion to declare the defendant in default;8. Dilatory motions for postponement;9. Reply;10. Third party complaints; and11. Interventions.

Forms Used Under the Rule of Procedure under Small Claims Cases

1. Instead of filing complaint, a Statement of Claim using Form 1-SCC shall be filed [Sec. 5]

2. Answer shall be filed by way of a Response using Form 3-SCC [Sec. 10]

3. Defendant may file counterclaim if he possesses a claim against the plaintiff that a. Is within the coverage of this Rule, exclusive

of interest and costs; b. Arises out of the same transaction or event

that is the subject matter of the plaintiff’s claim;

c. Does not require for its adjudication the joinder of third parties; and

d. Is not the subject of another pending action, the claim shall be filed as a counterclaim in the Response; otherwise, the defendant shall be barred from suit on the counterclaim.

The defendant may also elect to file a counterclaim against the plaintiff that does not arise out of the same transaction or occurrence, provided that the amount and nature thereof are within the coverage of this Rule and the prescribed docket and other legal fees are paid.

NOTE: Courts decision shall be contained in Form 13-SCC

Prohibited Pleadings and Motions in Small Claims1. Motion to dismiss the complaint except on the

ground of lack of jurisdiction;2. Motion for a bill of particulars;3. Motion for new trial, or for reconsideration of a

judgment, or for reopening of trial;4. Petition for relief from judgment;5. Motion for extension of time to file pleadings,

affidavits, or any other paper;6. Memoranda;7. Petition for certiorari, mandamus, or prohibition

against any interlocutory order issued by the court;

8. Motion to declare the defendant in default;9. Dilatory motions for postponement;10. Reply;11. Third-party complaints; and12. Interventions.

PARTS OF A PLEADING (Rule 7, Sec. 1 to 3)

CAPTION

Caption - Court’s name, action’s title (i.e. parties’ names) and docket number.

Body - Pleading’s designation, allegations of party's claims/defenses, relief prayed for and pleading’s date.

1. Paragraphs must be numbered, and each paragraph number must contain a single set of circumstances

2. Headings: if more than one cause of action, use "1st cause of action," 2nd cause of action," etc.

3. Specify relief sought, but it may add a general prayer for such further/other relief as may be deemed just/equitable.

4. Every pleading shall be dated.

SIGNATURE AND ADDRESS

Every pleading must be signed by the party or counsel representing him.

The address must be stated and such address must not be a post office box

Effect of Signature of Counsel in a Pleading - Signature of counsel constitutes a certificate by him that:

1. He has read the pleading 2. That to the best of his knowledge, information,

and belief there is good ground to support it; and 3. That it is not interposed for delay

Unsigned Pleadings1. No legal effect

2. Court may, in its discretion, allow such remedy to be remedied if it appears that:a. It was due to mere inadvertence; and b. It was not intended for delay

VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING (Rule 7, Sec. 4)

Verification - Pleadings need not be verified, unless otherwise provided by the law/rules

Verification is Required in the following:1. Pleadings filed in the inferior courts in cases

covered by the Rules on Summary Procedure are all required to be verified

2. Petition for relief from judgment or order (Sec. 3, Rule 38)

3. Petition for review from RTC to the CA (Sec. 1, Rule 42)

4. Petition for review from quasi-judicial agencies to the CA (Sec. 5, Rule 43)

5. Appeal by certiorari from the CTA to the SC (Sec. 12, RA 9282 amending Sec. 19, RA 1125)

6. Appeal by certiorari from CA to the SC (Sec. 1, Rule 45)

7. Petition for annulment of judgments or final orders and resolutions (Sec. 1, Rule 47)

8. Complaint for injunction (Sec. 4, Rule 58) 9. Application for appointment of receiver (Sec. 1,

Rule 59) 10. Application for support pendente lite (Sec. 1, Rule

69) 11. Petition for certiorari against judgments, final

orders, or resolutions of constitutional commissions (Sec. 2, Rule 64)

12. Petition for certiorari (Sec. 1, Rule 65) 13. Petition for prohibition (Sec. 2, Rule 65) 14. Petition for mandamus (Sec. 3, Rule 65) 15. Petition for quo warranto (Sec. 1, Rule 66) 16. Complaint for expropriation (Sec. 1, Rule 67) 17. Complaint for forcible entry or unlawful detainer

(Sec. 4, Rule 70)18. Petition for indirect contempt (Sec. 4, Rule 71)19. Petition for appointment of a general guardian

(Sec. 2, Rule 93) 20. Petition for leave to sell or encumber property of

the ward by a guardian (Sec. 1, Rule 95) 21. Petition for declaration of competency of a ward

(Sec. 1, Rule 97) 22. Petition for habeas corpus (Sec. 3, Rule 102) 23. Petition for change of name (Sec. 2, Rule 103) 24. Petition for voluntary judicial dissolution of a

corporation (Sec. 1, Rule 104) 25. Petition for cancellation or correction of entries

in the civil registry (Sec. 1, Rule 108)

How a pleading is verified: By an affidavit1. That the affiant read the pleading; 2. That the allegations therein are true and correct

of his personal knowledge or based on authentic documents.

Forum Shopping - The filing of multiple suits in different courts, simultaneously or successively, involving the same

parties, to ask the courts to rule on the same/related causes and/or to grant the same or substantially the same relief. [T'Boli Agro-Industrial Development, Inc. (TADI) v. Solidapsi (2002)] (Asked in the 2006 Bar Exam)

Test to Determine WON there is forum shopping: WON in the 2 or more cases pending, there is identity of:

1. Parties2. Rights or causes of action 3. Relief sought

Certificate of Non-Forum Shopping (CNFS) (Rule 7, Sec. 5)1. The CNFS is to be executed by the petitioner, not

by the counsel.2. CNFS is required only for complaints or initiatory

pleadings (e.g. permissive counterclaim, cross-claim etc.).

3. CNFS is not required in a compulsory counterclaim. A counterclaim is not an initiatory pleading. [UST Hospital v. Surla (1998)]a. However, a certification is needed in

permissive counterclaims (Korea Exchange Bank v. Gonzales)

4. The lack of certification against forum shopping is not curable by mere amendment of a complaint, but shall be a cause for the dismissal of the case without prejudice. The general rule is that subsequent compliance with the requirements will not excuse a party's failure to comply in the first instance. [Ramirez v. Mar Fishing (2012)]

Who Executes the Certification - Certification against forum shopping ordained by the Rules is to be executed by the petitioner, not his counsel. The petitioner is in the best position to know whether he filed or caused the filing of a petition in the case.

Certification by counsel is defective certification. In Santos v. CA, the Court held that a special power of attorney was insufficient.

Effect of Submission of False CNFS or Non-Submission:1. Indirect contempt 2. Administrative and criminal actions

Effect of Willful and Deliberate Forum Shopping 1. Ground for summary dismissal of the case with

prejudice;2. Direct contempt and administrative sanctions.

NOTE: the CNFS is mandatory but NOT jurisdictional.

Requirement of a Corporation executing the verification/ CNFS - Only individuals vested with authority by a valid board resolution may sign the certificate of non-forum shopping in behalf of a corporation. In addition, the Court has required that proof of said authority must be attached. Failure to provide a certificate of non-forum shopping is sufficient ground to dismiss the petition. Likewise, the petition is subject to dismissal if a certification was submitted unaccompanied by proof of the signatory’s authority. [PAL v. FASAP (2006)]

ALLEGATIONS IN A PLEADING (Rule 8)

MANNER OF MAKING ALLEGATIONS

In General – (Rule 8, Sec. 1)1. Every pleading shall contain a statement of the

ultimate facts on which the party pleading relies for his claim or defensea. In a methodical and logical form b. A plain, concise and direct statement c. Statement of mere evidentiary facts omitted

2. If a defense relief is based on law, state in a clear and concise manner:a. Pertinent provisions of the lawb. Applicability of the law to him

Facts that must be averred PARTICULARLY - Circumstances showing fraud/mistake in all averments of fraud/mistake [Rule 8, Sec. 5]

Facts that may be averred GENERALLY:1. Conditions precedent; but there must still be an

allegation that the specific condition precedent has been complied with, otherwise it will be dismissed for lack of cause of action; [Rule 8, Sec. 3]

2. Capacity to sue or be sued;3. Capacity to sue or be sued in a representative

capacity; [Rule 8, Sec. 4]4. Legal existence of an organization; A party

desiring to raise an issue as to the legal existence or capacity of any party to sue or be sued in a representative capacity shall do so by specific denial which shall include supporting particulars within the pleader's knowledge. [Rule 8, Sec 4]

5. Malice/intent/knowledge or other condition of the mind; [Rule 8, Sec. 5]

6. Judgments of domestic/foreign courts, tribunals, boards or officers (without need to show jurisdiction); [Rule 8, Sec. 6]

7. Official documents/acts. [Rule 8, Sec. 9]

Condition Precedent – If the cause of action depends upon a condition precedent, its fulfillment or legal excuse for non-fulfillment must be averred.

A general averment of the performance or occurrence of all conditions precedent shall be sufficient [Rule 8, Sec. 3]

All valid conditions precedent to the institution of a particular action, whether prescribed by statute, fixed by agreement of the parties, or implied by law must be performed or complied with before commencing the action. Such fact must be pleaded.

Failure to comply with a condition precedent is a ground for a motion to dismiss (Rule 16, Sec. 1(j))

Examples of Conditions Precedent:1. Exhaustion of administrative remedies

2. Investigation by a fiscal is a prerequisite to annulment of marriage when defendant defaults (Tolentino v. Villanueva)

3. No suit shall be filed or maintained between members of the same family unless it should appear that earnest efforts at compromise have been made but that the same have failed. (Art. 222; Versoza v. Versoza)

4. Arbitration; Barangay Conciliation

Capacity – What must be averred:1. Facts showing the capacity of a party to sue or be

sued; or2. The authority to sue or be sued in a

representative capacity;3. Or the legal existence of an organized association

of persons that is made a party (Rule 8, Sec. 4)

Fraud, Mistake, Malice, Intent, Knowledge and Other Condition of the Mind, Judgments, official documents, or acts - Circumstances constituting fraud or mistake must be stated with particularity while malice, intent, knowledge or other condition of the mind of a person may be averred generally [Rule 8, Sec. 5]

Judgment - In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. (Rule 8, Sec. 6)

PLEADING AN ACTIONABLE DOCUMENT (Rule 8, Sec. 7)

Actionable Document - The written instrument upon which the action or defense is based. Where a pleader relies upon a document, its substance must be set out in the pleading either by its terms or by its legal effects

Pleading the actionable document: 1. The substance of such instrument or document

shall be set forth in the pleading; and2. The original or copy thereof shall be attached to

the pleading as an exhibit, which shall be deemed to be part of the pleading; or

3. Said copy may with like effect be set forth in the pleading

A variance in the substance of the document set forth in the pleading and the document annexed thereto does not warrant dismissal of the action (Convets Inc. v. National Dev. Co.)

How to Contest an Actionable Document (Rule 8, Sec. 8)1. By specific denial under oath; and 2. By setting forth what is claimed to be the facts

NOTE: The genuineness and due execution of the document must be denied SPECIFICALLY

- Due Execution - That the party whose signature it bears admits that he voluntarily signed it; or that it was signed by another for him with his authority

- Genuineness - That the party whose signature it bears admits that at the time it was signed it was

in words and figures exactly as set out; and that the formalities, such as swearing and acknowledgement, or revenue stamps which are required by law are waived by him

Failure to Deny Under Oath the Actionable Document:1. The genuineness and due execution is deemed

admitted2. The document need not be formally offered in

evidence

SPECIFIC DENIALS (Rule 8, Sec. 10)

The purpose of requiring the defendant to make a specific denial is to make him disclose the matters alleged in the complaint which he sincerely intends to disprove at the trial, together with matters which he relies upon to support the denial (Herrera).

Modes of Denial:

1. Specific Absolute Denial - Defendant must specify each material allegation of fact the truth of which he does not admita. Whenever applicable, he shall set forth the

substance of the matters which he will rely upon to support the denial

2. Partial Specific Denial - If pleader decides to deny only a part or a qualification of an averment:a. He shall specify so much of it as is true and

material b. He shall deny the remainder

3. Disavowal of Knowledge - If defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint: a. He shall so stateb. This shall have the effect of a denial

Effect of Failure to make Specific Denials:1. General Rule: Allegations not specifically denied

are deemed admitted (Rule 8, Sec. 11)

2. Exceptions: Averments not deemed admitted even if not specifically denieda. Allegations as to the amount of unliquidated

damages;b. Allegations immaterial to the cause of actionc. Allegations of merely evidentiary or

immaterial facts may be expunged from the pleading or may be stricken out on motion. [Rule 8, Sec. 12]

d. Conclusion of law.

When a specific denial requires an OATH – When the genuineness and due execution of an actionable document is contested or denied, the specific denial must be under oath. (Rule 8, Sec. 8)

EFFECT OF FAILURE TO PLEAD (Rule 9)

FAILURE TO PLEAS DEFENSES AND OBJECTIONS

General Rule: Defenses and objections not pleaded in answer or motion to dismiss are deemed waived. (Omnibus Motion Rule)

Exceptions: 1. Lack of jurisdiction over the subject matter;2. Litis pendentia between same parties for the

same cause3. Res judicata4. Action barred by statute of limitations.

FAILURE TO PLEAD COMPULSORY COUNTERCLAIM AND CROSS-CLAIM

General Rule: A compulsory counterclaim not set up is considered barred. [Rule 9, Sec. 2]

Exception: If due to oversight, inadvertence, excusable neglect, etc. the compulsory counterclaim, with leave of court, may be set up by amendment before judgment. [Rule 11, Sec. 10]

For Cross-Claims: A cross-claim is always compulsory. A cross-claim not set up shall be barred. [Rule 9, Sec. 2]

DEFAULT (Rule 9, Sec. 3)

Definition: Failure of the defendant to answer within the proper period. It is not his failure to appear nor his failure to present evidence

Dual stages of default:1. Declaration of Order of Default – when defendant

fails to answer within the time specified in the rules, the court shall, upon motion of the plaintiff and proof of such failure, declare defendant in default

2. Rendition of Judgment by Default – thereafter, on the basis of the allegation of the complaint or after receiving plaintiff’s evidence, the court shall render judgment granting him such relief as the complaint and the facts proven may warrant

Order of default Judgment by default

Issued by the court on plaintiff’s motion, for

failure of the defendant to file his responsive

pleading seasonably

Rendered by the court following a default order

or after it received ex parte plaintiff’s evidence

Interlocutory -Not appealable

Final – Appealable

When a Declaration of Default is Proper:

There is only one instance when a party defendant can properly be declared in default and that is when he fails to file his answer within the reglementary period, or within such extended time as he is allowed by the court, under Sec. 1, Rule 18

Elements of a Valid Order of Default1. The court must have validly acquired jurisdiction

over the person of the defendant either by service of summons or voluntary appearance

2. The defendant failed to file his answer within the time allowed therefor

3. There must be a motion to declare the defendant in default with notice to the latter

4. There must be notice to the defendant by serving upon him a copy of such motion

5. There must be proof of such failure to answer6. There must be a hearing to declare defendant in

default

Effect of Order of Default:1. The court shall proceed to render judgment

granting the claimant such relief as his pleading may warrant; or in its discretion

2. Shall require the claimant to submit evidence;

3. Loss of standing in court of the defaulting party – meaning he cannot appear therein, adduce evidence and be heard nor take part in the trial

4. Defendant is still entitled to notices of subsequent proceedings a. A defendant declared in default cannot take

part in the trial, but he cannot be disqualified from testifying as a witness in favor of non-defaulting defendants. [Cavili v. Florendo (1987)]

b. A party in default is entitled to notice of:(1) Motion to declare him in default;(2) Order declaring him in default;(3) Subsequent proceedings; (4) Service of final orders and judgments.

5. A defending party declared in default retains the right to appeal from the judgment by default. However, the grounds that may be raised in such an appeal are restricted to any of the following: a. The failure of the plaintiff to prove the

material allegations of the complaint; b. The decision is contrary to law; and c. The amount of judgment is excessive or

different in kind from that prayed for. [Ortero v. Tan (2012)]

Relief from an Order of Default (Lina v. CA)1. The defendant in default may file a motion, under

oath, to set aside the order of default At any time after discovery thereof (from

Notice) and before judgment,

2. If the judgment has already been rendered, he may file for new trial under Sec. 1 (a) Rule 37

When the defendant discovered the default, but before the same has become final and executory

3. If defendant discovered the default after judgment had become final and executory, he may file a petition for relief under Sec. 2, Rule 38

4. He may also appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no petition to set aside the order of default has been presented by him

Partial Default - When the complaint states a common cause of action against several defendants some of whom answers and some of them do not, the court should declare defaulting defendants in default, and proceed to trial on answers of others

If the defense is personal to the one who answered, it will not benefit those who did not answer.

Extent of Relief to be Awarded1. A judgment rendered against a party in default

shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages

2. If the claim is not proved, the case should be dismissed

3. As held in Datu Samad Mangelen v. CA (1992):a. In a judgment based on evidence presented

ex parte, judgment should not exceed the amount or be different in kind from that prayed for.

b. On the other hand, in a judgment where an answer was filed but defendant did not appear at the hearing, the award may exceed the amount or be different in kind from that prayed for.

Actions Where Default is NOT allowed:1. An action for annulment or declaration of nullity

of marriage2. For legal separation 3. Special civil actions of certiorari, prohibition and

mandamus where comment instead of an answer is required to be filed

4. Summary procedure

DEFAULT IN ORDINARY PROCEDURE

If plaintiff fails proves his allegations:

Case is dismissed

If plaintiff proves his allegations:

Judgment by default

Case set for pre-trial

Presentation of plaintiff’s evidence ex-parte

Court sets aside order of default and defendant is allowed to file an answer

Court maintains order of default

Before judgment by default is rendered, defendant may:

(1) Move to set aside order of default upon showing of FAME and that he has a meritorious

defense;(2) Avail of Rule 65 in proper

cases

If motion granted: Court issues order of default

and renders judgment or require plaintiff to submit

evidence ex parte

If motion denied: Defendant allowed to file an

answer

After the lapse of time to file an answer, the plaintiff may move

to declare the defendant in default

FILING AND SERVICE OF PLEADINGS

PAYMENT OF DOCKET FEES

As a rule, the court acquires jurisdiction over the case only upon payment of prescribed fees

General rule: Without payment, case is considered not filed. Payment of docket fees is mandatory and jurisdictional.

It is not simply the filing of the complaint or appropriate initiatory pleading but the payment of the prescribed docket fee, that vests a trial court with jurisdiction over the subject matter or nature of the action [Proton Pilipinas v. Banque National de Paris (2005)]

Effect of Failure to Pay Docket Fees at Filing

1. The Manchester Rule: Manchester v. CA (1987) a. Automatic Dismissal b. Any defect in the original pleading resulting

in underpayment of the docket fees cannot be cured by amendment, such as by the reduction of the claim as, for all legal purposes, there is no original complaint over which the court has acquired jurisdiction

2. Relaxation of the Manchester Rule by Sun Insurance v. Asuncion (1989)a. NOT automatic dismissal b. Court may allow payment of fees within

reasonable period of time. Note that payment should always be within the prescriptive period of the action filed.

3. Further modification by Heirs of Hinog v. Melicor (2005)a. Fees as lienb. Where the trial court acquires jurisdiction

over a claim by the filing of the pleading and the payment of the prescribed filing fee, BUT SUBSEQUENTLY, the judgment awards a claim not specified in the pleading, or cannot then be estimated, or a claim left for determination by the court, then the additional filing fee shall constitute a lien on the judgment

4. Exception to the Sun Insurance doctrine: Gochan v. Gochan a. The Sun Insurance rule allowing payment of

deficiency does not apply where plaintiff never demonstrated any willingness to abide by the rules to pay the docket fee but stubbornly insisted that the case filed was one for specific performance and damages.

FILING VERSUS SERVICE OF PLEADINGS

Filing - The act of presenting the pleading or other paper to the clerk of court. [Rule 13, Sec. 2]

Service - The act of providing a party or his counsel with a copy of the pleading or paper concerned. [Rule 13, Sec. 2]

Papers required to be filed and served: (Rule 13, Sec. 4)1. Pleading subsequent to the complaint;2. Appearance;3. Written Motion;4. Notice;5. Order;6. Judgment;7. Demand;8. Offer of Judgment;9. Resolution; 10. Similar papers.

PERIODS OF FILING OF PLEADINGS

PLEADING PERIODPERIOD

COUNTED FROM

Answer to the

Complaint

Within 15 days

Service of summons, unless a different period

is fixed by the court (Rule 11,

Sec. 1Within 30 days if the defendant is a foreign

private juridical entity and service of summons is made on government official

Receipt of summons (Rule

11, Sec. 2)

At least 60 daysIn case of non-

resident defendant on whom

extrajudicial service is made

Service of extrajudicial

summons (Sec. 15, Rule 14)

Answer to AMENDED Complaint (amended

counterclaim, cross-claim,

3rd party complaint,

complaint in intervention)

Within 15 days(if amendment was a

matter of right)

Service of a copy of the amended

complaint

Within 10 days(if amendment was

not a matter of right)

Notice of the order admitting the same (Rule

11, Sec. 3)

Answer to Counterclaim

or Cross-Claim

Within 10 daysFrom service

(Rule 11, Sec. 4)

Answer to third (4th,

etc)- party complaint

Within 15 daysSame rule as

answer to the complaint (Rule

11, Sec. 5)

Reply Within 10 days

From service of the pleading responded to

(Rule 11, Sec. 6)Answer to

supplemental complaint

Within 10 days From notice of the order

admitting the same, unless a

different period is fixed by the

court

NOTE: Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules. The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules. [Rule 11, Sec. 11]

MANNER OF FILING

As per Rule 13, Sec. 3:1. Personally

a. By By personally presenting the original to the clerk of court.

b. The pleading is deemed filed upon the receipt of the same by the clerk of court who shall endorse on it the date and hour of filing.

c. If a party avails of a private carrier, the date of the court’s actual receipt of the pleading (not the date of delivery to the private carrier) is deemed to be the date of the filing of that pleading. [Benguet Electric Cooperative v. NLRC (1992)]

2. By Registered Maila. Filing by mail should be through the registry

service (i.e. by depositing the pleading in the post office).

b. The pleading is deemed filed on the date it was deposited with the post office.

Filing a pleading by facsimile is not sanctioned. But fax was allowed in an extradition case (Justice Cuevas v. Juan Antonio Munoz)

MODES OF SERVICE

Personal Service (Rule 13, Sec. 6)1. Delivering personally a copy to the party, who is

not represented by a counsel, or to his counsel; or2. Leaving a copy in counsel’s office with his clerk

or with a person having charge thereof; or 3. Leaving the copy between 8am and 6pm at the

party’s or counsel’s residence, if known, with a person of sufficient age and discretion then residing thereon – if not person is found in his office, or if his office is unknown, or if he has no office

Service by Mail (Rule 13, Sec. 7)1. Ordinary Mail - it does not constitute filing until

the papers are actually delivered into the custody of clerk or judgea. Service may be done by ordinary mail if no

registry service is available in the locality of either sender or addressee

2. Registered Mail - The date of mailing is the date of filinga. Date of filing is determinable from 2 sources:

(1) From the post office stamp on the envelope

(2) From the registry receipt

b. It is done by depositing in the post office:(1) In a sealed envelope(2) Plainly addressed to the party or his

counsel(a) At his office if known(b) Otherwise, at his residence if known

(3) Postage fully pre-paid (4) With instructions to the postmaster to

return the mail to the sender after 10 days if undelivered

Substituted Service (Rule 13, Sec. 8) 1. Done by delivery of the copy to the clerk of court

with proof of failure of both personal and service by mail

2. Proper only when:a. Service cannot be made personally or by mail b. Office and place of residence of the party of

his counsel being unknown 3. Service is complete at the time of such delivery

SERVICE OF JUDGMENTS, FINAL ORDERS, OR RESOLUTIONS (Rule 13, Sec. 9)

Service is done either:1. Personally 2. By registered mail 3. By publication ONLY IF:

a. Party is summoned by publication ANDb. He failed to appear in the action

NOTE: There is NO substituted service of judgments and final orders

PRIORITIES IN MODES OF SERVICE AND FILING

General rule: Personal filing and service is preferred. (Rule 13, Sec. 11)

Resort to other modes of filing and service must be accompanied by an explanation why the service/filing was not done personally. If there is no written explanation, the paper is considered not filed.

Exception: Papers emanating from the court.

WHEN SERVICE IS DEEMED COMPLETE

Completeness of service (Rule 13 Sec. 10)

Proof of service(Rule 13 Sec. 13)

Personal service

Upon actual delivery

Written admission of the party served, OR

Official return of the server OR

Affidavit of the party serving, with a full

statement of the

date/place/manner of service.

Service by ordinary mail

10 days after mailing, unless otherwise

provided by the court

Affidavit of the person mailing of facts showing compliance with Sec. 7 of

Rule 13.Service by registered mail

Whichever is earlier:

Actual receipt by the addressee

OR5 days after the addressee received 1st postmaster's notice (Constructive)

Affidavit of the person mailing of facts showing compliance with Sec. 7 of

Rule 13

AND

Registry receipt issued by the post office

Substituted Service

At the time of delivery of the copy to the clerk of court together with proof of failure of both personal service

and service by mail

Purpose of the rule on completeness of service for service by registered mail:

To make sure that the party being served with the pleading, order or judgment is duly informed of the same so that such party can take steps to protect the interests, i.e., enable to file an appeal or apply for other appropriate reliefs before the decision becomes final. [MINTERBRO v,CA (2012)]

Service to the lawyer binds the party. But service to the party does not bind the lawyer, unless ordered by the court in the following circumstances:

1. When it is doubtful who the attorney for such party is; or

2. When the lawyer cannot be located; or3. When the party is directed to do something

personally, as when he is ordered to show cause. [Retoni, Jr. v. CA]

Notice to the lawyer who appears to have been unconscionably irresponsible cannot be considered as notice to his client, as it would then be easy for the lawyer to prejudice the interests of his client by just alleging that he just forgot every process of the court affecting his clients, because he was so busy. [Bayog v. Natino]

PROOF OF FILING

1. Filing is proved by its existence in the record of the case (Rule 13, Sec. 12)

2. If it is not in the record:

When pleading is deemed filed

Proof of filing

PersonallyUpon receipt of the

pleading by the clerk of court

Written/stamped acknowledgment by the

clerk of court

By registered mail

On the date the pleading was deposited with the

post office

Registry receipt, and affidavit of the person who did the mailing with:

(a) Full statement of the date/place of depositing the mail in the post office in a sealed envelope addressed to the court

(b) Postage fully paid

(c) Instructions to the postmaster to return the mail to the sender after 10 days if undelivered

PROOF OF SERVICE (Rule 13, Sec. 13)

MODE PROOF OF SERVICE

Personal Service

A written admission of the party served, OR

The official return of the server; OR

Affidavit of the party serving containing a full

statement of the date, place, and manner of

service

Service by ordinary mail

Affidavit of the person mailing stating the facts

showing compliance with Rule 13, Sec. 7

Service by registered mail

Affidavit of person mailing containing facts showing compliance with Rule 13,

Sec. 7, ANDRegistry receipt issued by

mailing office; ORThe registry return card

which shall be filed immediately upon its

receipt by the sender, or in lieu thereof of the

unclaimed letter together with the certified or sworn copy of the notice given by

the postmaster to the addressee.

AMENDMENT AND SUPPLEMENTAL PLEADINGS

HOW TO AMEND PLEADINGS (Rule 10, Sec. 1)1. Adding an allegation of a party;2. Adding the name of a party;3. Striking out an allegation of a party;4. Striking out the name of a party;

5. Correcting a mistake in the name of a party; and6. Correcting a mistaken or inadequate allegation or

description in any other respect

A new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. (Rule 10, Sec. 7)

Purpose: That the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner.

As a general policy, liberality in allowing amendments is greatest in the early stages of a law suit, decreases as it progresses and changes at times to a strictness amounting to a prohibition. This is further restricted by the condition that the amendment should not prejudice the adverse party or place him at a disadvantage. (Barfel Development v. CA, 1993)

Types of Amendments:1. Amendment as a matter of right 2. Amendment as a matter of judicial discretion

AMENDMENTS AS A MATTER OF RIGHT (Rule 10, Sec. 2)

When amendment is allowed as a matter of right: 1. Once as a matter of course

a. A 2nd or subsequent amendment must now be with leave of court, not a matter of right anymore

2. Instances:a. Substantial amendment – before responsive

pleading is filed(1) Amendment of complaint before an

answer is filed.(2) Amendment of answer before a reply is

filed or before the period for filing a reply expires

(3) Amendment of reply any time within 10 days after it is served

b. Formal amendment

AMENDMENTS BY LEAVE OF COURT (Rule 10, Sec. 3)

When leave of court is necessary before amendment is allowed:

1. All substantial amendments (unless it falls under Rule 10, Sec. 2 as a matter of right)

2. When a responsive pleading has already been served

Requisites:1. A motion for leave of court to amend pleading is

filed a. Amended pleading should be attached to the

motion (see Sec. 9, Rule 15)2. Notice is given to the adverse party 3. Parties are given opportunity to be heard

Grounds for allowance of the amendment

1. If it appears to the court that the motion was made to delay the action, leave of court is not given

2. There must be some reasonable grounds justifying its exercise of discretion to allow amendment

When amendment by leave of court may not be allowed1. If the cause of action, defense or theory of the

case is changed.2. If amendment is intended to confer jurisdiction

to the court.a. If the court has no jurisdiction in the subject

matter of the case, the amendment of the complaint cannot be allowed so as to confer jurisdiction on the court over the property. [PNB v. Florendo (1992)]

3. If amendment is for curing a premature or non-existing cause of action.

4. If amendment is for purposes of delay.

FORMAL AMENDMENTS (Rule 10, Sec. 4)

When an amendment is formal:1. When there is a mere defect in the designation of

the parties; 2. Other clearly clerical or typographical errors

How formal amendments are effected1. It may be summarily corrected by the court at

any stage of the action 2. A party may, by motion, call for the formal

amendment

NOTE: The formal amendment must NOT cause prejudice to the adverse party

AMENDMENTS TO CONFORM TO OR AUTHORIZE PRESENTATION OF EVIDENCE (Rule 10, Sec. 5)

Applicability of Sec. 5 - This is an instance wherein the court acquires jurisdiction over the issues even if the same are not alleged in the original pleadings of the parties where the trial of said issues is with the express or implied consent of the parties

What Sec. 5 contemplates:1. It allows a complaint which states no cause of

action to be cured either by:a. Evidence presented without objection orb. In the event of an objection sustained by the

court, by an amendment of the complaint with leave of court

2. It also allows the admission of evidence:a. On a defense not raised in a motion or

answer if no objection is made thereto;b. In the event of such objection, court may

allow amendment of the answer in order to raise said defense

NOTE: Remember, however, that where the plaintiff has no valid cause of action at the time of the filing of the

complaint, this defect cannot be cured or remedied by the acquisition or accrual of one while the action is pending

Two Scenarios:1. When evidence is NOT objected to

When issues not raised by pleadings are tried by express or implied consent of the parties, they shall be treated in all respected as if they had been raised in the pleadings

Such amendments of pleadings as may be necessary to cause them to conform to the evidence and raise these issues may be made upon motion of any party at any time, even after judgment

But failure to amend does not affect the result of the trial of those issues

2. When evidence IS objected to: Objection on the ground that it is not within

the issues made by the pleadings Court may allow the pleadings to be

amended and shall do so freely when the presentation of the merits of the action will be subserved

As safeguard, the court may grant a continuance to enable the objecting party to meet such evidence

SUPPLEMENTAL PLEADINGS

Definition: One which sets forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. [Rule 10, Sec. 6]

Purpose: To bring into the records new facts which will enlarge or change the kind of relief to which the plaintiff is entitled [Ada v. Baylon (2012), citing Young v. Spouses Yu]

A supplemental complaint/pleading supplies deficiencies in aid of an original pleading, not to entirely substitute the latter.

How Made: It is made upon motion of a party with reasonable notice and upon terms as are just.

Difference with Amended Pleading

Amendments Supplemental pleadings

Reason for the amendment is available at

time of the 1st pleading

Grounds for the supplemental pleading

arose after the 1st pleading was filed

Either as a matter of right or a matter of discretion

Always a matter of discretion

Supersedes the original

Merely supplements the original (i.e. Exists side by

side with the original pleading)

When an amended pleading is filed, a new

copy of the entire pleading must be filed

A supplemental pleading does not require the filing of a new copy of the entire

pleading

Limitations:1. Claims or defenses which have matured after the

filing of the original pleadings cannot be averred in a supplemental pleading (it may be the subject of an amendment)

2. Supplemental pleadings are not allowed on separate and distinct causes of action a. A supplemental pleading may raise a new

cause of action as long as it has some relation to the original cause of action set forth in the original complaint. [Ada v. Baylon (2012)]

3. The admission or non-admission of a supplemental pleading is not a matter of right but is discretionary on the court

EFFECT OF AMENDED PLEADING (Rule 10, Sec. 8)1. An amended pleading supersedes the pleading

that it amends2. Admissions in the superseded pleading can still

be received in evidence against the pleader 3. Claims or defenses alleged therein but not

incorporated or reiterated in the amended pleading are deemed waived

SUMMONS

Definition: A coercive force issued by the court to acquire jurisdiction over the person of the defendant

NATURE AND PURPOSE OF SUMMONS IN RELATION TO ACTIONS IN PERSONAM, IN REM, AND QUASI IN REM

Purposes of Summons1. For Actions in Personam

a. To acquire jurisdiction over the person of the defendant in a civil case;

b. To give notice to the defendant that an action has been commenced against him.

2. For Actions in Rem and Quasi In Rema. Not to acquire jurisdiction over the

defendant but mainly to satisfy the constitutional requirement of due process

b. Jurisdiction over the defendant is not required and the court acquires jurisdiction over an action as long as it acquires jurisdiction over the res

Issuance of Summons - Upon the filing of the complaint and the payment of legal fees, the clerk of court shall issue the corresponding summons to the defendants. [Rule 14, Sec. 1]

Contents of Summons (Rule 14, Sec. 2) – 1. Summons shall be:

a. Directed to the defendantb. Signed by clerk of court under seal

2. Summons shall contain:a. Name of the court and the names of the

parties to the action b. A direction that the defendant answer within

the time fixed by the Rulesc. A notice that unless the defendant so

answers, plaintiff will take judgment by default and may be granted the relief applied for

3. The following shall be attached to the original and each copy of the summons:a. A copy of the complaint b. Order for appointment of guardian ad litem

(if any)

Effect of Invalid Summons1. The trial court does not acquire jurisdiction and

renders null and void all subsequent proceedings and issuances (Syjuco v. Castro)

2. Any judgment without service of summons in the absence of a valid waiver is null and void (Filmerco Commercial Co. v. IAC)

VOLUNTARY APPEARANCE

Any form of appearance in court, by the defendant, by his agent authorized to do so, or by attorney, is equivalent to service except where such appearance is precisely to

object the jurisdiction of the court over the person of the defendant (Carballo v. Encarnacion)

General Rule: Defendant's voluntary appearance in the action shall be equivalent to service of summons;

Exception: Special appearance to file a MTD.

BUT inclusion in the MTD of grounds other than LOJ over the defendant’s person, is not deemed a voluntary appearance.

Any mode of appearance in court by a defendant or his lawyer is equivalent to service of summons, absent any indication that the appearance of counsel for petitioner is precisely to protest the jurisdiction of the court over the person of the defendant. [Delos Santos v. Montesa (1993)]

WHO MAY SERVE SUMMONS

Who May Serve Summons (Rule 14, Sec. 3)1. The sheriff2. His deputy 3. Other proper court officer4. Any suitable person authorized by the court (for

justifiable reasons)

NOTE: The enumeration in Sec. 3 of the persons who may validly serve summons is EXCLUSIVE (Herrera)

RETURN OF SUMMONS

Return When Service has been Completed (Rule 14, Sec. 4)1. The server shall serve a copy of the return to the

plaintiff’s counsela. Within 5 days therefrom b. Personally or by registered mail

2. The server shall return the summonsa. To the clerk who issue it b. Accompanied by proof of service

It is required to be given to the plaintiff’s counsel in order to enable him:

1. To move for a default order should the defendant fail to answer on time, or

2. In case of non-service, so that alias summons may be sought

In either of the 2 cases, server must serve a copy of the return on plaintiff’s counsel within 5 days from completion or failure of service

ALIAS SUMMONS (Rule 14, Sec. 5)

Upon plaintiff’s demand, the clerk may issue an alias summons if either:

1. Summons is returned without being served on any/all of the defendants.

2. Summons was lost.

The server shall also serve a copy of the return on the plaintiff's counsel within 5 days therefrom, stating the reasons for the failure of service

MODES OF SERVICE OF SUMMONS

Modes:1. Personal Service (Rule 14, Sec. 6)2. Substituted Service (Rule 14, Sec. 7)3. Service by Publication (Rule 14, Sec. 14, 15, 16)

NOTE: Summons cannot be served by mail- Where service is made by publication, a copy of

the summons and order of the court shall be sent by registered mail to last known address of defendant (Sec. 15) Resort to registered mail is only

complementary to the service of summons by publication

But it does not mean that service by registered mail alone would suffice

PERSONAL SERVICE OF SUMMONS (Rule 14, Sec. 6)

How Done:1. By handing a copy of summons to him; or 2. If he refuses to receive it, by tendering it to him

Personal Service of Pleadings

Personal Service of Summons on Defendant

Rule 13, Sec. 6 Rule 14, Sec. 6Personal service includes:

1. Service on the party or his counsel; or

2. By leaving a copy with the clerk or person having charge of his office; or

3. Leaving it with a person of sufficient age and discretion at the party’s or counsel’s residence

Service is only made on defendant himself

SUBSTITUTED SERVICE OF SUMMONS (Rule 14, Sec. 7)

It is only when the defendant cannot be served personally within a reasonable time and for justifiable reasons that a substituted service may be made.

How Done:1. By leaving copies of the summons at the

defendant’s residence with some person of suitable age and discretion residing therein; or

2. By leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof

Necessary Requisite: For substituted service of summons to be valid, it is necessary to establish the following:

1. The impossibility of the personal service of summons within a reasonable time

2. The efforts exerted to locate the person to be served; and

3. Service upon:a. A person of sufficient age and discretion

residing in the same place as defendant or b. Some competent person in charge of his

office or regular place of business (Spouses Ventura v. CA, 1987)

Meaning of RESIDENCE1. For a substituted service to be valid, summons

served at the defendant’s residence must be served at his residence AT THE TIME OF SERVICE; not his former place of residence

2. “dwelling house” or “residence” refers to the dwelling house at the time of service

3. They refer to the place where the person named in the summons is living at the time of when the service is made, even though he may be temporarily out of the country at that time (Venturanza v. CA)

Meaning of Defendant’s Office or Regular Place of Business1. “Office” or “regular place of business” refers to

the office or place of business of defendant at the time of service

2. The rule specifically designates the persons to whom copies of the process should be left

3. “To be in charge” means to have care an custody of, under control of, or entrusted to the management or direction of (Sandoval II v. House of Representatives)

Proof of Substituted Service MUST:1. Indicate the impossibility of service of summons

within a reasonable time; 2. Specify the efforts exerted to locate the

defendant; and 3. State that the summons was served upon a

person of sufficient age and discretion who is residing in the address, or who is in charge of the office or regular place of business, of the defendant.

4. It is likewise required that the pertinent facts proving these circumstances be stated in the proof of service or in the officer’s return. [Sps. Tiu v. Villar (2012)]

CONSTRUCTIVE SERVICE (BY PUBLICATION)

Three Situations were Summons by Publication may be allowed under Rule 14 (Baltazar v. CA)

1. First is the situation of an Unknown Defendant – governed by Sec. 14

2. Second is the situation were Extraterritorial service is proper – governed by Sec. 15

3. Third, is that of a resident who is temporarily out of the Philippines – governed by Sec. 16

The Rule on Unknown Defendants (Rule 14, Sec. 14)

If a defendant is a resident and plaintiff cannot determine the correct address of respondent, petitioner only needs to show that:

1. Respondent’s address is unknown and2. Cannot be ascertained by diligent inquiry

Upon compliance with this requirement, it can validly serve summons by publication in a newspaper of general circulation. (United Coconut Planters Bank v. Ongpin)

NOTE: Under this Section, summons by publication can be made in ANY action (personam, in rem, quasi in rem) unlike in cases of Non-Resident Defendants.

The Rule on Non-Resident Defendants (Extra-territorial Service); Rule 14, Sec. 15

Extra-territorial service is allowed IF:1. The defendant

a. Does not reside in the Philippines b. And is not found in the Philippines

2. And the action (in rem and quasi in rem)a. Affects the personal status of the plaintiff, orb. Relates to or the subject of which is property

within the Philippines (1) In which defendant has or claims a lien

or interest, actual or contingent; or (2) In which the relief demanded consists,

wholly or in part, in excluding the defendant from any interest therein, or

(3) Property of defendant has been attached within the Philippines

NOTE: Always remember that extra-territorial service, when allowed, covers only action in rem and quasi in rem.

How Extra-territorial service is done:1. Always by leave of court 2. Modes:

a. Personal service as under Sec. 6, Rule 14b. Publication in a newspaper of general

circulation in such places and for such time as court may order(1) A copy of the summons and order of the

court shall be sent by registered mail to the last known address of defendant

c. In any other manner the court may deem sufficient

NOTE: Any order granting such leave shall specify a reasonable time within which defendant must answer BUT the time shall not be less than 60 days after notice

The Rule on Residents Temporarily Outside of the Philippines (Rule 14, Sec. 16)

How done:1. Always by leave of court 2. Modes:

a. Where the defendant is residing in the Philippines, jurisdiction over his person may be acquired by substituted service of summons under Sec. 7

b. Extra-territorial service is also allowed (also by leave of court) according to Sec. 16

NOTE: In other words, a resident defendant in an action personam, who cannot be personally served with summons, may be summoned either by:

1. Substituted service in accordance with Sec. 7, Rule 14

2. Or by service by publication under Sec. 16, Rule 14

When the action is in rem or quasi in rem, extra-territorial service may be effected provided that Sec. 16 requirements are met.

SERVICE UPON PRISONERS AND MINORS

Service of Summons on Different Entities:

DEFENDANT SERVICE OF SUMMONSEntity without juridical personality (Sec. 8)

Upon any or all the defendants being sued under common name; or person in charge of the office

Minors and incompetents (Sec. 10)

In case of minors: by serving upon:1. The minor, regardless of age,

AND2. Upon his legal guardian, or

also upon either of his parents

In case of incompetents: by serving on:

1. Him personally AND2. Upon his legal guardian, but

not upon his parents, unless they are his legal guardians

In any event: if the minor or incompetent has no legal guardian, the plaintiff must obtain the appointment of a guardian ad litem for him

Domestic private juridical entity (Sec. 11)

Serve to either: (Exclusive enumeration)

1. The president,2. Managing partner,3. General manager,4. Corporate secretary,5. Treasurer, or6. In- house counsel

Foreign private juridical entity (Sec. 12)

Service may be done on:1. The resident agent;2. If no resident agent;

a. The government official designated by law; or

b. Any officer or agent of the corporation within the Philippines

Public corporations

In case defendant is the Republic, by serving upon the Solicitor General

(Sec. 13)

In case of a province, city or municipality, or like public corporations, by serving on its executive head or on such other officer or officers as the law or the court may direct

PROOF OF SERVICE

The proof of service of summons (Rule 14, Sec. 18):1. Shall be made in writing 2. It shall:

a. Set forth the manner, place, date of serviceb. Specify any papers which may have been

served with the process and the name of the person who received the same

c. Shall be sworn to when made by a person, other than the sheriff or his deputy

If service has been made by publication, service may be proved by: (Rule 14, Sec. 19)

1. The affidavit of the printer, his foreman, or principal clerk; or of the editor, business or advertising manager Copy of the publication shall be attached

2. AND an affidavit showing:a. The deposit of a copy of the summons; andb. Order of publication in the post office,

postage prepaid, directed to defendant by registered mail to his last known address

Effect of Defect of Proof of Service:1. Where sheriff’s return is defective, presumption

of regularity in the performance of official functions will not lie

2. Defective return is insufficient and incompetent to prove that summons was indeed served

3. Party alleging valid summons will now prove that summons was indeed served

4. If there is no valid summons, court did not acquire jurisdiction which renders null and void all subsequent proceedings and issuances

MOTIONS

MOTIONS IN GENERAL

DEFINITION OF A MOTION

A motion is an application for relief other than by a pleading. (1a)

MOTIONS VERSUS PLEADINGS

Motion Pleading

Contains allegations of facts

Contains allegations of the ultimate facts

Prays for a relief Prays for a reliefGrant of the relief does

not extinguish the action (interlocutory relief)

Grant of relief extinguishes the action

(final relief)Generally in writing (with

some exceptions)Always in writing

General Rule: A motion cannot pray for judgment

Exceptions:1. Motion for judgment on the pleadings.2. Motion for summary judgment. 3. Motion for judgment on demurrer to evidence.

CONTENTS AND FORM OF MOTIONS

Contents (Rule 15, Sec. 3)1. Relief sought to be obtained2. Grounds upon which it is based3. Accompanied by supporting affidavits and other

papers if:a. Required by the Rules, or b. Necessary to prove facts alleged therein

Form (Rule 15, Sec. 2)

General Rule: In writing.

Exception: Oral motions:1. Motions for continuance made in the presence of

the adverse party or those made in the course of the hearing or trial

2. Those made in open court even in the absence of the adverse party or those made in the course of a hearing or trial

NOTICE OF HEARING AND HEARING OF MOTIONS

Requisites of motions (not made in open court or in the course of hearing/trial)

1. It must be in writing; [Rule 15, Sec. 2]

Exception: Oral motions

2. Hearing on the motion set by the applicant

Motion Day (Rule 15, Sec. 7) - Except for urgent motions, motions are scheduled for hearing:a. On Friday afternoons;b. Afternoon of the next working day, if Friday

is a non-working day.

3. Notice of hearing shall be addressed to all parties, and shall specify the time and date of the hearing which shall not be later than 10 days from the filing of the motion. [Rule 15, Sec. 5]

Notice must be addressed to the counsels. A notice of hearing addressed to the clerk of court, and not to the parties, is no notice at all. Accordingly, a motion that does not contain a notice of hearing to the adverse party is nothing but a mere scrap of paper, as if it were not filed; hence, it did not suspend the running of the period to appeal. [Provident International Resources v. CA (1996)]

- Effect of Want of Notice: A motion that does not contain a notice of hearing is but a mere scrap of paper. A court has no jurisdiction to issue an order in consideration of a motion for correction of judgment which does not have a proper notice of hearing (Fajardo v. CA)

4. Motion and notice of hearing must be served at least 3 days before the date of hearing; [Rule 15, Sec. 4]

Purpose: To prevent surprise upon the adverse party and to enable the latter to study and meet the arguments of the motion.

Exceptions:a. Ex parte motions;b. Urgent motions;c. Motions agreed upon by the parties to be

heard on shorter notice, or jointly submitted by the parties;

d. Motions for summary judgment which must be served at least 10 days before its hearing.

5. Proof of Service

Proof of Service (Rule 15, Sec. 6)

General Rule: A written motion set for hearing will not be acted upon by the court if there is no proof of service thereof.

What may be proof:1. If by registered mail: Affidavit or registry receipt

or postmark on envelope or return card, with an explanation.

2. If by personal service: Affidavit or acknowledgment of receipt by the other party.

Exceptions:

1. If the motion is one which the court can hear ex parte.

2. If the court is satisfied that the rights of the adverse parties are not affected by the motion.

3. If the party is in default because such a party is not entitled to notice.

OMNIBUS MOTION RULE

Definition: A motion attacking a pleading/ order/ judgment/ proceeding must include all objections then available. All objections not included in the motion are deemed waived.

Purpose: To require the movant to raise all available exceptions for relief during a single opportunity so that multiple and piece-meal objections may be avoided

Exception: When the court’s jurisdiction is in issue: 1. Lack of jurisdiction over subject-matter;2. Litis pendentia;3. Res judicata;4. Prescription.

LITIGATED AND EX PARTE MOTIONS

Kinds of Motion1. Motion Ex Parte - Made without notification to

the other party because the question generally presented is not debatable.

2. Litigated Motion - Made with notice to the adverse party so that an opposition thereto may be made.

3. Motion Of Course - Motion for a kind of relief/remedy to which the movant is entitled to as a matter of right, Allegations contained in such motion do not have to be investigated/verified.

4. Special Motion - Discretion of the court is involved. An investigation of the facts alleged is required.

PRO FORMA MOTIONS

Definition - A motion failing to indicate time and date of the hearing

MOTIONS FOR BILL OF PARTICULARS

DEFINTION

It is a detailed explanation respecting any matter which is not averred with sufficient definiteness/particularity in the complaint as to enable a party to properly prepare his responsive pleading or to prepare for trial. [Rule 12, Sec. 1]

PURPOSE AND WHEN APPLIED FOR

It is filed by the plaintiff pursuant to a court order issued upon granting a motion for Bill of Particulars filed by the defendant before the latter files an answer.

- In said motion, the defendant prays for a more definite statement of matters which are not averred with sufficient definiteness in the complaint.

- An action cannot be dismissed on the ground that the complaint is vague/indefinite. The remedy of the defendant is to move for a Bill of Particulars or avail of the proper mode of discovery. [Galeon v. Galeon (1973)]

Purpose: to define/ clarify/ particularize/ limit/ circumscribe the issues in the case to expedite the trial and assist the court.

- The only question to be resolved in a motion for a Bill of Particulars is WON the allegations in the complaint are averred with sufficient definiteness/ particularity to enable the movant to properly prepare his responsive pleading and to prepare for trial. [Tantuico, Jr. v. Republic (1991)]

- A Bill of Particulars becomes part of the pleading for which it was intended. [Rule 12, Sec. 6]

When Applied For: [Rule 12, Sec. 1]1. Before responding to a pleading2. If the pleading is a reply, within 10 days from

service thereof

What a Motion for a Bill of Particulars should point out: (Rule 12, Sec. 1)

1. The defects complained of;2. The paragraph wherein they are contained; 3. The details desired.

What cannot be done in a Bill of Particulars:- To supply material allegations necessary to the

validity of a pleading - To change a cause of action or defense stated in

the pleading - To state a cause of action or defense other than

that one stated - To set forth the pleader’s theory of his cause of

action or a rule of evidence on which he intends to reply

- To furnish evidentiary information

ACTIONS OF THE COURT

Upon the filing of the motion, the clerk must immediately bring it to the attention of the court.

The court may: (Rule 12, Sec. 2)1. Deny2. Grant the motion outright 3. Allow the parties the opportunity to be heard

COMPLIANCE WITH THE ORDER AND EFFECT OF NONCOMPLIANCE

Compliance with Order (Rule 12, Sec. 3) – If motion is granted wholly/partially:

1. Within 10 days from notice of order, Bill of Particulars or a more definite statement should be submitted (unless court fixes a different period).

2. Bill of Particulars or definite statement filed either as a separate pleading or as an amended pleading, a copy of which must be served on the adverse party.

Effect of Non-Compliance (Rule 12, Sec. 4) – 1. In case of non-compliance or insufficient

compliance with the order for Bill of Particulars, the court:a. May order the striking out of the pleading (or

portion thereof) to which the order is directed; OR

b. Make such order as it may deem just.

2. If a party fails to obey:a. If the plaintiff fails to obey, his complaint

may be dismissed with prejudice unless otherwise ordered by the court. [Rule 12, Sec. 4; Rule 17, Sec. 3]

b. If defendant fails to obey, his answer will be stricken off and his counterclaim dismissed, and he will be declared in default upon motion of the plaintiff. [Rule 9, Sec. 3; Rule 12, Sec. 4; Rule 17, Sec. 4]

EFFECT ON THE PERIOD TO FILE PLEADING (Rule 12, Sec. 5)

A Motion for Bill of Particulars interrupts the period to file a responsive pleading.

BUT only if it is sufficient in the form and substance.

The period to which the movant is entitled at the time of filing of the motion, which shall not be less than 5 days in any event.

NOTE the following distinctions:

Bill of ParticularsIntervention

Purpose is to enable a party bound to respond to

a pleading to get more details about matters

Purpose is to enable a person not yet a party to

an action, yet having a certain right or interest in

which are alleged generally or which are indefinite and vague,

so as to properly guide such party in answering

the pleading and to avoid surprise in the trial of the

case

such action, the opportunity to appear and

be joined

so he could assert or protect such right or

interest

Available to the defendant before he files his

responsive pleading

Available to any person not yet a party to the

action at any time after the commencement of an

action, even during the proceeding, but not after

the trial has been concluded

Effect of Motion:1. If the motion is granted, in whole or in part,

a. The movant can wait until the bill of particulars is served on him by opposing party

b. Then he will have the balance of the reglementary period within which to file his responsive pleading

2. If the motion is denieda. He will still have such balance of the

reglementary period to file his responsive pleading, counted from service of the order denying his motion

IN ANY CASE: The party will have at least 5 days to file his responsive pleading

MOTION TO DISMISS

IN GENERAL

Definition – A remedy of the defendant, or the responding party in general, which attacks the entire pleading and seeks its dismissal based on:

1. Grounds which are patent on the face of the complaint;

2. Defenses available to the defendant at the time of the filing of the complaint

It hypothetically admits the facts stated in the complaint.

It is not a responsive pleading. It is not a pleading at all. It is subject to the omnibus motion rule since it is a motion that attacks a pleading. Hence, it must raise all objections available at the time of the filing thereof.

Types of Dismissal of Action:1. MTD before answer under Rule 16;2. MTD under Rule 17:

a. Upon notice by plaintiff;b. Upon motion by plaintiff; c. Due to fault of plaintiff.

3. Demurrer to evidence after plaintiff has completed the presentation of his evidence under Rule 33;

4. Dismissal of an appeal.

Period to File: Within the time for, but before filing of, the answer to the complaint or pleading asserting a claim

Exceptions:a. For special reasons which may be allowed

even after trial has begun, a motion to dismiss may be filed

b. The court has allowed the filing of a motion to dismiss where the evidence that would constitute a ground for dismissal was discovered during trial

General Rule: A court may NOT motu propio dismiss a case, unless a motion to that effect is filed by a party.

Exceptions: 1. Cases where the court may dismiss a case motu

propio; [Rule 9, Sec. 1]2. Failure to prosecute; [Rule 17, Sec. 3]3. Sec. 4, Revised Rule on Summary Procedure.

GROUNDS: Rule 16, Sec. 11. Lack of jurisdiction over the defendant’s person2. Lack of jurisdiction over the subject matter of the

claim3. Improper venue4. Plaintiff’s lack of legal capacity to sue5. Litis pendentia6. Res judicata7. Prescription8. Failure to state a cause of action9. Extinguished claim10. Unenforceable claim under the Statute of Frauds

11. Non-compliance with a condition precedent for filing claim

NOTE: Complaints cannot be dismissed on ground not alleged in a motion to dismiss. The motion may be based on only one of the grounds enumerated in Sec. 1, Rule 16

Lack of Jurisdiction (LOJ) over the Defendant’s Person

The objection of LOJ over the person on account of lack of service or defective service of summons, must be raised:

1. At the very first opportunity; 2. Before any voluntary appearance is made.

In La Naval Drug Corp. v. CA, et al. the Court held that while lack of jurisdiction over the person of defendant may be duly and seasonably raised, his voluntary appearance in court without qualification is a waiver of such defense.

Appearance of counsel is equivalent to summons, unless such is made to protest the jurisdiction of the court over the person of the defendant. If grounds other than invalid service of summons are raised, it cannot be considered as a special appearance. [De los Santos v. Montesa (1993)]

NOTE: Sec. 20, Rule 14 makes a categorical statement that 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 voluntary appearance on his part.

Lack of Jurisdiction over the Subject Matter of the Claim

If the complaint shows on its face LOJ, the court may dismiss the case outright instead of hearing the motion.

A MTD on the ground of LOJ over the subject matter may be raised either:

1. Before answer;2. After answer is filed; 3. After hearing had commenced; 4. At any stage of the proceeding, even for the first

time on appeal and even if no such defense is raised in the answer.

NOTE: The rule refers to the subject matter of each particular claim and not only to that of the suit. Hence. other initiatory pleadings included.

Where a party invokes the jurisdiction of a court to obtain affirmative relief and fails, he cannot thereafter repudiate such jurisdiction. While the issue of jurisdiction may be raised at any time, he is estopped as it is tantamount to speculating on the fortunes of litigation (Crisostomo, et al. v. CA)

Improper Venue

Unless and until the defendant objects to the venue in a MTD prior to a responsive pleading, the venue cannot

truly be said to have been improperly laid since, for all practical intents and purposes, the venue though technically wrong may yet be considered acceptable to the parties for whose convenience the rules on venue had been devised. Improper venue may be waived and such waiver may occur by laches. [Diaz v. Adiong (1993)]

Where a motion to dismiss for improper venue is erroneously denied, the remedy is prohibition (Enriquez v. Macadaeg)

Where the plaintiffs filed the action in a court of improper venue and thereafter submitted to its jurisdiction, the issue of venue was thereby waived and they are in estoppel to repudiate or question the proceedings in said court (Vda. De Suan, et al. v. Cusi, et al.)

Objection to venue is also impliedly waived where the party enters into trial, cross-examines the witnesses of the adverse party and adduces evidence (Paper Industries Corp of the Philippines v. Samson et al.)

Plaintiff’s Lack of Legal Capacity to Sue:

The plaintiff lacks legal capacity to sue:1. When he does not possess the necessary

qualification to appear at the trial (e.g. when he plaintiff is not in the full exercise of his civil rights);

2. When he does not have the character which he claims, which is a matter of evidence (e.g. when he is not really a duly appointed administrator of an estate).

Lack of legal capacity to sue refers to plaintiff’s disability; while lack of legal personality to sue refers to the fact that the plaintiff is not a real party in interest, in which case the ground for dismissal would be that the complaint states no cause of action.

The issue of plaintiff’s lack of legal capacity to sue cannot be raised for the first time on appeal where the defendant dealt with the former as a party in the proceedings below (Univ. of Pangasinan Faculty Union v. Univ. of Pangasinan)

Litis pendentia

Requisites: (Anderson Group v. CA, 1997)1. Identity of parties;2. identity of rights asserted and relief prayed for;3. Relief founded on the same facts and the same

basis;4. Identity in the 2 proceedings should be such that

any judgment which may be rendered in the other action will amount to res judicata on the action under consideration.

It is not required to allege that there be a prior pending case. It is sufficient to allege and prove the pendency of another case, even if same had been brought later.

It does not require that the later case be dismissed in favor of the earlier case. To determine which case should be abated, apply:

1. The More Appropriate Action Test;2. The Interest of Justice Test, taking into account:

a. Nature of the controversy;b. Comparative accessibility of the court to the

parties; c. Other similar factors.

In both tests, the parties’ good faith shall be taken into consideration.

The 1st case shall be abated if it is merely an anticipatory action or defense against an expected suit. The 2nd case will not be abated if it is not brought to harass. [Vitrionics Computers v. RTC (1993)]

Res Judicata

Requisites:1. Former judgment rendered by a court having

jurisdiction over the subject matter and over the parties;

2. Judgment must be a final judgment;3. Judgment must be on the merits;

a. There can be res judicata without a trial, such as in a judgment on the pleadings (Rule 34); a summary judgment (Rule 35); or an order of dismissal under Rule 17, Sec. 3.

4. There must be identity of parties, of subject matter and of the causes of action.

For res judicata to apply, absolute identity of parties is not required because substantial identity is sufficient. Inclusion of additional parties will not affect the application of the principle of res judicata.

The test of identity of cause of action lies not in the form of the action but on WON the same evidence would support and establish the former and the present causes of action. [DBP v. Pundogar (1993)]

Rationale: The sum and substance of the whole doctrine is that a matter once judicially decided is finally decided because of:

1. Public policy and necessity makes it the interest of the State that there should be an end to litigation;

2. The hardship on the individual that he should be vexed twice for the same cause. [Nabus v. CA (1991)]

Two concepts of res judicata [Abalos v. CA 1993)1. Bar by prior judgment – Judgment on the merits

in the 1st case constitutes an absolute bar to the subsequent action not only as to every matter which was offered and received to sustain or defeat the claim/demand, but also to any other admissible matter which might have been offered for that purpose and to all matters that could have been adjudged in that case. (Asked in the 2002 Bar Exam)

2. Conclusiveness of judgment – Where the 2nd action between the parties is upon a different claim/demand, the judgment in the 1st case operates as an estoppel only with regard to those issues directly controverted, upon the determination of which the judgment was rendered.

Statute of Limitations

Prescription applies only when the complaint on its face shows that indeed the action has already prescribed.

If the fact of prescription is not indicated on the face of the complaint and the same may be brought out later, the court must defer decision on the motion until such time as proof may be presented on such fact of prescription.

Prescription Laches

Concerned with the fact of delay

Concerned with the effect of delay

A matter of time A matter of equityStatutory Not statutory

Applies in law Applies in equityBased on fixed time Not based on fixed time

Defense of prescription is waived and cannot be considered on appeal if not raised in the trial court (Ramos v. Osorio)

However, if the allegations of the complaint, or evidence presented, clearly indicate that the action has prescribed, or where there is no issue in fact as to prescription, defense of prescription is not deemed waived by failure to allege the same (Chua Lamko v. Dioso)

Estoppel and prescription cannot be invoked against the State (Republic v. CA)

A motion to dismiss on the ground of prescription will be given due course only if the complaint shows on its face that the action has already prescribed (Sison v. McQuaid)

If it is not apparent on its face, take note that Sec. 3 prohibits deferment of the resolution of the motion. Thus:

1. Evidence may be received in support of the motion under Sec. 2, Rule 16; or

2. The motion to dismiss should be denied without prejudice to the complaint’s dismissal if evidence disclose that the action had already prescribed (Sec. 1, Rule 9)

Complaint States No Cause of Action

Failure to state a cause of action (not lack of cause of action) is the ground for a MTD. The former means there is insufficiency in the allegations in the pleading. The latter means that there is insufficiency in the factual basis of the action.

The failure to state a cause of action must be evident on the face of the complaint itself.

Test: Assuming the allegations and statements to be true, does the plaintiff have a valid cause of action?

A MTD based upon the ground of failure to state a cause of action imports a hypothetical admission by the defendant of the facts alleged in the complaint.

If the court finds the allegations of the complaint to be sufficient but doubts their veracity, it must deny the MTD and require the defendant to answer and then proceed to try the case on its merits.

A complaint containing a premature cause of action may be dismissed for failure to state a cause of action.

If the suit is not brought against the real party-in-interest, a motion to dismiss may be filed on the ground that the complaint states no cause of action. [Tanpinco v. IAC (1992)]

Complaint states no cause of action

No cause of action

Insufficiency of allegations in the pleading

Insufficiency of factual basis for the action

May be raised in a Motion to Dismiss at any time but

before the filing the answer to the complaint or pleading asserting a

claim

may be raised at any time

Dismissal due to failure to state a cause of action can

be made at the earliest stages of an action and

without prejudice

dismissal due to lack of cause of action is made after questions of fact

have been resolved on the basis of stipulations,

admissions or evidence presented and with

prejudice

Extinguished Claim

That the claim/demand set forth in the plaintiff's pleading has been paid, waived, abandoned or otherwise extinguished.

Unenforceable Claim under the Statute of Frauds

Article 1403 (2) CC requires certain contracts to be evidenced by some note or memorandum in order to be enforceable, to wit:

1. An agreement that by its terms is not to be performed within a year from the making thereof;

2. A special promise to answer for the debt, default, or miscarriage of another;

3. An agreement made in consideration of marriage, other than a mutual promise to marry;

4. An agreement for the sale of goods, chattels or things in action, at a price not less than five hundred pesos, unless the buyer accept and

receive part of such goods and chattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money; but when a sale is made by auction and entry is made by the auctioneer in his sales book, at the time of the sale, of the amount and kind of property sold, terms of sale, price, names of the purchasers and person on whose account the sale is made, it is a sufficient memorandum;

5. An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein;

6. A representation as to the credit of a third person.

Unlike a motion to dismiss on the ground that the complaint states no cause of action, a motion invoking the Statute of Frauds may be filed even if the absence of a cause of action does not appear on the face of the complaint. Such absence may be proved during the hearing of the motion to dismiss on said ground. (Yuviengco et al. v. Dacuycuy, etc., et al.)

Non-Compliance with a Condition Precedent

Where the plaintiff has not exhausted all administrative remedies, the complaint not having alleged the fact of such exhaustion, the same may be dismissed for lack of cause of action (Pineda v. CFI Davao, et al.)

Where the complaint does not state that it is one of the excepted cases, or it does not allege prior availment of conciliation process, or it does not have a certification that no conciliation or settlement had been reached under P 1508, case should be dismissed on motion (Morata v. Go, et al.)

Where the defendant had participated in the trial court without any invocation of PD 1508, and the judgment therein had become final and executory, but said defendant thereafter sought the annulment of the decision for alleged lack of jurisdiction, the same was denied under the doctrine of estoppel and laches (Royales, et al., v. IAC)

RESOLUTION OF MOTION

During the hearing of the motion: Parties shall submit:1. Their arguments on questions of law2. Their evidence on questions of fact (Rule 16, Sec.

2)a. Exception: Those not available at that time

Parties should be allowed to present evidence and the evidence should be taken down

EXCEPT: when the motion is based on the ground of insufficiency of cause of action which must generally be determined on the basis of the facts alleged in the complaint

Trial: If the case goes to trial, such evidence presented shall automatically be part of the evidence of the party presenting the same.

Lack of formal hearing of a motion to dismiss is not fatal where the issues raised were fully discussed in the motion and opposition. (Castillo v. CA)

After hearing: Court may either:1. Dismiss the action/claim 2. Deny the MTD3. Order amendment of the pleadings

The court cannot defer the resolution of the MTD for the reason that the ground relied upon is not indubitable.

The court’s resolution on the MTD must clearly and distinctly state the reasons therefor.

REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS DISMISSED

If the motion is granted, the complaint is dismissed. Since the dismissal is final and not interlocutory in character, the plaintiff has several options:

1. Depending upon the ground for the dismissal of the action, the plaintiff may REFILE the complaint, a. These are orders of dismissal which is not

tantamount to an adjudication on the meritsb. e.g when ground for dismissal is anchored on

improper venue.

2. He may APPEAL from the order of dismissal where the ground relied upon is one which bars refilling of complaint a. The grounds which bar re-filing are:

(1)Res judicata(2)Prescription(3)Extinguishment of the obligation(4)Violation of Statutes of Fraud

3. The plaintiff may also avail of a petition for certiorari, alleging grave abuse of discretion. [Riano]

REMEDIES OF THE DEFENDANT WHEN MOTION IS DENIED

Appeal is NOT a remedy since denial of a motion to dismiss is an interlocutory order. As a general rule, defendant files his answer and then may appeal an adverse judgment.

Remedies of Defendant:

1. The movant shall file his answer within the balance of the period described in Rule 11 to which he was entitled at the time of serving his motion, but not less than 5 days in any event.a. If pleading is ordered to be amended, he shall

file his answer within the period prescribed

by Rule 11 counted from service of amended pleading unless the court provides a longer period

2. Another remedy is to file a certiorari, case under Rule 65 alleging grave abuse of discretion. [Riano]

EFFECT OF DISMISSAL OF COMPLAINT ON CERTAIN GROUNDS

General rule: The action/claim may be re-filed.

Exception: The action cannot be re-filed (although subject to appeal) if it was dismissed on any of the following grounds:

1. Res judicata;2. Prescription;3. Extinguishment of the claim/demand; 4. Unenforceability under the Statute of Frauds.

[Rule 16, Sec. 1 (f),(h),(i)]

WHEN GROUNDS PLEADED AS AFFIRMATIVE DEFENSES

If no motion to dismiss had been filed, any of the grounds for dismissal may be pleaded as affirmative defenses and a preliminary hearing may be had at court’s discretion. (Rule 16, Sec. 6)

NOTE: The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer.

If the defendant would not want to file a counterclaim, he should not file a motion to dismiss

Instead, he should allege the grounds of a motion to dismiss as affirmative defenses in his answer with a counterclaim

A preliminary hearing may be had thereon, and in the event the complaint is dismissed, defendant can prosecute his counterclaim (Herrera)

DISTINGUISHED FROM DEMURRER TO EVIDENCE UNDER RULE 33

A motion to dismiss under this Rule differs from a motion to dismiss under Rule 33 on demurrer to evidence:

MOTION TO DISMISS DEMURRER TO EVIDENCEGrounded on preliminary

objectionsBased on insufficiency of

evidenceMay be filed by any

defending party against whom a claim is asserted

in the action

May be filed only by the defendant against the

complaint of the plaintiff

Should be filed within the time for but prior to the

filing of the answer of the defending party to the pleading asserting the

May be filed for the dismissal of the case only

after the plaintiff has completed the

presentation of his

claim against him evidenceIf denied, defendant must file an answer, or else he

may be declared in default

If denied, defendant may present evidence

If granted, plaintiff may appeal or if subsequent

case is not barred, he may re-file the case

If granted, plaintiff appeals and the order of dismissal

is reversed, defendant loses his right to present

evidence

DISMISSAL OF ACTIONS

DISMISSAL UPON NOTICE BY PLAINTIFF; TWO-DISMISSAL RULE (Rule 17, Sec. 1)

Dismissal by plaintiff as a matter of right

Dismissal is effected not by motion but by mere notice of dismissal which is a matter of right before the service of:

1. The answer; or 2. A motion for summary judgment

The dismissal as a matter of right ceases when an answer or a motion for summary judgment is served on the plaintiff and not when the answer or the motion is filed with the court.

Dismissal NOT Automatic - It requires an order by the court confirming the dismissal. Until confirmed, the withdrawal does not take effect

Generally, Dismissal is Without PrejudiceGeneral Rule: Dismissal is without prejudiceExceptions:

1. Where the notice of dismissal so provides; or 2. Where the plaintiff has previously dismissed the

same case in a court of competent jurisdiction (Two Dismissal Rule)

3. Even where the notice of dismissal does not provide that it is with prejudice but it is premised on the fact of payment by the defendant of the claim involved (Serrano v. Cabrera)

Two Dismissal Rule - when the same complaint had twice been dismissed by the plaintiff without order of the court by simply filing a notice of dismissal, the 2nd dismissal operates as an adjudication on the merits.

DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT ON EXISTING COUNTERCLAIM (Rule 17, Sec. 2)

Under this section, dismissal of the complaint is subject to the discretion of the court and upon such terms and conditions as may be just.

Generally, Dismissal is Without PrejudiceGeneral Rule: Dismissal is without prejudiceExceptions:

1. When otherwise stated in the motion to dismiss; or

2. When stated to be with prejudice in the order of the court

Effect on Counterclaim:

If counterclaim has been pleaded by defendant prior to service upon him of plaintiff’s motion for dismissal, dismissal shall be limited to the complaint

- Remember that if the civil case is dismissed, so also is the counterclaim filed therein It was held that if the court does not have

jurisdiction to entertain the main action of the case and dismiss the case, then the compulsory counterclaim, being ancillary to

the principal controversy must likewise be dismissed (Metals Engineering Resources v. CA)

- However, under this section, if a counterclaim has been pleaded by a defendant PRIOR to the service upon him of the plaintiff’s motion for dismissal, the dismissal shall be limited to the complaint.

Such dismissal shall be without prejudice to the right of the defendant to either:

1. Prosecute his counterclaim in a separate action; a. In this case, the court should render the

corresponding order granting and reserving his right to prosecute his claim in a separate complaint

2. OR to have the same resolved in the same actiona. In this case, defendant must manifest such

preference to the trial court within 15 days from notice to him of plaintiff’s motion to dismiss

NOTE: These alternative remedies of the defendant are available to him regardless of whether his counterclaim is compulsory or permissive

DISMISSAL DUE TO FAULT OF PLAINTIFF (Rule 17, Sec. 3)

Distinction between Sec. 2 and Sec. 3 of Rule 17

SECTION 2 SECTION 3

Dismissal is at the instance of the plaintiff

Dismissal is not procured by plaintiff though justified

by causes imputable to him

Dismissal is a matter of procedure, without

prejudice unless otherwise stated in the

court order or on motion to dismiss

Dismissal is a matter of evidence, an adjudication

on the merits

Dismissal is without prejudice to the right of

defendant to prosecute his counterclaim in a

separation action unless within 15 days from notice of motion he

manifests his intention to have his counterclaim resolved in the same

action

Dismissal is without prejudice to the right of

defendant to prosecute his counterclaim on the same

or separate action

Dismissal under this Section

The case may be dismissed motu proprio or upon the defendant’s motion if, without justifiable cause, plaintiff fails either:

1. To appear on the date of the presentation of his evidence-in-chief on the complaint;a. The plaintiff’s failure to appear at the trial

after he has presented his evidence and

rested his case does not warrant the dismissal of the case on the ground of failure to prosecute.

b. It is merely a waiver of his right to cross-examine and to object to the admissibility of evidence. [Jalover v. Ytoriaga (1977)]

c. Since plaintiff’s presence is now required only during the presentation of his evidence in chief, his absence during the presentation of defendant or other parties’ evidence, or even at rebuttal or subsequent stages, is not a ground for dismissal.

2. To prosecute his action for an unreasonable length of time (nolle prosequi); a. The test for dismissal of a case due to failure

to prosecute is WON, under the circumstances, the plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude. [Calalang v. CA (1993)]

b. The dismissal of an action pursuant to this rule rests upon the sound discretion of the court ( Smith Bell and Co. v. American President Lines Ltd.)

c. The action should never be dismissed on a non-suit for want of prosecution when the delay was caused by the parties looking towards a settlement. (Goldloop Properties Inc. v. CA)

3. To comply with the Rules or any court order.a. The order must be validb. Failure to comply with order:

(1) Dismissal for failure to comply with order to amend complaint to make claims asserted more definite is ground for dismissal (Santos v. General Wood Craft)

(2) Failure to comply with an order to include indispensable parties is ground for dismissal (Aranico-Rubino v. Aquino)

(3) The failure to comply with order of new judge to recall witness so he may observe demeanor is sufficient ground for dismissal (Castillo v. Torres)

c. Failure to comply with rules(1) The failure of the parties to submit a

compromise agreement within period granted to them by court is not a ground for dismissal (Goldloop Properties Inc. v. CA)

(2) Dismissal is improper where a 3rd party complaint has been admitted and the 3rd party defendant had not yet been summoned (Sotto v. Valenzuela)

(3) A case may be dismissed for failure to answer written interrogatories under Rule 25 even without an order from the court to answer. (Arellano v. CFI- Sorsogon)

Effect of Dismissal:

General Rule: Dismissal of actions under Sec. 3 which do not expressly state whether they are with or without prejudice are held to be with prejudice on the meritsExceptions:

1. The court declares otherwise, without prejudice to the right of the defendant to prosecute his counter-claim in the same or separate action

2. If court has not yet acquired jurisdiction over the person of the defendant

Effect on Counterclaim:

Defendant is granted the choice to prosecute that counterclaim in either the same or a separate action, just like the grant of that remedy in Sec. 6, Rule 16

In this section (as well as in Sec. 6, Rule 16), defendant is not required to manifest his preference within a 15-day period as in Sec. 2

- The motions to dismiss in this section and in Sec. 6, Rule 16, are filed by defendant who perforce has already deliberated upon the course of action he intends to take on his counterclaim and which he may even manifest right in his motion to dismiss

- The dismissal in Sec. 2 is at the instance of plaintiff, hence, defendant is granted the time and duty to manifest preference within 15 days from notice, after an opportunity to study the situation

DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM, OR THIRD-PARTY COMPLAINT

Provisions of Rule 17 shall apply to the dismissal of any counterclaim, cross-claim, or third-party complaint

Voluntary dismissal by claimant by notice as in Sec. 1, shall be made:

1. Before a responsive pleading or motion for summary judgment is served; or

2. If there is none, before introduction of evidence at trial or hearing

Effect of Dismissals1. Dismissal or continuance of an action operates to

annul orders, ruling, or judgments previously made in the case

2. It also annuls all proceedings had in connection therewith and renders all pleadings ineffective

3. Dismissal or non-suit leaves the situation as though no suit had ever been brought

Where a counterclaim is made the subject of a separate suit, it may be abated upon a plea of auter action pendentia and/or dismissal on the ground of res judicata. Res judicata, however, is not applicable since the court held that it did not acquire jurisdiction due to non-payment of docket fees.

Dismissal on the ground of LOJ does not constitute res judicata, there being no consideration and adjudication of the case on the merits. Neither is there litis pendentia. [Meliton v. CA (1992)]

PRE-TRIAL

CONCEPT OF PRE-TRIAL

Pre-Trial is a mandatory conference and personal confrontation before the judge between the parties and their respective counsel, called by the court after the joinder of issues in a case or after the last pleading has been filed and before trial, for the purpose of settling the litigation expeditiously or simplifying the issues without sacrificing the necessary demands of justice. It is a procedural device by which the court is called upon, after the filing of the last pleading, to compel the parties and their lawyers to appear before it, and negotiate an amicable settlement or otherwise make a formal settlement and embody in a single document the issues of fact and law involved in the action, and such other matters as may aid in the prompt disposition in the case, such as:

1. Number of witnesses 2. Tenor or character of their testimonies 3. Documentary evidence; nature and purpose of

each4. Number of trial dates

NATURE AND PURPOSE

Purpose of pre-trial is to consider: (Rule 18, Sec. 2)1. Possibility of an amicable settlement or of a

submission to alternative modes of dispute resolution;

2. Simplification of the issues;3. Necessity/desirability of amendments to the

pleadings;4. Possibility of obtaining stipulations or

admissions of facts and of documents to avoid unnecessary proof;

5. Limitation of the number of witnesses;6. Advisability of a preliminary reference of issues

to a commissioner;7. Propriety of rendering judgment on the

pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist;

8. Advisability/necessity of suspending the proceedings; and

9. Other matters that may aid in the prompt disposition of the action.

Pre-trial is Mandatory- Vital objective: the simplification, abbreviation,

and expedition of the trial, if not indeed its dispensation

- Mandatory nature is addressed to both court and parties: Court must set the case for pre-trial and

notify the parties as well as counsel to appear

Parties with their counsel are obliged to obey the order of the court to that effect

Primary Objective

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 (PTC) 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 pre-trial conference bars the consideration of other questions on appeal. [Caltex v. CA (1992)]

NOTICE OF PRE-TRIAL

When pre-trial conducted - After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial. (Sec. 1, Rule 18)

1. Specifically, the motion is to be filed within 5 days after the last pleading joining the issues has been served and filed (Admin Circ. No. 3-99, Jan 15, 1999)

2. Within 5 days from date of filing of the reply, plaintiff must promptly move ex-parte that the case be set for pre-trial conference. If the plaintiff fails to file said motion within the given period, the branch clerk shall issue a Notice of Pre-Trial (AM No. 03-109-SC, July 13, 2004)

NOTE: Note: The “Last Pleading” need not be literally construed as the actual filing of the last pleading. For purpose of pre-trial, the expiration of the period for filing the last pleading is sufficient (Sarmiento v. Juan)

Notice of Pre-trial: The notice shall be served on:1. Counsel 2. Party, only if he has no counsel (Sec. 3, Rule 18)

The sufficiency of the written notice of pre-trial is irrelevant where evidence shows that counsel and the parties actually knew of the pre-trial (Bembo v. CA)

APPEARANCE OF PARTIES; EFFECT OF FAILURE TO APPEAR

Duty to Appear: It is the duty of the parties and their counsel to appear at the pre-trial. (Rule 18, Sec. 4)

- NOTE: BOTH parties AND their counsel

When non-appearance is excused: A party’s non-appearance may be excused only if either:

1. Valid cause is shown for it;2. A representative appears in his behalf, fully

authorized in writing: a. To enter into an amicable settlement;b. To submit to alternative modes of dispute

resolution; c. To enter into stipulations/admissions of facts

and of documents.

NOTE: The written special authority must be in the form of an SPA (Sec. 23, Rule 38). If the

party is a corporation, the SPA must be supported by a board resolution.

Effect of Failure to Appear; unexcused non-appearance: (Rule 18, Sec. 5)

Order of Non-suit is issued to the party who failed to appear at pre-trial.

Who fails to appear

Effect

PlaintiffCause for dismissal of the action

which will be with prejudice, unless otherwise ordered by the court

DefendantCause to allow plaintiff to present

evidence ex parte, and court to render judgment on the basis thereof

NOTE: The non-appearance of defendant in pre-trial is not a ground to declare him in default. Thus, we distinguish:

Default by defendant(Rule 9, Sec. 3)

Failure to appear by defendant (Rule 18, Sec. 5)

Upon motion and notice to defendant.

Not required

Requires proof of failure to answer

Not required

Court to render judgment, unless it requires

submission of evidence

Court to allow plaintiff to present evidence ex

parte, then the court shall render judgment

Judgment by Default Judgment Ex ParteRelief awarded must be the same in nature and amount as prayed for in

the complaint

Relief awarded may be of different nature and

amount from the relief prayed for

When we say that a defendant is in “default” it speaks of his failure to file responsive pleading and not his non-appearance at pre-trial.

Remedy of Party who has been non-suited:1. For a non-suited plaintiff:

a. Motion to set aside the order of non-suitb. Affidavit of merit is not necessary in a simple

motion for reconsideration of the order of non-suit EXCEPT as to show the cause of the failure to appear at the pre-trial (Jonathan Landoil International Inc. v. Mangudadatu)

2. For a non-suited defendant:a. File a motion for reconsideration without

need for affidavits of merits regarding the fraud, accident, mistake, or excusable negligence (Lucero v. Dacayo)

PRE-TRIAL BRIEF; EFFECT OF FAILURE TO FILE

Rule 18, Sec. 6 makes it the MANDATORY duty of the parties to seasonably file their pre-trial briefs under the conditions and with the sanctions provided therein.

When to File Pre-Trial Brief: Parties shall file and serve their respective pre-trial briefs, ensuring receipt by adverse party at least 3 days before the date of the pre-trial.

Contents of a Pre-Trial Brief1. Statement of their willingness to enter into

amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof;

2. Summary of admitted facts and proposed stipulation of facts;

3. Issues to be tried/resolved;4. Documents/exhibits to be presented, stating the

purpose thereof;5. Manifestation of their having availed or their

intention to avail themselves of discovery procedures or referral to commissioners;

6. Number and names of the witnesses, and the substance of their respective testimonies. [AM No. 03-1-09-SC]

Failure to File Pre-trial Brief: Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial.

Remedy of defendant is to file a motion for reconsideration, showing that his failure to file a trial brief was due to fraud, accident, mistake, or excusable negligence

PROCEEDINGS AFTER TERMINATION OF PRE-TRIAL

Record of Pre-Trial: The pre-trial proceedings shall be recorded. Upon termination of such proceedings, the court shall issue the pre-trial order.

Contents of Pre-Trial Order: 1. Matters taken up in the conference;2. Action taken thereon;3. Amendments allowed on the pleadings;4. Agreements/admissions made by the parties as

to any matters considered;5. Should the action proceed to trial, the explicit

definition and limit of the issues to be tried.

Effect of Pre-Trial Order: The contents of the order shall control the subsequent course of the action; UNLESS:

1. Modified before trial to prevent manifest injustice (Rule 18, Sec. 7)

2. Issues impliedly included therein or may be inferable therefrom by necessary implication (Velasco v. Apostol)

3. Amendment to conform to evidence (Rule 10, Sec. 5)

On Compromise:

- Upon manifestation of the parties of their willingness to discuss a compromise, the TC should order the suspension of the proceedings to allow them reasonable time to discuss and conclude an amicable settlement.

- If despite all efforts exerted by the TC and the parties the settlement conference still fails, then the action should have continued as if no suspension had taken place. [Goldloop Properties v. CA (1992)]

- NOTE: AM 03-1-09-SC - No termination of pre-trial for failure to settle

DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE AND PRE-TRIAL IN CRIMINAL CASE

Civil Case Criminal Case

Set when the plaintiff moves ex parte to set the case for pre-trial

[Rule 18, Sec. 1]

Ordered by the court and no motion to set

the case for pre-trial is required from either

the prosecution or the defense [Rule 118, Sec.

1]Made after the pleading

has been served and filed [Rule 18, Sec. 1]

Ordered by the court after arraignment and

within 30 days from the sate the court acquired

jurisdiction over the person of the accused

[Rule 118, Sec. 1]Considered the possibility of an

amicable settlement as an important objective

[Rule 118, Sec. 2(a)]

Does not include the considering of the

possibility of amicable settlement of one’s

criminal liability as one of its purposes [Rule

118, Sec. 1]The arrangements and admissions in the pre-

trial are not required to be signed by both parties and their

counsels. Under the Rules, they are instead to be contained in the record of pre-trial and

pre-trial order [Rule 18, Sec. 7]

[AM No. 03-1-09] - requires the

proceedings during the preliminary conference

to be recorded in the “Minutes of Preliminary

Conference” to be signed by both parties

and/or counsel.(Note: either party or his counsel is allowed

to sign)

(Stricter procedure)All agreements or

admissions made or entered during the pre-trial conference shall be reduced in writing and

signed by both the accused and counsel;

otherwise, they cannot be used against the

accused. [Rule 118, Sec. 2]

The sanctions for non-appearance are

imposed upon the plaintiff and the

defendant [Rule 18, Sec. 4]

Sanctions are imposed upon the counsel for

the accused or the prosecutor [Rule 118,

Sec. 3]

A pre-trial brief is specifically required to be submitted [Rule 18,

Sec. 6]

A pre-trial brief is not specifically required.

ALTERNATIVE DISPUTE RESOLUTION (ADR)Special Rules of Court on ADR (AM No. 07-11-08-SC)

The parties may be submitted to ADR during pre-trial. If ADR fails, judge will schedule the continuance of the pre-trial conference

The Alternative Dispute Resolution SystemMeans any process or procedure used to resolve a dispute or controversy, other than by adjudication of a presiding judge of a court or an officer of a government agency, as defined in this Act, in which a neutral third party participates to assist in the resolution of issue [RA 9285, Sec. 3]

Policy Behind the ADR: To actively promote party autonomy in the resolution of disputes or the freedom of the party to make their own arrangements to resolve their disputes [RA 9285, Sec. 2]

In Relation to Pre-Trial:1. At the start of the pre-trial conference, the judge

shall immediately refer the parties and/or their counsel if authorized by their clients to the PMC mediation unit for purposes of mediation if available.[AM No. 03-1-09-SC]

2. The pre-trial briefs of parties must include the parties’ statement of their willingness to enter into an amicable settlement indicating the desired terms thereof or to submit the case to any of the alternative modes of dispute resolution [AM No. 03-1-09-SC]

Exception to the Application of RA 9285:1. labor disputes covered by the Labor Code; 2. the civil status of persons;3. validity of a marriage;4. any ground for legal separation;5. the jurisdiction of courts;6. future legitime;7. criminal liability; and8. those which by law cannot be compromised.

Modes of Alternative Dispute Resolutions:

1. Arbitration (RA 9285, Sec. 1)a. A voluntary dispute resolution process in

which one or more arbitrators, appointed in accordance with the agreement of the parties, or rules promulgated pursuant to this Act, resolve a dispute by rendering an award\

b. Different Kinds:(1) Domestic Arbitration – an arbritration

that is not international; governed by RA 876 (Arbitration Law) [RA 9285, Sec. 32]

(2) International Arbitration - An arbitration is international if:(a) the parties to an arbitration

agreement have, at the time of the conclusion of that agreement, their places of business in different States; or

(b) one of the following places is situated outside the State in which the parties have their places of business [Article 3, Model Law on International Commercial Arbritration]

2. Mediation a. a voluntary process in which a mediator,

selected by the disputing parties, facilitates communication and negotiation, and assist the parties in reaching a voluntary agreement regarding a dispute

b. includes conciliation

3. Mini-Trial a. A structured dispute resolution method in

which the merits of a case are argued before a panel comprising senior decision makers with or without the presence of a neutral third person after which the parties seek a negotiated settlement

4. Early Neutral Evaluation a. An ADR process wherein parties and their

lawyers are brought together early in a pre-trial phase to present summaries of their cases and receive a nonbinding assessment by an experienced, neutral person, with expertise in the subject in the substance of the dispute

5. Combination of ADRa. Example: Med-Arb - step dispute resolution

process involving both mediation and arbitration

Special Rules of Court on ADR (AM No. 07-11-08-SC)

The Special ADR Rules shall apply to and govern the following cases (Rule 1.1)

1. Relief on the issue of Existence, Validity, or Enforceability of the Arbitration Agreement;

2. Referral ADR3. Interim Measures of Protection;4. Appointment of Arbitrator;5. Challenge to Appointment of Arbitrator;6. Termination of Mandate of Arbitrator;7. Assistance in Taking Evidence;8. Confirmation, Correction or Vacation of Award in

Domestic Arbitration;9. Recognition and Enforcement or Setting Aside of

an Award in International Commercial Arbitration;

10. Recognition and Enforcement of a Foreign Arbitral Award;

11. Confidentiality/Protective Orders; and12. Deposit and Enforcement of Mediated Settlement

Agreements.

Service and Filing of Petition – The petitioner shall serve, either by personal service or courier, a copy of the petition upon the respondent before the filing thereof. Proof of service shall be attached to the petition filed in court.

Notice – served once court finds petition sufficient in form and substance

1. Notice is sent to parties directing them to appear at a particular time and date for hearing

2. Hearing shall not be set no later than 5 days from lapse of period for filing opposition or comment

3. Notice to respondent shall contain a statement allowing him to file a comment or opposition to petition within 15 days from receipt of notice

4. For Referral to ADR or Confidentiality/Protection Orders:a. Follow Rule 15 Rules of Court

Summary Hearing - In all cases, as far as practicable, the summary hearing shall be conducted in one (1) day and only for purposes of clarifying facts.

Prohibited Submissions (Rule 1.6)1. Motion to dismiss;2. Motion for bill of particulars;3. Motion for new trial or for reopening of trial;4. Petition for relief from judgment;5. Motion for extension, except in cases where an

ex-parte temporary order of protection has been issued;

6. Rejoinder to reply;7. Motion to declare a party in default; and8. Any other pleading specifically disallowed under

any provision of the Special ADR Rules.

No summons (Rule 1.9 - In cases covered by the Special ADR Rules, a court acquires authority to act on the petition or motion upon proof of jurisdictional facts, i.e., that the respondent was furnished a copy of the petition and the notice of hearing.

PRE – TRIAL

If evidence is insufficient to prove

plaintiff’s cause of action or defendant’s counterclaim, court

rules in favor of either one or

dismisses the case

COURT RENDERS DECISION

TRIAL

If defendant is absent, court may hear evidence of plaintiff ex parte

If plaintiff is absent when so required to

attend, court may dismiss the case

Agreements made by parties; Amendments to pleading; Schedule

of Trial

FAILURE TO APPEAR AMICABLE SETTLEMENT

NO SETTLEMENT

INTERVENTION

DEFINITION

A legal remedy whereby a person is permitted to become a party in a case, by either:

1. Joining the plaintiff; 2. Joining the defendant; 3. Asserting his right against both plaintiff and

defendant, considering that either:a. He has a legal interest in the subject matter

of the action;b. He has legal interest in the success of either

of the partiesc. He has legal interest against both of the

partiesd. He is going to be adversely affected by the

disposition of the property in the custody of the court (Rule 19, Sec. 1)

Intervention is never an independent action, but is ancillary and supplemental to the existing litigation. Its purpose is to afford one not an original party, yet having a certain right/interest in the pending case, the opportunity to appear and be joined so he could assert or protect such right/interest. (Carino v. Ofilada, 1993)

REQUISITES FOR INTERVENTION

The requisites of intervention are:1. Legal interest:

a. In the matter in controversy; or b. In the success of either of the parties; orc. Against both; ord. So situated as to be adversely affected by a

distribution or other disposition of property in the custody of the court or of an office thereof;

2. Intervention will not unduly delay or prejudice the adjudication of rights of original parties

3. Intervenor’s rights may not be fully protected in a separate proceeding (Lorenza Ortega v. CA, 1998)

MEANING OF LEGAL INTEREST

Interest must be of a direct and immediate character so that the intervenor will either gain or lose by the direct legal operation of the judgment. The interest must be actual and material, a concern which is more than mere curiosity, or academic or sentimental desire; it must not be indirect and contingent, indirect and remote, conjectural, consequential or collateral. [Virra Mall Tenants v. Virra Mall (2011)]

Notwithstanding the presence of a legal interest, permission to intervene is subject to the sound discretion of the court, the exercise of which is limited by considering "whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties and whether or not the intervenor’s rights may be fully protected in a separate proceeding. [Virra Mall Tenants v. Virra Mall (2011)]

TIME TO INTERVENE

How Intervention is Done1. By a motion to intervene2. Attaching the pleading-in-intervention to the

motion 3. Copies served on the original parties (Rule 19,

Sec. 2)

When should it be filed – The motion to intervene may be filed at ANY TIME before rendition of judgment by the court

General Rule: Allowance of intervention is discretionary with the court

Exception: When the intervenor is an indispensable party

Pleadings-in-Intervention:1. Complaint-in-intervention – If intervenor asserts

a claim against either or all of the original parties.

2. Answer-in-intervention – If intervenor unites with the defending party in resisting a claim against the latter.

3. Answer to complaint-in-intervention [Rule 19, Sec. 4] - It must be filed within 15 days from notice of the order admitting the complaint-in-intervention, unless a different period is fixed by the court.

REMEDY FOR DENIAL OF MOTION TO INTERVENE

1. If intervention is denieda. Aggrieved party may appealb. Mandamus will not lie except in case of grave

abuse of discretion

2. If intervention is granted a. A grant of a motion to intervene is

interlocutoryb. Hence, anyone who objects can file a petition

for certiorari for improper granting of intervention

SUBPOENA

DEFINITION

Subpoena is a process directed to a person requiring him:1. To attend and to testify at the hearing or the trial

of an action, or at any investigation conducted by competent authority, or for the taking of his deposition; or

2. To bring with him any books, documents, or other things under his control (Rule 21, Sec. 1)

SUBPOENA SUMMONSAn order to appear and

testify or to produce books and documents

An order to answer complaint

May be served to a non-party

Served on the defendant

Needs tender of kilometrage, attendance

fee and reasonable cost of production fee

Does not need tender of kilometrage and other fees

Who May Issue: (Rule 21, Sec. 2)1. Court before whom the witness is required to

attend2. Court of the place where the deposition is to be

taken3. Officer or body authorized by law to do so in

connection with investigations conducted by said officer or body; or

4. Any justice of the SC or of the CA, in any case or investigation pending within the Philippines

NOTE: Sec. 38(2), BP 129 – All processes issued by the MTC and MCTC in cases falling within their jurisdiction may be served anywhere in the Philippines without the necessity of certification by the judge of the RTC

Form and Contents: (Rule 21, Sec. 3)1. Shall state the name of the court and the title of

the action or investigation 2. Shall be directed to the person whose attendance

is required3. In case of a subpoena duces tecum, shall contain a

reasonable description of the books, documents, or things demanded which must appear to the court to be prima facie relevant

Kinds:1. Subpoena duces tecum (SDT)2. Subpoena ad testificandum (SAT)

SUBPOENA AD TESTIFICANDUM

A process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority or for the taking of his deposition

SUBPOENA DUCES TECUM

A process directed to a person requiring him to bring with him books, documents, or other things under his control

The SDT is, in all respects, like the ordinary SAT with the exception that it concludes with an injunction that the witness shall bring with him and produce at the examination the books, documents, or things described in the subpoena

Before SDT may issue, the court must first be satisfied that the following requisites are present:

1. Test of RELEVANCY: The books, documents, or other things requested must appear prima facie relevant to the issue subject of the controversy

2. Test of DEFINITENESS: Such books must be reasonably described by the parties to be readily identified (test of definiteness)

SERVICE OF SUBPOENA (Rule 21, Sec. 6)

How Made: Same manner as PERSONAL or SUBSTITUTED service of summons

Formalities:1. The original shall be exhibited2. A copy is delivered to the person on whom it is

served 3. Fees and costs:

a. Tender to the person on whom it is served the fees for one day’s attendance and the kilometrage allowed by the Rules (1) EXCEPT: Tender need not be made if

issued by or on behalf of the Republic or an officer of agency thereof

b. If SDT, reasonable cost of producing the books, documents, or things demanded shall also be tendered

Service must be made so as to allow the witness reasonable time for preparation and travel to the place of attendance

COMPELLING ATTENDANCE OF WITNESSES; CONTEMPT

General Rule: 1. The court which issued the subpoena may issue a

warrant for the arrest of the witness and make him pay the cost of such warrant and seizure, if the court should determine that his disobedience was willful and without just cause (Sec. 8)

2. The refusal to obey a subpoena without adequate cause shall be deemed contempt of the court issuing it (Sec. 9)

Exception: Provisions regarding the compelling of attendance (Sec. 8) and contempt (Sec. 9) do not apply where:

1. Witness resides more than 100km from his residence to the place where he is to testify by the ordinary course of travel (Viatory Right) anda. NOTE: This refers to civil cases only, not

criminal

2. Permission of the court in which the detention prisoner’s case is pending was not obtained

QUASHING OF SUBPOENA (Rule 21, Sec. 4)

How Done: By motion promptly made

Period to File: A motion to quash may be made at or before the time specified in the subpoena

Grounds:1. For quashal of subpoena duces tecum:

a. It is unreasonable and oppressiveb. The articles sought to be produced do not

appear prima facie to be relevant to the issues; or

c. The person asking for the subpoena does not advance the cost for the production of the articles desired

d. Failure to tender witness fees and kilometrage allowed by the Rules

2. For quashal of subpoena ad testificandum a. That the witness is not bound thereby, or b. That the witness fees and kilometrage

allowed by the Rules were not tendered when subpoena was served

MODES OF DISCOVERY

DISCOVERY – a device employed by a party to obtain information about relevant matters on the case from the adverse party in the preparation for trial

Purpose – to enable the parties to obtain the fullest possible knowledge of the issues and evidence long before the trial to prevent such trial from being carried on in the dark

Modes:1. Depositions pending actions – Rule 232. Depositions before action or pending appeal –

Rule 243. Interrogatories to parties – Rule 254. Admission by adverse party – Rule 26 5. Production or inspection of documents or thing –

Rule 276. Physical and mental examination of persons –

Rule 28

DEPOSITIONS PENDING ACTION (Rule 23)

Meaning of Deposition - Deposition is chiefly a mode of discovery, the primary function of which is to supplement the pleadings for the purpose of disclosing the real points of dispute between the parties and affording an adequate factual basis during the preparation for trial.

General Uses of Deposition:1. Intended as a means to compel disclosure of facts

resting in the knowledge of a party or other person, which are relevant in a suit or proceeding

2. Dual functions:a. A method of discovery b. A method of presenting testimony in lieu of

oral open court testimony

Scope of Examination1. Matter which is relevant to the subject of the

pending action made by the pleadings or likely to arise under the pleadings

2. Matter that is not privileged 3. As well as:

a. The existence, description, nature, custody, condition and location of any books, documents, or other tangible things; and

b. The identity and location of persons having knowledge of relevant facts (Rule 23, Sec. 2)

NOTE: Under such limitations as the court may order under Sec. 16 and 18

When Depositions Pending Action Taken: (Rule 23, Sec. 1)1. With leave of court:

a. AFTER jurisdiction has been obtained over any defendant or over the property which is the subject of the action, but

b. BEFORE an answer has been served

2. Without leave of court a. AFTER answer has been served

Depositions before an answer should be granted only under special circumstances where the conditions point to the necessity of presenting a strong case for allowance of the motion. There must be some “necessity” or “good reason” for taking the testimony immediately or that it would be prejudicial to the party seeking the order to be compelled to await joinder of issues.

Specific Uses of Depositions Pending Action: the use of depositions depends on whether deponent is a party or not (Rule 23, Sec. 4)

1. The depositions may be used for contradicting or impeaching the testimony of deponent not as proof of specific factsa. If deponent does not testify and is not a

party, deposition cannot be used for this purpose

2. Deposition of an ADVERSE party may be used for any purposea. It may be used as an admission b. A deposition cannot, however, be used in the

trial of a case against a defendant who was not a party to the action when the deposition was taken

3. Deposition of a witness or party may be used for any purpose under the following circumstances:a. Witness is dead – there must be proof of

death or presumption of death and that deposition was legally taken

b. Non-residence of deponent – where it appears that the absence of deponent was procured by the party offering the deposition of the same cannot be received in evidence

c. Disability of a witness – age, sickness, infirmity, or imprisonment. The certificate of the attending physician that the witness is in a precarious condition is sufficient

d. Inability to procure attendance of witness by subpoena

DEPONENT USE

Any person

By any party for contradicting or

impeaching the testimony of deponent as witness

A party or anyone who at the time of the deposition was an officer, director, or

managing agent, of a public or private corporation or partnership, or

association which is a party

By an adverse party for any purpose

Witness, whether or not a party

By any party for any purpose if the court finds the 5 instances occurring

NOTE: Depositions can be used as evidence by a party (“for any purpose”) under the specific conditions in Sec. 4

REMEMBER: Generally, a deposition is not generally supposed to be a substitute for the actual testimony in open court of a party or witness. If the witness is available to testify, he should be presented in court to testify. If available to testify, a party’s or witness’ deposition is inadmissible in evidence for being hearsay. (Dasmarinas Garments Inc. v. Reyes, 1993). Exceptions to this rule are those found in Sec. 4.

Persons before whom depositions may be taken (Rule 23, Sec. 10 and 11)

1. Within the Philippines:a. Judgeb. Notary Public, or c. Any person authorized to administer oaths,

as stipulated by the parties in writing

2. Outside the Philippinesa. On notice before a secretary of embassy or

legation, consul general, consul, vice-consul, or consular agent of the Philippines

b. Before such person or officer as may be appointed by commission or under letter rogatory or

c. Any person authorized to administer oaths as stipulated by parties in writing

Disqualification by interest: No deposition shall be taken before a person who is: (Rule 23, Sec. 13)

1. A relative within the 6th degree of affinity or consanguinity

2. An employee or counsel of any of the parties 3. A relative within the same degree or employee of

such counsel 4. Financially interested in the action

Procedure in Taking Depositions:1. A party desiring to take the deposition of any

person upon oral examination shall give reasonable notice in writing to every party to the action stating the time and place for taking the deposition and the name and address of each person to be examined. [Rule 23, Sec. 15]

2. After the notice is served, the court may make any order for the protection of the parties and the deponent. [Rule 23, Sec. 16]

3. The attendance of the witnesses may be compelled by the use of subpoenas. [Rule 23, Sec. 1]

4. The deponent may be examined or cross examined following the procedures for witnesses in a trial. He may be asked questions on direct, cross, re-direct or re-cross. He has the same rights as a witness and may be impeached like a court witness because Sections 3 to 18 of Rule 132 apply to deponent. [Rule 23, Sec. 3]

5. The officer before whom the deposition is being taken has no authority to rule on objections interposed during the course of the deposition although any objections shall be noted by him upon the deposition. Any evidence that is objected to shall still be taken but subject to the objection. [Rule 23, Sec. 17]

When may objections to admissibility be made (Rule 23, Sec. 6) - Objection may be made at the TRIAL or HEARING to receiving 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

Effect of Taking and Using Depositions:

1. General Rule: A party shall not be deemed to make a person his own witness for any purpose by taking his deposition because depositions are taken for discovery and not for use as evidence. (Rule 23, Sec. 7)

2. Exception: If a party offers the deposition in evidence, then he is deemed to have made the deponent his witness (Sec. 8)

3. Exceptions to the Exception:a. The deposition is that of an opposing party,

ORb. The deposition is used to impeach or

contradict opponent. (Sec. 8)

When may taking of deposition be terminated or its scope limited (Rule 23, Sec. 18)

1. How done:a. A motion or petition for termination or limit

examination is filed by any party or of the deponent

b. Filed in the court where the action is pending OR the RTC of the place where deposition is being taken

2. When done: At any time during the taking of deposition

3. Grounds: That the examination is being conducted:a. In bad faith, orb. In such manner as unreasonably to annoy,

embarrass or oppress the deponent or party

Effect of Errors and Irregularities in Depositions (Rule 23, Sec. 29)

Error and Irregularities

Effect

As to notice for taking

depositions

WaivedUnless written objection is promptly served upon party giving notice

Objection to taking

deposition because of

disqualification

WaivedUnless made:

1. Before taking of deposition begins or

2. As soon thereafter as

of officer before whom it is to be

disqualification becomes known or could be discovered with reasonable diligence

Objection to the competency of a

witness or competency or

relevancy or materiality of

testimony

Not waived by failure to make them before or during the taking of deposition

Unless the ground of the objection is one which might have been obviated or removed if presented at that time

Occurring at oral

examination and other

particulars

In the manner of taking, in the form of questions or answers, in the oath or affirmation, or in conduct of parties and errors of any kind which might be obviated or removed if promptly prosecuted are waivedUnless reasonable objection thereto is made at the time of taking the deposition

Objections to the form of

written interrogatories under Sec. 25

and 26

WaivedUnless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within 3 days after service of last interrogatories authorized

In the manner in which

testimony is transcribed or

in the preparation

under Sec. 17, 19, 20, and 26

Waived

Unless motion to suppress depositions or some part thereof is made with reasonable promptness after such defect is ascertained, or with due diligence might have been ascertained

Orders that may be issued by the court regarding deposition taking

1. That the deposition shall not be taken;2. That it may be taken at some designated place

other than that stated in the notice;3. That it may be taken only on written

interrogatories;4. That certain matters shall not be inquired into’5. That the scope of the examination shall be held

with no one present except the parties to the action and their officers or counsel;

6. That after being sealed, the deposition shall be opened only by order of the court;

7. That secret processes, developments, or research need not be disclosed;

8. That the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court;

DEPOSITIONS BEFORE ACTION OR PENDING APPEAL (Rule 24)

A deposition before action and a deposition pending appeal are referred to as perpetuation of testimony (perpetuam rei memoriam) because their objective is to perpetuate the testimony of a witness for future use.

Purpose: To perpetuate the testimony of witnesses for probable use in the event of further proceedings in said court.

Who may avail: Any person:1. Who wants to perpetuate his own testimony; or 2. Who wants to perpetuate the testimony of

another person

Procedure for Deposition Pending Action:

1. File a verified petition in the court of the place of the residence of any expected adverse partya. Petition shall be entitled in the name of

petitionerb. It shall show:

(1) That the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought;

(2) The subject matter of the expected action and his interest therein;

(3) The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it;

(4) The names or a description of the persons he expects will be adverse parties and their addresses so far as known; and

(5) 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 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.

2. Notice and service to each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition.

3. At least twenty (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.

4. Order and Examination: If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination and

whether the depositions shall be taken upon oral examination or written interrogatories.

Use of Deposition: If a deposition to perpetuate testimony is taken under this Rule, or if, although not so taken, it would be admissible in evidence, it may be used in any action involving the same subject matter subsequently brought in accordance with the provisions of sections 4 and 5 of Rule 23. (Rule 24, Sec. 6)

Procedure for Deposition Pending Appeal:

1. During the pendency of an appeal, the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony in the event of further proceedings in the said court.

2. The party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall state: a. The names and addresses of the persons to

be examined and the substance of the testimony which he expects to elicit from each, and

b. The reason for perpetuating their testimony.

3. Order allowing the deposition: If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the deposition to be taken.

WRITTEN INTERROGATORIES TO ADVERSE PARTIES (Rule 25)

Purpose - This mode of discovery is availed of by the party to the action for the purpose of eliciting material and relevant facts from any of the adverse party. [Rule 25, Sec. 1]

Service of Interrogatories to Parties – Any party desiring to elicit material and relevant facts from any adverse party shall file and serve upon the adverse party written interrogatories to be answered by the party served.

NOTE: Written interrogatories must not only be served but also filed.

Manner of Service:1. Without leave of court – After answer has

been served; and for the first set of interrogatories

2. With leave of court – before the answer has been served; and for subsequent sets of interrogatories

NOTE: No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party. (Rule 25, Sec. 4)

Answer to Interrogatories: (Rule 25, Sec. 2) 1. Written interrogatories and the answers thereto

must both be filed and served a. Hence, the answers may constitute as judicial

admissions (Sec. 4, Rule 129)

2. Form of answer:a. It must be answered fully in writing b. And signed and sworn to by the person

making them

3. Service and Filing a. Party upon whom interrogatories were

served shall file and serve a copy of the answers on the party submitting interrogatories

b. Time period:(1) Within 15 days after service thereof(2) UNLESS court extends or shortens the

time on motion and for good cause shown

Objections to Interrogatories: (Rule 25, Sec. 3)

Objections may be presented to the court within 10 days after service thereof with notice as in case of a motion.

Effect: Answers shall be deferred until objections are resolved

Grounds:1. They require the statements of conclusions of law

or answers to hypothetical questions or opinion, or mere hearsay, or matters not within the personal knowledge of the interrogated party

2. Frivolous interrogatories need not be answered (Herrera)

Scope and Use of Interrogatories (Rule 25, Sec. 5)

Interrogatories may relate to any matters than can be inquired into under Sec. 2, Rule 23

Answers may be used for the same purposes provided in Sec. 4, Rule 23

Effect of Failure to Serve Written Interrogatories (Rule 25, Sec. 6)

A party not served with written interrogatories may not be compelled by adverse party to:

1. Give testimony in open court; or 2. Give deposition pending appeal

UNLESS thereafter allowed by the court for good cause shown and to prevent a failure of justice

NOTE: This should not be confused with the provisions of Rule 29. Sec. 6 Rule 25 as well as a similar provision in Rule 26 are directed to a party who fails or refuses to resort to discovery procedures therein. Rule 29 provides for sanctions or other consequences upon a party who refuses or fails to comply with discovery procedures duly availed of by his opponent

Written Interrogatories v. Interrogatories to Parties

Written Interrogatories Interrogatories to Parties

The deposition is takes before a deposition officer

There is no deposition officer.

Questions are prepared beforehand. These are

submitted to the deposition officer who will ask the

deponent the questions and he will record the answers.

The questioning is direct.

The deposition of any person may be taken,

whether he is a party or not.

The deposition of the parties are only

taken.

REQUEST FOR ADMISSION (Rule 26)

Rule 26, as a mode of discovery, contemplates interrogatories seeking clarification in order to determine the truth of the allegation in a pleading.

Purposes:1. To allow one party to request the adverse in

writing to admit certain material and relevant matters which most likely will not be disputed during the trial.

2. To avoid unnecessary inconvenience to the parties in going through the rigors of proof, before the trial, a party may request the other to:a. Admit the genuineness of any material and

relevant document described in and exhibited with the request; or

b. Admit the truth of any material and relevant matter of fact set forth in the request [Rule 26, Sec. 1]

How made:1. A party files and serves upon any other party a

written request 2. Copies of the documents shall be served with the

request unless already furnished

When made: At any time after issues have been joined.

The request for admission MUST BE SERVED ON THE PARTY and NOT ON THE COUNSEL. This is an exception to the general rule that notices shall be served upon counsel and not upon the party. (Duque v. CA, 2002)

Implied Admission by Adverse Party (Rule 26, Sec. 2)

Each of the matters which an admission is requested shall be deemed admitted UNLESS the party to whom request is directed files and serves upon the party requesting admission a SWORN STATEMENT

1. Contents of the sworn statement:a. Denying specifically the matters of which an

admission is requested, or b. Setting forth in detail the reasons why he

cannot truthfully either admit or deny those matters

2. Period to file and serve the sworn statementa. Within a period designated in the request b. Which shall not be less than 15 days after

service thereof, or c. Within such further time as the court may

allow on motion

Objections to any request for admission – Objections shall be submitted to the court by the party requested within the period for and prior to filing of his sworn statement. Compliance with the sworn statement shall be deferred until objections are resolved.

Effect of Admission (Rule 26, Sec. 3)

1. Any admission made by a party pursuant to such request is for the purpose of the pending action only

2. It shall not:a. Constitute an admission by him for any other

purpose; norb. Be used against him in any other proceeding

Effect of Failure to File and Serve Request for Admission (Rule 26, Sec. 5)

A party who fails to file and serve a request for admission on the adverse party of material and relevant fact at issue which are, or ought to be, within the personal knowledge of the latter:

1. He shall not be permitted to present evidence on such facts

2. UNLESS otherwise allowed by the court for good cause and to prevent a failure of justice

NOTE: This is similar to the provision on unjustified failure of a party to avail of written interrogatories under Sec. 6, Rule 25.

PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS (Rule 27)

Rule 27 applies only to a PENDING ACTION and the documentary things subject of the motion must be only WITHIN the possession, control, or custody of a party

PRODUCTION OR INSPECTION OF

DOCUMENTS OR THINGSSUBPOENA DUCES TECUM

Essentially a mode of discovery

A means of compelling production of evidence

Rules is limited to the parties of the action

It may be directed to a person whether a party or

notThe order under this Rule

is issued only upon motion with notice to the

adverse party

It may be issued upon an ex parte application

May be asked before and/or during trial

May be asked only during trial

Necessary to show good cause

Not necessary to show good cause

Ground for quashal: No good cause shown

Grounds for quashal:1. Unreasonable,

oppressive, irrelevant

2. Failure to advance reasonable costs of production

Consequence of disobedience, see Rule 29,

Sec. 3

Disobedience constitutes contempt of court

Procedure:

1. A motion must be filed by the party seeking the production or inspection of documents and things and the motion must show good cause supporting the same. [Rule 27, Sec. 1]

2. The court in which the action is pending shall issue an order:a. which shall specify the time, place and

manner of making the inspection and taking copies and photographs, and

b. which may prescribe such terms and conditions as are just. [Rule 27, Sec. 1]

Court Order: 1. The court may:

a. Order any party to produce and permit the inspection and copying or photographing, (1) By or on behalf of the moving party (2) Of any designated documents, papers,

books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action

(3) And which are in his possession, custody or control

b. Order any party to permit entry upon designated land or other property in his possession or control (1) For the purpose of inspecting,

measuring, surveying, or photographing, property or any designated relevant object or operation thereon

2. Contents of the Ordera. Time, place, and manner of making the

inspection and taking copies and photographs, and

b. Such terms and conditions as are just

PHYSICAL AND MENTAL EXAMINATION OF PERSONS (Rule 28)

When available: In an action in which the mental or physical condition of a party is in controversy. (Rule 28, Sec. 1)

- NOTE: It is the mental and physical condition of a PARTY not a WITNESS that is in controversy

How Done:1. Motion for examination is filed 2. Filed in the court in which the action is pending 3. Court may, in its discretion, order him to submit

to a physical or mental examination by a physician

NOTE: Since the results of the examination are intended to be made public, the same are not covered by physician-patient privilege (Sec. 24(b), Rule 130)

Requisites to Obtain an Order for Examination1. A motion must be filed for the physical and

mental examination 2. The motion must show good cause for the

examination 3. Notice to the party to be examined and to all

other parties;4. The motion shall specify the time, place, manner,

conditions, and scope of the examination and the person or persons by whom it is made (Rule 28, Sec. 2)

Report of Findings (Rule 28, Sec. 3)

1. If requested by the party examined:a. The party causing the examination to be

made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions

2. After such request and delivery:a. The party causing the examination to be

made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition

3. If party examined refuses to deliver such report:a. The court on motion and notice may make an

order requiring delivery on such terms as are just

b. And if a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial

Waiver of privilege (Rule 28, Sec. 4)

Where the party examined requests and obtains a report on the results of the examination, the consequences are:

1. He has to furnish the other party a copy of the report of any previous or subsequent examination of the same physical and mental condition; AND

2. He waives any privilege he may have in that action or any other involving the same controversy regarding the testimony of any other person who has so examined him or may thereafter examine him

CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES OF DISCOVERY (Rule 29)

REFUSAL TO COMPLY WITH

MODES OF DISCOVERY

SANCTIONS

Refusal to answer any

question(Sec. 1 and 2)

1. The court may, upon proper application, compel a refusing deponent to answer (Sec. 1)a. If granted, and refusal to

answer is without substantial justification, court may require the refusing party to pay proponent the reasonable expenses incurred in obtaining the order

b. If denied, and filed without substantial justification, court may require proponent to pay refusing party the reasonable expenses incurred in obtaining the order

2. A refusal to answer after being directed by court to do so may be constituted as contempt of court

Refusal to be Sworn (Sec. 2)

Cite the disobedient deponent in contempt of court

Refusal to answer

designated questions or

refusal to produce

documents or to submit to physical or

mental examination

(Sec. 3)

The court may make the following orders:1. Prohibit the disobedient party to

introduce evidence of physical or mental condition

2. Refuse to allow the disobedient party to support or oppose claims or defenses

3. Strike out pleadings or parts thereof

4. Stay further proceedings5. Dismiss the action or proceeding

or any part thereof6. Render a judgment by default

against disobedient party7. Direct the arrest of any party

disobeying any of such orders except an order to submit to a physical or mental examination

8. Other orders as may be just

Refusal to admit under

Rule 26(Sec. 4)

The court, upon proper application, issue an order requiring the other party to pay him reasonable expenses incurred, including attorney’s feesPROVIDED that party requesting proves genuineness of such document or truthUNLESS court finds:

1. There were good reasons for denial

2. Admissions sought were of no importance

Failure of party to attend

or serve answers to

written interrogatories

(Sec. 5)

The court on motion and notice may:1. Strike out all or any part of any

pleading of disobedient party2. Dismiss the action or proceeding

or any part thereof3. Enter a judgment by default

against disobedient party4. Order payment of reasonable

expenses incurred by the other including attorney’s fees

NOTE: Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines. (Rule 29, Sec. 6)

TRIAL

DEFINITION

A trial is the judicial process of investigating and determining the legal controversies, starting with the production of evidence by the plaintiff and ending with his closing arguments [Acosta v. People (1962)].

A hearing is a broader term. It is not confined to the trial and presentation of the evidence because it actually embraces several stages in the litigation. It includes the pre-trial and the determination of granting or denying a motion. [Trocio v. Labayo (1973)]

NOTICE OF TRIAL (Rule 30, Sec. 1)

Upon entry of a case in the trial calendar, the clerk shall notify parties the date of its trial, ensuring receipt of the notice at least 5 days before the trial date.

GENERAL RULE: When an issue exists, trial is necessary. Decision should not be made without trial.

EXCEPTIONS: When there may be judgment without trial 1. Judgment on the pleading (Rule 34)2. Summary Judgment (Rule 35)3. Judgment on Compromise4. Judgment on Confession 5. Dismissal with Prejudice (Rule 17)6. Judgment under Rule on Summary Procedure,

and 7. Stipulation of fact

ADJOURNMENTS AND POSTPONEMENTS (Rule 30, Sec. 2)

GENERAL RULE: A court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may require

LIMITATION: The court has no power to adjourn a trial for:

1. A period longer than one month for each adjournment; or

2. More than 3 months in all

EXCEPTION: Unless authorized in writing by the Court Administrator, SC

Postponement is not a matter of right. It is addressed to the sound discretion of the court. [Riano, citing Garces v Valenzuela (1989)]

REQUISITES OF MOTION TO POSTPONE TRIAL

1. For absence of evidence (Rule 30, Sec. 3)a. Submission of affidavit showing that:

(1) The evidence is relevant; and (2) Diligent efforts had been exerted to

procure the evidence

2. For illness of party or counsel (Rule 30, Sec. 4) a. A motion for postponement stating the

ground relied upon must be filed; andb. The motion must be supported by an

affidavit or sworn certification showing:(1) The presence of such party or counsel at

the trial is indispensable; and(2) That the character of his illness is such as

to render his non-attendance excusable

AGREED STATEMENT OF FACTS (Rule 30, Sec. 6)

The parties may agree in writing upon the facts involved in the litigation and submit the case for judgment in the facts agreed upon without the introduction of evidence

If the parties agree only on some of the facts in issue, trial shall be held as to the disputed facts in such order as the court shall prescribe.

Stipulation Of Facts inCivil Cases

Stipulation Of Facts in Criminal Cases

May be signed by the counsel alone who has an

SPA

Must be signed by both counsel and accused

May be made verbally or in writing

Strict; it must always be in writing

An agreed statement of facts is conclusive on the parties, as well as on the court. Neither of the parties may withdraw from the agreement, nor may the court ignore the same. [McGuire v. Manufactures Life]

ORDER OF TRIAL; REVERSAL OF ORDER (Rule 30, Sec. 5)

General Rule: Trial shall be limited to the issues stated in the pre-trial order.

Exceptions:1. Provisions on separate trials under Rule 31, Sec.

22. When for special reasons the court directs

otherwise

General Order of Trial:1. Plaintiff’s evidence in chief 2. Defendant’s evidence in chief and evidence in

support of his counterclaim, cross-claim and 3rd-party complaint

3. 3rd-party defendant shall adduce evidence of his defense, counterclaim, cross-claim, and 4th party complaint

4. 4th-party defendant shall adduce evidence, and so forth

5. Parties against whom any counterclaim or cross-claim has been pleaded shall adduce evidence in support of their defense, in the order to be prescribed by court

6. Parties may then respectively adduce rebutting evidence only

a. Unless the court permits them to adduce evidence upon original case

7. Upon admission of evidence, case submitted for decision a. Unless court directs parties to argue or to

submit respective memoranda or any further pleading

Reverse Order of Trial:

in this situation, the defendant presents evidence ahead of the plaintiff

When Proper: If the defendant in his answer relies upon an affirmative defense

Where the answer of the defendant admitted the obligation stated in the complaint, although special defenses were pleaded, the plaintiff has every right to insist that it was for the defendant to come forward with evidence to support his special defenses (Yu v. Mapayo)

Ratio: Plaintiff need not have to present evidence since judicial admissions do not require proof (Sec. 2, Rule 129)

CONSOLIDATION OR SEVERANCE OF HEARING OR TRIAL (Rule 31)

CONSOLIDATION

When proper: When actions involving a common question of fact or law are pending before the court

Court action: The court may:1. Order a joint hearing or trial of any or all matters

in issue in the actions2. Order all actions consolidated3. Such orders concerning proceedings therein as

may tend to avoid unnecessary costs or delay

Purpose: To avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, simplify the work of the trial court and save unnecessary costs and expenses

Where a case has been partially tried before one judge, the consolidation of the same with another related case pending before another judge who had no opportunity to observe the demeanor of the witness during trial makes the consolidation not mandatory. [PCGG v. Sandiganbayan (1992)]

It has been held that the rules do not distinguish between cases filed before the same branch or judge and those that are pending in different branches or before different judges of the same court, in order that consolidation may be proper, as long as the cases involve the resolution of questions of law or facts in common with each other (Active Woods Products Co. Inc. v. CA)

SEVERANCE

When proper: This contemplates a single action having a number of claims, counterclaims, cross-claims, third-party complaints or issues which may be separately tried

When separate trial of claims is conducted by the court under this section, it may render separate judgments on each claim (see Sec. 5, Rule 36)

This provision permitting separate trials presupposes that the claims involved are within the jurisdiction of the court

- When one of the claims is not within its jurisdiction, the same should be dismissed, so that it may be filed in the proper court

DELEGATION OF RECEPTION OF EVIDENCE (Rule 30, Sec. 9)

General Rule: The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties.

Exception: The court may delegate the reception of evidence to its clerk of court who is a member of the bar in:

1. Default hearings;2. Ex parte hearings; 3. Cases where parties agree in writing.

However, the clerk of court has no power to rule on objections to any question/admission of exhibits.

Objections shall be resolved by the court upon submission of the clerk’s report and TSN within 10 days from termination of the hearing.

The rule requires that, where the reception of evidence is delegated to the clerk of court, he must also be a member of the bar. Neither agreement by parties nor their acquiescence can justify its violation. [Umali-Paco v. Quilala]

TRIAL BY COMMISSIONERS (Rule 32)

CONCEPTS

Commissioner - A person to whom a case pending in court is referred, for him to take testimony, hear the parties and report thereon to the court, and upon whose report, if confirmed, judgment is rendered

General rule: Trial by commissioner depends largely upon the discretion of the court

Exception: In the following instances, appointment of a commissioner is necessary:1. Expropriation (Rule 67)2. Partition (Rule 69)3. Settlement of Estate of a Deceased Person in case

of contested claims; and4. Submission of Accounting by executors or

administrators

Kinds of trial by commissioners1. Reference by consent of both parties.2. Reference ordered on motion when:

a. Trial of an issue of fact requires the examination of a long account on either side

b. Taking of an account is necessary for the court’s information before judgment, or for carrying judgment/order into effect.

c. A question of fact, other than upon the pleadings, arises in any stage of a case or for carrying a judgment/order into effect.

REFERENCE BY CONSENT

The court may order any or all of the issues in a case to be referred to a commissioner by written consent of BOTH parties. (Rule 32, Sec. 1)

Commissioners are to be:1. Agreed upon by the parties; or2. Appointed by the court

REFERENCE ORDERED ON MOTION

When proper: 1. When trial of an issue of fact requires

examination of long account 2. When taking of an account is necessary 3. When question of fact, other than upon pleadings,

arises upon motion or otherwise, in any stage (Rule 32, Sec. 2)

Order of Reference: (Rule 32, Sec. 3) 1. When a reference is made, the clerk shall furnish

the commissioner with a copy of the order of reference

2. Contents of the order:a. It may specify or limit the powers of

commissionerb. It may direct him to report only upon

particular issues; or to do or perform particular acts; or to receive and report evidence only

c. It may fix the date for beginning and closing the hearings and for the filing of his report

Powers of Commissioner:1. Exercise power to regulate the proceeding before

him2. Do all acts and take all measures necessary or

proper for the efficient performance of his duties 3. Swear witnesses 4. Issue subpoena and subpoenas duces tecum 5. Rule upon the admissibility of evidence

a. UNLESS otherwise provided in the order of reference

NOTE: Limitations on the powers of commissioner are found in the Order of Reference.

Proceedings before the Commissioner (Rule 32, Sec. 5)

1. Upon receipt of the order of reference, the commissioner shall set a time and place for the first meeting of parties or their counsel

2. Notices shall be sent to parties or counsel 3. Hearing is to be held within 10 days after date of

order of reference 4. If a party fails to appear, the commissioner may:

(Sec. 6)a. Proceed ex parte; or b. Adjourn the proceedings to a future date

giving notice to the absent party

REPORT OF COMMISSIONER (Rule 32, Sec. 9)

1. When filed:a. Filed upon completion of the trial or hearing

or proceeding before the commissioner b. Filed with the court

2. Contents:a. Report in writing upon the matters

submitted to him by the order of referenceb. When his powers are not specified or limited,

he shall set forth his findings of fact and conclusions of law in his report

c. He shall attach all exhibits, affidavits, depositions, papers, and transcripts, if any, of testimonial evidence presented before him

NOTICE AND HEARING ON THE REPORT (Rule 32, Sec. 10 and 11)

Upon filing of the report of the commissioner:1. Parties shall be notified by the clerk 2. Parties shall be allowed 10 days within which to

object to the findings of the report

NOTE: Objections to the report based upon grounds which were available to the parties during the proceedings before the commissioner shall not be considered by the court UNLESS they were made before the commissioner

Hearing on the Report: 1. When made: Upon expiration of the 10 day

period in Sec. 102. The report shall be then set forth in hearing 3. After the hearing, the court shall issue an order,

either:a. Adopting, modifying, or rejecting the report

in whole or in part b. Or recommitting it with instructionsc. Or requiring the parties to present further

evidence before the commissioner or the court

DEMURRER TO EVIDENCE

CONCEPTS:

Definition - A species of MTD that may be invoked based on insufficiency of evidence (i.e. upon the facts and the law the plaintiff has shown no right to relief). [Rule 33, Sec. 1]

It is invoked after the plaintiff has presented all the evidence available to him

Judgment on Demurrer to Evidence – It is a judgment rendered by the court dismissing a case upon motion of defendant, made after plaintiff has rested his case, on the ground that upon the facts presented and the law on the matter, plaintiff has not shown any right to relief.

Distinctions

DEMURRER TO EVIDENCE MOTION TO DISMISSIt is presented after the plaintiff has rested his

case

Presented before a responsive pleading is made by the defendant

The ground is based on the insufficiency of

evidence

It may be based on any of those enumerated in Rule

16If the motion is denied, the defendant may present his

evidence

If the motion to dismiss is denied, the defendant may file his responsive pleading

If the motion is granted, the complaint is dismissedThe plaintiff’s remedy is to

appeal

If the motion to dismiss is granted, the complaint is dismissed and depending

on the ground, the complaint may be re-filed

EFFECT OF DENIAL; EFFECT OF GRANT

Grant of demurrerDenial of demurrer

The case shall be dismissed

The defendant shall have the right to present

evidence

The court should set the date for the reception of

the defendant’s evidence-in-chief [Northwest

Airlines v. CA (1998)]Plaintiff's remedy would

be to appeal.

However, if the order granting the demurrer is reversed on appeal, the

defendant loses his right to present evidence. [Rule

33, Sec 1; Republic v. Tuvera (2007)]

The appellate court should render judgment

xxx

on the basis of the evidence submitted by the

plaintiff. [Radiowealth Finance v. Del Rosario

(2000)]

Equivalent to judgment (i.e. based on the merits of the evidence presented so

far)

An interlocutory order and not appealable.

However, it may be the subject of a petition for

certiorari for GAD under Rule 65 [Katigbak v.

Sandiganbayan (2003)]

WAIVER OF RIGHT TO PRESENT EVIDENCE

If the order granting the demurrer is reversed on appeal, the defendant loses his right to present evidence. [Rule 33, Sec .1; Republic v. Tuvera (2007)]

Two scenarios:

MOTION DENIEDMOTION GRANTED BUT REVERSED ON APPEAL

Movant shall have the right to present his

evidence

Movant is deemed to have waived his right to present

evidence.The decision of the

appellate court will be based only on the evidence

of the plaintiff as the defendant loses his right to

have the case remanded for reception of his

evidenceDenial is

INTERLOCUTORYSec. 1, Rule 36 (that

judgment should state clearly and distinctly the

facts and the law on which it is based) will NOT

apply.The denial is NOT

appealable

Order of the court is an ADJUDICATION ON THE

MERITSHence, the requirement in Sec. 1, Rule 36 should be

complied with

DEMURRER TO EVIDENCE IN CIVIL CASES VERSUS CRIMINAL CASES

CIVIL CASES CRIMINAL CASES

Defendant need not ask for leave of court

May be filed with or without leave of court.

Leave of court is necessary so that the accused could

present his evidence if demurrer is denied

If the court finds plaintiff’s evidence insufficient, it will grant demurrer by

dismissing the complaint

If the court finds the prosecution’s evidence insufficient, it will grant demurrer by rendering judgment of acquittal.

The judgment of dismissal is appealable.

Judgment of acquittal is NOT appealable.

If plaintiff appeals and judgment is reversed by

the appellate court, it will decide the case on the

basis of plaintiff’s evidence with the

consequence that the defendant already loses

his right to present evidence.

There is no res judicata in dismissal due to

demurrer.

Double jeopardy sets in.

The plaintiff files a motion to deny motion to

demurrer to evidence

The court may motu proprio deny the motion

If court denies the demurrer, defendant will

present his evidence

If court denies the demurrer filed with leave, accused may present his

evidence.If court denies the

demurrer filed without leave, accused can no

longer present his evidence and submits the case for decision based on the prosecution’s evidence

JUDGMENTS AND FINAL ORDERS

JUDGMENTS IN GENERAL

Definition - The final ruling by a court of competent jurisdiction regarding the rights and obligations of the parties or other matters submitted to it in an action/proceeding [Macahilig v. Heirs of Magalit (2000)]

Requisites of a Valid Judgmen (Rule 36, Sec. 1; Art. VIII, Sec. 14, 1987 Constitution)

1. Court/tribunal must be with authority to hear and determine the matter before it;

2. Court must have jurisdiction over the parties and the subject matter;

3. Parties must have been given an opportunity to adduce evidence in their behalf;

4. Evidence must have been considered by the tribunal in deciding the case; [Acosta v. COMELEC (1998)]

5. Judgment must be in writing, personally and directly prepared by the judge. A verbal judgment is, under the law, ineffective. [Corpus v. Sandiganbayan (2004)]

6. Judgment must state clearly the facts and the law upon which the decision is based, signed by the judge and filed with the clerk of court. [Rule 35, Sec. 1]

Kinds of Judgment:

1. JUDGMENT ON COMPROMISE - It is one conferred on the basis of a compromise agreement entered into between the parties. It is immediately executory in the absence of a motion to set aside on the ground of FAME.

2. JUDGMENT UPON CONFESSION - It is one rendered by the court when a party expressly agrees to the other party’s claim or acknowledges the validity of the claim against him.

a. JUDGMENT BY COGNOVIT ACTIONEM – After service, the defendant, instead of entering a plea, acknowledged and confessed that the plaintiff’s cause of action was just and rightful.

b. JUDGMENT BY CONFESSION RELICTA VERIFICATIONE – After pleading and before trial, the defendant both: (a) confessed the plaintiff’s cause of action and (b) withdrew his plea or other allegations, whereupon judgment was entered against him without proceeding to trial.

3. JUDGMENT UPON THE MERITS - It is one that is rendered after consideration of the evidence submitted by the parties during the trial of the case. A judgment is “on the merits” when it

amounts to a legal declaration of the respective rights and duties of the parties, based upon the disclosed facts

4. CLARIFICATORY JUDGMENT - It is rendered to clarify an ambiguous judgment or one difficult to comply with.

5. JUDGMENT NUNC PRO TUNC - Literally, “now for then”. It is a judgment intended to enter into the record the acts which had already been done, but which do not appear in the records. [Lichauco v. Tan Pho (1923)]

6. JUDGMENT SIN PERJUICIO - It may refer to a dismissal of a case without prejudice to it being re-filed.

7. CONDITIONAL JUDGMENT - It is one the effectivity of which depends upon the occurrence or non-occurrence of an event. Such a judgment is generally void because of the absence of a disposition [Cu-Unjieng v. Mabalacat Sugar Co. (1940)]

8. SEVERAL JUDGMENT - It is one rendered by a court against one or more defendants and not against all of them, leaving the action to proceed against the others. [Rule 36, Sec. 4] It is proper when the liability of each party is clearly separate and distinct from his co-parties such that the claims against each of them could have been the subject of separate suits, and the judgment for or against one of them will not necessarily affect the other.

9. SEPARATE JUDGMENT - It is one rendered disposing of a claim among several others presented in a case, after a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence that is the subject matter of said claim. [Rule 36, Sec. 5] It is proper when more than one claim for relief is presented in an action for the determination as to the issues material to the claim has been made.

10. MEMORANDUM DECISION - A decision of the appellate court which adopts the findings and conclusions of the TC.a. A judgment is considered rendered upon the

filing of the signed decision. b. This includes an amended decision because

an amended decision is a distinct and separate judgment and must follow the established procedural rule.

JUDGMENT WITHOUT TRIAL

When trial is NOT necessary:1. The pleadings of the parties tender no issue at all

– judgment on the pleadings may be directed by the court [Rule 34]

2. There is actually no genuine issue from the pleadings, affidavits, depositions and other papers – court may render a summary judgment [Rule 35]

3. Parties entered into a compromise or an amicable settlement either during the pre-trial or during the trial [Rule 18; Art. 2028 Civil Code]

4. Complaint has been dismissed with prejudice [Rule 16, Sec. 5; Rule 17, Sec. 3; Rule 7, Sec. 5 (last par.)]

5. Case falls under the Rules on Summary Procedure

6. Agreed statement of facts [Rule 30, Sec. 6]

CONTENTS OF A JUDGMENT

Parts of a Judgment1. Body, Ratio decidendi, or Opinion of the court – It

contains the findings of facts and conclusions of law;

2. Fallo, or Disposition of the case – It is the dispositive part of the judgment that actually settles and declares the rights and obligations of the parties, finally, definitively, and authoritatively [Light Rail Transit Authority v. CA] (2004); The part of the judgment that is subject to execution [Riano]

3. Signature of the judge

Distinction between Judgment and Opinion of the Court1. A judgment (or FALLO) must be distinguished

from an opinion. 2. The latter is the informal expression of the views

of the court and cannot prevail against its final order or decision.

3. While the two may be combined in one instrument, the opinion forms no part of the judgment.

4. So there is a distinction between the findings and conclusions of a court and its judgment.

5. While they may constitute its decision and amount to a rendition of a judgment they are not the judgment itself.

6. They amount to nothing more than an order for judgment, which, of course, must be distinguished from the judgment. [Freeman on Judgments, Vol. I, 5th Edition, page 6, quoted in Casilan v. Salcedo (1969)]

Conflict Between Dispositive Portion and Body of Decision

Rule: Where there is a conflict between the fallo and the body of the decision, the fallo controls.

Qualification: This rule applies only when the dispositive part is definite, clear, and unequivocal [Union Bank v. Pacific Equipment Corporation (2008)]

Basis: The fallo is the final order. The opinion in the body is merely a statement ordering nothing [Poland Industrial Limited v. National Development Company (2005)]

JUDGMENT ON THE PLEADINGS

Judgment on the Pleadings is a judgment rendered by the court if the answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading. It is rendered without a trial, or even without a pre-trial

It has been held that a motion for a judgment on the pleadings, were the answer admits all material averments, is one that may be considered ex parte because upon the particular facts thus presented and laid down before the court, the plaintiff is entitled to a judgment (Dino v. Valencia), or motu proprio under Rule 18(2g) (Luzon Dev. Bank v. Conquilla)

Grounds for Judgment on the Pleadings (Rule 34, Sec. 1)1. The answer fails to tender an issue because of:

a. General denial of the material allegations of the complaint;

b. Insufficient denial of the material allegations of the complaint; OR

2. The answer admits material allegations of the adverse party’s pleading

Judgment on the Pleadings is NOT proper in actions for:1. Declaration of Nullity of Marriage 2. Annulment of marriage; and3. Legal Separation 4. Unliquidated damages; claims for such damages

must be alleged and proved5. Admission refers only to allegations of fact and

not conclusions of law 6. Insufficiency of facts; proper remedy is

amendment

NOTE: If the complaint states no cause of action, a motion to dismiss should be filed and not a motion for judgment on the pleadings.

SUMMARY JUDGMENTS

Summary Judgment is a judgment rendered by a court without trial if it is clear that there exists NO GENUINE ISSUE or controversy as to any material fact, EXCEPT as to the amount of damages

Genuine Issue - an issue of fact which calls for the presentation of evidence as distinguished from an issue, which is a sham, fictitious, contrived, and patently unsubstantial so as not to constitute a genuine issue for trial

PROCEDURE (Rule 35, Sec. 3)

1. Movant files a motion for summary judgment with supporting affidavits, depositions or admission

2. Service to the adverse party at least 10 days the hearing

3. Adverse party may serve opposing affidavits, depositions or admissions at least 3 days before the hearing

4. Hearing – Court shall determine if a genuine issue as to any material fact exists and if the movant is entitled to a summary judgment as a matter of law

5. Court renders summary judgment

NOTE: Damages must still be proven even if not denied.

Bases for Summary Judgment: 1. Affidavits made on personal knowledge;2. Depositions of the adverse or a 3rd party; (Rule

23)3. Admissions of the adverse party; (Rule 26) 4. Answers to interrogatories. (Rule 25)

WHO MAY FILE

Who may file the motion

When

Claimant May file the motion only after the answer has been served

Defendant May file the motion any time

NOTE: Filing of a motion for summary judgment does not interrupt the running of the period for filing an answer. Hence, the movant must also file a Motion for Extension of Time to File Answer.

TEST: Whether or not the pleadings, affidavits and exhibits in support of the motion are sufficient to overcome the opposing papers and to justify the finding that, as a matter of law, there is no defense to the action or claim is clearly meritorious (Estrada v. Consolocaion, et al.)

WHEN THE CASE IS NOT FULLY ADJUDICATED

Partial Summary Judgment - Applies when for some reason there can be no full summary judgment. Trial should deal only with the facts not yet specified or established.

Nature – It is interlocutory in nature and is not a final and appealable judgment. (Guevarra v. CA)

Duty of the Court (Rule 35, Sec. 4)1. Ascertain what material facts exist without

substantial controversy and what are actually and in good faith controverted based on:a. An examination of the pleadings and

evidence before itb. Interrogation of the counsel

2. Make an order specifying the facts and the extent of the amount of damages that appear without substantial controversy

3. Direct further proceedings as are just

4. Conduct trial on the controverted facts accordingly

Effect - A partial summary judgment is not a final judgment, but merely a pre-trial adjudication that said issues in the case shall be deemed established for the trial of the case. [Guevarra v. CA (1983)]

AFFIDAVITS AND ATTACHMENTS

These are submitted to support the motion for summary judgment.

Form of affidavits and supporting papers (Rule 35, Sec. 5)1. Made on personal knowledge2. Shall set forth such facts as would be admissible

in evidence3. Shall show affirmatively that the affiant is

competent to testify to the matters stated therein.4. Sworn or certified true copies of all papers or

parts thereof referred to in the affidavit shall be attached thereto OR served therewith.

Affidavits in bad faith1. Affidavits presented under this Rule which

appear to the court at any time as presented in bad faith or solely for the purpose of delay

2. Effects:a. Court shall order the offending party or

counsel to pay the other party – amount of reasonable expenses which the filing of the affidavits caused him to incur, including attorney’s fees

b. Court may adjudge the offending party or counsel guilty of contempt, after hearing

SUMMARY JUDGMENT

Validity: Sec. 3, Rule 35 requires:

1. That there must be NO genuine issue as to any material fact, except for the amount of damages; and

2. That the party presenting the motion for summary judgment must be entitled to a judgment as a matter of law

SUMMARY JUDGMENT v. JUDGMENT ON THE PLEADINGS v. JUDGMENT BY DEFAULT

SUMMARYJUDGMENT

JUDGMENT ONTHE PLEADINGS

JUDGMENT BYDEFAULT

Based on the pleadings,

depositions, admissions, and

affidavits

Based solely on the pleadings

Based on the complaint and

evidence, if presentation is

required

Available to both plaintiff

and defendant

Generally available only to

the plaintiff, unless the defendant presents a

counterclaim

Available to plaintiff

There is no genuine issue between the

partiesi.e. There may be issues but

these are irrelevant

The answer fails to tender an issue

or there is an admission of

material allegations

No issue as no answer is filed

by the defending party

10-day notice required

3-day notice required

3-day notice rule applies

May be interlocutory or

on the meritsOn the merits On the merits

Available only in actions to

recover a debt, or for a

liquidated sum of money or for

declaratory relief

Available in any action except annulment of

marriage, or legal separation cases

Available in any action except annulment of marriage, or

legal separation cases

If filed by plaintiff, it must be filed at any time after an

answer is served.

If filed by defendant, may be filed at any

time even before there is

answer

There is already an answer filed

There is no answer filed

RENDITION OF JUDGMENTS AND FINAL ORDERS

FORM OF JUDGMENT (Rule 36, Sec. 1)1. In writing2. Personally and directly prepared by the judge3. Stating clearly & distinctly the facts and the law

on which it is based4. Signed by the judged5. Filed with the clerk of court.

DEFINITION OF RENDITION OF JUDGMENT

It is the filing of the judgment with the clerk of court. It is not the pronouncement of the judgment in open court that constitutes the rendition. Even if the judgment has already been put in writing and signed, it is still subject to amendment if it has not yet been filed with the clerk of court and before its filing does not yet constitute the real judgment of the court. [Ago v. CA (1962)]

PERIOD OF RENDITION (Art VIII, Sec. 5, 1987 Constitution)

1. All cases filed must be decided or resolved by the Supreme Court within 24 months from the date of their submission for decision.

2. Unless reduced by the SC, within 12 months for lower collegiate courts and within 3 months for all other lower courts.

A case is deemed submitted for resolution upon the filing of the last pleading, brief or memorandum required by the Rules of Court or by the court.

An extension of the period may be set by the SC upon request by the judge concerned on account of heavy caseload or by other reasonable excuse [Arap v Mustafa (2002)]

ENTRY OF JUDGMENT AND FINAL ORDER

DEFINITION

The entry of judgment refers to the physical act performed by the clerk of court in entering the dispositive portion of the judgment in the book of entries of judgment after the same has become final and executory. [Riano]

It is the filing of the signed decision with the clerk of court, and not its pronouncement in open court that constitutes rendition of judgment (Ago v. CA)

Promulgation refers to the process by which a decision is published, officially announced, made known to the public or delivered to the clerk of court for filing, coupled with notice to the parties or their counsel

Rendition of judgment Entry of judgment

Filing of the judgment with the clerk of court

Act of clerk of court in entering the dispositive

portion of the judgment in the book of entries of

judgment

ENTRY OF JUDGMENTS AND FINAL ORDERS (Rule 36, Sec. 2)

When entered: If no appeal or motion for new trial or reconsideration is filed within the time provided in the Rules, judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments

Date of Finality: Date of finality is the date of entry.

Contents of the Records in the Book of Entries:1. Dispositive part of the judgment or final order2. Signed by the clerk with a certification that such

judgment or final order has become final and executory.

AMENDMENTS TO JUDGMENT

General Rule: Once a judgment becomes final and executory, such judgment can no longer be disturbed, altered, or modified

Exceptions: 1. Clerical errors 2. Nunc Pro Tunc entries 3. Void judgments - Final judgment can be annulled

on the ground of fraud or lack of jurisdiction or contrary to law (Panlilio v. Garcia)

4. Whenever circumstances transpire after finality of the decision making its execution unjust and inequitable:a. Cases where, because of supervening events,

it becomes imperative, in the higher interest of justice, to direct its modification in order to harmonize the disposition with the

prevailing circumstances (Seavan Carrier Inc. v. GTI Sportswear Corp.)

b. Whenever it is necessary to accomplish the aims of justice (Pascual v. Tan)

Amended/clarified judgment

Supplemental decision

An entirely new decision and supersedes the original judgment

Does not take the place of or extinguish the original

judgmentCourt makes a thorough

study of the original judgment and renders the

amended and clarified judgment only after

considering all the factual and legal issues

Serves to add to the original judgment

POST-JUDGMENT REMEDIES

MOTION FOR RECONSIDERATION AND MOTION FOR NEW TRIAL

REMEDIES BEFORE FINALITY OF JUDGMENT1. Motion for reconsideration 2. Motion for new trial 3. Appeal

DEFINITION

A motion for reconsideration under Rule 37 is directed against a judgment or final order. It is not the motion for reconsideration of interlocutory order, which often precedes a petition for certiorari under Rule 65. It does not apply to cases that fall under Summary Procedure.

GROUNDS: (Rule 37, Sec. 1)

Grounds for Motion for New Trial:1. FAME – Fraud, accident, mistake, excusable

negligencea. Conditions:

(1) Which ordinary prudence could not have guarded against; and

(2) By reason of which such aggrieved party has probably been impaired in his rights

NOTE: Fraud must be extrinsic fraud which means any fraudulent scheme executed by the prevailing party outside of the trial against the losing party who because of such fraud is prevented from presenting his side of the case.

2. Newly discovered evidencea. Requisites:

(1) It must have been discovered after the trial

(2) It could not have been discovered and produced at the trial even with the exercise of reasonable diligence; and

(3) The evidence is of such weight that if admitted, would probably alter the result of the action; and

(4) It must be material and not merely collateral, cumulative, or corroborative

Grounds for Motion for Reconsideration:1. Damages awarded are excessive 2. Evidence is insufficient to justify the decision or

final order 3. The decision or final order is contrary to law

WHEN TO FILE:

An aggrieved party may file a motion for new trial or reconsideration within the period for taking an appeal.

The motions are filed with the court which rendered the questioned judgment or final order.

The period for appeal is within 15 days after notice to the appellant of the judgment or final order appealed from. The 15-day period is deemed to commence upon receipt by the counsel of record, which is considered notice to the parties. Service upon the parties themselves is prohibited and is not considered as official receipt of judgment.

Effect of Filing – The filing of a timely motion interrupts the period to appeal.

FORM AND CONTENTS (Rule 37, Sec. 2)

Form:1. The motion must comply with the provisions of

Rule 15 otherwise it will not be accepted for filing and/or will not suspend the running of the reglementary period.

2. It shall be made in writing, stating the ground or grounds therefor

3. Written notice shall be served by movant on the adverse party

NOTE: Non-compliance with this requirement would reduce the motion to a mere pro forma motion, which shall not toll the period for appeal.

Contents of a motion for new trial1. If based on FAME, it shall be supported by an

affidavit of merits

NOTE: An affidavit of merits is one which recites the nature and character of FAME on which the motion is based and stating the movant’s good and substantial cause of action or defense and the evidence he intends to present if granted

2. If based on newly found evidence, it shall be supported by:a. Affidavits of witnesses by whom such

evidence is expected or given; or b. Duly authenticated documents which are

proposed to be introduced in evidence

Contents of a motion for reconsideration1. Shall point out specifically the findings or

conclusions of the judgment or final order which are not supported by evidence or which are contrary to law

2. Make express reference to testimonial or documentary evidence or provisions of law alleged to be contrary to such findings or conclusions

RESOLUTION OF MOTION AND COURT ACTION

Court action – The court may: (Rule 37, Sec. 3)1. Set aside the judgment or final order and grant a

new trial; or upon such terms as may be just 2. Deny the motion 3. Amend such judgment or final order accordingly

if:

a. The court finds that excessive damages have been awarded or that; or

b. That the judgment or final order is contrary to the evidence or law

Resolution (Rule 37, Sec. 4) – he motion shall be resolved within 30 days from submission

The 30-day period to resolve the motion is held to be mandatory [Gonzales v. Bantolo (2006)]

GRANT OF THE MOTION; EFFECT

Grant of motion for reconsideration - The court may amend the judgment or final order accordingly. The amended judgment is in the nature of a new judgment, which supersedes the original judgment.

Grant of motion for new trial - The original judgment shall be vacated, and the action shall stand for trial de novo. The recorded evidence upon the former trial shall be used at the new trial without retaking them (if they are material and competent).

Partial grant – Rule 37, Sec. 7 allows the court to order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest.

REMEDY WHEN MOTION IS DENIED; FRESH 15-DAY RULE

Effect of Denial of Motion – The judgment or final order shall stand as is

Single-Motion Rule (Rule 37, Sec. 5) – A party shall not be allowed to file a 2nd motion for reconsideration.

- Follow the Omnibus Motion Rule

NOTE: While a 2nd motion for reconsideration is not allowed, a second motion for new trial is authorized

- However, it must be based on a ground not existing nor available when the 1st motion was made within the period allowed but excluding the time during which the first motion had been pending.

Fresh 15-Day Rule: The aggrieved party has a “fresh period” of 15 DAYS within which to file his appeal.

If the motion is denied, the movant has a “fresh period” of 15 days from receipt or notice of the order denying the motion for new trial or motion for reconsideration within which to file an appeal. (Neypes v. CA, 2005)

NOTES:1. This fresh period becomes significant only when

a party opts to file a motion for new trial or reconsideration

2. This rule does not refer to the period within which to appeal from the order denying the motion for reconsideration but to the period within which to appeal from the judgment itself.

Filing of a proper motion for new trial interrupts the running of the period of appeal which begins to run again from receipt of the notice of the movant of the order denying his motion (fresh 15 day period) (Phil. Commercial and Industrial Bank v. Ortiz)

Remedies if Motion is DENIED:1. To appeal from the judgment or final order itself2. The order denying the motion may itself be

assailed by a petition for certiorari under Rule 653. Rule 37, Sec. 9 says that an order denying a

motion for new trial or reconsideration is NOT appealablea. NOTE HOWEVER: AM 07-7-12 amended Sec.

1 of Rule 41 by deleting “An order denying a motion for new trial or reconsideration” from the non-appealable orders.

MOTION FORNEW TRIAL

MOTION FOR RECONSIDERATION

Grounds:1. Fraud, accident,

mistake, or excusable negligence

2. Newly discovered evidence Note the

qualifications of each

Grounds:1. Damages awarded

are excessive2. That evidence is

insufficient to justify the decision or final order

3. That decision or final order is contrary to law

Second motion may be allowed so long as based

on grounds not existing or available at the time the first motion was made

Second motion from the same party is prohibited.The prohibition applies only to final orders or judgments, hence it is

allowed in interlocutory orders

If a new trial is granted, original judgment or final

order is vacated.The case stands for trial de novo and will be tried

anew

If the court finds that excessive damages have

been awarded or that the judgment or final order is

contrary to the evidence or law, it may amend such judgment or final order

accordinglyAvailable even on appeal but only on the ground of

newly discovered evidence

Available against the judgments or final orders

or both the trial and appellate courts

Both are prohibited motions under Summary Procedure

APPEALS IN GENERAL

NATURE OF APPEAL

1. Not a natural right nor a part of due process2. It is merely a statutory right, and may be

exercised only in the manner and in accordance with provisions of the law. It must comply with the requirements; failing to do so, the right to appeal is lost

3. Once granted, appeals become part of due process and should be liberally applied in favor of the right to appeal

JUDGMENTS AND FINAL ORDERS SUBJECT TO APPEAL; MATTERS NOT APPEALABLE

Rule 41, Sec. 1, as amended by AM 07-7-12-SC (2007) provides:

1. Appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by the Rules to be appealable

2. No appeal may be taken from:a. An order denying a petition for relief or any

similar motion seeking relief from judgment;b. An interlocutory order;c. An order disallowing or dismissing an

appeal;d. An order denying a motion to set aside a

judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent;

e. An order of execution;f. A judgment or final order for or against one

or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and

g. An order dismissing an action without prejudice.

NOTE: AM 07-7-12-SC removed from the original list “an order denying a motion for new trial or reconsideration.”

NOTE, HOWEVER: Rule 37, Sec. 9 which states that no appeal can be made from an order denying MR or MNT.

Only final judgments or orders can be appealed as distinguished from interlocutory judgments or orders which are not appealable.

Final OrderInterlocutory Order

Disposes of the matter in its entirety, leaving

nothing more to be

Does not dispose of a case completely but

leaves something more

done but to enforce execution

to be decided upon.

AppealableNot appealable except through a petition for

certiorari under Rule 65Must clearly and

distinctly state the law and the facts on which

it is based

No need to comply with such a requirement

An interlocutory order is one that does not finally dispose of the case, and does not end the court's task of adjudicating the parties’ contentions and determining their rights and liabilities as regards each other, but obviously indicates that other things remain to be done. [BPI v. Lee (2012)]

REMEDY AGAINST JUDGMENTS AND ORDERS WHICH ARE NOT APPEALABLE

The aggrieved party may file a special civil action under Rule 65. (Rule 41, Sec. 1)

MODES OF APPEAL1. Ordinary appeal – Rule 40 and 41

a. Notice of appeal b. Record on appeal

2. Petition for review – Rule 423. Petition for review on certiorari – Rule 45

ORDINARY APPEAL

PETITION FOR REVIEW

PETITION FOR REVIEW ON CERTIORARI

Appeal by writ of error

Rule 42 Rule 45

Case is decided by RTC in its

original jurisdiction

Case decided by RTC in the

exercise of its appellate

jurisdiction

Case decided by the RTC, CA,

CTA, and Sandiganbayan

Appealed to the CA

Petition for review with the

CA

Appealed to the SC

File notice of appeal or

record of appeal with court of

origin and give a copy to

adverse party

File a verified petition for

review with CA.Pay docket and lawful fees and P500 as deposit

for costs with the CA.

Furnish RTC and adverse party a

copy of such

File verified petition for review on

certiorari with the SC.

Pay docket and lawful fees and P500 for costs.Submit proof of service of a copy

to the lower court and

adverse partyWithin 15 days from notice of judgment for

notice of appeal and 30 days for

records on

Within 15 days from notice of decision to be

reviewed or from denial of a MFR

or MFNT

Within 15 days from notice of judgment or

order of denial of MFR or MFNT

appeal

ISSUES TO BE RAISED ON APPEAL

Limited to cognizable judgments/issues.

The appellate court has no jurisdiction to review a judgment which is immediately final and executory by express provision of law. [Republic v. Bermudez-Lorino (2005)]

Rationale: Appeal is merely a privilege conferred by law upon the litigants.

A party cannot change the theory on appeal. Only issues pleaded in the lower court and properly raised may be resolved by the appellate court. [Medina v. CA (1992)]

However, issues which are inferred from or necessarily connected with the issue properly raised and pleaded may be resolved by the appellate court. [Espina v. CA (1992)]

PERIOD OF APPEAL

PERIOD TO APPEAL EXTENSIONSEFFECT OF MR or MNT

MTC to RTCBy notice of appeal; within 15 days from

notice of judgment or final order

No extensions allowed

Interrupts period to

appeal

By record of appeal;within 30 days from

notice of judgment or final order

RTC to CABy notice of appeal;Within 15 days from notice of judgment or

final order

No extensions allowed

Interrupts period to

appeal

By record of appeal;within 30 days from

notice of judgment or final order

MTC to RTC to CA

15 days from notice of the judgment or final order OR from denial

of MR or MNT

The CA may grant a 15 day

extension.No further

extension shall be granted

except for the most

compelling reasons and in no case longer than 15 days.

Fresh period to appeal

from denial MR or MNT

QJA to CA15 days from notice of the award, judgment,

The CA may grant a 15 day

Fresh period to appeal

final order or resolution or from date

of last publication if required by law OR

from denial of MR or MNT

extension. No further

extension shall be granted

except for the most

compelling reasons and in no case longer than 15 days.

from denial MR or MNT

RTC to SCRTC to CA to SC

CA to SC15 days from notice of

judgment or final order OR from denial of petitioner’s MR or

MNT.

The SC may grant a 30 day extension for

justifiable reasons.

Fresh period to appeal

from denial MR or MNT

The fresh period rule shall apply to:1. Rule 40 governing appeals from the Municipal

Trial Courts to the Regional Trial Courts; 2. Rule 42 on petitions for review from the Regional

Trial Courts to the Court of Appeals; 3. Rule 43 on appeals from quasi-judicial agencies

to the Court of Appeals; and 4. Rule 45 governing appeals by certiorari to the

Supreme Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution. [Neypes v. CA, (2005)]

Being procedural in nature, Neypes is deemed to be applicable to actions pending and undetermined at the time of its effectivity and is thus retroactive in that sense and to that extent. [First Aqua Sugar v. BPI (2007)]

PERFECTION OF APPEAL

Perfection of an appeal in the manner and within the period laid down by law is mandatory and jurisdictional. [Balgami v. CA (2004)]

Effect of Failure to Perfect Appeal1. Defeats a party’s right to appeal.2. Precludes appellate court from acquiring

jurisdiction.

APPEAL FROM MUNICIPAL TRIAL COURTS TO THE REGIONAL TRIAL COURTS (RULE 40)

OUTLINE OF PROCEDURE (Rule 40, Sec. 7)

WHERE APPEAL IS TAKEN

It is taken to the RTC exercising jurisdiction over the area to which the MTC pertains. (Rule 40, Sec. 1)

WHEN TO APPEAL (Rule 40, Sec. 2)1. If by notice of appeal, within 15 days after notice

to appellant of judgment or final order appealed from

2. If record of appeal is required, within 30 days from notice of judgment or final order

3. Period of appeal shall be interrupted by a timely motion for new trial or reconsideration

NOTE: The fresh 15 day period rule applies.

HOW TO APPEAL (Rule 40, Sec. 3)

By Notice of Appeal1. File a notice of appeal with the trial court that

rendered the judgment or final order appealed from

2. The notice of appeal must indicate the parties, the judgment or final order or part thereof appealed from; the material date showing timeliness of appeal

3. A copy served on the adverse party; and 4. Payment in full of docket fees and other lawful

fees

By Record on Appeal1. Record on appeal is required for the following

cases:a. Special proceedings

b. In such other cases where multiple appeals are allowed

2. Form and contents of the record on appeal: (Rule 41, Sec. 6) a. Within 15 days from perfection of appeal,

clerk of court or the branch clerk of the lower court shall transmit to the RTC:(1) Original record or record on appeal (2) Together with transcripts and exhibits

b. Clerk shall make a certification that the documents are complete

c. Clerk shall also furnish the parties a copy of his letter of transmittal of the records to the appellate court

3. Copy is served on the adverse party4. Payment in full of docket fees and other lawful

fees

PERFECTION OF APPEAL

Since appeals from inferior courts may now be either by notice of appeal or record on appeal, the rules on the perfection and the effect thereof are the same. See Sec. 9, Rule 41

APPEAL FROM ORDERS DISMISSING THE CASE WITHOUT TRIAL; LACK OF JURISDICTION (Rule 40, Sec. 8)

Two Scenarios:

1. If the MTC dismissed the case without trial on the merits, the RTC may:a. AFFIRM, if the ground of dismissal is lack of

jurisdiction over the subject matter (1) If the RTC has jurisdiction, it shall try the

case on the merits as if the case was originally filed therein

b. REVERSE, in which case, it shall remand the case for further proceedings

2. If the case was tried on the merits by the MTC without jurisdiction over the subject matter:a. The RTC shall NOT dismiss the case if it has

original jurisdiction b. If it has original jurisdiction, the RTC shall

decide the case and admit amended pleadings or additional evidence

APPLICABILITY OF RULE 41 - The other provisions of Rule 41 shall apply to appeals provided for herein insofar as they are not inconsistent with or may serve to supplement the provisions of this Rule.

Court acts on the appeal

Any party may appeal by filing a petition for review with the CA

If uncontested, judgment is entered in the book of

entries

Within 15 days from notice of appeal:1. Appellant submits memorandum to the RTC2. Appellee files his own memorandum 15 days from

receipt of appellant’s memorandum

Notice to parties that an appeal is being taken from the decision of the MTC

15 days from perfection of appeal,MTC clerk transmits record to RTC

Appeal decision of MTC by filing notice of appeal and pay within 15 days from receipt of judgment

APPEAL FROM THE REGIONAL TRIAL COURTS (RULE 41)

MODES OF APPEAL: There are three modes of appeal from judgments or final orders of the RTC:

1. ORDINARY APPEAL or appeal by writ of error, where judgment was rendered in a civil or criminal action by the RTC in the exercise of its original jurisdiction a. This mode of appeal, governed by Rule 41, is

taken to the CA on questions of fact or mixed questions of fact and law

2. PETITION FOR REVIEW, where judgment was rendered by the RTC in the exercise of its appellate jurisdiction a. This mode of appeal, covered by Rule 42, is

brought to the CA on question of fact, of law, or mixed questions of fact and law

3. PETITION FOR REVIEW ON CERTIORARI, or appeal by certiorari to the SCa. This mode of appeal, provided for by Rule 45,

is brought to the SC from the decision of the RTC in the exercise of its original jurisdiction and only on questions of law

HOW ORDINARY APPEAL VIA RULE 41 IS MADE:

Appeal via Rule 41 presupposes that:1. The RTC rendered the judgment or final order in

the civil action or special proceeding in the exercise of its ORIGINAL jurisdiction; and

2. That the appeal is taken to the CA on:a. Questions of fact or b. Mixed questions of fact and law

Notice of Appeal – Filed with the court which rendered the judgment or final order appealed from. A copy is served on the adverse party. (Rule 41, Sec. 5)

Contents of the Notice of Appeal:1. Parties to the appeal 2. Judgment or final order or part thereof

appealed from3. The court to which the appeal is being taken;

and 4. The material dates showing the timeliness of

the appeal

Record on Appeal – Done in special proceedings and other cases where multiple or separate appeals are allowed. This is filed and served in the same manner as notice of appeal.

Contents of the Record (Rule 41, Sec. 6)1. Full names of all the parties to the

proceedings shall be stated in the caption of the record on appeal

2. It shall include the judgment or final order from which the appeal is taken,

3. In chronological order, copies of only such pleadings, petitions, motions, and all

interlocutory orders as are related to the appealed judgment or final order

4. For the proper understanding of the issue involved

5. Together with such data as will show that the appeal was perfected on time

Approval of the Record on Appeal (Rule 41, Sec. 7) – Upon filing of the record for approval and if no objection is filed by the appellee within 5 days from receipt of a copy thereof, the trial court may:1. Approve it as presented; or 2. Direct its amendment by the inclusion of any

omitted matters which are deemed essential

Joint Record on Appeal (Rule 41, Sec. 8) – Where both parties are appellants, they may file a joint record on appeal.

PERIOD TO APPEAL (Rule 41, Sec. 2)1. 15 days from notice of judgment or final order

appealed from 2. 30 days from notice of judgment or final order

where a record on appeal is required 3. 48 hours from notice of judgment or final order

appealed from in habeas corpus cases

Reckoning point of reglementary period: Period for filing the appeal should be counted from the date when the party’s counsel received a copy of the judgment or final order

When a party is represented by a counsel, service of process must be made on counsel, not on party (Fajardo v. CA)

Effect of Motions for New Trial and Reconsideration – Originally, the period to appeal is interrupted by a timely motion for new trial and reconsideration. However, with the Neypes doctrine, a party has a fresh 15-day period from a denial of the motion to perfect an appeal.

Extension of Period to Appeal

Period to appeal may be extended but such extension is addressed to the sound discretion of the court (Socco v. Garcia)

The mere filing and pendency of motion for extension to perfect appeal does not suspend the running of the reglementary period (Bello et al., v. Fernandez)

PLEADINGS FILED (See Rule 44, Procedure in the CA)

Appellant’s Brief 1. Filed within 45 days from receipt of notice of

clerk that all evidence is attached to record2. Follow the Efficient Use of Paper Rule, one original

properly marked and 2 copies with annexes 3. Attach proof of service to adverse party

Grounds for dismissal with respect to appellant’s brief:1. Failure to file brief on time2. Failure to make specific assignment of errors

in his brief

Contents:1. Subject index2. Assignment of Errors3. Statement of the Case 4. Statement of Facts5. Statement of Issues 6. Arguments7. Relief8. Copy of judgment or final order appealed

from

Appellee’s Brief:1. Filed within 45 days from receipt of appellant’s

brief2. Manner of filing is similar to that in appellant’s

brief

Contents:1. Subject index 2. Statement of Facts and Counter-Statement of

Facts3. Arguments

Appellant’s Reply Brief1. Filed within 20 days from receipt of appellee’s

brief2. This is not mandatory as it is optional on the part

of the appellant

Extension of Time for Filing Briefs:1. General rule: Not allowed2. Exception: For good reasons and only if motion

for extension is filed before expiration of time sought to be extended

PERFECTION OF APPEAL

Payment of Docket Fees (Rule 41, Sec. 4)

Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other lawful fees. Proof of payment of said fees shall be transmitted to the appellate court together with the original record or the record on appeal.

Payment of docket fees in full is mandatory and is a condition sine qua non for the perfection of an appeal.

Perfection of Appeal (Rule 41, Sec. 9)1. If appeal is by notice of appeal – it is deemed

perfected as to him upon the filing of the notice of appeal in due time

2. If appeal is by record on appeal – it is perfected as to him with respect to the subject matter thereof, upon approval of the record on appeal filed in due time

Effect of Perfected Appeal1. In appeals by notice of appeal:

a. Court loses jurisdiction over the case upon perfection of appeal filed in due time and expiration of the time to appeal of the other parties

b. NOTE: This rule applies individually and to each of the parties since the timeliness of their recourse for appellate remedy depends on when they respectively received a copy of the judgment or final order

2. In appeals by record on appeal:a. Court loses jurisdiction only over the subject

matter thereof upon approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties

b. NOTE: The effect is limited to the subject matter only. Jurisdiction over the case is still with the trial court

Residual Powers/Jurisdiction of the RTC – After losing jurisdiction but prior to the transmittal of the original record on appeal, the RTC may:

1. Order execution pending appeal under Rule 39, Sec. 2 (motion for execution was filed before expiration of the period to appeal)

2. To issue orders for preservation of the rights of the parties which do not involve matters litigated by appeal

3. To approve compromise prior to the transmittal of the record

4. Permit appeal by an indigent 5. Allow withdrawal of the appeal

The concept of residual jurisdiction of the trial court is available at a stage in which the court is normally deemed to have lost jurisdiction over the case or the subject matter involved in the appeal. There is no residual jurisdiction to speak of where no appeal or petition has even been filed (Fernandez v. CA).

Duty of Clerk Upon Perfection of Appeal (Rule 41, Sec. 10) Within 30 days after perfection of all appeals, the RTC clerk shall:

1. Verify completeness of original record or record on appeal and make certification as to its correctness

2. Verify completeness of records that will be transmitted to appellate court

3. If found to be incomplete:a. Take such measures as may be required to

complete records b. If efforts to complete records fail:

(1) Indicate in his letter of transmittal the exhibits or transcripts not included

(2) Reasons for their transmittal (3) Steps taken or that could be taken to

have them available 4. Transmit the records to appellate court and

furnish the parties with copies of his letter of transmittal

DISMISSAL OF APPEAL (Rule 41, Sec. 13)

When can the RTC dismiss the appeal?1. Prior to transmittal of original record to appellate

court; or 2. Prior to transmittal of record on appeal to the

appellate court

How done: By the court, motu proprio, or on motion to dismiss appeal by a party

Grounds:1. Appeal was taken out of time 2. Non-payment of docket and other lawful fees

within the reglementary period

NOTE: The dismissal of the appeal in RTC is limited only to these two grounds

PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE COURT OF

APPEALS (RULE 42)

Under this mode of appeal, it is NOT a matter of right but is a matter of DISCRETION on the part of the CA on whether or not to entertain the appeal.

Appeal via Rule 42 is proper when one appeals from a decision of the RTC in the exercise of its APPELLATE jurisdiction.

Appeal under Rule 42 may be on either questions of fact or of law or on mixed questions of both

HOW APPEAL IS TAKEN; PERIOD OF APPEAL (Rule 42, Sec. 1)

If a party desires to appeal from a decision of the RTC in its appellate jurisdiction:

1. File a VERIFIED petition for review with the CAa. Within 15 days from notice of decision, or b. Within 15 days from notice of denial of

petitioner’s motion for new trial or reconsideration

2. Pay the corresponding docket fee and other lawful fees and depositing P500 for costs

3. Furnish the RTC and adverse party a copy of the petition

Extension of period: - The CA may grant an additional 15 days within which to file the petition for review

- Conditions:1. There was a motion filed to this effect 2. Payment in full of docket fees and other

lawful fees as well as deposit for costs 3. To be done within the reglementary period

No further extension may be granted EXCEPT for the most compelling reason and in no case to exceed 15 days.

FORM AND CONTENTS OF THE PETITION FOR REVIEW (Rule 42, Sec. 5)

Form of the petition:1. Original copy is filed intended for the court,

properly marked and 2 copies with their annexes (Efficient Use of Paper Rule)

2. Accompanied by clearly legible duplicate originals or true copies of judgments or final orders of both lower courts certified correct by the RTC clerk

3. Also with pleadings and other material portions of record as would support the allegations of the petition

Contents of the petition: 1. Full names of the parties without impleading the

lower courts or judges thereof 2. Specific material dates showing timeliness of

appeal3. Concise statement of:

a. Matters involved b. Issues raised c. Specification of errors of fact or law, or bothd. Reasons or arguments relied upon

4. A certificate of non-forum shopping must also be attached

EFFECT OF FAILURE TO COMPLY WITH REQUIREMENTS (Rule 42, Sec. 3)

Failure to comply with any of the following requirements shall be sufficient ground for DISMISSAL

1. Payment of docket and other lawful fees

NOTE: In petitions for review under Rules 42, 43, and 45, the docket fee is paid in the appellate courts

2. Deposit for costs 3. Proof of service of petition 4. Contents of the documents, which should

accompany the petition

ACTION ON PETITION (Rule 42, Sec. 4)

The CA may:1. Require respondent to file a comment on the

petition not a motion to dismiss within 10 days from notice; or

2. Dismiss the petition if it finds the same to be:a. Patently without merit b. Prosecuted manifestly for delay; or c. The questions raised therein are too

unsubstantial to require consideration

REMEMBER: Under this Rule, appeal is discretionary on the CA which may give its due course only when the petition shows prima facie that the lower court has committed error.

COMMENT BY RESPONDENT (Rule 42, Sec. 5)

Form of Comment:1. An original is filed, properly marked, together

with 2 copies with their annexes (Efficient Use of Paper Rule)

2. Accompanied by certified true copies of such material portions of the record referred to therein

3. Together with other supporting papers4. Copy of the comment served on petitioner

Contents of Comment: The comment shall1. State whether or not he accepts the statement of

matters involved in the petition 2. Point out such insufficiencies or inaccuracies as

he believes exist in petitioner’s statement of matters but without repetition

3. Reasons why the petition should not be given due course

DUE COURSE (Rule 42, Sec. 6)

If upon the filing of the comment or such other pleadings as the court may allow or require, or after the expiration of the period for the filing thereof without such comment or pleading having been submitted, the Court of Appeals finds prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the appealed decision, it may accordingly give due course to the petition.

PERFECTION OF APPEAL (Rule 42, Sec. 8)

Appeal is deemed perfected as to PETITIONER upon:1. Timely filing of the petition 2. Payment of docket and lawful fees

Jurisdiction of the RTC1. RTC loses jurisdiction upon:

a. Perfection of appeals filed in due time; and b. Expiration of the time to appeal of other

parties 2. RTC may exercise residual jurisdiction before the

CA gives due course to the petition

General Rule: Perfected appeal stays the challenged judgment or final order

Exceptions:1. Unless the CA, law, or Rules, provide

otherwise 2. Also in civil cases decided under the Rule on

Summary Procedure; Stay of judgment is not applicable here since these are immediately executory

SUBMISSION OF DECISION (Rule 42, Sec. 9)

If the petition is given due course1. Case may be set for oral argument, or 2. The parties may be required to submit

memoranda within 15 days from notice3. Case shall be deemed submitted for decision

upon filing of last pleading or memoranda

APPEALS FROM QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS (RULE 43)

SCOPE

Appeals from awards, judgments, final orders or resolution of or authorized by any quasi-judicial agency (QJA) in the exercise of its quasi-judicial functions

A quasi-judicial agency or body is an organ of government other than a court and other than a legislature, which affects the rights of private parties though either adjudication or rule-making

NOTE: A party adversely affected by a decision or ruling of the CTA en banc may file with the SC a verified petition for review on certiorari via Rule 45 (Sec. 12, RA 9282 and AM 07-7-12-SC)

The CTA is no longer a quasi-judicial agency under RA 9282, as of April 7, 2004.

QJAs covered by Rule 43:1. Civil Service Commission 2. Securities and Exchange Commission 3. Office of the President 4. Land Registration Authority 5. Social Security Commission 6. Civil Aeronautics Board 7. Bureau of Patents Trademarks and Technology

Transfer8. National Electrification Administration 9. Energy Regulatory Board10. National Telecommunications Commission 11. Department of Agrarian Reform under RA 665712. GSIS 13. Employees Compensation Commission 14. Agricultural Inventions Board 15. Insurance Commission 16. Philippine Atomic Energy Commission 17. Board of Investment18. Construction Industry Arbitration Commission,

and 19. Voluntary arbitrators authorized by law

WHERE TO APPEAL (Rule 43, Sec. 3)

Appeal is taken to the CA on questions of fact, of law, or mixed questions of fact and law.

PERIOD TO APPEAL (Rule 43, Sec. 4)

Period to appeal is 15 days from:1. Notice of award, judgment, final order, or

resolution OR2. Date of publication, if publication is required by

law for its effectivity, OR 3. Denial of petitioner’s MNT or MFR

Extension of Period: Additional 15 days only 1. Extension is granted upon motion for extension

and payment of full docket fees, both within the reglementary period

2. No further extension is allowed except for the most compelling reasons and in no case shall exceed 15 days

HOW APPEAL IS TAKEN (Rule 43, Sec. 5)1. A verified petition for review is filed with the CA

following the Efficient Use of Paper Rulea. Attach proof of service of a copy to the

adverse party and to the court or agency a quo

2. Upon filing, pay the docket and lawful fees as well as a P500 deposit for costsa. Payment is made to the CA clerk b. Exemption from payment may be granted by

the CA by filing a verified motion for exemption; if denied, party must pay within 15 days from notice of denial

CONTENTS OF THE PETITION: (Rule 43, Sec. 6)1. Statement of full names of parties to the case

without impleading court or agencies2. Concise statement of facts and issues involved

and grounds relied upon for review 3. Accompanied by:

a. Clearly legible duplicate original or a certified true copy of award, judgment, final order, or resolution appealed from

b. Certified true copies of such material portions of record referred to in the petition and other supporting papers

4. Certificate of non-forum shopping 5. Statement of specific material dates showing

timeliness of appeal

EFFECT OF FAILURE TO COMPLY: Dismissal (Rule 43, Sec. 7) for failure to comply with the following:

1. Payment of docket and lawful fees2. Deposit for costs3. Proof of service of petition 4. Contents of petition 5. Documents which should accompany the petition

ACTION ON THE PETITION (Rule 43, Sec. 8)

The CA may:1. Require respondent to file Comment within 10

days from notice2. Dismiss the petition if CA finds the same to be:

a. Patently without meritb. Prosecuted manifestly for delay, or c. Questions raised are too unsubstantial to

require consideration

FORM AND CONTENTS OF COMMENT (Rule 43, Sec. 9)

Form of comment:1. Filed within 10 days from notice following the

Efficient Use of Paper Rule2. Accompanied by the following documents:

a. Clearly legible certified true copies of such material portions of the record referred to therein

b. And such other supporting documents 3. Copy of Comment is served on petitioner with

proof of such service filed with the CA

Contents of Comment: The comment shall:1. Point insufficiencies or inaccuracies in

petitioner’s statement of facts and issues2. State reasons why petition should be denied or

dismissed

DUE COURSE (Rule 43, Sec. 10)

CA may give due course if CA finds prima facie that court or agency has committed errors of fact or law that would warrant reversal or modification

If not, then the CA may dismiss the same.

TRANSMITTAL OF RECORDS (Rule 43, Sec. 11)

Within 15 days from notice that petition has been given due course, the CA may:

1. Require court or agency concerned to transmit original or legible certified true copy of entire record of proceeding under review

2. Require or permit subsequent correction or addition to record

EFFECT OF APPEAL (Rule 43, Sec. 12)

General Rule: Appeal shall not stay the award, judgment, final order or resolution sought to be reviewed

Exception: When the CA shall direct otherwise upon such terms as it may deem just

SUBMISSION FOR DECISION (Rule 43, Sec. 13)

If petition is given due course, the CA may set the case for oral argument or require parties to submit memoranda within 15 days from notice.

Upon filing of last pleading or memorandum required, case is deemed submitted for decision.

APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CTA

A party adversely affected by a decision or ruling of the CTA en banc may file with the Supreme Court a verified petition for review on certiorari pursuant to Rule 45. (Sec. 19, RA 1125 as amended by RA 9282)

APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE COMELEC

Unless otherwise provided by law, or by any specific provisions in these Rules, any decision, order or ruling of the Commission may be brought to the Supreme Court on

certiorari by the aggrieved party within thirty (30) days from its promulgation. (Rule 37, Sec. 1, COMELEC Rules of Procedure)

Decisions in appeals from courts of general or limited jurisdiction in election cases relating to the elections, returns, and qualifications of municipal and barangay officials are not appealable. (Rule 37, Sec. 2, COMELEC Rules of Procedure)

Decisions in pre-proclamation cases and petitions to deny due course to or cancel certificates of candidacy, to declare a candidate as nuisance candidate or to disqualify a candidate, and to postpone or suspend elections shall become final and executory after the lapse of five (5) days from their promulgation, unless restrained by the Supreme Court. (Rule 37, Sec. 3, COMELEC Rules of Procedure)

APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE OMBUDSMAN

The following decisions are unappealable:1. In administrative cases where respondent is

absolved of the charge 2. In case of conviction, where penalty imposed is

public censure or reprimand, or suspension of not more than one month or a fine equivalent to one month salary (AO 7, Rule III, Sec. 7)

Jurisdiction of the CA1. CA has jurisdiction over orders, directives, and

decisions of the Office of Ombudsman in administrative disciplinary cases only

2. It cannot review orders, directives, decisions in criminal and non-administrative cases

Jurisdiction of the SC1. In criminal cases, ruling of Ombudsman shall be

elevated to the SC via Rule 652. In cases in which it is alleged that the

Ombudsman has acted with grave abuse of discretion amounting to lack or excess of jurisdiction, a special civil action of certiorariunder Rule 65 may be filed with this Court to set aside the Ombudsman’s order or resolution. [Nava v. NBI (2005)]

APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE NLRC

Rule 43, Sec. 2 states that Rule 42 shall not apply to judgments or final orders issued under the Labor Code.

The law no longer provides for an appeal from decisions of the LA or from the NLRC. Mode of review from said decisions is the special civil action for Certiorari under Rule 65 in the CA.

NLRC judgments and final orders or resolutions are now reviewable, in the first instance, by the Court of Appeals on certiorari under Rule 65, but those of the Employees Compensation Commission should be brought to the

Court of Appeals through a petition for review under this Rule. Also, appeals from the Office of the Ombudsman in administrative disciplinary cases are now covered by this Rule. [Fabian v. Desierto (1998)]

APPEAL BY CERTIORARI TO THE SUPREME COURT (RULE 45)

CERTIORARI AS A MODE OF APPEAL (RULE 45) AND CERTIORARI AS A SPECIAL CIVIL ACTION (RULE 65)

APPEAL BY CERTIORARICERTIORARI AS AN

ACTIONRule 45 Rule 65

Based on questions of law which appellant desires

the appellate court to resolve

Petition raises the issue as to whether the lower court acted without or in excess

of jurisdiction or with grave abuse of discretion

Involves review of judgment, award or final

order on merits

May be directed against an interlocutory order of the court prior to appeal from

the judgment or where there is no appeal or any

other plain, speedy, or adequate remedy

Must be made within the reglementary period of

appeal

May be filed not later than 60 days from notice of

judgment, order or resolution sought to be

assailed

Stays the judgment, award, or order appealed

from

Does not stay the challenged proceedings

(unless a writ of preliminary injunction or

TRO is issued)

Petitioner and respondent are original parties to the

action

The parties are the aggrieved party against the

lower court or quasi-judicial agency as prevailing parties

Prior filing of MR not required

A filing of a MR is a condition precedent,

subject to certain exceptions

Appellate court is in the exercise of appellate

jurisdiction and power of review

Higher court exercises original jurisdiction under

its power of control and supervision over

proceedings of lower courts

A party desiring to appeal by certiorari from a judgment, final order or resolution of the CA, the Sandiganbayan, the CTA, the RTC or other courts, whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari.

The petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise only questions of law, which must be distinctly set forth. The petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency. (Rule 45, Sec. 1, as amended by A.M. 07-7-12-SC)

OUTLINE OF PROCEDURE

PROPRIETY OF RULE 45 AS A MODE OF APPEAL

Appeals to the SC Can be taken from a judgment or final order or resolution of the CA, Sandiganbayan, CTA en banc, RTC or such other courts as may be authorized by law

Only questions of law are allowed. Whether an appeal involves only questions of law or both questions of law and fact is best left to the determination of an appellate court and not by the court which rendered the decision appealed from (PNB v. Romillo, etc., et al.)

QUESTIONS OF LAW QUESTIONS OF FACT

Doubt or controversy as to what the law is on certain

facts

Doubt or difference as to the truth or falsehood of facts, or as to probative

value of the evidence presented

If the appellate court can determine the issue

without reviewing or evaluating the evidence

The determination involves evaluation or

review of evidence

Can involve questions of interpretation of law with

respect to certain set of facts

Query involves the calibration of the whole

evidence considering mainly the credibility of

witnesses, existence, and relevancy of specific

surrounding circumstances and relation

to each other and the whole probabilities of the

situation

The SC is not a trier of facts, and is not to review or calibrate the evidence on record. Moreover, findings of facts of trial court, as affirmed on appeal by the CA, are

conclusive on the court (Boston Bank of the Philippines v. Manalo)

It has to be emphasized that it is not the duty of the SC to review, evaluate, and weigh the probative value of the evidence adduced before the lower courts (Frondarina v. Malazarte)

APPEAL FROM RTC TO SC UNDER RULE 45

To appeal under Rule 45, RTC must render judgment in the exercise of its original jurisdiction

If the RTC is in exercise of its appellate jurisdiction, proper remedy is to appeal to the CA via Rule 42 even if only questions of law are raised

If the other party had already taken an appeal to the CA to question the RTC decision, the property remedy of petitioner is simply ordinary appeal to the CA as well (First Phil. International Bank v. CA).

Grave abuse of discretion is not an allowable ground under Rule 45 (Martires v. CA).

APPEAL FROM CA IS ALWAYS BY RULE 45

Appeal under Rule 45 is the proper review of decisions of the CA even in special civil actions.

Any alleged errors committed by it in the exercise of jurisdiction would be errors of judgment which are reviewable by timely appeal and not by special civil action of certiorari.

Rule 45 is clear that decisions, final orders, or resolutions of the CA in any case, regardless of the nature of the action or proceedings involved, may be appealed to the SC by filing a petition for review, which would but be a continuation of the appellate process over the original case.

CONCLUSIVENESS OF FINDINGS OF FACT

General Rule: The findings of fact of the CA are final and conclusive and cannot be reviewed on appeal to the SC

Exceptions: CA’s findings of fact may be reviewed by the SC on appeal by certiorari when:

1. Conclusion is a finding grounded entirely on speculations, surmises or conjectures [Joaquin v. Navarro (1953)].

2. Inference made is manifestly mistaken, absurd or impossible [Luna v. Linatok (1942)].

3. There is grave abuse of discretion in the appreciation of facts [Buyco v. People (1954)].

4. Judgment is based on a misapprehension of facts [De la Cruz v. Sosing (1953).

5. The Court of Appeal’s findings of fact are conflicting [Casica v. Villaseca (1957)].

6. The Court of Appeals, in making its findings, went beyond the issues of the case and the same is

RTC, Sandiganbayan, CTA en banc, or CA renders a decision

Any party files a petition for review on certiorariWithin 15 days from notice

of final judgment or order of lower court or notice of denial of motion for reconsideration or new trial

Appellant serves copies of petition on adverse partiesAnd to the lower court,

And pay the corresponding docket fees

SC may dismiss the petition or require appellee to comment

If given due course, parties may submit memoranda

SC may affirm, reverse, or modify judgment of lower court

contrary to the admissions of both appellant and appellee [Nakpil & Sons v. CA (1986)].

7. The Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion [Abellana v. Dosdos (1965)].

8. The Court of Appeal’s findings of fact are contrary to those of the trial court, or are mere conclusions without citation of specific evidence, or where the facts set forth by the petitioner are not disputed by the respondent, or where the findings of fact of the Court of Appeals are premised on absence of evidence but are contradicted by the evidence of record [Manlapaz v. CA (1987)].

PERIOD OF APPEAL: (Rule 45, Sec. 2)

Time for Filing: 15 days from1. Notice of judgment, final order, or resolution

appealed from, or 2. Notice of denial of motion for new trial or

reconsideration filed in due time after notice of judgment

The Neypes doctrine is also applicable in Rule 45.

Extension of Period: 30 days upon1. Motion duly filed and served; and2. Payment of docket and lawful fees and deposit

for costs3. And for justifiable reasons

FORM OF PETITION1. The petition must be VERIFIED2. Following the Efficient Use of Paper Rule:

a. One original, properly marked, and 4 copiesb. If the case is referred to En Banc, 10

additional copies is filed 3. Payment of docket and other lawful fees and

deposit of P500 for costs is made with the SC Clerk at the time of filing

4. Proof of service of the petition to the lower court and adverse party are attached

CONTENTS OF PETITION (Rule 45, Sec. 4)1. State full names of the parties

a. Appealing party = as Petitioner b. Adverse party = as Respondent c. Do not implead lower courts or judges

2. Indicate material dates showing:a. When notice of judgment or final order or

resolution was receivedb. When a motion for new trial or

reconsideration, if any, was filed and when a denial thereof was received

3. Concise statement of:a. The matters involvedb. Reasons or arguments relied on

4. Accompanied by a clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified by the clerk of court and court a quo

5. Certificate of non-forum shopping

GROUNDS FOR DENIAL OF PETITION (Rule 45, Sec. 5)1. Failure of petitioner to comply with:

a. Payment of docket or other lawful fees b. Deposit for costs c. Proof of Service; andd. Contents of and documents which would

accompany the petition 2. Appeal is without merit 3. Is prosecuted manifestly for delay 4. That the questions raised are so unsubstantial as

to require consideration

NOTE: SC may dismiss the petition motu proprio

REVIEW IS DISCRETIONARY (Rule 45, Sec. 6)

Appeal to the SC is NOT a matter of right. It will be granted only when there are special and important reasons therefor.

Some indications of the character of reasons which will be considered:

1. When the court a quo has decided the question of substance, not theretofore determined by the SC, or has decided it in a way probably not in accord with law or with the applicable provisions of the SC; or

2. Court a quo has so far departed from accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of power of supervision

ELEVATION OF RECORDS: (Rule 45, Sec. 8)

If the petition is given due course, the Supreme Court may require the elevation of the complete record of the case or specified parts thereof within fifteen (15) days from notice

GROUNDS FOR DISMISSAL OF APPEAL

DISMISSAL BY THE CA (RULE 50)

An appeal may be dismissed by the CA, on its own motion, or on that of the appellee on certain grounds.

Grounds for Dismissal as provided in Sec. 1, Rule 501. Failure of record on appeal to show on its face

that appeal was taken within the period fixed by Rules

2. Failure to file notice of appeal or record on appeal within prescribed period

3. Failure of appellant to pay docket and other lawful fees as provided in Sec. 4, Rule 41

4. Unauthorized alterations, omissions, or additions in approved record on appeal as provided in Sec. 4, Rule 44

5. Failure of appellant to serve and file required number of copies of his brief or memorandum within time provided by Rules

6. Absence of specific assignment of errors in the appellant’s brief, or of page references to record as required in Sec. 13, (a), (c), (d), (f), Rule 44

7. Failure of appellant to take necessary steps for correction or completion of record within time limited by the court in its order

8. Failure of appellant to appear at preliminary conference under Rule 48 or comply with orders, circulars, directives of the court without justifiable cause

9. Fact that the order or judgment appealed from is not appealable

Other Grounds1. By agreement of the parties (i.e. amicable

settlement)2. Where appealed case has become moot or

academic3. Where appeal is frivolous or dilatory

DISMISSAL BY THE SC (RULE 56)

The appeal may be dismissed motu proprio or on motion of the respondent on the following grounds:

1. Failure to appeal within reglementary period2. Lack of merit of petition 3. Failure to pay docket and lawful fees and deposit 4. Failure to comply with requirements on proof of

service, contents, and documents accompanying petition

5. Failure to comply with circular, directive, or order of SC without justifiable cause

6. Error in choice of mode of appeal 7. The case is not appealable to the SC

COMPARATIVE TABLE ON THE MODES OF APPEAL

WHEN PROPERRULE 40 RULE 41 RULE 42 RULE 43 RULE 45

ORDINARY APPEALMatter of Right; Filed with the court of originAll records are elevated from court of origin

PETITIONS FOR REVIEWDiscretionary; No records are elevated unless the court decrees it

Filed with the appellate court

Appeal from a judgment or final order of a MTC

Appeal from a decision of the RTC in the exercise of its original

jurisdiction

Appeal from a decision of the RTC rendered in the exercise of

its appellate jurisdiction

Appeals from awards, judgments, final orders or resolution of or

authorized by any quasi-judicial agency in the exercise of its

quasi-judicial functions

Appeals to the SC from a judgment or final order or

resolution of the CA, Sandiganbayan, CTA en banc, RTC (original jurisdiction) or such other courts as may be

authorized by lawRule 41 provisions shall apply to Rule 40 if not consistent with Rule

40 provisionsDecisions, final orders, or

resolutions of the CA in any case, regardless of the nature of the

action or proceedings involved, may be appealed to the SC by

filing a petition for review,WHERE TO FILE

RULE 40 RULE 41 RULE 42 RULE 43 RULE 45Filed with the MTCAppeal to the RTC

Filed with the RTCAppeal to the CA

Filed with the CAAppeal to the CA

Filed with the CAAppeal to the CA

Filed with the SCAppeal to the SC

Questions of fact or mixed questions of fact and law

Questions of fact or mixed questions of fact and law

Questions of fact, Questions of law, or Mixed questions of both

Questions of fact, Questions of law, or Mixed questions of fact

and lawOnly Questions of Law

TIME FOR FILINGRULE 40 RULE 41 RULE 42 RULE 43 RULE 45

BY NOTICE OF APPEALWithin 15 days after notice of judgment or final order

BY RECORD ON APPEALWithin 30 days from notice of judgment or final order by filing a

notice of appeal and a record on appeal

Within 15 days from notice of decision, or

Within 15 days from notice of denial of petitioner’s motion for

new trial or reconsideration

Within 15 days from:1. Notice of award,

judgment, final order, or resolution OR

2. Date of publication, if publication is required by law for its effectivity, OR

3. Denial of petitioner’s MNT or MR (only one MR allowed)

Within 15 days from:1. Notice of judgment,

final order, or resolution appealed from, or

2. Notice of denial of motion for new trial or reconsideration filed in due time after notice of judgment

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

CONCEPT

Remedies AFTER finality of judgment1. Petition for relief (Rule 38)2. Action to Annul Judgment (Rule 47)3. Collateral Attack of a Judgment that is Void on its

Face

A petition for relief from judgment together with a motion for new trial and a motion for reconsideration are remedies available only to parties in the proceedings where the assailed judgment is rendered. In fact, it has been held that a person who was never a party to the case, or even summoned to appear therein, cannot avail of a petition for relief from judgment (Alaban v. Cam)

NOTE: This is not applicable to the SC since it is not a trier of facts.

RULE 37 v. RULE 38

RULE 37 RULE 38Available BEFORE

judgment becomes final and executory

Available AFTER judgment has become final and

executory

Applies to judgments or final orders only

Applies to judgments, final orders and other

proceedingsGrounds: (1) FAME and

(2) Newly discovered evidence

Ground: FAME

Filed within the time to appeal

Filed within 60 days from knowledge of judgment

and within 6 months from entry of judgment

If denied, order of denial is not appealable; hence, remedy is appeal from

judgment

If denied, order denying a petition for relief is not appealable; remedy is

appropriate civil action under Rule 65

Legal remedy Equitable remedyMotion need not be

verifiedPetition must be verified

Rule 37 and Rule 38 are EXCLUSIVE remedies.

A party who has filed a timely motion for new trial and/or reconsideration cannot file a petition for relief after his motion has been denied.

A party who has filed a timely motion for new trial or motion for reconsideration can no longer file a petition for relief from judgment after his motion has been denied. These remedies are mutually exclusive. It is only in appropriate cases where a party aggrieved by the judgment has not been able to file a motion for new trial or motion for reconsideration that a petition for relief can be filed. (Francisco v. Puno, 1981)

WHEN PROPER

Rule 38 can be availed of once the judgment has become final and executory.

The relief provided for by Rule 38 is of equitable character and is only allowed in exceptional cases, that is where there is no other available or adequate remedy. A petition for relief is not regarded with favor and judgment will not be disturbed where the party complaining has or by his exercising proper diligence would have had an adequate remedy at law, as where petitioner could have proceeded by appeal to vacate or modify the default judgment. [Manila Electric v. CA (1990)]

Under Sec. 1, it is also available when “any other proceeding is thereafter taken against the petitioner in any court through FAME”

Thus, it was held that a petition for relief is also applicable to a proceeding taken after entry of judgment or final order such as an order of execution (Cayetano v. Ceguerra) or an order dismissing an appeal (Medran v. CA)

WHERE FILED

Rule 38 is not an independent action but a continuation of the old case. Hence, it is filed with the same court and same branch which decided the case.

GROUNDS: (Rule 38, Sec. 1 and 2)1. When judgment or final order is entered or any

other proceeding is thereafter taken against petitioner through FAME

2. When petitioner has been prevented from taking an appeal by FAME

PERIOD FOR FILING: (Rule 38, Sec. 3)1. Within 60 days after petitioner learns of the

judgment, final order, or other proceeding to be set aside; AND

2. Not more than 6 months after such judgment or final order was entered, or such proceeding was taken

The two periods for the filing of a petition for relief are not extendible and never interrupted. Both periods must be complied with. (Phil. Rabbit Bus Lines Inc. v. Ariaga)

Reckoning points:1. The 60-day period is reckoned from the time the

party acquired knowledge of the order, judgment or proceeding. Not from the date he actually read the same (Perez v. Araneta)

2. 6-months period is computed from the date of entry of the order or judgment

FORM AND CONTENTS OF THE PETITION1. The petition for relief must be verified

2. The petition must be accompanied by an affidavit showing the FAME relied upon; and

3. The affidavit of merit accompanying the petition must also show the facts constituting the petitioner’s good and substantial cause of action or defense as the case may be

The absence of an affidavit of merits is a fatal defect and warrant denial of the petition (Fernandez v. Tan Tiong Tick)

However, it is not a fatal defect so long as the facts required to be set out also appear in the verified petition (Fabar Inc. v. Rodelas)

When Affidavit of Merit is not necessary:1. When there is lack of jurisdiction over the

defendant;2. When there is lack of jurisdiction over the subject

matter;3. When judgment was taken by default;4. When judgment was entered by mistake or was

obtained by fraud; or5. Other similar cases.

ORDER TO FILE ANSWER (Rule 38, Sec. 4)

An order to answer shall issue only if petition is sufficient in form and substance.

If petition is sufficient in form and in substance, the court shall issue an order requiring the adverse party to answer within 15 days from receipt thereof.

PROCEEDINGS AFTER ANSWER IS FILED (Rule 38, Sec. 6)

After filing of answer or expiration of the period therefor, court shall hear the petition.

If the court finds that the allegations are not true – Petition is dismissed.

If the court finds that allegations are true:1. It shall set aside the judgment, final order, or

other proceeding complained of upon such terms as may be just

2. Thereafter, case shall stand as if such had never been rendered, issued, or taken

3. The court shall then proceed to hear and determine the case as if timely motion for new trial or reconsideration has been granted by it

REMEDY FOR DENIAL OF PETITION FOR RELIEF.

Appeal from an order denying a petition for relief is no longer available under the present rules.

The remedy against a denial of a petition for relief is certiorari under Rule 65, when proper.

ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS (RULE 47)

Annulment of Judgment is a remedy in law independent of the case where the judgment sought to be annulled was rendered and may be availed of though the judgment has been executed.

NATURE

The purpose of such action is to have the final and executory judgment set aside so that there will be a renewal of litigation.

Resorted to in cases where ordinary remedies of new trial, appeal, petition for relief, or other appropriate remedies are no longer available through no fault of petitioner

It is not a mode of appeal but an Independent Civil Action.

WHEN PROPER (Rule 47, Sec. 1)

It is available when the petitioner failed to move for new trial in, or appeal from, or file a petition for relief against, or take other appropriate remedies assailing the questioned judgment or final order or resolution through no fault attributable to him

The remedy may no longer be invoked where the party has availed himself of the remedy of new trial, appeal, petition for relief, or other appropriate remedy and lost or where he has failed to avail himself of those remedies through his fault or negligence

WHERE FILED

JUDGMENTS, FINAL ORDERS, OR

RESOLUTIONS OF THE RTC

JUDGMENTS, FINAL ORDERS, OR

RESOLUTIONS OF THE MTC

Filed with the CA Filed with the RTCCA has exclusive and

original jurisdiction over said action under Sec. 9

(2) of BP 129

RTC as a court of general jurisdiction under Sec.

19(6) BP 129

The CA may dismiss the case outright; it has the

discretion on whether or not to entertain the

petition

The RTC has no such discretion, it is required to consider it as an ordinary

civil action

WHO CAN FILE

Petitioner need not be a party to the judgment sought to annulled.

A person who is not a party to the judgment may sue for its annulment provided that he can prove the same was obtained through fraud or collusion and that he would be adversely affected thereby. (Alaban v. CA)

GROUNDS (Rule 47, Sec. 2)

Annulment may be based only on TWO grounds:1. Extrinsic Fraud2. Lack of Jurisdiction

Although Sec. 2 provides that annulment of judgment or order may be based only on extrinsic fraud and lack of jurisdiction, jurisprudence recognizes DENIAL OF DUE PROCESS as an additional ground (Sps. Benatiro, et al. v. Heirs of Cuyos et al.) This was recognized in the 2013 case of Leticia Diona, represented by her Attorney-in-fact, Marcelina Diona v. Romeo Balangue, Sonny Balangue, Reynaldo Balangue, and Esteban Balangue, Jr.

Extrinsic or Collateral Fraud - Refers to any fraudulent act of the prevailing party in the litigation which is committed outside of the trial of the case, whereby the defeated party has been prevented from exhibiting fully and fairly presenting his side of the case

Lack of Jurisdiction - Lack of jurisdiction refers to either lack of jurisdiction over the person of the defending party or over the subject matter of the claim, and in either case, the judgment or final order and resolution are void.

NOTE: In a petition for annulment of judgment based on lack of jurisdiction, petitioner must show an ABSOLUTE LACK of jurisdiction not merely abuse of jurisdictional discretion.

As to Evidence1. When the ground invoked is extrinsic fraud,

extraneous evidence is admitted 2. However, when the ground is lack of jurisdiction,

only evidence found in the records of the case can justify nullity of judgment

PERIOD FOR FILING (Rule 47, Sec. 3)

EXTRINSIC FRAUDLACK OF

JURISDICTIONPERIOD

OF FILING

4 years from discovery of fraud

Before it is barred by laches or estoppel

There must be a manifest showing with petition that it was filed within the 4-yr period.

The rule does not fix the period to annul judgment based on lack of jurisdiction but recognizes the principle of estoppel as first laid down by Tijam v. Sibonghanoy.

FORM AND CONTENTS OF PETITION (Rule 47, Sec. 3)1. Verified petition, alleging therein:

a. With particularity, the facts and the law relied upon

b. Petitioner’s good and substantial cause of action or defense

2. Filed following the Efficient Use of Paper Rule

3. Certified true copy of the judgment or final order or resolution shall be attached to the original copy of the petition

4. Affidavits of witnesses or documents supporting the cause of action or defense; and

5. Certificate of non-forum shopping

PROCEEDINGS

There are two stages in the disposition of the petition:1. A preliminary evaluation of the petition for prima

facie merit (Sec. 5) The rule allows the CA to dismiss the petition

outright as in special civil actions If prima facie merit is found, petition is given

due course and summons is served on respondent

2. If prima facie merit is found, petition is given due course and issuance of summons as in ordinary civil cases is made (Sec. 6) Procedure in ordinary civil cases is observed

NOTE: Prima facie determination is not available in annulment of judgments or final orders of MTCs before the RTC. (Rule 47, Sec. 10)

EFFECT OF JUDGMENT OF ANNULMENT (Rule 47, Sec. 7)

Effect of annulment based on lack of jurisdiction1. The same shall be set aside and considered null

and void 2. Aggrieved party may refile the action in the

proper courta. This may involve a different court of

competent jurisdiction b. But where the reason for such annulment

was because of lack of jurisdiction over defendant, the action may be refilled in the same original court provided it has proper jurisdiction and venue

Effect of annulment based on extrinsic fraud1. The same shall be set aside and considered null

and void 2. On motion of the prevailing party on justifiable

grounds, he may be allowed to no longer refile the action a. The trial court which rendered the

questioned judgment shall be ordered to try the case anew

The prescriptive period for the refiling of the aforesaid original action shall be deemed suspended from the filing of said original action until the finality of the judgment of annulment.  However, the prescriptive period shall not be suspended where the extrinsic fraud is attributable to the plaintiff in the original action. (Rule 47, Sec. 8)

COLLATERAL ATTACK OF JUDGMENTS

ON ATTACKING THE VALIDITY OF A JUDGMENT

Direct Attack v. Collateral Attack:1. Direct attack upon a judgment is an action or

proceeding to annul it, this being the main object of the proceeding

2. Collateral attack upon a judgment is one made to obtain relief other than the setting aside of the judgment, the attack on the judgment itself being incidental

When Collateral Attack Proper: This is proper only when the judgment on its face is null and void as where it is patent that the court which rendered said judgment has no jurisdiction

The validity of a judgment or order of the court, which has become final and executory, may be attacked in three ways:

1. Only by a direct action or proceeding to annul the same This proceeding is a direct attack against the

order of judgment because it is not incidental to, but is the main object of, the proceeding

A direct action to annul and enjoin enforcement of the judgment where the alleged defect is not apparent on its face or from the recitals contained in the judgment

See Rule 47

2. Or by direct action, as certiorari, or by collateral attack in case of apparent nullity The collateral attack must be against a

challenged judgment which is void upon its face or that the nullity of the judgment is apparent from its own recitals

3. Or by a Petition for Relief under Rule 38 This third manner of attacking must be taken

in the same action or proceeding in which the judgment or order was entered

VOID JUDGMENT

 A void judgment is no judgment at all. It cannot be the source of any right nor the creator of any obligation. All acts performed pursuant to it and all claims emanating from it have no legal effect. Hence, it can never become final and any writ of execution based on it is void. [Polystyrene Manufacturing v. Privatization Management (2007)]

A void judgment may be likened to a lawless thing which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it rears its head. [Banco Espanol-Filipino v. Palanca (1918)]

A judgment may be void for lack of due process of law. [Spouses Benatiro v. Heirs of Cuyos (2008))

ATTACKING A VOID JUDGMENT

It may be assailed anytime, collaterally or in a direct action or by resisting such judgment or final order in any action or proceeding whenever it is invoked, unless barred by laches. [Spouses Benatiro v. Heirs of Cuyos (2008))

REMEDIES

If the reglementary period for appeal has not yet lapsed, some remedies are New Trial and Reconsideration. Appeal, Petition for Relief, and Other Appropriate Remedies such as Certiorari may also be used.

If the appropriate remedies are no longer available without the fault of the petitioner, the equitable and extraordinary remedy of Petition for Annulment of Judgment may be resorted to.

When all else fails, there is jurisprudence to the effect that a patently void judgment may be dealt with by a Main Action for Injunction. [See Barrameda v. Moir (1913)]

JURISPRUDENTIAL BASIS

Remedial Law Jurisprudence such as Spouses Benatiro v. Heirs of Cuyos, (2008) and Agustin v. Bacalan, (1985) on the matter of void judgment particularly refer to Rule 47 as a remedy against a void judgment. This remedy, however, should be availed of only when the appropriate remedies are no longer available without fault on the part of the petitioner.

Although Section 2 of Rule 47 of the Rules of Court provides that annulment of a final judgment or order of an RTC may be based "only on the grounds of extrinsic fraud and lack of jurisdiction," jurisprudence recognizes denial of due process as additional ground therefore (Spouses Benatiro Case).

A void judgment is like an outlaw which may be slain at sight wherever or whenever it exhibits its head. The proper remedy in such case, after the time for appeal or review has passed, is for the aggrieved party to bring an action to enjoin the judgment. (Montinola v. Judge Gonzales, 1989)

Assuming the judgment to have been void as alleged by the proponent of this motion, the proper remedy was by an original proceeding and not by motion in the cause" [Banco Espanol v. Palanca (1918)]. A final judgment may be annulled on the ground of lack of jurisdiction, fraud, or that it is contrary to law. [Panlilio v. Garcia (1982)]

EXECUTION, SATISFACTION, AND EFFECT OF JUDGMENTS

DIFFERENCE BETWEEN FINALITY OF JUDGMENT FOR PURPOSES OF APPEAL; FOR

PURPOSES OF EXECUTION

The term “finality of judgment for purposes of appeal” refers to interlocutory orders which:

1. Are not decisions within the constitutional definition [Armargo v. CA (1973)]

2. are those that determine incidental matters that do not touch on the merits of the case or put an end to proceedings. The following are examples of an interlocutory order:a. An order denying a motion to dismiss;b. An order granting an extension of time to file

a pleading, or one authorizing an amendment thereof;

c. Order granting or denying applications for postponement or inspection of documents. [Riano]

The word interlocutory refers to something intervening between the commencement and the end of a suit which decides some point or matter but is not a final decision of the whole controversy. [Ramiscal, Jr. v. Sandiganbayan (2004)]

A final judgment or order is one that finally disposes of a case, leaving nothing more to be done by the Court in respect thereto, e.g., an adjudication on the merits which, on the basis of the evidence presented at the trial, declares categorically what the rights and obligations of the parties are and which party is in the right; or a judgment or order that dismisses an action on the ground, for instance, of res judicata or prescription.

Once rendered, the task of the Court is ended, as far as deciding the controversy or determining the rights and liabilities of the litigants is concerned. Nothing more remains to be done by the Court except to await the parties' next move (which among others, may consist of the filing of a motion for new trial or reconsideration, or the taking of an appeal) and ultimately, of course, to cause the execution of the judgment once it becomes 'final or, to use the established and more distinctive term, 'final and executory.

Execution is a matter of right upon the expiration of the period to appeal and no appeal was perfected from a judgment or order that disposes of the action or proceeding. [Rule 39, Sec. 1]

It can be noted that the Supreme Court made a hairline distinction between finality of order for appeals and for execution. It is submitted that upon court’s issuance of a judgment touching upon the merits of a case, it is final for the purposes of an appeal, but NOT for execution.

NOTE: Finality for the purposes of execution refers to the expiration of the period to appeal and no appeal was perfected.

WHEN EXECUTION SHALL ISSUE

Execution is a process provided by law for the enforcement of a final judgment. Enforcement is part of court’s jurisdiction. It is not an action but is included in the phrase “Process in an action – part of the proceedings considered as still pending.

Cases where Execution may Issue even if judgment NOT Final:

1. Support pendente lite 2. Judgments of inferior courts in ejectment cases 3. Execution pending appeal 4. Injunction, accounting, receivership, support

(Rule 39, Sec. 4) 5. Decision of the RTC in appealed civil cases under

Summary Procedure, including forcible entry and unlawful detainer

6. Decision of the LA reinstating dismissed employee, insofar as reinstatement aspect is concerned

Writ of Execution: A judicial writ issued to an officer authorizing him to execute the judgment of the court.

Dispositive Portion as Subject of Execution1. General Rule: The dispositive portion of the

decision is that part that becomes the subject of execution

2. Exceptions:a. Where there is ambiguity, the body of the

opinion may be referred to for purposes of construing the judgment because the dispositive part of a decision must find support from decision’s ratio decidendi

b. Where extensive and explicit discussion and settlement of the issue is found in the body of the decision

Two Whom Issued: 1. General Rule: Only real parties in interest in an

action are bound by judgment rendered therein and by the writs of execution

2. Exceptions: There are certain cases where the writ may be issued against non-partiesa. One who is privy to judgment debtor can be

reached by an order of execution and writ of demolition (Vda. De Medina v. Cruz)

b. Issued against one who not being originally a party to the case submits his interest to the court for consideration in the same case and invites adjudication regarding said interest (Jose v. Blue)

c. Where non-parties voluntarily signed the compromise agreement or voluntarily appeared before court (Rodriguez v. Alikpala)

d. Where the remedy of a person not a party to the case which he did not avail of, was to intervene in the case in question involving rights over the same parcel of land and said person in another case was adjudged buyer in bad faith thereof (Lising v. Plan)

e. In an ejectment case, where 3rd party derived his right of possession from defendant particularly when such right was acquired only after filing of ejectment suit (Cordova v. Tornilla)

EXECUTION AS A MATTER OF RIGHT (Rule 39, Sec. 1)

The finality of judgment has the effect of entitling prevailing party to execution as a matter of right. It is the ministerial duty of the court to do execution. (Herrera)

Execution as a matter of right, TWO INSTANCES:1. No appeal has been perfected or period of appeal

has expired2. Appeal has been perfected and finally resolved

How Done:

CASE HOW EXECUTION IS CARRIEDIf no appeal has

been perfected, or the period of appeal

has expired

Prevailing party applies by motion for a writ of execution which is granted by the judge since it is a matter of right

If appeal has been perfected and

finally resolved

Prevailing party:1. Files a motion in the court

of origin,2. Submitting certified true

copies of the judgment or final orders sought to be enforced

3. Submitting the entry thereof,

4. With notice to adverse party

Appellate court may also direct the court of origin to issue the writ of execution:

1. Upon motion in the same case AND

2. When the interest of justice so requires

General Rule: It is a matter of right on the part of the winning party when the judgment or order becomes executory. The court cannot refuse execution.

Exceptions: The issuance of a writ of execution which issues as a matter of right can be countered in any of the following cases

1. ):2. When a PETITION FOR RELIEF or an action to

enjoin judgment is filed and a preliminary

injunction is prayed for and granted (Rule 38, Sec. 5);

3. When the judgment turns out to be INCOMPLETE OR IS CONDITIONAL since as a matter of law, such judgment CANNOT BE FINAL;

4. When the judgment has been NOVATED BY THE PARTIES

5. When SUBSEQUENT FACTS AND CIRCUMSTANCES transpire as to render such execution unjust or impossible

6. On EQUITABLE GROUNDS as when there has been a change in the situation of the parties which makes execution INEQUITABLE.

7. When the judgment becomes DORMANT, the 5-year period under Rule 39.6 having expired without the judgment having been revived

NOTE: Execution may only issue upon motion with notice of hearing.

Supervening Event Doctrine – A supervening event can be invoked for the modification or alteration of a final judgment. This refers to:

1. Facts which transpire after judgment has become final and executory. Or

2. New circumstances which developed after the judgment has acquired finality

3. Matters which the parties were not aware of prior to or during the trial as they were not yet in existence at that time

4. The supervening facts or circumstances must either bear a direct effect upon the matters already litigated and settled or create a substantial change in the rights or relations of the parties therein which render execution of the final judgment unjust or impossible (Lim v. Jabalde)

DISCRETIONARY EXECUTION (Rule 39, Sec. 2)

DISCRETIONARY EXECUTION

EXECUTION AS A MATTER OF RIGHT

May issue before the lapse of period to appeal, and

even during appeal

Period to appeal has already lapsed and no

appeal is perfectedDiscretionary upon the

courtUpon showing of good reason for execution

Ministerial duty of the court

Provided there are no supervening events

Under the Rule on Discretionary Execution (also called execution pending appeal), the court rendering the judgment, if it still has jurisdiction, may exercise discretion and order execution pending appeal.

It is the execution of a judgment or final order before it attains finality. The court which rendered the decision can grant an execution pending appeal if it still retains jurisdiction over the case and is in possession of the records at the time of the filing of the motion; otherwise, the motion shall be acted upon by the appellate court. To be valid, there should be a good reason to justify the execution of the judgment pending appeal, the same to be stated in the order granting it.

Discretionary Execution is NOT applicable in the case of the Court of Appeals:

1. The Rule on Discretionary Execution contemplates a situation where a judgment or final order rendered in the exercise of its original jurisdiction and the prevailing party in said decision seeks immediate execution during the pendency of an appeal.

2. The CA has no authority to issue IMMEDIATE EXECUTION PENDING APPEAL OF ITS OWN DECISIONS THEREIN.

3. Discretionary execution is allowed pending appeal of judgment or final order of the trial court upon good reasons to be stated in a special order.

A judgment of the CA cannot be executed pending appeal. (Heirs of Justice JBL Reyes v. CA, 2000)

When Proper and How Done

1. Execution pending appeal – The duration of the court’s discretionary power to order execution pending appeal depends on:a. Where the record on appeal is required,

(1) The court loses jurisdiction only over the subject matter thereof upon approval of the record on appeal and expiration of the time to appeal of the other party

b. Where no record on appeal is required, court may issue writ of execution before perfection of appeal

c. If the court lost jurisdiction, the writ may be issued by the appellate court, as such:

CASE HOW EXECUTION IS CARRIED

If the trial court still has jurisdiction over the case and is still in possession of either

the original record or record on appeal

Prevailing party:1. Files a motion with

notice to the adverse party

2. Motion is filed with the TRIAL court

3. Good reasons must be shown

If the trial court has lost jurisdiction

The prevailing party:1. Files a motion with

notice to adverse party2. Motion is filed with the

APPELLATE COURT3. Good reasons must be

shown

2. Execution of several, separate, or partial judgments may also be executed under the same terms and conditions as execution pending appeal.

Requisites for Discretionary Execution:1. There must be a motion filed by prevailing party

with notice to adverse party

2. There must be a hearing of the motion for discretionary execution

3. There must be good reasons to justify the discretionary execution

4. These good reasons must be stated in a special order after due hearing

Examples of Good Reasons:1. Where the goods subject of the judgment stand to

perish or deteriorate during the pendency of the appeal (Yasuda v. CA)

2. The award of actual damages is for an amount fixed and certain (Radio Communications Inc. v. Lantin). But not an award for moral and exemplary damages

3. Insolvency of a defeated party (Hacienda Navarro v. Labrador)

4. The prevailing party is of advanced age and in a precarious state of health and the obligation in the judgment is non-transmissible, being for support (De Leon v. Soriano)

5. Where defendants were exhausting their income and have no other property aside from proceeds of the property subject in litigation (Lao v. Mencias)

The Supersedeas Bond

Discretionary execution may be stayed upon approval by the proper court of a sufficient supersedeas bond filed by the party against whom it is directed.

1. It is conditioned upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part

2. Bond may be proceeded against on motion with notice to surety

General Rule: The filing of a supersedeas bond is sufficient to stay the enforcement of a discretionary execution.

Exception: However, THE FILING OF SUPERSEDEAS BOND does not entitle the judgment debtor to the suspension of execution as a MATTER OF RIGHT. Where the needs of the prevailing party are URGENT, the Court can order immediate execution despite such SUPERSEDEAS BOND. [Regalado]

If judgment is reversed totally or partially, or annulled – The trial court may, on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances

Remedy against Execution pending Appeal – The remedy is certiorari by Rule 65. The appeal could not be an adequate remedy for such premature execution. (Jaca v. Davao Lumber Co.)

HOW JUDGMENT IS EXECUTED

EXECUTION BY MOTION OR BY INDEPENDENT ACTION (Rule 39, Sec. 6)

Modes of Enforcement of Execution:

MODE WHEN ENFORCED

By MotionWithin 5 years from date of entry of

judgment

By Independent

Action

After the lapse of 5 years from date of entry and before it is barred by statute of limitations which is 10 years from

date of entry (Art. 1144(3))

NOTE: The revived judgment may be enforced by motion within 5 years from date of its entry and thereafter by action before it is barred by statute of limitations.

Once the judgment is revived, the 10-year prescriptive period commences to run from the date of finality of the REVIVED JUDGMENT and not the original judgment.

ISSUANCE AND CONTENTS OF A WRIT OF EXECUTION (Rule 39, Sec. 8)

Contents of the Writ of Execution1. Issued in the name of the Republic from the court

which granted the motion 2. States the name of the court, case number and

title, dispositive part of judgment or order 3. Requiring the sheriff or other proper officer to

whom it is directed to enforce the writ according to its terms

4. In all cases, it shall also specifically state the amount of interest, cost, damages, rents, or profits due as well as the principal obligation

Manner of Execution

If it be against property of judgment obligor

To satisfy judgment plus interest out of his real or

personal propertyIf it be against real or

personal property in the hands of personal

representatives, heirs, devisees, legatees, tenants,

or trustees of judgment obligor

To satisfy judgment with interest out of such

If it be for sale of real or personal property

To sell such property described

Then apply proceeds in conformity with judgment

If it be for delivery or possession of real or

personal property

To deliver possession of the same, describing it, to the party entitled thereto

Then to satisfy any costs, damages, rents, or profits covered by the judgment

Out of the personal property of obligor

In case of insufficiency, then out of real property

Remedies Against a Writ of Execution

1. If there is a defect in the writ, file a motion to quash the writ of executiona. Quashal is proper when:

(1) A change in the situation of the parties renders execution inequitable

(2) Issued against wrong party (3) Issued without authority (4) Improvidently issued (5) Defective in substance (6) Judgment already satisfied; and (7) The controversy was never submitted to

the court (8) Where the writ varies the terms of the

judgment (9) It is sought to be enforced against

property exempt from execution (10) Where there is ambiguity in the

terms of the judgment

b. If motion to quash is denied, appeal from said denial

2. An order granting the issuance of the writ is not appealable, except where:a. The order varies the terms of the judgment,

or b. Where, being vague, the court renders what

is believed to be a wrong interpretation

EXECUTION FOR JUDGMENTS OF MONEY

If the award is for payment of money, execution is enforced by: (Rule 39, Sec. 9)

1. Immediate payment on demand2. Satisfaction by levy 3. Garnishment of debts and credits

IMMEDIATE PAYMENT ON DEMAND

Procedure:1. The officer shall demand from judgment obligor

the immediate payment of the full amount stated in the writ and all lawful fees

2. The judgment obligor shall pay the amount of the judgment debt a. Payable in Cash, Certified bank check payable

to judgment obligee, or any other form of payment acceptable to judgment obligee (1) In no case shall sheriff demand that any

payment by check be made payable to him

(2) Amount of judgment under proper receipt directly to the judgment obligee or his authorized representative if present at time of payment

b. If judgment oblige or his representative is present to receive payment:(1) Judgment obligor shall delver payment

to executing sheriff(2) Sheriff shall turn over the amounts

within the same day to the clerk which issued the writ or deposit the amounts to a fiduciary account in the nearest government depository bank of the RTC of the locality

3. The judgment obligor shall pay the lawful fees handed over to the sheriff. Sheriff shall turn over the said amount within the same day to the clerk that issued the writ

4. If there is any excess it shall be delivered to the judgment obligor. Lawful fees shall be retained by the clerk

SATISFACTION BY LEVY

Levy is the act whereby a sheriff sets apart or appropriates for the purpose of satisfying the command of the writ, a part or the whole of the judgment debtor’s property.

Levy means the act or acts by which an officer sets apart or appropriates a part or the whole of the property of the judgment debtor for purposes of the prospective execution sale [Llenares v. Vandevella (1966)].

If susceptible of appropriation, the officer removes and takes the property for safekeeping; otherwise the same is placed under sheriff’s guards. Without valid levy having been made, any sale of the property thereafter is void.

Conditions to be met before resort to satisfaction by levy:1. If the judgment obligor cannot pay all or part of

the obligation then the officer shall levy upon the properties of the judgment obligor

2. Characteristics of properties to be levieda. Properties of every kind and nature

whatsoever b. Which may be disposed of for value c. Not otherwise exempt from execution

Procedure:1. The judgment obligor have the option to

immediately choose which property or part thereof may be levied upon, sufficient to satisfy judgment

2. If judgment obligor does not exercise the option:a. The officer shall first levy on personal

properties, if anyb. If personal properties are insufficient, then

on the real properties

3. Sheriff shall sell only sufficient portion of personal or real property of the judgment obligor levied upon

4. If there is more property than is sufficient to satisfy judgment and lawful fees, then sell only so much as is sufficient

GARNISHMENT OF DEBTS AND CREDITS

Garnishment is considered as a species of attachment for reaching credits belonging to the judgment debtor and owing to him from a stranger to the litigation

The Officer may levy on:1. Debts due the judgment obligor and other credits, 2. Including bank deposits, financial interests,

royalties, commissions, 3. And other personal property not capable of

manual delivery in possession and control of third parties

The process of levying shall be called garnishment if the property involved is money, stocks, or other incorporeal property in the HANDS OF THIRD PERSONS. Garnishment merely sets apart such funds but does not constitute the creditor as owner of the garnished property.

Garnishment is not a violation of RA 1405 on the secrecy of bank deposits. [Chinabank v. Ortega (1973)]

Notes: Upon service of the writ of garnishment, the garnishee becomes a “virtual party” or “forced intervenor” to the case and the trial court thereby acquires jurisdiction to bind the garnishee to comply with its orders and processes. [BPI v. Lee (2012)]

UP’s funds, being government funds, are not subject to garnishment. Moreover, The execution of the monetary

judgment against the UP was within the primary jurisdiction of the COA. [UP v. Dizon (2012)]

Procedure:1. Levy shall be made by serving notice upon:

a. The person owing such debts, or b. Having in his possession or control such

credits to which judgment obligor is entitled

2. Garnishment to cover only such amount as will satisfy judgment and lawful fees

3. If there are 2 or more garnishees, holding deposits or credits sufficient to satisfy judgment, judgment obligor shall have the right to indicate the garnishee/s who shall be required to deliver. Otherwise, the choice shall be made by judgment obligee

4. The garnishee shall make a written report to the court within 5 days from service of notice of garnishment. The report shall state whether:a. Judgment obligor has sufficient funds or

credits to satisfy judgment, OR b. Judgment obligor has insufficient funds or

credits to satisfy judgment

5. Garnish the amount which may be in cash, or certified bank check issued in the name of judgment obligee

6. Garnished amount shall be delivered directly to judgment obligee within 10 working days from service of notice on said garnishee requiring such delivery

7. Follow procedure under “Immediate Payment on Demand” with respect to delivery

8. Lawful fees shall be paid directly to court

EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS

When proper: (Rule 39, Sec. 10)1. Resorted to if the judgment directs a party to:

a. Execute a conveyance of land or personal property, or

b. Deliver deeds or other documents, or c. Perform any other specific act in connection

therewith. 2. AND the party fails to comply within the time

specified

Procedure:1. Court may direct the act to be done

a. At the cost of disobedient partyb. Or by some other person appointed by the

court

2. In case of directing conveyance of real or personal property located in the Philippines:a. Court may divest the title of any party and

vest it in others by court order b. This shall have the force and effect of

conveyance executed in due form

Sale of real or personal property

If judgment is rendered ordering the sale of real or personal property, an order for execution shall be issued describing such property as may be ordered sold, selling it, and applying the proceeds in conformity with the judgment’s instructions.

Delivery or restitution of real property

The officer shall demand of the person against whom the judgment for the delivery or restitution of real property is rendered and all persons claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession thereof to the judgment obligee.

Otherwise, the officer shall oust all such persons therefrom with the assistance, if necessary, of appropriate peace officers, and employing such means as may be reasonably necessary to retake possession, and place the judgment obligee in possession of such property.

Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money.

Removal of improvements on property subject of execution

When the property subject of the execution contains improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon motion of the judgment obligee after the hearing and after the former has failed to

remove the same within a reasonable time fixed by the court.

Delivery of personal property

In judgment for the delivery of personal property, the officer shall take possession of the same and forthwith deliver it to the party entitled thereto and satisfy any judgment for money as therein provided.

EXECUTION OF SPECIAL JUDGMENTS

When Proper: (Rule 39, Sec. 11)

When a judgment requires performance of any other act than those mentioned in Sec. 9 and 10.

Special Judgment is one which can only be complied with by the judgment obligor because of his personal qualifications or circumstances. It requires performance of an act other than payment of money or sale or delivery of property. A special judgment may be enforced by contempt if defendant refuses to comply

Procedure:1. A writ of execution shall be issued. Attached to

this is a certified copy of the judgment

2. Service by the officer upon:a. The party against whom the same is

rendered, orb. Any other person required thereby, or by

law, to obey the same

3. Failure of such party to obey the judgment is punishable by contempt

Examples:1. A judgment in mandamus to reinstate petitioner

as chief clinic of the hospital (Vital-Gozon v. CA)2. A judgment directing petitioner to vacate the

land which is a judgment to deliver possession of real property and not special judgment. No contempt for refusal (Moslem v. Soriano)

3. A judgment directing defendant to remove a fence from a certain place is a special judgment (Marquez v. Marquez)

EFFECT OF LEVY ON THIRD PERSONS

The levy on execution shall create a lien in favor of the judgment obligee over the right, title and interest of the judgment obligor in such property at the time of the levy, subject to liens and encumbrances then existing. (Rule 39, Sec. 12)

NOTE: The power of the court in execution extends only over properties UNQUESTIONABLY belonging to judgment debtor.

PROPERTIES EXEMPT FROM EXECUTION

General Rule: Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution (Rule 39, Sec. 13)

1. The judgment obligor's family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith;

2. Ordinary tools and implements personally used by him in his trade, employment, or livelihood;

3. 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;

4. His necessary clothing and articles for ordinary personal use, excluding jewelry;

5. 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;

6. Provisions for individual or family use sufficient for four months;

7. The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value;

8. 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;

9. 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;

10. Lettered gravestones;

11. Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance;

12. The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government;

13. Properties specially exempted by law. (e.g., property mortgaged to the DBP [Section 26, CA 458]; savings of national prisoners deposited with the POSTAL SAVINGS BANK [Act 2489]; benefits from private retirement systems of companies and establishments with limitations [RA 4917]; laborer’s wages except for debts incurred for food, shelter, clothing and medical attendance [ART 1708, CIVIL CODE]; benefit

payments from SSS [Section 16, RA 1161 AS AMENDED])

Exception: However, no article or species of property mentioned in this section shall be exempt from:

1. Execution issued upon a judgment recovered for its price, or

2. Upon a judgment of foreclosure of a mortgage thereon.

The exemptions MUST BE CLAIMED, otherwise they are deemed waived. It is not the duty of the sheriff to set off the exceptions on his own initiative. (Herrera v. Mcmicking, 1909)

RETURN OF WRIT OF EXECUTION

Procedure for Return of Writ of Execution if Judgment is Satisfied within 30 days (Rule 39, Sec. 14)

1. Writ of execution shall be returnable to the court issuing it immediately after judgment has been satisfied in part or in full

2. The return shall set forth the whole of the proceedings taken

3. Return is filed with the court

4. It shall also be reproduced and copies thereof furnished to parties

Procedure if Judgment is NOT satisfied within 30 days:1. Officer shall report to the court stating the reason

for non-satisfaction

2. The writ shall continue in effect during the period within which judgment may be enforced by motion

3. Officer shall make a report to the court every 30 days on the proceedings taken thereon, until either:a. Judgment is satisfied in full, or b. Its effectivity expires

4. The periodic reports shall:a. Set forth the whole of the proceedings taken,

and b. Be filed with the court c. Be reproduced and copies thereof furnished

to parties

NOTE: The lifetime of a writ of execution is without limit for as long as the judgment has not been satisfied.

But it is returnable to the court issuing it immediately after judgment has been satisfied in full or in part.

The writ shall continue in effect during period within which the judgment may be enforced by motion which is 5 years from date of entry. After the first 5 years, judgment becomes dormant and subject to revival action.

PROCEEDINGS WHERE PROPERTY CLAIMED BY THIRD PERSON

CONCEPTS

Rule 39, Sec. 16 and other provisions which provide for a mode of recovering property allegedly to have been wrongfully taken by sheriff pursuant to a writ of execution or other process, refers to a STRANGER to an action.

Remedies of Third-Party Claimant:1. Summary hearing before the court which

authorized the execution2. “Terceria” or third-party claim filed with the

sheriff (Rule 39, Sec. 16)3. Action for damages on the bond posted by the

judgment creditor4. Independent reivindicatory action

The aforementioned are cumulative remedies and may be resorted to by a third-party claimant independently of or separately from and without need of availing of the others. [Sy v. Discaya (1990)]

For a Third-Party Claim to be Sufficient:1. Must be filed by a person other than the

defendant or his agent, at any time before sale 2. Must be under oath or supported by affidavit

stating the claimant’s title to, or right of possession of, the property, and grounds therefor

3. Must be served upon the officer making levy and a copy thereof upon the judgment creditor

The timing of the filing of the claim is important because it determines the remedies available to the claimant:

1. If the claim is filed under Rule 39, Sec. 16:a. Claimant may vindicate his claim in a

separate action b. Intervention is no longer allowed since

judgment has already been rendered

2. If the claim is filed under Sec. 14, Rule 57 (Attachment) or under Sec. 7, Rule 60 (Replevin)a. Claimant may vindicate his claim by

intervention as he has a legal interest in the matter of litigation

b. Intervention is allowed as these actions are still pending in court

Effect of Third-Party Claim: When a third-party claim is filed, sheriff is not bound to proceed with the levy of the property unless judgment creditor or latter’s agent posts an indemnity bond against the claim.

SUMMARY HEARING BEFORE COURT AUTHORIZING EXECUTION

A third-person whose property was seized by a sheriff to answer for an obligation of a judgment debtor may invoke the supervisory power of the court which authorized such execution

Procedure:1. Claimant files application

2. Court conducts summary hearing a. The court may command that the property

be released from the mistaken levy and restored to rightful owner or possessor

b. If claimant’s proofs do not persuade, the claim will be denied by the court

3. Note however that the court determination is limiteda. Limited only to a determination of whether

the sheriff has acted rightly or wrongly in performance of his duties

b. The court does not and cannot pass upon the question of title. It can treat of the matter only insofar as may be necessary to decide if sheriff acted correctly or not

TERCERIA

Independent of the foregoing, a third-party claimant may also avail of the remedy of Terceria. Terceria is provided in Sec. 16, Rule 39.

This is an action for damages by claimant against officer within 120 days from date of filing of bond for taking or keeping the property subject of the terceria

Procedure1. Claimant serves on the officer making levy an

affidavit of his title and a copy thereof to judgment creditor

2. Officer shall not be bound to keep property a. Unless judgment creditor, or his agent, on

demand of officer, posts indemnity bond not lesser nor greater than value of property

3. Where a third-party claim has been filed in due form:a. Prevailing party can compel the sheriff to

proceed by filing of a bond to answer for damages as a consequence of the execution

b. If sheriff proceeds with the sale without such bond, he will be personally liable for such damages as may be sustained by and awarded to the claimant

4. Action against Indemnity a. Action against indemnity bond must be filed

within 120 days from date of filing of the bond

b. After lapse of 120 days, no claim for damages for taking or keeping of property may be enforced against the bond

The right of a third-party claimant to file a terceria is founded on his title or right of possession. Corollary thereto, before the court can exercise its supervisory power to direct the release of the property mistakenly levied and the restoration thereof to its rightful owner,

the claimant must first unmistakably establish his ownership or right of possession thereon. (Magdalena T. Villasi v. Filomena Garcia, substituted by his heirs, namely, Ermelinda H. Garcia, et al, 2014)

In Spouses Sy v. Hon. Discaya (1990]), SC declared that for a third-party claim or a terceria to prosper, the claimant must first sufficiently establish his right on the property

REINVINDICATORY ACTION

The aforesaid remedies are nevertheless without prejudice to any proper action that third-party claimant may file to vindicate his claim over the property (ownership claim). This action is separate and independent

Procedure1. He must institute an action, distinct and separate

from that which the judgment is being enforced, with the court of competent jurisdiction

2. No need to file a claim in the court which issued a writ. The latter is not a condition sine qua non for the former.

3. In such proper action, validity and sufficiency of title of claimant will be resolved.

4. A writ of preliminary injunction against sheriff may be issued

RULES ON REDEMPTION

WHEN AVAILABLE1. For personal property – there is NO right of

redemption as the sale is absolute 2. For real property – right of redemption is

available

WHO MAY REDEEM REAL PROPERTY SO SOLD (Rule 39, Sec. 27)

Who may redeem:1. Judgment obligor, or his successor in interest, in

the whole or any part of the property 2. Remptioner who is a creditor having a lien by

virtue of an attachment, judgment or mortgage on the property sold, subsequent to the lien which the property was sold

Successors-in-interest - They include, among others, one to whom the debtor has conveyed HIS INTEREST in the property for purposes of redemption

The Redemptioner

He is a creditor with a lien SUBSEQUENT to the judgment which was the basis of the execution sale.

Unlike the judgment debtor, a redemptioner must prove his right to redeem by producing the documents required in Sec. 30, to wit:

1. Copy of the judgment or final order under which he claims the right to redeem certified by the clerk wherein judgment or final order was entered OR

2. If he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the Register of Deeds; OR

3. An original or certified copy of any assignment necessary to establish his claim; OR

4. An affidavit executed by him or his agent showing the amount then actually due on the lien (Sec. 30)

If the lien of the creditor is PRIOR to the judgment under which the property was sold:

1. He is not a redemptioner2. He cannot redeem since his interests in his lien

are fully protected. Any purchaser at a public auction takes the same subject to such prior lien which he has to satisfy

WHEN CAN REDEMPTION BE MADE (Rule 39, Sec. 28)

WHO WHENBy the JUDGMENT

DEBTORWithin 1 year from date of

registration of certificate of saleBy FIRST

REDEMPTIONERWithin 1 year from date of

registration of certificate of saleBY ALL

SUBSEQUENT REDEMPTIONERS

Within 60 days from last redemptionPROVIDED that judgment debtor has

not exercised his right of

redemption

In all cases, judgment debtor shall have the entire 1 year period from date of registration of sale to redeem the property. If judgment debtor redeems, no further redemption is allowed (Sec. 29).

NOTE: There is no extension or interruption of redemption period.

REDEMPTION PRICE

1. By the Judgment Debtor or First Redemptioner:a. Purchase PRICEb. 1% INTEREST thereon up to time of

redemption c. Any amount of ASSESSMENTS OR TAXES

which purchaser may have paid after purchase as well as interest on such last named amount at the same rate

d. If purchaser is also a creditor having a PRIOR LIEN to that of redemptioner, other than the judgment under which such purchase was made, the AMOUNT of such OTHER LIEN, also with interest

2. By all Subsequent Redemptionersa. AMOUNT paid on last redemption b. 2% INTEREST thereonc. Any amount of ASSESSMENTS OR TAXES

which purchaser may have paid after purchase as well as interest on such last named amount at the same rate

d. Amount of any LIENS held by said last redemptioner prior to his own, also with interest

NOTE: The redemption price for subsequent redemption shall be the same, so the price becomes higher and higher.

EFFECT OF REDEMPTION BY THE JUDGMENT OBLIGOR (Rule 39, Sec. 29)

If Judgment debtor redeems the property:1. No further redemption is allowed 2. He is restored to his estate

When a judgment debtor redeems the property, what is effected is the elimination of the lien created by the levy on attachment or judgment on the registration of mortgage thereon. Note that he never lost ownership so there is no recovery of ownership.

Payments mentioned in Sec. 28 and 29 may be made to the:1. Purchaser, or 2. Redemptioner, or 3. For him to the officer who made the sale

The person to whom redemption payment is made must execute and deliver to him a CERTIFICATE OF REDEMPTION

1. Acknowledged by a notary public or other officer authorized to take acknowledgements of conveyances of real property

2. Filed and recorded in the registry of deeds of the place which the property is situated

3. Registrar must note the record on the margin of the record of the certificate of sale

RIGHTS PENDING REDEMPTION (Rule 39, Sec. 31 and 32)

Right of Judgment Creditor Pending Redemption1. Apply for injunction to restrain the commission

of waste on the property

Rights of the Judgment Debtor Pending Redemption1. Remain in possession of the property 2. Cannot be ejected 3. Use the property in the same manner it was

previously used 4. Make necessary repairs to buildings thereon

while he occupies the property 5. Use it in the ordinary course of husbandry (Sec.

31); and6. Collect rents, earning and income derived from

property until the expiration of period of redemption

EXPIRATION OF REDEMPTION PERIOD (Rule 39, Sec. 33)

Judgment obligor shall have the entire period of ONE YEAR from date of registration of sale to redeem the property

Entitlement to a CONVEYANCE and POSSESSION:1. To the PURCHASER

If there is no redemption made within 1 year from date of registration of the certificate of sale

2. To the LAST REDEMPTIONER If there was redemption, and 60 days have

elapsed and no other redemption has been made

Notice must have been given, and the redemption period has elapsed

Two Documents which the Sheriff Executes in case of Real Property

1. CERTIFICATE OF SALE After auction sale, he will execute in favor of

the purchaser the certificate of sale under Sec. 25

From registration of said certificate, the one year redemption period starts

Certificate of sale after execution sale is merely a memorial of the fact of sale and does not operate as conveyance

2. DEED OF CONVEYANCE Issued if after expiration of redemption

period there is no redemption

Operates to transfer to purchaser whatever rights the judgment debtor had in the property

The effect of a final deed of sale transfers the right as of the time of the levy

RECOVERY OF PRICE IF SALE IS NOT EFFECTIVE (Rule 39, Sec. 34)

Purchaser may recover the purchase price WHEN:1. Purchaser or his successor-in-interest fails to

recover possession the property; or 2. Evicted due to:

a. Irregularities in the proceedings concerning the sale; or

b. Judgment has been reversed or set aside; or c. The property sold was exempt form

execution; or d. A third person has vindicated his claim to the

property

Remedies of the Purchaser1. File a motion in the same action or file a separate

action to recover from judgment creditor the price paid

2. File a motion for revival of judgment in his name against judgment debtor; or

3. Bring an action to recover possession of property

Effect of revived judgment – it has the same force and effect as an original judgment would have as of the date of revival and no more

REMEDIES OF JUDGMENT CREDITOR IN AID OF EXECUTION OR IF JUDGMENT IS NOT FULLY SATISFIED (Rule 39, Sec. 36 – 43)

1. SEC. 36 – If execution is returned unsatisfied, he may cause examination of the judgment debtor as to his property and income a. When: At any time after return is made b. The court issues an order requiring the

judgment debtor to appear and be examinedc. Limitations on examination:

(1) Judgment debtor cannot be made to appear before a judge or commissioner outside the province where debtor resides

(2) He may no longer be examined after lapse of 5 years within which a judgment may be enforced by motion for execution (Umali v. Coquia)

2. SEC. 37 – He may cause examination of the debtor of the judgment debtor as to any debt owed by him or to any property of the judgment debtor in his possession a. Requisites:

(1) The writ must be returned unsatisfied; and

(2) Proof that person, corporation, or other legal entity has property of such judgment debtor or is indebted to him

b. Where? Before a judge or commissioner appointed by him at a time and place where such debtor resides or is found

c. Effect: Service of order shall bind all credits due to judgment debtor and all money and property

d. This rule is not applicable if there is no issue concerning the indebtedness of the person

3. SEC. 37 – If after examination, court finds property of the judgment debtor, either in his own hands or that of any a person, court may order the property applied to the satisfaction of judgment a. SEC. 39 - Note that the person indebted to

judgment obligor may pay to the sheriff holding the writ the amount of his debt or so much thereof as may be necessary to satisfy the judgment

4. SEC. 38 – A party or other person may be compelled to attend before the court or commissioner to testify as provided in Sec. 36 and 37a. This must be done by order of the court or by

subpoenab. Failure to obey: Contemptc. All examinations and answers must be under

oath

5. SEC. 40 – Order for application of property and income to satisfaction of judgmenta. Court may order any property of judgment

debtor, or any money due him, or in the hands of another to be applied to the satisfaction of judgment

b. If the court finds the earning of the judgment debtor for his personal services are MORE than sufficient for his family’s needs, it may order payment in FIXED MONTHLY INSTALLMENTS

c. Failure to do so: Punish for contempt

6. SEC. 41 – Appointment of a Receiver a. Court may appoint a receiver for the

property of judgment debtor not exempt from execution

b. Court may also forbid disposition or interference with the property

7. SEC. 42 – Sale of Ascertainable Interest of Judgment Obligor in Real Estate by Receivera. Requisites:

(1) The court finds that the judgment debtor has an ascertainable interest in real property

(2) Such interest can be ascertained without controversy

b. If the requisites are met, the court can order the sale of such interest. Procedure is the same as in sale of real estate upon execution

8. SEC. 43 – Institution of an action to recover property

a. If person alleged to have property of judgment debtor or person indebted to him, claims an adverse interest in the property or denies his debt

b. Court may authorize judgment creditor to bring an action to recover the property, forbid its transfer

c. Action must be instituted within 120 days from notice of order

d. Failure is contempt e. Such order may be modified or vacated at

any time by the court

EFFECT OF JUDGMENT OR FINAL ORDERS

Rule 39, Sec. 47 refers to judgments which are considered as conclusive and may be rebutted directly by means of relief from judgment or annulment of judgment or indirectly by offering them in evidence under the parole evidence rule.

Immutability of Judgments - Once a judgment attains finality it thereby becomes immutable and unalterable

DUAL ASPECT OF RES JUDICATA

1. Bar by Former Judgment - Direct Estoppel by Judgment; covers paragraph (a) and (b)

2. Conclusiveness of Judgment –Estoppel by Verdict, Estoppel by Record, Collateral Estoppel by Judgment or Preclusion of Issues or Rule of Auter Action Pendant; it covers paragraph (c)

BAR BY FORMER JUDGMENT

CONCLUSIVENESS OF JUDGMENT

There is identity of parties, subject matter,

and causes of action

There is only identity of parties and subject matter

Cause of action are different

The first judgment constitutes as an absolute bar to all matters directly adjudged and those that

might have been adjudged

The first judgment is conclusiveness only as to matters directly adjudged

and actually litigated in the first action.

The second action can be prosecuted

Preclusion of claims Preclusion of issues only

BAR BY FORMER JUDGMENT

Res judicata is a rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand, or causes of action.

IN REM(Paragrah A)

IN PERSONAM(Paragraph B)

Decision is CONCLUSIVE upon title the thing, will or

administration of condition, status or

relationship of the person

The judgment or final order is CONCLUSIVE as

between parties and their successors in interest, litigating for the same

thing and under the same title an in the same

capacitye.g. land registration e.g. accion reinvindicatoria

Bar by prior judgment is a preclusion of claims - The first judgment is a bar to the prosecution of a second action upon the same claim, demand, or cause of action

Requisites:1. A FINAL judgment or order

2. JURISDICTION over the subject matter and the parties by the court rendering it

3. Judgment UPON MERITS 4. Between the TWO CASES, there is:

a. IDENTITY OF PARTIESb. IDENTITY OF SUBJECT MATTERc. IDENTITY OF CAUSE OF ACTION

General Rule: For res judicata to apply, trial must be made on the merits of the case.

Exception: Section 3, Rule 17 of ROC: If plaintiff fails to appear at the time of the trial , or to prosecute his action for an unreasonable length of time, or to comply with these rules or any order of the court, the action may be dismissed upon motion of the defendant or upon the court's own motion . This dismissal shall have the effect of an adjudication upon the merits , unless otherwise provided by court. [Development Bank v. CA]

Res Judicata in Judgments in Rem

Judgments or final order Conclusive as to

Against a specific thing Title of the thing

Probate of a will or administration of the estate of a deceased

person

The will or administration. However,

the probate of a will or granting of letters of

administration shall only be prima facie evidence of the death of the testator

or intestate;in respect to the personal,

political, or legal condition or status of a particular person or his relationship to another

Condition, status or relationship of the person,

Res Judicata in Judgments in Personam

In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been missed in relation thereto, conclusive:

1. Between the parties and 2. Their successors in interest, by title subsequent

to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity.

CONCLUSIVENESS OF JUDGMENT

Preclusion of issues (auter action pendant)

In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.

Issue Preclusion – The first judgment precludes the re-litigation of a particular fact or issue in another action between the same parties on a different cause of action.

Requisite: Identity of ISSUES

RES JUDICATA v. LAW OF THE CASE v. STARE DECISIS

Stare Decisis - When the SC has laid down a principle of law applicable to a certain state of facts, it will adhere to that principle and apply to it all future cases where the facts are substantially the same

Doctrine of the Law of the Case - Whatever is once irrevocably established as the controlling legal rule or decision between the same parties in the case continues to be the law of the case whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court.

As discussed in Ayala Corp. v. Rosa-Diana Realty, 2000:

Res Judicata “Law of the Case” Stare Decisis

The ruling in one case is

carried over to another case between the same parties

Operates only in the particular

and single case where the ruling arises and is not

carried into other cases as a

precedent

The ruling adhered to in the

particular case need not be

followed as a precedent in subsequent

litigation between other

parties

Once a point of law has been

established by the court, that

point of law will, generally, be

followed by the same court and by all courts of lower rank in

subsequent cases where the same

legal issue is raised

EFFECT OF FOREIGN JUDGMENTS OR FINAL ORDERS

PUBLIC POLICY PRINCIPLE

A judgment by a foreign court is enforceable only within its territorial jurisdiction.

A valid judgment rendered by a foreign tribunal may be recognized insofar as the immediate parties the underlying cause of action are concerned so long as it is convincingly shown that:

1. There has been an opportunity for a fair hearing before a court of competent jurisdiction

2. Trial upon registered proceedings has been conducted

3. There is nothing to indicate either a prejudice in court and in the system of laws under which it is sitting or fraud in procuring the judgment [Philippine Aluminum v. Fasgi Enterprises (2000)]

Such limitation on the review of foreign judgment is adopted in all legal systems to avoid repetitive litigation on claims and issues, prevent harassment of the parties and avoid undue imposition on the courts.

This policy of preclusion rests on principles of comity, utility and convenience of nations.

As a generally accepted principle of international law, it is part of the law of the Philippines by virtue of the Incorporation Clause [Section 2, Article II of the 1987 Constitution] [Regalado]

Two Ways of Giving Effect to Foreign Judgment:1. An ordinary action to enforce the foreign

judgment may be filed in court; or 2. It may be pleaded in an Answer or a Motion to

Dismiss.

EFFECT OF FOREIGN JUDGMENTS (Rule 39, Sec. 48)

NATURE EFFECTIn judgments against a specific thing (in rem)

Judgment is CONCLUSIVE upon the title to the thing

In judgments against a person (in personam)

Judgment is PRESUMPTIVE evidence of a right as

between parties and their successors-in-interest by a

subsequent title

In both cases, judgment may be repelled by evidence of:1. Want of jurisdiction 2. Want of notice 3. Collusion 4. Fraud5. Clear mistake of law or fact

A foreign judgment is presumed to be valid and binding in the country from which it comes, until a contrary showing, on the basis of a presumption of regularity of

proceedings and the giving of due notice in the foreign forum.

Before our courts can give the effect of res judicata to a foreign judgment, it must be shown that the parties opposed to the judgment had been given ample opportunity to do so on grounds under Section 48 of Rule 39 of the Rules of Court. [Roehr v. Rodriguez (2003)]

PROVISIONAL REMEDIES

NATURE OF PROVISIONAL REMEDIES

Provisional remedies are writs and processes available during the pendency of the action which may be resorted to by a litigant for the preservation or protection of their rights and interests therein pending rendition, and for purposes of the ultimate effects, of a final judgment in the case; also known as ancillary or auxiliary remedies.

They are applied to a pending litigation, for the purpose of securing the judgment or preserving the status quo, and in some cases after judgment, for the purpose of preserving or disposing of the subject matter. [Calo v. Roldan (1946)]

Orders granting or denying provisional remedies are merely interlocutory and cannot be the subject of an appeal. They may however be challenged before a superior court through a petition for certiorari under Rule 65.

The Provisional Remedies under the Rules of Court 1. Preliminary Attachment (Rule 57)2. Preliminary Injunction (Rule 58)3. Receivership (Rule 59)4. Replevin (Rule 60)5. Support Pendente Lite (Rule 61)

NOTE: The enumeration above is not exclusive. The court may invoke its equity jurisdiction and order the appropriate reliefs during the pendency of an action

JURISDICTION OVER PROVISIONAL REMEDIES

The court which grants or issues a provisional remedy is the court which has jurisdiction over the main action.

Inferior courts may also grant all appropriate provisional remedies in an action pending with it and is within its jurisdiction (Sec. 33, (1), BP 129)

PRELIMINARY ATTACHMENT

DEFINITION

A provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so the property may be held by the sheriff as security for the satisfaction of whatever judgment may be rendered in the case [Davao Light v CA ](1991)

PURPOSES1. To seize the property of the debtor in advance of

final judgment and to hold it for purposes of satisfying the said judgment.

2. To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected. [Quasha v. Juan (1982)]

GROUNDS FOR ISSUANCE (Rule 57, Sec. 1)

There are only specific situations where preliminary attachment may issue. The grounds are EXCLUSIVE:

1. Action for recovery of a specified amount of money or damages, EXCEPT moral and exemplary, a. On a cause of action arising from law,

contract, quasi-contract, delict, or quasi-delict

b. Against a party who is about to depart from the Philippines with intent to defraud his creditors;

2. Action for money or property, embezzled or fraudulently misapplied or converted to his own use by either:a. A public officer, an officer of a corporation,

an attorney, factor, broker, agent, or clerk, in the course of his employment as such,

b. OR by any other person in a fiduciary capacity, or for a willful violation of duty;

3. Action to recover the possession of property unjustly or fraudulently taken, detained or converted, a. 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 an authorized person;

NOTE: rule makes no distinction between real and personal property [Riano]

4. Action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, OR in the performance thereof;

NOTE: the delivery of counterfeit money or knowingly issuing a bounced check

are considered as grounds under this rule [Riano]

5. Action against a party who has removed or disposed of his property, or is about to do so, AND with intent to defraud his creditors; or

6. Action against a party who does not reside and is not found in the Philippines, OR on whom summons may be served by publication.

Note: the rule also refers to persons on whom summons may be served by publication and against whose property, preliminary attachment may be availed of such as:(1) Residents defendants whose identity

or whose whereabouts are unknown [Rule 14, Sec. 14]

(2) Resident defendants who are temporarily out of the country [Rule 14, Sec. 16]

REQUISITES FOR PRELIMINARY ATTACHMENT TO ISSUE:

1. The case must be any of those where preliminary attachment is proper (Sec. 1, Rule 57)

2. Applicant must file a motion whether ex parte or with notice and hearing

3. Applicant must show by affidavit that there is no sufficient security for the claim sought to be enforced and that the amount claimed in the action is as much as the sum of which the order is granted above all counterclaims

4. Applicant must post a bond executed to adverse party

A writ of preliminary attachment is too harsh a provisional remedy to be issued based on mere abstractions of fraud.  Rather, the rules require that for the writ to issue, there must be a recitation of clear and concrete factual circumstances manifesting that the debtor practiced fraud upon the creditor at the time of the execution of their agreement in that said debtor had a preconceived plan or intention not to pay the creditor. [Equitable v. Special Steel (2012)]

ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT (Rule 57, Sec. 2)

When may one apply: A preliminary attachment may be applied for

1. At the commencement of the action or2. At any time before the entry of judgment.

Who may apply: It may be applied for by the plaintiff OR any proper party (including a defendant who filed a counterclaim, cross-claim, or a third party complaint)

Methods to Procure Preliminary Attachment:1. Writ may be prayed for in the complaint itself

providing the allegations warranting its issuance

2. May be issued pursuant to a separate motion for attachment whenever the writ is not prayed for in the original complaint

Three Stages in the Grant of a Preliminary Attachment:1. The court issues the order granting the

application 2. Writ of attachment issues pursuant to the order

granting the writ 3. The writ is implemented

NOTE: For the initial two stages, it is not necessary that jurisdiction over person of defendant be first obtained

However, once implementation of writ commences, court must have acquired jurisdiction over the defendant for without such jurisdiction, the court has no power or authority to act

Issuance of the Order of Attachment1. The order may be issued either:

a. Ex parte (service of summons to defendant required)

b. Or upon motion with notice and hearing 2. The order is issued by the court in which the

action is pending or the CA, or the SC

Contents of the Order of Attachment:1. It must require the sheriff to attach so much of

the property of the party against whom it is issued as may be sufficient to satisfy applicant’s demanda. Property must be within the Philippines b. And it must not be exempt from execution

2. It shall contain an amount for the attachment bond:a. The amount sufficient to satisfy the

applicant’s demand, or b. The value of the property to be attached as

stated by applicant

AFFIDAVIT AND BOND (Rule 57, Sec. 3 and 4)

For the writ to issue, the applicant must submit an affidavit and post bond. The affidavit and bond required must be duly filed with the clerk before order issues

Contents of the Affidavit: The affidavit must establish:1. A sufficient cause of action exists2. Cause is one of those mentioned in Sec. 13. No other sufficient security for the claim sought

to be enforced by action 4. Amount due to applicant or possession of which

is entitled to recover is as much as the sum for which the order is granted above all legal counterclaims

Applicant’s Bond: The party applying for the order must give a bond executed to the adverse party

1. Amount is fixed by the court in its order granting the issuance of the writ

2. Conditioned that, if the court shall finally adjudge that applicant was not entitled to the writ, the bond will pay:a. All costs which may be adjudged to adverse

party and b. All damages which he may sustain by reason

of attachment

The bond shall only be applied to all damages sustained due to the attachment. It cannot answer for those that do not arise by reason of the attachment [Riano].

THE RULE ON PROR OR CONTEMPORANEOUS SERVICE OF SUMMONS

General Rule: A writ of attachment may be issued ex parte even before the summons is served upon the defendant. BUT a writ may not be implemented until jurisdiction over the person is acquired by service of summons. Otherwise, the implementation is null and void. [Riano]

Exceptions to Contemporaneous Service of Summons: [Rule 57, Sec. 5]

1. Summons could not be served personally or by substituted service despite diligent efforts, or

2. Defendant is a resident of the Philippines temporarily absent therefrom, or

3. Defendant is a non-resident, or 4. The action is in rem or quasi in rem.

MANNER OF ATTACHING PROPERTY (Rule 57, Sec. 5)

The sheriff enforcing the writ shall attach only so much of the property in the Philippines of the adverse party not exempt from execution as may be sufficient to satisfy the applicant’s demand, UNLESS

1. Party against whom writ is issued makes a deposit with the court from which the writ is issued, or

2. He gives a counter-bond executed to the applicant

ATTACHMENT OF REAL AND PERSONAL PROPERTY (Rule 57, Sec. 7)

1. Real property, or growing crops thereon, or any interest thereina. File with the Registry of Deeds:

(1) A copy of the order together with a description of the property

(2) And a notice that the property is attached

b. The registrar of deeds must index attachments in the names of the applicant, adverse party, or person by whom the property is held or in whose name it stands in the records

c. If attachment is not claimed on the entire area of land, description sufficiently accurate for identification of such shall be included in the registration

2. Personal property capable of manual delivery a. Issue a corresponding receipt thereforb. Then sheriff takes it and safely keeps it in his

custody

3. Stocks or Shares, or an Interest therein, of any corporation or companya. Leave a copy of the writ and a notice stating

that these properties are attached in pursuance of such writ

b. Leave these documents with the president, or managing agent thereof

4. Debts, credits, bank deposits, financial interest, royalties, commissions and other personal property not capable of manual delivery 1. Leave a copy of the writ and a notice that the

debts owing, credits, and other personal property are attached in pursuance of such writ

2. Leave these documents with:a. The person owing such debts, or b. Having in his possession or under his

control, such credits or other personal property, or

c. With his agent

5. The interest of the party against whom attachment is issued in property belonging to the estate of decedent, whether as heir, legatee, or deviseea. By service of a copy of the writ, and notice

that said interest is attachedb. Service is made to:

(1) The executor, or administrator, or (2) Other personal representative of the

decedent c. Copy of the writ and notice:

(1) Shall be filed with the clerk in which said estate is being settled, and

(2) Served upon the heir, legatee, or devisee concerned

Property in custodia legis may be attached by:1. Filing a copy of the writ of attachment with the

proper court or quasi-judicial agency2. Serving a notice of attachment upon the

custodian of the property [Rule 57, Sec. 7]

A previously attached property may also be subsequently attached. But the first attachment shall have priority over subsequent attachments. [Riano]

PROCEEDINGS WHERE ATTACHED PROPERTY IS CLAIMED BY THIRD PERSON

A third person who has a claim to the property attached may avail of the following remedies:

1. File terceria or third-party claim (Rule 57, Sec. 14)a. Note that a third-party claim may be filed

with the sheriff while has possession of the

properties levied upon, this being the only time fixed for the purpose

b. The claimant makes an affidavit of his title or right to possession, stating the grounds of such right or title. The affidavit must be served upon the sheriff

c. Substantial identical procedure as in terceria in Rule 39, Sec. 16

2. File independent action to recover property; or

3. File motion for interventiona. This is available only before judgment is

rendered

DISCHARGE OF ATTACHMENT AND COUNTER-BOND

After a writ of attachment has been enforced, the party whose property has been attached, or the person appearing on his behalf, may move for the discharge of the attachment wholly or in part on the security given.

Ways of Discharging Attachment1. Counterbond under Sec. 122. Motion for Discharge under Sec. 13

Grounds for Discharge of Preliminary Attachment:1. Debtor has posted a counterbond or has made

the requisite cash deposit (Sec. 12) 2. Attachment was improperly or irregularly issued

(Sec. 13)a. As where there was no ground for

attachment, orb. The affidavit and/or bond filed are defective

or insufficient (Sec. 3) 3. Judgment is rendered against attaching creditor

(Sec. 19) 4. Attachment is excessive, but the discharge shall

be limited to the excess (Sec. 13) 5. Property attached is exempt from execution

NOTE: There is a difference between the bond for issuance of writ and bond for lifting the writ

1. Bond for issuance of writ (Sec. 4) – This is for damages by reason of the issuance of the writ

2. Bond for lifting of writ (Sec. 5 and 12) – This is to secure the payment of the judgment to be recovered

Only the defendant or party whose property is attached may move for its lifting. If the attachment is proper, the discharge should be by counterbond under Sec. 12 (KO Glass v. Valenzuela)

Effect of Dissolution on Plaintiff’s Attachment Bond1. Dissolution of preliminary attachment upon

security given, or a showing if its irregular issuance, does not operate to discharge the sureties on the attachment bond

2. That bond is executed to adverse party conditioned that the applicant will pay all the costs which may be adjudged to adverse party and all damages which he may sustain by reason of the attachment, if the court shall finally

adjudge that applicant was not entitled thereto (Sec. 4)

3. Until that determination is made, as to applicant’s entitlement to attachment, his bond must stand and cannot be withdrawn

SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED (Rule 57, Sec. 15)

Procedure:1. Pay to judgment obligee the proceeds of sale of

perishable property 2. If there is any balance that remains due, sell

property as may be necessary to satisfy the balance if enough remains in the sheriff or those of the clerk

3. Collection of property of garnishee and proceeds paid to judgment oblige without need of prior permission to file action but may be enforced in the same action

4. Return must be made within 10 days from receipt of writ

PRELIMINARY INJUNCTION

DEFINITIONS AND DIFFERENCES

Injunction is a judicial writ, process, or proceeding whereby a party is ordered to do or refrain from doing a particular act

Preliminary Injunction is an ancillary or preventive remedy where a court requires a person, a party or even a court or tribunal either to REFRAIN (prohibitory) from or to PERFORM (mandatory) particular acts during the pendency of an action. It is only a temporary remedy.

Injunction Preliminary injunction

Main action

Ancillary; exists only as part or incident of an

independent action or proceeding

seeks a judgment embodying a final

injunction

sole object of which is to preserve the status quo until the merits can be

heardBased on all evidence gathered by court to

determine main action

based solely on initial and incomplete evidence

Purpose: To prevent future injury and maintain the status quo (i.e. the last actual, peaceable, uncontested status which preceded the pending controversy) for [Knecht v. CA, (1993)]

The injunction should not establish new relations between the parties but merely re-establish the pre-existing relationship between them.

TRO v. Injunction

TROInjunction

May be granted ex parte if great and irreparable

injury would result otherwise

Cannot be granted without notice and

hearing

A TRO is issued in order to preserve the status quo until the hearing of the application for preliminary injunction. [Bacolod City Water v. Labayen (2004)]

Same requirements for application as preliminary injunction.

An application for a TRO shall be acted upon only after all parties are heard in a summary hearing, which shall be conducted within 24 hours after the sheriff's return of service and/or the records are received by the branch selected by raffle. [Rule 58, Sec.4

Status Quo Order v. Injunction

A status quo order is in the nature of a cease and desist order. It is resorted to when the projected proceedings in the case made the conservation of the status quo desirable or essential, but the affected party neither sought such relief nor did the allegations in his pleading sufficiently make out a case for a temporary restraining order.

It does NOT direct the doing or undoing of acts but is an order to maintain the last, actual, peaceable and uncontested state of things which preceded the controversy.

Status Quo Anter Order

Directs the maintenance of the condition prevailing before the promulgation of the assailed decision.

It has the nature of a TRO. [Dojillo v. COMELEC, 2006]

REQUISITES:1. There must be a verified application 2. The applicant must establish that:

a. He has a right to relief or a right to be protected and

b. The act against which the injunction is sought violates such right

c. There is a need to restrain the commission or continuance of the acts complained of and if not enjoined would work injustice to him

3. A bond must be posted unless otherwise exempted by the court

4. The threatened injury must be incapable of pecuniary estimation

5. Prior notice and hearing for party/person sought to enjoined (except in 72-hour TROs)

KINDS OF INJUNCTION

Kinds of Injunction:1. Preliminary Preventive Injunction – Prohibits the

performance of a particular act or acts

2. Preliminary Mandatory Injunction – Requires the performance of a particular act or acts. This is an extreme remedy which will be granted only on showing that:a. The invasion of the right is material and

substantial b. Right of complainant is clear and

unmistakable c. There is an urgent and paramount necessity

PRELIMINARY PROHIBITORY INJUNCTION

PRELIMINARY MANDATORY INJUNCTION

Purpose is to prevent a person from the performance of a

particular act

Purpose is to require a person to perform a

particular act

The act had not yet been performed

The act has already been performed and this act has

violated the rights of another

Status Quo is preserved Status Quo is restored

When preventive injunction does not lie; examples:1. To restrain collection of taxes [Valley Trading v.

CA](1989), except where there are special circumstances that bear the existence of irreparable injury. [Churchill & Tait v. Rafferty (1915)]

2. To restrain the sale of conjugal properties where the claim can be annotated on the title as a lien, such as the husband’s obligation to give support. [Saavedra v. Estrada (1931)]

3. To restrain a mayor proclaimed as duly elected from assuming his office. [Cereno v. Dictado (1988)]

4. To restrain registered owners of the property from selling, disposing and encumbering their property just because the respondents had executed Deeds of Assignment in favor of petitioner. [Tayag v. Lacson (2004)]

5. Against consummated acts. [PNB v. Adi (1982); Rivera v. Florendo (1986); Ramos, Sr. v. CA (1989)]

When mandatory injunction does not lie; examples1. To compel cohabitation [Arroyo v. Vasquez

(1921)] 2. Cancellation of attachment [Levy Hermanos v.

Lacson (1940)] 3. Release imported goods pending hearing before

the Commissioner of Customs. [Commissioner of Customs v. Cloribel (1967)]

4. To take property out of the possession or control of one party and place it into that of another whose title has not clearly been established [Pio v. Marcos (1974)]

WHEN WRIT MAY BE ISSUED

When: It may be issued at ANY stage PRIOR to the judgment or final order

Who: It may be granted by the court where the action or proceeding is pending. If the action or proceeding is pending in the Court of Appeals or in the Supreme Court, it may be issued by said court or any member thereof. (Rule 58, Sec. 2)

GROUNDS FOR THE ISSUANCE OF PRELIMINARY INJUNCTION (Rule 58, Sec. 3)

Preliminary injunction may be granted when it is established that:

1. Applicant is entitled to the relief demanded, or 2. Commission, continuance, or non-performance of

the act complained of would work injustice to applicant, or

3. Party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the

applicant respecting the subject of the action or proceeding

GROUNDS FOR OBJECTION TO, OR FOR MOTION OF DISSOLUTION OF, INJUNCTION OR RESTRAINING ORDR (Rule 58, Sec. 6)

Grounds for objection or dissolution1. Upon showing of its insufficiency

2. Other grounds upon affidavits of the party or person enjoined. This may be opposed by the applicant by affidavits

3. If it appears after hearing that although applicant is entitled to injunction or TRO, the issuance or continuance thereof, would cause irreparable damage to party enjoined while applicant can be fully compensated for such damages as he may suffera. PROVIDED that he files a bond

(1) Amount to be fixed by the court (2) Conditioned that he will pay all damages

which the applicant may suffer by denial or dissolution of the injunction or TRO

If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified.

TEMPORARY RESTRAINING ORDER (TRO)

General Rule: Before preliminary injunction may be granted, there must be prior notice to person sought to be enjoined and there must be a hearing

Procedure: When an application for a writ of preliminary injunction or TRO is included in a complaint or initiatory pleading, the case, if filed in a multiple-sala, shall proceed as follows:

1. Verified complaint and bond is filed 2. Determine if there is great or irreparable injury

or extreme urgency, which warrants the issuance of a TROa. If yes, go to Procedure for Issuance of TRO

3. In both cases, Notice shall then be served to the party sought to be enjoined (a) There must be prior and contemporaneous

service of summons (exceptions also apply)

Procedure for Issuance of TRO:1. If it appears that great or irreparable injury

would result to the applicant before the matter can be heard on notice:a. Summary hearing on the application of the

TRO within 24 hours after sheriff’s return of service and/or records are received by the branch selected by raffle

b. The court may issue a TRO effective for 20 days from service on the party sought to be enjoined

Within the 20 day period:

(1) The applicant must show cause why injunction should not be granted

(2) The court will determine WON the preliminary injunction shall be granted. If granted, the court will issue the corresponding order

2. If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury a. A TRO may be issued ex parte (after raffling

of case) ordered by the Executive judge of a multiple sala court or the presiding judge of a single-sala court

b. Effective for 72 hours from issuance (1) The applicant must then immediately

comply with Sec. 4 as to service of summons and documents

(2) The Executive Judge shall then summon the parties to a conference and raffle the case in their presence

Within the 72-hr period (1) The Presiding Judge before whom the

case is pending shall conduct a summary hearing to determine whether the TRO shall be extended until application for preliminary injunction can be heard

(2) In no case shall the total period of effectivity of the TRO exceed 20 days, including the original 72 hours

Effectivity of TRO1. Effectivity is not extendible. No court shall have

authority to extend or renew the same on the ground for which it was issued

2. If issued by the CA – effective for 60 days from service

3. If issued by SC – effective until further orders

TRO ISSUED BY EXECUTIVE JUDGE (MULTI-SALA) OR ORDINARY JUDGE

(SINGLE-SALA)

TRO ISSUED BY ORDINARY JUDGE

Matter is of extreme urgency and that grave

injustice and irreparable injury will arise unless

immediately issued

If it appears that great or irreparable injury would

result

May be issued ex parteA summary hearing must be done before issuance

Good for 72 hoursGood for 20 days including

first 72 hoursIssued before raffling Issued after raffling

Issued ex parteIssued after summary

hearing

Upon the expiration of the non-extendible period, the TRO is automatically terminated. No judicial declaration necessary.

IN RELATION TO RA 8975, BAN ON ISSUANCE OF TRO OR WRIT OF INJUNCTION IN CASES INVOLVING GOVERNMENT INFRASTRUCTURE PROJECTS

Sec. 3, RA 8975: No court, except the Supreme Court, shall issue any TRO, preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions, officials or any person or entity, whether public or private acting under the government direction, to restrain, prohibit or compel the following acts:

1. Acquisition, clearance and development of the right-of-way and/or site or location of any national government project

2. Bidding or awarding of contract/ project of the national government as defined under Section 2 hereof;

3. Commencement prosecution, execution, implementation, operation of any such contract or project;

4. Termination or rescission of any such contract/project; and

5. The undertaking or authorization of any other lawful activity necessary for such contract/project.

This prohibition shall apply in all cases, disputes or controversies instituted by a private party, including but not limited to cases filed by bidders or those claiming to have rights through such bidders involving such contract/project.

This prohibition shall NOT APPLY when the matter is of extreme urgency involving a constitutional issue, such that unless a temporary restraining order is issued, grave injustice and irreparable injury will arise. The applicant shall file a bond, in an amount to be fixed by the court, which bond shall accrue in favor of the government if the court should finally decide that the applicant was not entitled to the relief sought.

Any TRO, preliminary injunction, or preliminary mandatory injunction issued in violation of Sec. 3 is void and of no force and effect. [Sec 4]

RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS IN RELATION TO ATTACHMENT

When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant's affidavit and bond, upon the adverse party in the Philippines.

Exception:Where the summons could not be served personally or by substituted service despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or contemporaneous service of summons shall not

apply. [Rule 58, Sec.4] The executive judge of a multiple-sala court or the presiding judge of a single sala court may issue ex parte a TRO effective for only 72 hours from issuance if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury. However, he shall immediately comply with the provisions of Rule 38, Sec. 4 as to service of summons and the documents to be served therewith. [Rule 38, Sec. 5]

WHEN FINAL INJUNCTION GRANTED

If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of permanently enjoined, the court shall grant a final injunction perpetually restraining the party or person enjoined from the commission or continuance of the act or acts or confirming the preliminary mandatory injunction. (Rule 58, Sec. 9)

RECEIVERSHIP

NATURE

Receiver – A person appointed by the court in behalf of all the parties to the action for the purpose of preserving and conserving the property in litigation and prevent its possible destruction or dissipation if it were left in the possession of any of the parties.

Purpose

The purpose of a receivership as a provisional remedy is to protect and preserve the rights of the parties during the pendency of the main action, during the pendency of an appeal or as an aid in the execution of a judgment when the writ of execution has been returned unsatisfied.

The receivership under Rule 59 is directed to the property which is the subject of the action and does not refer to the receivership authorized under banking laws and other rules or laws. Rule 59 presupposes that there is an action and that the property subject of the action requires its preservation. Receivership under Rule 59 is ancillary to the main action. (Riano).

The guiding principle is the prevention of imminent danger to the property. If an action by its nature, does not require such protection or preservation, said remedy cannot be applied for and granted. (Commodities Storage v. CA, 1997)

CASES WHEN RECEIVER MAY BE APPOINTED (Rule 59, Sec. 1)

1. When it appears from the verified application and other proof that the applicant has an interest in the property or fund which is the subject of the action or proceeding, and that such property or 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 a mortgage that the property is in danger of being wasted or 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 contract of mortgage;

3. After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to 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 the property in litigation.

Specific cases where receiver was appointed1. If a spouse without just cause abandons the other

or fails to comply with his/her obligations to the family, the aggrieved spouse may petition the court for receivership. [Family Code, Article 101]

2. The court may appoint a receiver of the property of the judgment obligor; and it may also forbid a transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution. [Rule 39, Sec. 41]

3. After the perfection of an appeal, the trial court retains jurisdiction to appoint a receiver of the property under litigation since this matter does not touch upon the subject of the appeal. [Rule 41, Sec. 9; Acuña v. Caluag (1957)]

4. After final judgment, a receiver may be appointed as an aid to the execution of judgment. [Philippine Trust Company v. Santamaria (1929)]

5. Appointment of a receiver over the property in custodia legis may be allowed when it is justified by special circumstances, as when it is reasonably necessary to secure and protect the rights of the real owner. [Dolar v. Sundiam (1971)]

REQUISITES; REQUIREMENTS BEFORE ISSUANCE OF AN ORDER

Procedure:1. Verified application filed by the party requesting

for the appointment of the receiver;2. Applicant must have an interest in the property

or funds subject of the action;3. Applicant must show that the property or funds

is in danger of being lost, wasted, or dissipated;4. Application must be with notice and must be set

for hearing;5. Before appointing a receiver, the court shall

require applicant to post a bond in favor of the adverse party. When the receiver is appointed, the receiver shall file a bond then take his oath.

6. Before entering upon his duties, the receiver must be sworn to perform his duties faithfully.

Who Appoints Receiver:1. Court where the action is pending2. CA3. SC4. During the pendency of an appeal, the appellate

court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin. [Rule 59, Sec. 1]

Receivership may be denied or lifted:1. If the appointment was sought or granted

without sufficient cause (Sec. 3) 2. Adverse party files a sufficient bond to answer

for damages (Sec. 3) 3. Bond posted by applicant for grant of

receivership is insufficient (Sec. 5)4. Bond of the receiver is insufficient (Sec. 5)

THE RECEIVER

Who May Be Appointed As Receiver

The general rule is that neither party to the litigation should be appointed as a receiver without the consent of the other because a receiver is supposed to be an impartial and disinterested person. (Alcantara v. Abbas, 1963)

A clerk of court should not be appointed as a receiver as he is already burdened with his official duties. (Arigo v. Kayanan, 1983)

Powers of a Receiver1. Bring and defend in such capacity actions in his

own name with leave of court2. Take and keep possession of the property in

controversy3. Receive rents4. Collect debts due to himself as receiver or to the

fund, property, estate, person, or corporation of which he is the receiver

5. Compound for and compromise the same6. Make transfers7. Pay outstanding debts8. Divide the money and other property that shall

remain among the persons legally entitled to receive the same’

9. Generally, to do such acts respecting the property as the court may authorize

10. Invest funds in his hands, ONLY by order of the court upon the written consent of all the parties. [Rule 59, Sec. 6]

Liability for refusal or neglect to deliver property to receiver:

1. Contempt; and2. Be liable to the receiver for the money or the

value of the property and other things so refused or neglected to be surrendered together with all damages that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or neglect. [Rule 59, Sec. 7]

Remedies Against the Receiver1. No action against receiver can be maintained

without leave of court2. An aggrieved party may:

a. Take the matter into the court which appointed the receiver and ask either for an accounting or take some other proceeding, and ask for consequent judgment on the acts complained of; or

b. Ask for leave of court to bring him an action directly

TWO KINDS OF BOND

The Applicant’s Bond1. Applicant must file a bond executed to the party

against whom the application is presented a. Amount to be fixed by the court

b. CONDITION: To the effect that applicant will pay such party all damages he may sustain by reason of the appointment IN CASE the applicant shall have procured such without sufficient cause

2. The court may require additional bond after appointment in the exercise of its discretion as further security for such damages (Rule 59, Sec. 2)

The Receiver’s Bond1. As a precondition before entering into his duties,

receiver must file a bond2. The bond is executed to such person and in such

sum as the court may direct3. CONDITION: To the effect that he will faithfully

discharge his duties and obey the orders of the court (Rule 59, Sec. 4)

DAMAGES RESULTING FROM APPOINTMENT

DAMAGES ARISING AFTER APPOINTMENT

Damages resulting from appointment

Damages which arise due to receiver’s negligence or

mismanagement

The right is statutoryThe right rests on general

principles of lawThe damages may be

caused before the receiver qualifies or takes

possession of the property

Liability rests on the mismanagement or

negligence of receiver

The applicant’s bond is responsible

The receiver’s bond is responsible

TERMINATION OF RECEIVERSHIP

Ground: The necessity for a receiver no longer exists

Procedure:1. The court shall determine that the necessity for a

receiver no longer existsa. Motu proprio, or on motion of either party

2. Due notice shall be given to all interested parties3. A hearing shall be conducted 4. The court shall then settle the accounts of the

receiver 5. The court directs delivery of the funds and other

property in his possession to the person adjudged to be entitled to receive them

6. The court will then order the discharge of the receiver

Effect: 1. Settle accounts of receiver2. Delivery of funds to person entitled3. Discharge of receiver4. Receiver entitled to reasonable compensation to

be taxed as costs against defeated party

REPLEVIN

NATURE

Replevin is the provisional remedy seeking for the possession of the property prior to the determination of the main action for replevin.

Replevin may also be a main action with the ultimate goal of recovering personal property capable of manual delivery wrongfully detained by a person. In this sense, it is a suit in itself

WRIT OF REPLEVINWRIT OF PRELIMINAY

ATTACHMENT

The purpose is to recover personal property capable

of manual delivery from the defendant

The purpose is to have the property put in the

custody of the court to secure the satisfaction of the judgment that may be rendered in favor of the plaintiff at some future

timeThe property either

belongs to the plaintiff or one over which the

plaintiff has a right of possession

The property does not belong to the plaintiff but

to the defendant

May be sought only when the principal action is for the recovery of personal

property

Available even if recovery of property is only

incidental to the relief sought

Can be sought only when defendant is in actual or

constructive possession of the property

May be resorted to even if property is in possession

of a third person

Cannot be availed of when property is in custodia

legis

Can be availed of even if property is in custodia

legis

Available before defendant answers

Available from commencement but before

entry of judgmentBond is double the value

of the propertyBond is fixed by the court

Extends only to personal property capable of

manual delivery

Extends to all kinds of property whether real,

personal, or incorporeal

Available to recover personal property even if

the same is not being concealed, removed, or

disposed of

Attachment to recover possession of personal

property unjustly detained presupposes that the same

is being concealed, removed, or disposed of to prevent its being found or

taken by the applicant

NOTE: There can be no replevin and preliminary attachment in the same case because the purposes are different.

1. In Rule 57, it is for security2. In Rule 60, it is for recovery of possession

WHEN MAY WRIT BE ISSUED

When Applied For – A writ of replevin must be applied for:1. At the commencement of the action, or 2. At any time before defendant files his answer

NOTE: There can be no replevin before the appellate courts

The provisional remedy of replevin is available where the PRINCIPAL PURPOSE of the action is to recover the possession of PERSONAL property.

Who May Avail of the Remedy?1. Plaintiff – where the complaint prays for

recovery of possession of personal property 2. Defendant – where a counterclaim was set out in

the answer for recovery of personal property

It is available to any other party asserting affirmative allegations praying for the recovery of personal property unjustly detained.

REQUISITES

1. Applicant is owner of the property claimed or is entitled to possession

2. Property is wrongfully detained by the adverse party

3. Property is not distrained or taken for tax assessment or fine pursuant to law, or seized (if seized, that the property is exempt)

4. Principal purpose of the action is to recover possession of personal property

PROCEDURE (Rule 60, Sec. 2 and 3)

1. An application is filed at the commencement of the action or at any time before answer of defendant

2. Application must contain an affidavit3. Applicant must file a bond4. Approval of the bond by the court 5. Court shall then issue an order and the writ of

replevin:a. It must describe the personal property

alleged to be wrongfully detained b. Requiring the sheriff to take such property

into his custody

NOTE: The writ of replevin may be served anywhere in the Philippines.

AFFIDAVIT AND BOND; REDELIVERY BOND

Contents of the Affidavit 1. That the applicant is:

a. The owner of the property claimed – describe with particularity

b. Or is entitled to possession

2. Property is wrongfully detained by adverse party

a. Allege the cause of detention b. According to his best knowledge,

information, belief

3. That the property has not been :a. Distrained, or b. Taken for a tax assessment, or c. Taken as a fine pursuant to law, or d. Seized under a writ of execution or

preliminary attachment, or under custodia legis; if so taken, that said property is exempt

4. The affidavit must also state the actual value of the property subject of replevin and not just its probable value. This value will be the basis of the bond.

The Applicant’s Bond1. Executed to the adverse party2. Amount is DOUBLE the value of the property

stated in the affidavit 3. Conditions of the Bond:

a. The return to of property to adverse party, if such return be adjudged, and

b. The payment to adverse party of such sum as he may recover from the applicant in the action

Return of Property (Sec. 5)1. If the adverse party objects to the sufficiency of

the bond, he cannot immediately require the return of the property even by counterbond.

2. If the adverse party DOES NOT object to the sufficiency of the bond, he may require the return of the property a. When: At any time before delivery to

applicant b. How: By filing a redelivery bond

The Redelivery Bond1. This is executed to the applicant and filed where

the action is pending 2. Amount is double the value of the property as

stated in the affidavit of the applicant 3. Conditions of the Bond:

a. The delivery thereof to the applicant, if such delivery be adjudged, and

b. The payment of such sum to him as may be recovered against the adverse party

SHERIFF’S DUTY IN THE IMPLEMENTATION OF THE WRIT

Duties of the Sheriff (Rule 60, Sec. 4)

1. Serve a copy of the order, together with the copies of the application, the affidavit, and bond to the adverse party

2. Take the property:a. If it be in the possession of the adverse party

or his agent – Take the property into custody

b. If property is concealed in a building or enclosure:(1) Demand delivery of the property (2) If not delivered, cause the building or

enclosure to be broken open and then take the property into possession

3. After taking possession:a. Keep the property in a secure place b. He shall be responsible for delivery to party

entitled

Unlike a preliminary attachment and preliminary injunction, the rule on prior or contemporaneous jurisdiction is not provided for in replevin.

However, the rule requires that upon such order, the sheriff must serve a copy on the adverse party together with the required documents.

A sheriff’s prerogative does not give him the liberty to determine who among the parties is entitled to possession.

When a writ is placed in the hands of a sheriff, it is his duty to proceed with reasonable celerity and promptness to execute it according to its mandate.

DISPOSITION OF PROPERTY BY SHERIFF (Rule 60, Sec. 6)

The adverse party is entitled to the return of the property taken under writ of replevin, if:

1. He seasonably posts a redelivery bond 2. The applicant’s bond is found to be insufficient or

defective and is not replaced with a proper bond3. The property is not delivered to the plaintiff for

any reason

The sheriff shall retain the property for 5 days; Within such period, the adverse party:

1. May object to the sufficiency of the applicant’s bond or surety; or

2. May file a redelivery bond, if he does not object to the sufficiency of the bond

NOTE: These remedies are alternative.

WHEN PROPERTY IS CLAIMED BY THIRD PARTY

When third party claims the property and such person makes affidavit of his title thereto stating his grounds, and serves such affidavit upon the sheriff while the latter has possession of the property and a copy upon the applicant, the sheriff SHALL NOT BE BOUND to keep property under replevin or deliver property to the applicant UNLESS the applicant files a bond approved by the court in favor of the third person (the bond should not be less than the value of stated under Sec. 60, Sec. 2; the court shall determine the value in case of disagreement).

No claim for damages for the taking or keeping of the property may be enforced against the bond UNLESS the action is filed within 120 days from filing of the bond.

The procedure in Rule 60, Sec. 7 is similar to that in third-party claims in execution (Sec. 16, Rule 39) and in attachment (Sec. 14, Rule 57).

Difference in Service of Affidavits:1. Sec. 14, Rule 57 – affidavit is served upon the

sheriff while he has possession of the attached property

2. Sec. 7, Rule 60 – affidavit is served within 5 days in which sheriff has possession (in connection with Sec. 6)

JUDGMENT (Rule 60, Sec. 9)

After trial of the issues, the court shall determine who has the right of possession to and the value of the property and shall render judgment in the alternative for the delivery thereof to the party entitled to the same, or for its value in case delivery cannot be made, and also for such damages as either party may prove, with costs.

A COMPARATIVE CHART ON THE PROVISIONAL REMEDIES

Preliminary Attachment Preliminary Injunction Receivership Replevin

PURPOSE

To have the property of adverse party attached as security for satisfaction of

judgment that may be recovered in cases falling under Sec. 1, Rule 57

To require a party or a court, agency, or a person to reframe from doing a

particular act/s To place the property subject of an auction or proceeding under the control of a third party for its preservation and

administration pendente lite or as an aid to execution

To recover possession of personal property

To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property

in those instances where personal service of summons on creditor cannot

be effected

Or to require the performance of particular act/s

SUBJECTMATTER

Personal or real property Particular act/s Personal or real propertyPersonal property capable of manual

delivery

WHEN APPLIED/GRANTED

At the commencement of actionOR `At any time prior to entry of

judgment

At any stage prior to final judgment or final order

At any time prior to satisfaction of judgment

It may be availed of even after judgment becomes final under Sec. 41, Rule 39

At the commencement of the actionBUT before the filing of answer

HOW APPLIED FOR File affidavits and applicant’s bond

File verified application and applicant’s bond

File verified application and applicant’s bond

File affidavits and applicant’s bondIf application is included in initiatory

pleading, adverse party should be served with summons together with a

copy of initiatory pleading and applicant’s bond

Application may also be included in initiatory pleading in actions for

foreclosure of mortgage

REQUIREMENTOF A HEARING

Not requiredMay be issued ex parte

Required

RequiredNot Required

May be issued ex parte

EXCEPT:Great or irreparable injury would result or Extreme urgency and applicant will suffer grave injustice and irreparable

injury (Sec. 5, Rule 58

WHO MAY GRANTCourts where the action is pending, the CA or the SC even if action is pending in

lower court

Only the court where the action is pending

Lower court, CA or SC provided action is pending in the same court which issues

the injunctionAlso with the Sandiganbayan and CTA

Court where action is pendingThe CA or SC even if action is pending in

the lower courtAppellate court may allow application for receivership to be decided by the

court of origin

Only the court were action is pending

REQUISITES FOR GRANTING

APPLICATION

1. Sufficient cause of action2. Case is covered by Sec. 1, Rule 573. No other sufficient security for the

claim exists4. Amount due to applicant or value of

property he is entitled to recover is equal to the sum which the order of attachment is granted

1. Applicant is entitled to relief demanded

2. Act/s complained of would work injustice to applicant if not enjoined

3. Acts sought to be enjoined probably violates applicant’s rights respecting the subject of the action or proceeding

4. Threatened injury incapable of pecuniary estimation

1. Applicant has interest in property or fund, subject matter of action

2. Property or fund is in danger of being lost, or removed, or material injured

3. Appointment is the most convenient and feasible means of preserving, administering, disposing of property in litigation

1. Applicant is owner of the property claimed or is entitled to possession

2. Property is wrongfully detained by the adverse party

3. Property is not distrained or taken for tax assessment or fine pursuant to law, or seized (if seized, that the property is exempt)

SPECIAL CIVIL ACTIONS

IN GENERAL

NATURE

Since a civil action in general is one by which a party sues another for the enforcement of a right, or the prevention or redress of a wrong, a special civil action is generally brought or filed for the same purpose. [Riano]

ORDINARY CIVIL ACTIONS v. SPECIAL CIVIL ACTIONS

A special civil action is governed by the rules of ordinary civil actions but there are certain rules that are applicable only to special civil actions.

ORDINARY CIVIL ACTION SPECIAL CIVIL ACTION

Governed by ordinary rules

Also governed by ordinary rules but subject to specific

rules prescribedFormal demand of one’s legal rights in a court of

justice in the manner prescribed by the court or

by the law

Special features not found in ordinary civil actions

Must be based on a cause of action which means that the defendant has

violated plaintiff’s rights

The concept of cause of action in an ordinary

action does not always fit in a special civil action (e.g.

interpleader)Venue is determined by either the residences of

the parties when action is personal or by the

location of the property when the action is real

This dichotomy does not always apply in a special

civil action (e.g. the venue in a petition for quo-

warranto is where the SC or CA sits)

May be filed initially in either the MTC or RTC

There are special civil actions which can be filed with the MTC (e.g. forcible

entry and unlawful detainer)

There are also those which cannot be commenced in the MTC (e.g. certiorari, prohibition, mandamus)

They are denominated as “complaints” when filed

Some special civil actions are initiated by petitions

JURISDICTION AND VENUE

The Special Civil Actions (SCA) under the Rules of Court1. SCAs initiated by complaints:

a. Interpleaderb. Foreclosure of Real Estate Mortgagec. Forcible Entry and Unlawful Detainerd. Partition

e. Expropriation

2. SCAs initiated by petitions:a. Declaratory Relief b. Review or Adjudication of COMELEC/COA

Decisionsc. Certiorarid. Prohibitione. Mandamusf. Quo Warranto g. Contempt

The venue of special civil actions is governed by the general rules on venue EXCEPT as otherwise indicated in the particular rule for said special action.

Actions for certiorari, prohibition and mandamus should be commenced in the proper RTC, but the same may, in proper cases, be commenced in the SC or the CA and a specific rule of venue is provided for quo warranto proceedings

In the absence of special reasons, the SC will decline original jurisdiction in certiorari, prohibition, and mandamus since it is not a trier of facts and, that is a function which can be better done by the trial courts. The same rule applies for quo warranto wherein the SC has concurrent jurisdiction with the RTC.

Special civil actions that can be filed in or are within the jurisdiction of inferior courts:

1. Interpleader -- Provided that amount involved is within its jurisdiction

2. Ejectment suits 3. Contempt

INTERPLEADER

NATURE

Definition - A remedy whereby a person who has property in his possession or has an obligation to render wholly or partially, without claiming any right in both, comes to court and asks that the defendants who have made conflicting claims upon the same property or who consider themselves entitled to demand compliance with the obligation be required to litigate among themselves in order to determine who is entitled to the property or payment or the obligation [Beltran v. PHHC, (1969)]

The peculiar characteristic of an interpleader is that there is NO CAUSE OF ACTION on the part of the plaintiff but only a threat of cause of action.

Purposes1. To compel conflicting claimants to interplead and

litigate their several claims among themselves. [Rule 62, Sec. 1]

2. To protect a person against double vexation in respect of one liability [Beltran, supra]

REQUISITES FOR INTERPLEADER

1. The plaintiff clams no interest in the subject matter or his claim thereto is not disputed

2. The parties to be interpleaded must make effective claims

3. There must be at least 2 or more conflicting claimants with adverse or conflicting interests to a property in custody or possession of the plaintiff; and

4. The subject matter must be one and the same

NOTE: Interpleader applies regardless of nature of subject matter.

Cannot be availed of to resolve the issue of breach of undertakings made by defendants, which should be resolved in an ordinary action for specific performance or other relief [Beltran, supra].

WHEN TO FILE

Who Files the Complaint - A complaint for interpleader is filed by the person against whom the conflicting claims are made

When to File - REASONABLE TIME

An action for interpleader should be filed within a reasonable time after a dispute has arisen without waiting to be sued by either of the contending parties. Otherwise, it may be barred by laches or undue delay.

Jurisdiction and Venue – General rules on jurisdiction and venue apply as in ordinary civil actions.

PROCEDURE

1. A complaint is filed.

2. Upon filing of complaint, the court issues an Order (Sec. 2) requiring conflictng claimants to interplead with one another

3. Summons shall then be served upon the conflicting claimants with a copy of the complaint and the order to interplead (Sec. 3).

4. Each claimant has a 15-day period to file: (Sec. 4)a. An answerb. A motion to dismiss. If filed, period to answer

is fileda. Grounds:

(1) Same as in Rule 16(2) Impropriety of interpleader action

b. If motion is denied, movant may file his answer within the remaining period but it shall not be less than 5 days in any event from notice of denial

5. From service of Answer, the claimants may file their Reply serving copies to all parties. Parties may file counterclaims, cross-claims, third-party complaints, responsive pleadings

EFFECT OF FAILURE TO ANSWER: Default.a. The claimant may be declared, on motion, in

defaultb. Unlike ordinary default, default in

interpleader allows the court to render judgment barring him from any claim in respect to the subject matter

6. Pre-trial is conducted.

7. After all pleadings have been fled, the court shall then determine the respective rights and adjudicate their several claims (Sec. 6)

DECLARATORY RELIEFS AND SIMILAR REMEDIES

NATURE

In Declaratory Relief, the subject matter is a deed, will, contract, or other written instrument, statute, executive order, or regulation, or ordinance;

Note: The enumeration of the subject matter is EXCLUSIVE

Issue is the validity or construction of the subject matter

Relief: declaration of the petitioner’s rights and duties

Purpose: To relieve the litigants of the common law rule that no declaration of rights may be judicially adjudged unless a right has been violated and for the violation of which relief may be granted.

Characteristics1. The concept of a cause of action is not applicable

to declaratory relief since this SCA presupposes that there has been no breach or violation of the

2. instruments involved3. Unlike other judgments, judgment in an action for

declaratory relief does not essentially entail any execution process

WHO MAY FILE THE ACTION (Rule 63, Sec. 1)

1. Any person interested under a deed, will, contract or other written instrumenta. He must file before breach

2. Any person whose rights are affected by a statute, executive order or regulation, or ordinance, or any other governmental regulation a. He must file before violation

PARTIES

1. All persons who have or claim any interest which would be affected by the declaration [Rule 63, Sec. 2]

2. If action involves the validity of a statute/executive order/regulation/other governmental regulation, the Solicitor General shall be notified. [Rule 63, Sec. 3]

3. If action involves the validity of a local government ordinance, the prosecutor/attorney of the LGU involved shall be notified. [Rule 63, Sec. 4]

Non-joinder of interested persons is not a jurisdictional defect; but persons not joined shall not be prejudiced in their interests unless otherwise provided by the Rules. (Baguio Citizens Action v. City Council of Baguio, 1983)

WHERE TO FILE

It is filed In the appropriate RTC (incapable of pecuniary estimation)

Original jurisdiction of a petition for declaratory relief is with the RTC.

REQUISITES OF ACTION FOR DECLARATORY RELIEF

1. Subject matter of controversy must be a deed, will, contract, or other written instrument, statute, executive order or regulation, or ordinance. (Enumeration is exclusive)

2. Actual justiciable controversy or “ripening seeds” of one between person whose interests are adverse

3. No breach of documents in question

4. Doubtful as to the terms and validity of the document and require judicial construction

5. Issue is ripe for judicial determination, as where all administrative remedies have been exhausted

6. Adequate relief is not available through other means or other forms of action or proceeding

WHEN COURT MAY REFUSE TO MAKE JUDICIAL DECLARATION

Court has DISCRETION to REFUSE to Grant Declaratory Relief when: (Rule 63, Sec. 5)

1. The decision will not terminate the controversy or uncertainty giving rise to the action; or

2. The declaration or constitution is not necessary and proper under the circumstances

How Done: Motu proprio, or on motion

CONVERSION TO ORDINARY ACTION (Rule 63, Sec. 6)

When proper: If before the final termination of the case, a breach or violation of the instrument or status occurs. Then, petition is converted into an ordinary action

Effect of Conversion: Parties shall be allowed to file such pleadings as may be necessary or proper

NOTE: If there has been breach or violation BEFORE filing of the petition, declaratory relief cannot be availed of.

PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES

Actions similar to Declaratory Relief and may be brought under Rule 63: (may be filed with the MTC)

1. Action for reformation (See Art. 1359-1369 Civil Code)

2. Action to quiet title or remove cloud (See Art. 476-481 Civil Code)

3. Action to consolidate ownership (See Art. 1607 Civil Code)

These remedies are considered similar to declaratory relief because they also result in the adjudication of the legal rights of the litigants often without the need of execution to carry the judgment into effect

However we must make a distinction:1. In those cases similar to declaratory relief, the

court is BOUND to render judgment 2. In actions for declaratory relief, the court MAY

REFUSE to exercise the power to declare rights and to construe instruments

REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTION OF THE COMELEC AND COA

SCOPE (Rule 64, Sec. 1)

Applicable only to judgments and final orders of the COMELEC and COA [Rule 64, Sec. 1]

Judgments/orders of the Civil Service Commission are now reviewable by the Court of Appeals under Rule 43, eliminating recourse to the Supreme Court (SC). [RA 7902; SC Revised Administrative Circular No. 1-95]

An aggrieved party may bring the questioned judgment, etc. directly to the SC on certiorari under Rule 65. [Rule 64, Sec. 2]

Basis: This new rule is based on the provisions of Art. IX-A, 1987 Constitution regarding the three constitutional commissions provided for therein.

APPLICATION OF RULE 65 UNDER RULE 64

The aggrieved party may bring a judgment or final order or resolution of the COMELEC and COA to the SC on certiorari under Rule 65 and not on appeal by certiorari under Rule 45

NOTE: The petition should be filed EXCLUSIVELY with the SC

Unlike in Rule 65, petition should be filed within 30 days from notice of judgment or final order or resolution sought to be reviewed.

Filing of MFR or MNT, if allowed under the procedural rules of the Commission, shall interrupt the 30-day period.

If denied, aggrieved party may file petition within the remaining period but it shall not be less than 5 days in any event from notice of denial.

NOTE: The Fresh Period Rule is NOT applicable

PROCEDURE

1. A verified petition is filed (Sec. 5) with payment of docket and lawful fees (Sec. 4)

2. Service of petition to the Commission and parties concerned (Sec. 5)

3. SC shall act on the petition:a. It may dismiss the petition:

(1) Failure to comply with the form and content requirements in Sec. 5

(2) If SC finds the petition insufficient in form and substance (Sec. 6)

(3) If it was filed manifestly for delay (Sec. 6)(4) Questions raised are too unsubstantial to

warrant proceedings (Sec. 6) b. If sufficient in form and substance, the SC will

require the respondents to file their

Comments (Sec. 6) within 10 days from notice

4. SC may also require oral argument or submission of memoranda (Sec. 9)

5. The case is then submitted for decision (Sec. 9)

DISTINCTION IN THE APPLICATION OF RULE 65 TO JUDGMENTS OF THE COMELEC AND COA AND THE APPLICATION OF RULE 65 TO OTHER TRIBUNALS, PERSONS, AND OFFICERS

Rule 64Rule 65

Directed only to the judgments, final orders or resolutions of COMELEC

and COA

Directed to any tribunal, board, or officer

exercising judicial or quasi-judicial functions

Filed within 30 days from notice of the judgment

Filed within 60 days from notice of the judgment

The filing of a MR or a Motion for New Trial if allowed, interrupts the

period for the filing of the petition for certiorari. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days reckoned

from the notice of denial.

The period within which to file the petition if the

MR or new trial is denied, is 60 days from notice of the denial of the motion.

CERTIORARI, PROHIBITION, MANDAMUS

DEFINITIONS AND DISTINCTIONS

Writ of Certiorari is a writ emanating from a superior court directed against an inferior court, tribunal, or officer exercising judicial or quasi-judicial functions. The purpose of which is to correct errors of jurisdiction.

Writ of Prohibition is a writ issued by a superior court and directed against an inferior court, board, officer or other person whether exercising judicial, quasi-judicial, or ministerial functions for the purpose of preventing the latter from usurping jurisdiction with which it is not legally vested.

Writ of Mandamus is a writ issued in the name of the State, to an inferior tribunal, corporation, board, or person, commanding the performance of an act which the law enjoins as a duty resulting from an office, trust, or station.

CERTIORARI PROHIBITION MANDAMUS

Directed against an entity or

person exercising

judicial or quasi-judicial functions

Directed against an entity or

person exercising

judicial, quasi-judicial, or ministerial functions

Directed against an entity or

person exercising ministerial functions

Entity or person is alleged to have acted:

(1) Without jurisdiction(2) In excess of jurisdiction; or(3) With grave abuse of discretion amounting to lack or excess of jurisdiction

Entity or person is alleged to

have:(1) Neglected a ministerial duty; or(2) Excluded another from a right or office

PURPOSETo annul or

nullify a proceeding

PURPOSE:To have

respondent desist from

further proceeding

PURPOSE:For respondent

to: (1) Do the act required, and (2) Pay

damages

Covers discretionary

acts

Covers discretionary

and ministerial acts

Coversministerial acts

Corrective remedy

To correct usurpation of jurisdiction

Negative and Preventive

remedyTo restrain or

prevent the said usurpation

This remedy is affirmative or

positiveor negative

Distinguished from Injunction

INJUNCTION PROHIBITIONOrdinary civil action Special civil action

Directed only to the party litigants, without in any

Directed to the court itself, commanding it to cease

manner interfering with the court

from the exercise of a jurisdiction to which it has

no legal claim

INJUNCTION MANDAMUSOrdinary civil action Special civil action

Directed against a litigantDirected against a tribunal,

corporation, board, or officer

Purpose is to either refrain the defendant from

performing an act or to perform not necessarily a legal and ministerial duty

Purpose is for the tribunal, corporation, board, or

officer, to perform a ministerial and legal duty

Certiorari as a Mode of Appeal and as a Special Civil Action

CERTIORARI AS A MODE OF APPEAL (Rule 45)

CERTIORARI AS A SPECIAL CIVIL ACTION (Rule 65)

A continuation of the appellate process over the

original case

An original action and not a mode of appeal

Seeks to review final judgment or final orders

May be directed against an interlocutory order of the court or where no appeal

or plain or speedy remedy is available in the ordinary

course of law

Raises only questions of law

Raises questions of jurisdiction – that is,

whether a tribunal, board or officer exercising

judicial or quasi-judicial functions has acted

without jurisdiction or in excess of jurisdiction or

with grave abuse of discretion amounting to

lack of jurisdiction

Filed within 15 days from notice of judgment or final order appealed from, or of the denial of petitioner’s

motion for reconsideration or new

trial

Filed not later than 60 days from notice of judgment, order, or

resolution sought to be assailed and in case a

motion for reconsideration or new trial is timely filed,

the 60-day period is counted from notice of

said denialExtension of 30 days may be granted for justifiable

reasons

Extension no longer allowed

Does not require a prior motion for

reconsideration

Motion for reconsideration is a condition precedent,

subject to exceptions

Stays the judgment appealed from

Does not stay the judgment or order subject

of the petition, unless enjoined or restrained

Parties are the original parties with the appealing party as the petitioner and

the adverse party as the

The tribunal, board, officer, exercising judicial or quasi-judicial functions

is impleaded as

respondent without impleading the lower

court or its judgerespondents

Filed only with the SCMay be filed with the SC, CA, Sandiganbayan, RTC

SC may deny the decision motu proprio on specific

grounds

NOTE: An original action for Certiorari, Prohibition, or Mandamus, is an Independent Action, as such:

1. Does not interrupt the course of the principal action

2. Does not affect the running of the reglementary periods involved in the proceedings

3. Does not stay the execution of judgment unless a TRO or writ of preliminary injunction has been issued

ACQUISITION OF JURISDICTION

In original actions for Certiorari, Prohibition, Mandamus, when does the court acquire jurisdiction over the person of the respondent? IT DEPENDS:

1. IF ACTION IS FILED WITH THE RTC - We follow rules on ordinary civil actions. Jurisdiction is acquired by:a. Service of summons to respondent or b. By his voluntary appearance in court

2. IF ACTION IS FILED WITH THE CA OR SC - Court acquires jurisdiction over respondents by:a. Service on them of its orders indicating its

initial action on the petition or b. By their voluntary submission to such

jurisdiction

REQUISITES

Requisites of Certiorari:1. There must be a controversy2. Respondent is exercising judicial or quasi-judicial

function3. Respondent acted without or in excess of its

jurisdiction or acted with grave abuse of discretion amounting to lack of jurisdiction; and

4. There must be no appeal or other plain, speedy, and adequate remedy

Requisites of Prohibition: 1. There must be a controversy2. Respondent is exercising judicial, quasi-judicial,

or ministerial functions3. Respondent acted without or in excess of its

jurisdiction or acted with grave abuse of discretion amounting to lack of jurisdiction; and

4. There must be no appeal or other plain, speedy, and adequate remedy

Requisites of Mandamus:1. There must be a clear legal right or duty

If there is discretion as to the taking or non-taking of the action sought, there is no clear legal duty, and mandamus will not lie

2. The act to be performed must be practical Within the powers of the respondent to

perform such that if the writ of mandamus was issued, he can comply with it, or else the essence will be defeated

3. Respondent must be exercising a ministerial duty A duty which is absolute and imperative and

involves merely its execution 4. The duty or act to be performed must be existing

A correlative right will be denied if not performed by the respondents

5. There is no other plain, speedy, and adequate remedy in the ordinary course of law

DISCRETIONARY ACT MINISTERIAL ACT

One where public functionaries, by virtue of a power or right conferred upon them by law, can act

officially under certain circumstances,

uncontrolled by the judgment or conscience of

others

One which an 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 or the exercise of his own judgment upon the

propriety or impropriety of the act done

WHEN PETITION FOR CERTIORARI IS PROPER

Only to correct errors of jurisdiction, not errors of judgment.

Questions of fact cannot be raised in an original action for certiorari. Only established or admitted facts may be considered. (Suarez, NLRC, 1998)

Where appeal is available, certiorari will not lie. Exceptions:

1. Where the appeal does not constitute a speedy and adequate remedy

2. Where orders were also issued either in excess or without jurisdiction

3. For certain special considerations, as public welfare or public policy

4. Where, in criminal actions, the court rejects the rebuttal evidence for the prosecution as, in case of acquittal, there could be no remedy

5. Where the order is a patent nullity 6. Where the decision in the certiorari case will

avoid future litigations

WHEN PETITION FOR INJUNCTION IS PROPER

Prohibition is a preventive remedy. However, to prevent the respondent from performing the act sought to be prevented during the pendency of the proceedings for the writ, the petitioner should obtain a restraining order and/or writ of preliminary injuction. [Regalado]

The office of prohibition is not to correct errors of judgment but to prevent or restrain usurpation by inferior tribunals and to compel them to observe the limitation of their jurisdictions. (Herrera)

General Rule: Prohibition does NOT ordinarily lie to restrain an act which is already fait accompli.

Exception: Writ of prohibition will lie to prevent the unlawful creation of a new province by those in the corridors of power who could avoid judicial intervention and review by merely speedily and stealthily completing the commission of such illegality (Tan, et al. v. COMELEC)

WHEN PETITION FOR MANDAMUS PROPER

The purpose of mandamus is to compel the performance, when refused, of a ministerial duty, this being its main objective.

A writ of mandamus will not issue to control the exercise of official discretion or judgment, or to alter or review the action taken in the proper exercise of the discretion of judgment, for the writ cannot be used as a writ of error or other mode of direct review.

However, in extreme situations generally in criminal cases, mandamus lies to compel the performance of the fiscal of discretionary functions where his actuations are tantamount to a wilful refusal to perform a required duty. [Regalado]

Grounds for Mandamus:1. When any tribunal, corporation, board, officer or

person, UNLAWFULLY NEGLECTS the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station

2. When any tribunal, corporation, board, officer, or person, UNLAWFULLY EXCLUDES another from the due and enjoyment of a right or office to which the other is entitled

MANNER OF FILING THE PETITION

1. A verified petition is filed in the proper court accompanied by:a. Certified true copy of the judgment, order,

resolution subject thereof b. Copies of all pleadings and relevant and

pertinent documents c. Sworn certification of non-forum shopping

2. Contents of the petitiona. Allegation of facts with certaintyb. Prayer

Prayers:1. In certiorari

a. That the judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer; and

b. Granting such incidental reliefs as law and justice may require

2. In prohibitiona. That the judgment be rendered commanding

the respondent to desist from further proceedings in the action or matter specified; or

b. Otherwise granting such incidental reliefs as law and justice may require

3. In mandamusa. That the judgment be rendered commanding

the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner ; and

b. To pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent

EXCEPTIONS TO FILING MOTION FOR RECONSIDERATION BEFORE FILING PETITION

General Rule: A MR is an essential precondition for the filing of a petition for certiorari, prohibition, or mandamus. It is a plain, speedy, and adequate remedy. This is to enable the lower court, in the first instance, to pass upon and correct its mistakes without the intervention of the higher court

If a MR is filed, the period shall not only be interrupted but another 60 days shall be given to the petitioner within which to file the appropriate petition for certiorari or prohibition with the superior court (SC Admin Circular 00-2-03)

Exceptions: MR may be dispensed with in some cases:1. Where the order is a patent nullity 2. Where questions raised in the certiorari

proceeding have been duly raised and passed upon by the lower court , or are the same as those raised and passed upon in the lower court

3. Where there is urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government

4. Where under the circumstances, a MFR would be useless, as where the court had already indicated that it would deny any motion for reconsideration of its questioned order

5. Where petitioner was deprived of due process and there is extreme urgency for relief

6. Where, in a criminal case, relief from an order of arrest is urgent and granting such relief by trial court is improbable

7. Where the proceedings in the lower court are a nullity for lack of due process

8. Where the proceeding was ex parte or in which the petitioner had no opportunity to object

9. Where the issue raised is one purely of law or where public interest is involved

10. Where the subject matter of the action is perishable

PROCEDURE

1. A petition for certiorari/ mandamus/ prohibition is filed

When filed:a. Not later than 60 days from notice of

judgment/order/resolutionb. If a motion for reconsideration/new trial is

filed, the 60-day period shall be counted from notice of denial of motion.

c. Extension may be granted for compelling reasons, not exceeding 15 days. [Rule 65, Sec. 4]

Where filed: (Follow hierarchy of courts)a. Supreme Courtb. Court of Appeals; Whether or not the same is

in aid of its appellate jurisdiction BUT if it involves the acts of a quasi-judicial agency, the petition shall be filed only in the CA, unless otherwise provided by law or the Rules.

c. Regional Trial Court, if it relates to acts / omissions of a lower court / corporation / board / officer / person. RTC must exercise jurisdiction over the territorial area

d. Sandiganbayan, if it is in aid of its appellate jurisdiction. [Rule 65, Sec. 4]

e. The COMELEC in election cases involving an act or omission of the MTC/RTC

2. Order to Comment - If the petition is sufficient in form and substance to justify such process, the court shall issue an order requiring the respondent(s) to comment on the petition within 10 days from receipt of a copy thereof.

Such order shall be served on the respondents in such manner as the court may direct, together with a copy of the petition and any annexes thereto. [Rule 65, Sec. 6]

3. Hearing or Memoranda - After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the court may hear the case or require the parties to submit memoranda. [Rule 65, Sec. 8]

4. Judgment - If after such hearing or submission of memoranda or the expiration of the period for the filing thereof, the court finds that the allegations of the petition are true, it shall render judgment for the relief prayed for or to which the petitioner is entitled.

The court, however, may dismiss the petition if it finds the same to be:a. Patently without merit, b. Prosecuted manifestly for delay, or c. The questions raised therein are too

unsubstantial to require consideration. [Rule 65, Sec. 8]

5. Service and Enforcement of Order or Judgment - A certified copy of the judgment rendered shall

be served upon the court, quasi-judicial agency, tribunal, corporation, board, officer or person concerned in such manner as the court may direct, and disobedience thereto shall be punished as contempt.

RELIEFS PETITIONER IS ENTITLED TO

Petitioner may be entitled to:1. Injunctive relief – Court may may issue orders

expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties [Rule 65, Sec. 7]

2. Incidental reliefs as law and justice may require [Rule 65, Secs. 1 and 2]

3. Other reliefs prayed for or to which the petitioner is entitled [Rule 65, Sec. 8]

INJUNCTIVE RELIEF

Rule 65, Sec. 7 provides for the issuance of a temporary restraining order, and not only for a writ of preliminary injunction, but such order shall be subject to the rules on the grounds and duration thereof. [Regalado]

General Rule: The petition shall not interrupt the course of the principal case.

The public respondent shall proceed with the principal case WITHIN 10 DAYS from filing of the petition for certiorari with the higher court, absent a TRO or preliminary injunction, or upon its expiration. Failure may be a ground for an administrative charge (AM No. 07-7-12-SC)

Exception: Unless a TRO or preliminary injunction has been issued against the public respondent from further proceedings in the case

FACTS/OMISSIONS OF MTC/RTC IN ELECTION CASES

In election cases involving an act or an omission of a municipal or regional trial court, the petition shall be filed EXCLUSIVELY with the Commission on Elections, in aid of its appellate jurisdiction (Rule 65, Sec. 4, as amended in AM No. 07-7-12-SC)

EFFECTS OF FILING AN UNMERITORIOUS PETITION

The court, however, may dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. (Rule 65, Sec. 8)

In these cases, the court may award TREBLE COSTS solidarily against petitioner and counsel, in addition to administrative sanctions

Court may impose, motu proprio, based on res ipsa loquitur, other disciplinary sanctions for patently dilatory and unmeritorious petitions (AM No. 07-7-12-SC)

QUO WARRANTO

NATURE

Quo Warranto literally means “by what authority”.

It is a prerogative writ by which the government can call upon any person to show by what warrant he holds a public office or exercises a public franchise.

When the inquiry is focused on the legal existence of a body politic, the action is reserved to the State in a proceeding for quo warranto or any other direct proceeding.

Subject Matter: The subject matter of a quo warranto may be a public office, franchise, or position.

NOTE: NOTE: Rule 66 deleted an office in a corporation created by authority of law. This falls under the jurisdiction of the SEC under PD 902-A.

Jurisdiction to Issue Writ: Original jurisdiction to issue the writ of quo warranto is vested in the SC, CA, and RTC.

DISTINGUISHED FROM QUO WARRANTO IN THE OMNIBUS ELECTION CODE

ROC Rule 66 OEC Sec. 253Filed by whom

Solicitor General or Public Prosecutor in behalf of the

Republic; IndividualAny voter

Where filed

By SolGen: RTC Manila, CA or SC; Otherwise, RTC with jurisdiction over territorial

area where respondent resides, CA or SC

COMELEC, if against election of a Member of

Congress, Regional, Provincial or City

Officer;

appropriate RTC or MTC, if against a

municipal or barangay officer

Period for filingWithin 1 year from ouster,

or from the time the right to the position arose

Within 10 days after proclamation of results

Against whom, groundsA person, who usurps,

intrudes into or unlawfully holds or exercises a public

office, position or franchise;

A public officer, who does or suffers an act which, by

provision of law, constitutes a ground for forfeiture of

office

Ineligibility or disloyalty to the

Republic

In fine, Rule 66 applies to quo warranto IN GENERAL while election law governs quo warranto against SPECIFIED elective officials.

AGAINST WHOM MAY THE ACTION BE BROUGHT (Rule 66, Sec. 1)

1. A PERSON who USURPS, intrudes into, or unlawfully holds or exercises a public office, position, or franchise

2. A PUBLIC OFFICER who does or suffers an act, which, by provision of law, constitutes a ground for FORFEITURE OF OFFICE

3. An ASSOCIATION which acts as a corporation within the Philippines without being legally incorporated or without lawful authority to act

Actions for quo warranto against corporations with regard to franchises and rights granted to them, as well as their dissolution now fall under the jurisdiction of the RTC (Securities Regulation Code, Sec. 5.2)

WHO MAY COMMENCE THE ACTION (Rule 66, Sec. 2 – 5)

General Rule: The Government, through the Solicitor General or public prosecutor

1. MANDATORY (Sec. 2); When to commence:a. When directed by the President, or b. When upon complaint or otherwise he has

good reason to believe that any case in Sec. 1 can be established by proof

2. DISCRETIONARY (Sec. 3); When to commence:a. This is upon permission of court b. Bringing such action (ex relatione) at the

request and upon the relation of another person, PROVIDED:(1) Officer bringing it may require an

indemnity bond(2) Leave of court will have to be obtained

Exception: An individual may commence the action (Sec. 5); PROVIDED:

1. He institutes the action in his own namea. He does not have to secure the intervention

of the Solicitor General or public prosecutor b. No leave of court necessary

2. HOWEVER, he must claim to be entitled to the office or position usurped or unlawfully held or exercised by another. a. He must aver and be able to show that he is

entitled to the office in dispute. There must be an allegation that respondent is either a de facto or de jure officer

PERIOD FOR PLEADINGS AND PROCEEDINGS MAY BE REDUCED (Rule 66, Sec. 8)

Period to File: The action must be commenced within 1 year from the date after the cause of such ouster or the right of the petitioner to hold such office or position arose. (Sec. 11)

Laches does not attach and failure to file quo-warranto proceedings does not operate adversely against a

dismissed government employee where it was the act of responsible government official which contributed in the delay of filing of complaint for reinstatement (Cristobal v. Melchor).

Reduction of Period: The court may reduce the period for filing and for all other proceedings in the action to secure most expeditious determination of the matters involved therein, consistent with the rights of the parties.

JUDGMENT IN QUO WARRANTO ACTION (Rule 66, Sec. 9)

When respondent is found guilty of usurping, intruding, or unlawfully holding, judgment rendered:

1. That such respondent is ousted and altogether excluded therefrom

2. That petitioner or relator, as the case may be, recover his costs

3. May determine the respective rights in and to the public office, position, or franchise of all parties

RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC OFFICE (Rule 66, Sec. 10)

Rights of persons adjudged entitled to office:1. Execution of the office

After taking oath of office and executing any official bond required by the law

2. Demand from respondent all the books and papers appertaining to the office to which judgment relates Respondent’s neglect or refusal to comply

with the demand is punishable by contempt 3. Bring an action for damages against respondent

For damages sustained by him by reason of the usurpation

Must be commenced within 1 year after entry of judgment establishing petitioner’s right to the office in question (Sec. 11)

EXPROPRIATION

NATURE

Eminent Domain is the right and authority of the State, as sovereign, to take private property for public use upon observance of due process and payment of just compensation.

It is a government’s right to appropriate, in the nature of a compulsory sale to the State, private property for public use or purpose.

Requisites for the Valid Exercise of the Right1. There must be due process of law 2. Payment of just compensation 3. Taking must be for public use

Subject Matter of Expropriation: All properties can be expropriated, EXCEPT:

1. Money (futile; because of just compensation)2. Choses in action (conjectural in nature; validity

and its value)

When is Expropriation Proper:1. When the owner refuses to sell 2. When he agrees to sell but an agreement as to the

price cannot be reached.

MATTERS TO ALLEGE IN COMPLAINT FOR EXPROPRIATION

Contents of the Complaint (Rule 67, Sec. 1)1. State with certainty the right and purpose of

expropriation a. Where the right of the plaintiff to expropriate

is conferred by law, complaint does not have to state with certainty the right of expropriation (MRR Co. v. Mitchel)

2. Describe the real or personal property sought to be expropriated

3. Joining of defendants a. All persons owning or claiming to own, or

occupying, any part thereof or interest therein. showing separate interest of each defendant, as far as practicable

b. Make the following averments, if needed:(1) If title appears to be in the Republic,

although occupied by private individuals(2) If title is otherwise obscure or doubtful

so that plaintiff cannot with accuracy or certainty specify who the real owners are

Where to File: RTC where property is located. MTC has no jurisdiction since an action for expropriation is incapable of pecuniary estimation.

TWO STAGES IN EVERY ACTION FOR EXPROPRIATION

First Stage: Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved. This ends with either:

1. An order of dismissal, or 2. An order of expropriation

Second Stage: Determination of the just compensation for the property sought to be taken.

NOTE: Multiple appeals is allowed in expropriation. Aggrieved party may appeal in each stage separately.

WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO POSSESSION OF THE REAL PROPERTY, IN RELATION TO R.A. NO. 8974

Plaintiff shall have the right to take or enter upon possession of the real property upon:

1. Filing of complaint or at any time thereafter, and after due notice to defendant

4. Making preliminary deposit (Rule 67, Sec. 2)

Preliminary deposit:

Purposes

Provide damages if court finds that the plaintiff has no right to expropriate

Advance payment for just compensation, if property is finally expropriated

Value

If Real Property - Equivalent to the assessed value of the property for purposes of taxationIf Personal Property – Value shall be provisionally ascertained and fixed by the court

Where to deposit

With the authorized government depositaryAmount is to be held by such bank subject to the orders of the court

Form of Deposit

Deposit shall be in money

UNLESS, in lieu of money, court authorizes deposit of a certificate of deposit of a government bank of the Republic, payable on demand to the authorized government depositary

After the deposit, court shall order sheriff or proper officer to place plaintiff in possession of the property. Such officer shall promptly submit a report to the court with service of copies to parties.

NOTE: Preliminary deposit is only necessary if the plaintiff desires entry on the land upon its institution of the action. Otherwise, he could always wait until the order of expropriation is issued before it enters upon the land.

Once the preliminary deposit has been made, the expropriator is entitled to a writ of possession as a matter of right, and the issuance of said writ becomes ministerial on the part of the trial court (Biglang-Awa v. Bacalla)

On RA 8974

On Nov. 7, 2000, Congress enacted RA 8974, a special law to facilitate the acquisition of right of way, site, or location for national government infrastructure projects:

RULE 67,SEC. 2

RA 8974

APPLICATIONExpropriation

in general

Only when national government expropriates

property for national government

infrastructure projects

FOR WRIT OF POSSESSION

TO ISSUE

Government is required to

make preliminary

deposit

Government is required to make

immediate payment to owner upon filing

of complaint

AMOUNT OF PAYMENT OR

DEPOSIT

Equal to assessed

value of real property for purposes of

taxation

Equal to the market value of the property

as stated in the tax declaration or

current relevant zonal value of BIR,

whichever is higher, and value of

improvements and/or structures using replacement

cost method

Remember the Applicable Rules:1. RA 8974 specifically governs expropriation for

national government infrastructure projects 2. Sec 19, LGC governs the exercise of the power of

eminent domain by LGUs through an enabling ordinance

NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST COMPENSATION

For the acquisition of right-of-way, site or location for any national government infrastructure project through expropriation, upon the filing of the filing of the complaint, and after due notice to the defendant, the implementing agency shall immediately pay the owner of the property the amount equivalent to the sum of (1) 100 percent of the value of the property based on the current relevant zonal valuation of the BIR; and (2) the value of the improvements and/or structures as determined under Sec. 7 of RA 8974 (Sec. 4, RA 8974)

DEFENSES AND OBJECTIONS

No Objection Or Defense To The Taking

Has Objection Or Defense To The Taking

What to file and serve

Notice of appearance and manifestation

Answer to the complaint

Period to fileTime stated in the summons

Contents

Manifestation to the effect that he has no objection

or defense;

Specifically designating/identifying

the property in which he claims to be interested

Specifically designating/identifying

the property in which he claims to have an

interest in and the nature and extent of the

interest;

ALL his objections and defenses to the

complaint or any allegation therein

ProhibitedCounterclaim, cross-

claim, third party complaint in any

pleading

NOTE: A defendant waives all defenses and objections not so alleged, but the court, in the interest of justice, may permit amendments to the answer not to be made later than ten (10) days from filing thereof.

NOTE: In any case, in the determination of just compensation, defendant may present evidence as to the amount of compensation to be paid.

NOTE: The defendant CANNOT be declared in default for failure to file Answer. Failure to file an answer would result to the court’s judgment on the right to expropriate without prejudice to the right to present evidence on the just compensation and to share in the distribution of the award.

ORDER OF EXPROPRIATION (Rule 67, Sec. 4)

Order of Expropriation - It is the order declaring that the plaintiff has lawful right to take the property.

When Issued: It is issued when:1. Objections or defenses against the right of

plaintiff to expropriate are overruled; or 2. No party appears to defend the case

Contents of the Order:1. That the plaintiff has a lawful right to take the

property sought to be expropriated2. For public use or purpose described in the

complaint 3. Upon payment of just compensation

a. To be determined as of the date of taking, or b. The filing of the complaint, whichever came

first

Remedy of Defendant: Order of condemnation is final, not interlocutory. Hence, it is appealable.

Effects of the Order:1. Plaintiff not permitted to dismiss or discontinue

the proceeding

a. EXCEPTION: On such terms as the court deems just and equitable, plaintiff may be allowed to dismiss or discontinue

2. Forecloses any further objections to the right to expropriate, including the public purpose of the same

ASCERTAINMENT OF JUST COMPENSATION (Rule 67, Sec. 5)

Upon rendition of the Order of Expropriation, the court issues an Order of Appointment.

Order of Appointment:1. Court appoints not more than 3 commissioners to

ascertain and report to the court the just compensation for the property

2. Contents:a. It shall designate the time and place of the

first session of hearing to be held by commissioner

b. Specify the time within which their report shall be submitted to court

3. Procedures:a. Copies of the Order shall be served on the

parties b. Objections to appointment:

(1) Filed with the court within 10 days from service

(2) Objections shall be served to all commissioners

(3) Resolved within 30 days after all commissioners shall have received copies

Just Compensation

Just Compensation has been defined as the full and fair equivalent of the property taken from its owner by the expropriator. Just compensation means not only the correct determination of the amount to be paid but also the payment of the land within a reasonable time from its taking.

Market Value

Is “that sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree on as a price to be given and received therefore.” [BPI v. CA (2004)]

Time when market value should be fixed:1. When plaintiff takes possession before institution

of proceedings, value should be fixed as of the TIME OF TAKING

2. When the taking coincides with or subsequent to the commencement of proceedings, DATE OF FILING of the complaint should be the basis

APPOINTMENT OF COMMISSIONERS; COMMISSIONER’S REPORT; COURT ACTION UPON REPORT

Qualifications of the Commissioners:1. Competent and2. Disinterested

Proceedings by Commissioners (Rule 67, Sec. 6)1. Commissioners shall first take and subscribe an

oath that they will faithfully perform their duties. Oath shall be filed in court together with other proceedings.

2. Evidence may be introduced by either party before the commissioners who are authorized to administer oaths on hearings before them

Duties of Commissioners:1. View and examine the property sought to be

expropriated and its surroundings, and may measure the same a. Due notice to parties to attend must first be

given UNLESS the parties consent to the contrary

b. After this, each party may argue the case

2. They shall assess the consequential damages to the property not taken and deduct from such the consequential benefits to be derived by owner a. In no case shall the consequential benefits

assessed exceed the consequential damagesb. In no case shall the owner be deprived of the

actual value of his property taken

Report by Commissioners (Rule 67, Sec. 7)

Commissioners shall make a full and accurate report to the court of all their proceedings.

Such proceeding shall not be effectual until court has accepted their report and rendered judgment in accordance with their recommendations.

Report shall be filed within 60 days from date commissioners were notified of their appointment. Time may be extended by court discretion,

Upon filing, clerk shall serve copies of the Commissioners’ Report to all interested parties. Clerk includes a notice that parties are allowed to file objections to the report within 10 days from notice

Action Upon Commissioners’ Report (Rule 67, Sec. 8)1. When court renders judgment: Upon

a. Filing of objections to the report or of the agreement thereon of all interested parties; or

b. Expiration of 10-day period to object from the report

2. Court may:a. After hearing, accept the report and render

judgment in accordance therewith b. Recommit to commissioners for further

report of facts, for cause shown

c. Set aside the report and appoint new commissioners;

d. Accept the report in part and reject in part e. Make such order or render such judgment as

shall secure the plaintiff and the defendant

RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT (Rule 67, Sec. 10)

When will the right of plaintiff TO ENTER the property sought to be appropriated or RIGHT TO RETAIN it should he have taken immediate possession thereof accrue?

1. RIGHT TO RETAIN: Upon filing of complaint, serving notice to defendant, and after depositing the assessed value of property for taxation purposes with authorized government depositary (Sec. 2)

2. RIGHT TO ENTER:a. Upon payment by plaintiff to defendant of

compensation fixed by judgment, with legal interest from taking (Sec. 10)

b. After tender to defendant of amount so fixed and payment of the costs (Sec. 10)

EFFECT OF RECORDING OF JUDGMENT

Contents of the Judgment1. Statement of the particular property or interest

therein expropriated, with adequate description2. Nature of the public use or purpose for which it is

expropriated

In case of real estate, a certified true copy of such judgment shall be recorded in the registry of deeds of the place in which property is situated. Effect is to vest title.

Title in Expropriation is vested:1. If PERSONAL property, upon payment of just

compensation (Sec. 10) 2. If REAL property, upon payment of just

compensation AND registration of property (Sec. 13)

FORECLOSURE OF REAL ESTATE MORTGAGE

NATURE

Foreclosure of Mortgage is a proceedings in a court of justice conducted according to legal forms by which the mortgagee or his successors or one who has by law succeeded to the rights and liabilities of the mortgagee undertakes to dispose of, to ban, to cut-off the legal and equitable claims of lien holders or of the mortgagors or those who have succeeded to the rights and liabilities of the mortgagor.

The cause of action in a foreclosure suit is generally the non-payment of the mortgage loan, but it may be on other grounds which under the contract warrant the foreclosure, such as the violation of the other conditions therein.

Foreclosure may be made:1. Judicially – governed by Rule 682. Extrajudicially – proper only when so provided in

contracts in accordance with Act. No. 3135; governed by A.M. No. 99-10-05-0.

COMPLAINT IN AN ACTION FOR FORECLOSURE (Rule 68, Sec. 1)

Venue: A foreclosure action must be brought in the RTC of the province where the land or any part thereof is situated

Contents of the Complaint:1. The following dates:

a. Date and due execution of the real mortgageb. Date of the note or other documentary

evidence of the obligation secured by the mortgage

2. Its assignments, if any3. The following names and residences:

a. Of the mortgagor and mortgagee b. Of all persons having or claiming an interest

in the property subordinate in the right to that of the holder of the mortgage

4. Description of the mortgaged property 5. Amount claimed to be unpaid

Defendants in a judicial foreclosure1. Persons obliged to pay the mortgage debt 2. Persons who own, occupy, or control the

mortgaged premises or any part thereof 3. Transferee or grantee of the property 4. Second mortgagee or junior encumbrancers or

any person claiming a right or interest in the property subordinate to the mortgage sought to be foreclosed to foreclose their equity of redemption But if the action is by the junior

encumbrancer, first mortgagee MAY also be joined as defendant

5. Mortgagor even if not owner of the mortgaged property should be included to satisfy the deficiency

JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE (Rule 68, Sec. 2)

If upon trial, the facts set forth in the complaint are true, the court shall:

1. Ascertain the amount due to the plaintiff upon the mortgage debt or obligation including interests, other charges approved, costs

2. Render judgment for the sum so found due

3. Order that the amount be paid to the court or to judgment obligee a. Within a period of not less than 90 days but

not more than 120 days from entry of judgment

b. In default of such payment, property shall be sold at public auction to satisfy judgment

Judgment on Foreclosure is the judgment of the court ordering the debtor to pay within 90-120 days from entry of judgment after ascertaining the amount due to plaintiff

NOTE: Multiple appeals are allowed under Rule 681. Judgment of foreclosure is appealable (Sec. 2)2. Order confirming foreclosure sale is a final

disposition with respect to the issue of validity and regularity of the sale (Sec. 3)

3. Deficiency judgment is a disposition on the merits of the correctness of such award (Sec. 6)

SALE OF MORTGAGED PROPERTY; EFFECT (Rule 68, Sec. 3)

When Proper: When Defendant fails to pay the amount of judgment within the period specified, the court shall order the property to be sold.

How: By motion and under the provisions of Rule 39.

It is the ministerial duty of the court to order the foreclosure of the property when the debt is not paid within the period specified.

A motion for such order of sale is non-litigable and may be made ex parte. [Gov’t of P.I. v De las Cajigas (1931)]

NOTE: Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof.

Order of Confirmation - When confirmed by an order of the court, also upon motion, it 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.

Confirmation of the sale of mortgaged real property vests title in the purchaser including the equity of redemption, it retroacts to the date of the sale. It cuts off all the rights or interests of the mortgagor and of the mortgagee. [Lozame v Amores (1985]].

The motion for the confirmation of the sale requires a hearing to grant an opportunity to the mortgagor to show cause why the sale should not be confirmed [Tiglao v Botones, 90 Phil 275], as by proof of irregularities therein or of gross inadequacy of the price. Lack of notice vitiates the confirmation of the sale.

Writ of Possession - Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property, unless a third party is actually holding the same adversely to the judgment obligor.

DISPOSITION OF PROCEEDS OF SALE (Rule 68, Sec. 4)

1. Amount realized from the foreclosure sale, less costs of the sale, shall be paid to the person foreclosing

2. When there is a balance or residue after paying the mortgage debt, the same shall be paid to junior encumbrancers in the order of priority as ascertained by the court

3. If there are no junior encumbrancers, the residue goes to the mortgagor or his authorized agent, or any other person entitled to it

DEFICIENCY JUDGMENT; INSTANCES WHEN COURT CANNOT RENDER DEFICIENCY JUDGMENT (Rule 68, Sec. 6)

Deficiency Judgment is judgment rendered by the court holding defendant liable for any unpaid balance due to the mortgagee if the proceeds from the foreclosure sale do not satisfy the entire debt.

In extrajudicial foreclosure, the mortgagee can also recover by action any deficiency in the mortgage account which was not realized in the foreclosure sale. [PNB v. CA (1999)]

A motion for deficiency judgment may be made only after the sale and after it becomes known that a deficiency exists. [Governor of the Philippine Islands v. Torralba Vda. de Santos (1935)]

If the debtor dies, the deficiency may be filed as a claim against his estate. [Rule 86, Sec. 7]

How Done:1. Judgment creditor files motion for deficiency

judgment 2. Court shall then render judgment against

defendant for any such balance for which he may personally be liable to plaintiff

3. Execution may then issue immediately if balance is all due at the time of rendition of judgment a. If not, plaintiff shall be entitled to execution

at such time as the balance remaining becomes due

Instances when court CANNOT render deficiency judgment1. Recto Law (Art. 1484, par. 3)2. When mortgagor is a non-resident and is not

found in the Philippines 3. When mortgagor dies, mortgagee may file his

claim with the probate court (Sec. 7, Rule 86) 4. If mortgagor is a third person but not solidarily

liable with debtor No deficiency judgment may be rendered

against owner who is not a mortgagor and has not assumed personal liability for the debt

Remedy is ordinary action against debtor 5. In case of a mortgage debt due from the estate of

a deceased mortgagor and the mortgage creditor availed of the third remedy which is to rely upon his mortgage alone and foreclosing the same within the statute of limitations (Sec. 7, Rule 86)

JUDICIAL FORECLOSURE vs. EXTRAJUDICIAL FORECLOSURE

JUDICIAL FORECLOSURE

EXTRAJUDICIAL FORECLOSURE

Requires court intervention

No court intervention necessary

There is only an equity of redemption

Right of redemption exists

Governed by Rule 68 Governed by Act 3135

There could be a Deficiency Judgment

No Deficiency judgment because there is no judicial proceeding but recovery of

deficiency is allowedRecovery of deficiency can be done by mere

motion

Recovery of deficiency is through an independent

action

EQUITY OF REDEMPTION vs. RIGHT OF REDEMPTION

Equity of Redemption is the right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the secured debt within the 90 to 120 day period after entry of judgment or even after the foreclosure sale but prior to its confirmation

EQUITY OF REDEMPTION RIGHT OF REDEMPTIONRight of the defendant

mortgagor to extinguish the mortgage and retain

ownership of the property by paying the secured

debt within the 90 to 120 day period after entry of

judgment or even after the foreclosure sale but prior

to its confirmation

Right of the debtor, his successor in interest, or

any judicial creditor of said debtor or any person having a lien on the

property subsequent to the mortgage or deed of

Period is 90-120 days after entry of judgment or even after foreclosure sale but prior to confirmation

Period is 1 year from date of registration of certificate of sale

Governed by Rule 68Governed by Sec. 29-31,

Rule 39

JUDICIAL FORECLOSUREEXTRAJUDICIAL FORECLOSURE

No right of redemption, only equity of redemption

Mortgagor has a right to redeem the property within one year from

registration of the deed of sale

EXCEPT: Those granted by banks or banking

institutions as provided by the General Banking

Act (mortgagor may exercise a right of

redemption)

EXCEPT: Sec. 47 of the General Banking Act

provides that in case of extrajudicial foreclosure,

juridical persons shall have the right to redeem

until, but not after, the registration of the

certificate of foreclosure sale with the Register of Deeds which in no case

shall be more than 3 months after foreclosure,

whichever is earlier

NOTE: What Sec. 2 and 3, Rule 68 provide for is the mortgagor’s EQUITY, nor right, of redemption. - This may be exercised by him even beyond the period to pay the judgment obligation and even after the foreclosure sale itself, provided it be before the order of the confirmation of sale

PARTITION

NATURE

Partition is the process of dividing and assigning the property owned in common among the various co-owners thereof in proportion to their respective interests in said property.

Partition may be:1. JUDICIAL – Procedure is Rule 692. EXTRAJUDICIAL – No court intervention required

The partition of property may be made voluntarily (by agreement) or compulsorily under the Rules. Even if the parties had resorted to judicial partition, they may still make an amicable partition of the property.

An action for partition and accounting under Rule 69 is in the nature of an action QUASI IN REM. Such an action is essentially for the purpose of affecting the defendant’s interest in a specific property and not to render a judgment against him.

WHEN CAN PARTITION BE MADE

General Rule: It can be made anytime. The right to demand partition is imprescriptible.

Exception to Imprescriptibility of Right to Partition: If a co-owner asserts adverse title to the property. In which case, period of prescription runs from such time of assertion of adverse title.

Exceptions to the Right to Ask for Partition:1. When there is a stipulation against it, not

exceeding 10 years [Art. 494, Civil Code]2. When partition is prohibited by the donor or

testator for a period not exceeding 20 years [Art. 494, 1083 Civil Code]

3. When partition is prohibited by law (e.g. ACP, party wall) [Art. 494, Civil Code]

4. When the property is not subject to a physical division and to do so would render it unserviceable for the use for which is it intended [Art. 495 Civil Code] or

5. When the condition imposed upon voluntary heirs before they can demand partition has not yet been fulfilled. [Art. 1084 Civil Code]

WHO MAY FILE COMPLAINT; WHO SHOULD BE MADE DEFENDANTS (Rule 69, Sec. 1)

Who May File: A person having the right to compel partition of real estate, or of personal property, or both real and personal property (Sec. 1, Sec. 13)

Venue: An action for partition should be filed in the RTC of the province where the property or part thereof is situated.

Parties

1. The plaintiff is the person who is supposed to be a co-owner of the property

2. Defendants are all the co-owners, who are indispensable parties

3. Creditors or assignees of co-owners may also intervene and object to the partition

MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION

Contents of the Complaint:1. Nature and extent of his title 2. Adequate description of the real estate sought to

be partitioned 3. Joining of Defendants – All other persons

interested in the property

TWO STAGES IN EVERY ACTION FOR PARTITION

First Stage: Determination of the propriety of partition

This involves a determination of whether the subject property is owned in common and whether all the co-owners are made parties in the case.

The order may also require an accounting of rents and profits recovered by the defendant. This order of partition is appealable. [Miranda v. Court of Appeals (1976)]

If not appealed, then the parties may partition the common property in the way they want. If they cannot agree, then the case goes into the second stage. However, the order of accounting may in the meantime be executed. [De Mesa v. CA (1994)]

Second Stage: Actual partitioning of the subject property

This is also a complete proceeding and the order or decision is appealable.

When there was a prior partition, the fact that the share of each co-heir has not been technically described and the title over the whole lot remains uncancelled does not negate such partition.

There can be no partition again because there is no more common property. [Noceda v. CA (1999)]

ORDER OF PARTITION AND PARTITION BY AGREEMENT

Order of Partition: The court issues an order of partition AFTER the trial and the court finds that the plaintiff has a right to partition. The court orders the partition of the property.

The parties may make the partition proper themselves, by agreement:

1. After the issuance of the order of partition, the parties will then be asked if they agree to make partition of the property among themselves

2. If they agree, proper instruments of conveyance will be executed to effect the partition.

3. After the execution of instruments of conveyance, the court shall confirm the partition through a final order.

4. The final order of partition and the instruments of conveyance shall be registered with the Registry of Deeds where the property is situated. [Rule 69, Sec. 2]

PARTITION BY COMMISSIONERS; APPOINTMENT OF COMMISSIONERS; COMMISSIONER’S REPORT; COURT ACTION UPON COMMISSIONER’S REPORT

When proper: If parties fail to agree on the manner of partition, commissioners are appointed to make partition.

How Done: The court appoints not more than 3 competent and disinterested commissioners to make the partition. (Sec. 3)

Oath of the Commissioners: Before entering into their duties, commissioners must first make an oath that they will faithfully perform their duties as commissioners. Such oath is to be filed in court. (Sec. 4)

Duties of the Commissioners:1. They shall view and examine real estate, after

due notice to parties to attend at such view and examination

2. They shall hear the parties as to their preference in the portion to be set apart to them

3. They shall also determine the comparative value thereof

4. They shall set apart the same to the parties in lots or parcels as will be most advantageous and equitable considering the improvements, situation, and quality of the parts thereof

Assignment of Real Estate to One Party (Sec. 5)1. General Rule: If the commissioners should

determine that the real estate cannot be divided without prejudice to the interests of the parties, the court may order that the property be assigned to one of the parties willing to take the same PROVIDED he pays to the other parties such amounts as the commissioners deem equitable

2. Exception: if one of the parties asks that the property be sold instead of being so assigned, then the court shall ORDER the commissioners to sell the real estate at public sale under such conditions and within such time as the court may determine

Commissioner’s Report: Commissioners shall make a full accurate report to the court. Contents:

1. All proceedings as to the partition, or 2. The assignment of real estate to one of the

parties, or 3. The sale of the same

Upon filing of Commissioner’s Report:1. Clerk shall serve copies on all interested parties

with notice that they are allowed to file objections

2. Parties may file objections within 10 days upon receipt of notice

Hearing on the Report (Sec. 7)1. When Conducted:

a. Upon expiration of the 10 day period for filing objections; or

b. Even before expiration but after the interested parties have filed their objections or their statement of agreement therewith

2. The court may:a. Accept the report and render judgment in

accordance therewith; or b. Recommit the same to commissioners for

further report of facts, for cause shown; or c. Set aside the report and appoint new

commissioners; or d. Accept the report in part and reject in part;e. Make such order and render such judgment

as shall effectuate a fair and just partition of the real estate, or of its value, if assigned or sold

JUDGMENT AND ITS EFFECTS (Rule 69, Sec. 11)

Contents of Judgment Effects of Judgment

If Actual Partition Is Properly Made

Judgment shall state definitely, by metes and

bounds and adequate description, the particular portion of the real estate assigned to each party.

Judgment shall vest in each party to the action in severalty the portion

of the real estate assigned to him.

If The Whole Property Is Assigned To One Of The Parties After Payment

Judgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment.

Judgment shall vest in the party making the payment the whole of

the real estate free from any interest on the part

of the other parties.If Property Is Sold And Sale Is Confirmed By The Court

Judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each

purchaser

Judgment shall vest the real estate in the

purchaser(s), making the payment(s) free from the

claims of any parties to the action.

A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated. [Rule 69, Sec. 11]

PARTITION OF PERSONAL PROPERTY

The provisions of Rule 69 shall apply to partitions of estates composed of personal property, or of both real and personal property, in so far as the same may be applicable. (Sec. 13)

PRESCRIPTION OF ACTION

The right of action to demand partition does not prescribe [De Castro v. Echarri (1911)], EXCEPT where one of the interested parties openly and adversely occupies the property without recognizing the co-ownership [Cordova v. Cordova (1958)] in which case, acquisitive prescription may set in.

If a co-owner repudiates the co-ownership and makes known such repudiation to the other co-owners, then partition is no longer a proper remedy of the aggrieved co-owner. He should file an accion reivindicatoria, which is prescriptible. [Roque v. IAC (1988)]

FORCIBLE ENTRY AND UNLAWFUL DETAINER

NATURE

Ejectment cases are SUMMARY proceedings intended to provide an expeditious means of protecting actual possession of property.

Reason: The owners of property have no authority to use force and violence to eject alleged usurpers who were in prior physical possession of it. They must file the appropriate action in court and should not take the law in their own hands.

NOTE: The Rule on Summary Procedure applies only in cases filed before the MTC

DEFINITIONS AND DISTINCTIONS

FORCIBLY ENTRY(Detentacion)

UNLAFUL DETAINER(Desahucio)

Possession of land by defendant is unlawful

from the beginning as he acquires possession by

force, intimidation, strategy, threat, or stealth

Possession is inceptively lawful but it becomes

illegal by reason of the termination of his right to possession of the property under his contract with the

plaintiff

No previous demand for defendant to vacate the premises is necessary

Demand is jurisdictional if the ground is non-payment

of rentals or failure to comply with lease contract

Plaintiff must prove that he was in prior physical

possession of the premises until he was deprived thereof by

defendant

Plaintiff need not have been in prior physical

possession

The 1-year period is generally counted from date of actual entry on

land

Period is counted from the date of last letter of

demand

The issue centers on who was in prior possession de

facto.

The issue centers on whether the defendant’s

right to possess has expired or not.

DISTINGUISHED FROM ACCION PUBLICIANA, ACCION REINVINDICATORIA, ACCION INTERDICTAL

The Three Kinds of Action for Recovery of Possession

ACCIONINTERDICTAL

ACCIONPUBLICIANA

ACCIONREINVINDICATORIA

Summary action for recovery of

physical possession where the

dispossession has not lasted

for more than 1

A plenary action for

recovery of real right of possession

when dispossession has lasted for

An action for recovery of

ownership, which necessarily includes

the recovery of possession

yearmore than one year

All cases of forcible entry and unlawful

detainer, irrespective of the amount of

damages or unpaid rentals

sought to be recovered should be

brought to the MTC.

However, if not brought within 1 year, RTC has

jurisdiction

RTC has jurisdiction if value of the property exceeds P20,000 outside

Metro Manila; exceeds P50,000 within Metro Manila.

MTC has jurisdiction if value of property does not exceed the above

amounts(RA 7691 expanded the jurisdiction

of 1st level courts)

HOW TO DETERMINE JURISDICTION

In Accion Interdictal: In the proper Municipal Trial Court

NOTE: Amount of rents and damages claimed does not affect the jurisdiction of the MTC because they are only incidental or accessory to the main action

HOWEVER, municipal courts have no jurisdiction over a FEUD case involving agricultural tenants. Jurisdiction is with the HLURB

In accion publiciana and accion reinvindicatoria:1. RTC has jurisdiction where the assessed value of

the property exceeds P20K or, in MM, P50k2. MTC has jurisdiction if the assessed value does

not exceed said amounts

WHO MAY INSTITUTE THE ACTION AND WHEN; AGAINST WHOM MAINTAINED

Who May Institute Proceedings (Rule 70, Sec. 1)1. In Forcible Entry:

a. A person deprived of possession of any land or building by force, intimidation, strategy, threat, or stealth (FISTS)

2. In Unlawful Detainer:a. Lessor, vendor, vendee or other person

against whom any land or building is unlawfully withheld

b. Or their legal representatives or assigns

Period of Filing: Within ONE (1) year after such unlawful deprivation or withholding of possession. Reckoning points:

1. For forcible entry, it is counted from date of entry or taking of possession

2. For unlawful detainer, it is counted from:a. Date of last demand to vacate in case of non-

payment of rent or non-compliance with conditions of the lease

b. Date of notice to quit, in case of tacit renewal of lease

c. Date of revocation of the permit in case of occupancy on mere tolerance or under temporary permit

Against whom may the action be maintained - Person or persons unlawfully withholding or depriving of possession, or any person/s claiming under them:

1. Action of Forcible Entry and Unlawful Detainer (FEUD) may be maintained only against one in possession at the commencement of the action

2. Tenant with right of possession may bring action against another tenant

3. Vendor may bring action for ejectment against vendee upon failure to pay installments

4. FEUD lie against the very owner of the property 5. Action may be maintained against government

officials or agents acting in behalf of the government, even if government is not made a party to the action

PLEADINGS ALLOWED

Pleadings must be VERIFIED. (Rule 70, Sec. 4)

What must be alleged in a complaint for forcible entry:1. That plaintiff was in prior physical possession of

the property in litigation until he was deprived thereof by defendant

2. That the dispossession was through FISTS 3. That the complaint was filed within 1 year from

dispossession

What must be alleged in a complaint for unlawful detainer:1. That defendant is unlawfully withholding

possession from plaintiff because his right to possess had expired

2. That landlord has made a demand upon tenant to comply with the terms of the contract and to return the possession of the property, and that the tenant failed to satisfy the demand within 15 or 5 days, in case of buildings

3. That the complaint is filed within 1 year from demand

Allowed pleadings: 1. Complaint2. Compulsory Counterclaim pleaded in the answer3. Cross-claim pleaded in the answer4. Answer

ACTION ON COMPLAINT (Rule 70, Sec. 5)

From the examination of allegations in the complaint, the court may:

1. Dismiss the case outright on any grounds mentioned in Rule 16

2. If there is no ground for dismissal, court issues summons

Answer by defendant (Rule 70, Sec. 6) – Defendant shall file his answer within 10 days from service of summons

Effect of Failure to Answer (Rule 70, Sec. 7) - Court shall render judgment; motu proprio or upon motion

1. Judgment:a. Warranted by the facts alleged in the

complaintb. Limited to what is prayed for

2. Court may reduce the amount of damages and attorney’s fees claimed a. For being excessive or otherwise

unconscionable b. In the exercise of its discretion c. No prejudice to applicability of Sec. 3(c), Rule

9 if there are 2 or more defendants

Preliminary Conference (Rule 70, Sec. 8) – Preliminary conference shall be held not later than 30 days after filing of last answer.

Submission of Affidavits and Position Papers (Rule 70, Sec. 10) – Affidavits and position papers are to be submitted within 10 days from receipt of the Order stating the matters taken in the preliminary conference.

Rendition of Judgment (Rule 70, Sec. 11) – Court shall render judgment within 30 days after receipt of affidavits and position papers.

WHEN DEMAND NECESSARY

Rule 70, Sec. 2 requires a prior written demand against the lessee before the lessor can proceed against him.

NOTE: This applies ONLY to unlawful detainer cases.

It is only where defendant fails to comply with the demand within the periods provided by Sec. 2 will his possession become unlawful.

Requisites before the lessor can proceed against lessee1. Demand is made by lessor to lessee:

a. Demand to pay and vacate; or b. Demand to comply with conditions of the

lease and to vacate 2. Lessee fails to comply with the demand:

a. After 15 days in the case of lands; or b. After 5 days in case of buildings

NOTE: Demand contemplated by Sec. 2 is jurisdictional and is always two-fold.

Demand upon a tenant may be oral. (Jakihaca v. Aquino, 1990)

A person who occupies the land of another at the latter's tolerance or permission, without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which, an action for unlawful detainer may be instituted against him. (Dakudao v. Consolacion, 1983)

PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY INJUNCTION

Court may grant preliminary injunction in accordance with Rule 58 to prevent defendant from committing further acts of dispossession against plaintiff (Rule 70, Sec. 15).

How done: Possessor may present a motion in the action for issuance of preliminary mandatory injunction within 5 days from filing of complaint to restore him in his possession. Court shall decide the motion within 30 days from filing.

Preliminary mandatory injunction shall be available:1. At the start of the action (Rule 70, Sec. 15)2. On appeal to the RTC (Sec. 2) upon motion of

plaintiff within 10 days from perfection of appeal

Preliminary preventive injunction is available in either case. Note that Sec. 15 makes the provisions of Rule 58 applicable to Rule 70.

NOTE: Note that there is no distinction as to the type of ejectment case involved.

The injunction is to restore to plaintiff in possession1. If the court is satisfied that the defendant’s

appeal is frivolous or dilatory, or2. That the appeal of plaintiff is prima facie

meritorious

RESOLVING DEFENSE OF OWNERSHIP (Rule 70, Sec. 16)

In an action for unlawful detainer, the question of possession is primordial while the issue of ownership is generally unessential. The issue of ownership should be raised by the affected party in an appropriate action.

Under BP 129, when in FEUD cases, the defendants raise the question of ownership in his pleadings, and the issue of ownership, the MTCs nevertheless have undoubted competence to resolve the issue of ownership ONLY TO DETERMINE THE ISSUE OF POSSESSION

Guidelines laid down by the Court in Refugia, et al. v. CA regarding the legislative prescription in Sec. 33 (2). BP 129:

1. Primal rule is that the principal issue must be that of possession a. Ownership is merely ancillary b. Issue of ownership may be resolved but only

for the purpose of determining the issue of possession

2. It must sufficiently appear from allegations of complaint that what plaintiff really and primarily seeks is restoration of possession

3. Inferior court cannot adjudicate on the nature of ownership where relationship of lease has been sufficiently established

a. UNLESS it be proven that there has been a subsequent change in or termination of that relationship between parties

4. The rule in forcible entry, but not in unlawful detainer, is that a party who can prove prior possession can recover such possession even against the owner himself a. Hence, it prior possession may be

ascertained in some other way, inferior court cannot intrude into the issue of ownership

5. Where the question of who has prior possession hinges on the issue of who the real owner isa. Inferior court may resolve issue of

ownership b. But such pronouncement is merely

provisional c. It does not bar or prejudice an action

between the same parties involving title

HOW TO STAY IMMEDIATE EXECUTION OF JUDGMENT (Rule 70, Sec. 19)

GENERAL RULE: Judgment of the MTC against defendant in ejectment cases is immediately executory

EXCEPTION: When the following concur:1. The defendant perfects his appeal 2. He files a sufficient supersedeas bond

To pay the rents, damages, and costs accruing down to the time judgment appealed from

The supersedeas bond shall be transmitted by the MTC, with the other papers, to the RTC Clerk

3. He deposits with the appellate court:a. The amount of rent due from time to time

under the contract, orb. In the absence of contract, the reasonable

value of the use and occupation of premises for the preceding month or period determined by judgment on or before the 10th day of each succeeding month or period (Chua v. CA, 1998)

The judgment of the Regional Trial Court against the defendant shall be immediately executory, without prejudice to a further appeal that may be taken therefrom. (Rule 70, Sec. 21)

SUMMARY PROCEDURE, PROHIBITED PLEADINGS

GENERAL RULE: All actions for FEUD shall be governed by the summary procedure of Rule 70, irrespective of the amount of damages or unpaid rentals sought to be recovered

EXCEPTIONS: 1. In cases covered by the agricultural tenancy laws2. When the law otherwise expressly provides

Prohibited Motions:

1. Motion for a BILL of particulars2. Motion for EXTENSION of time to file pleadings,

affidavits, or any other paper3. Motion for NEW trial, or for reconsideration of a

judgment, or for reopening of trial 4. Motion to DISMISS the complaint; Except on the

ground for lack of jurisdiction over the subject matter or failure to comply with Sec. 12

5. Motion to DECLARE defendant in default 6. DILATORY motions for postponement

Prohibited Pleadings:1. THIRD-party complaints2. REPLY3. INTERVENTIONS 4. PETITION for relief from judgment 5. PETITION for certiorari, mandamus, or

prohibition against any interlocutory order issued by the court

CONTEMPT

NATURE

Contempt of Court is disobedience to the court by acting in opposition to its authority, justice, and dignity. It signifies not only a willful disregard of disobedience to the court’s orders but also conduct tending to bring the authority of the court and administration of law into disrepute, or, in some manner, to impede the due administration of justice.

The power to declare person in contempt of court and in dealing with him accordingly is an INHERENT power of the court. It is used as a means to protect and preserve the dignity of the court, the solemnity of the proceedings, and administration of justice.

KINDS OF CONTEMPT; PURPOSE AND NATURE OF EACH

According to Nature1. CRIMINAL CONTEMPT – conduct directed against

the authority and dignity of the court or a judge acting judicially

2. CIVIL CONTEMPT – failure to do something ordered to be done by a court or by a judge for the benefit of the opposing party

CRIMINAL CONTEMPT CIVIL CONTEMPTPunitive in nature Remedial in nature

Purpose is to preserve the court’s authority and to

punish for disobedience of its orders

Purpose is to provide a remedy for an injured suitor and to coerce

compliance with an order; for the preservation of the rights of private persons

Intent is necessary Intent is not necessary

State is the real prosecutor

Instituted by the aggrieved party, or his successor, or

someone who has a pecuniary interest in the

right to be protectedProof required is proof

beyond reasonable doubtProof required is more

than mere preponderance

If accused is acquitted, there can be no appeal

If judgment is for respondent, there can be

appeal

According to Manner of Commission1. DIRECT CONTEMPT – act committed in the

presence of or so near the court or judge as to obstruct or interrupt the proceedings before the same

2. INDIRECT CONTEMPT – one not committed in the presence of the court. It is an act done at a distance which tends to belittle, degrade, obstruct, or embarrass the court and justice

DIRECT CONTEMPT INDIRECT CONTEMPTCommitted in the

presence of or so near a court

Not committed within the presence of the court

Summary in natureThere is charge and

hearingPunishment:

If committed against the RTC: Fine of not exceeding

P2,000 and/or imprisonment not exceeding 10 days

If committed against the MTC: Fine not exceeding

P200 and or imprisonment not

exceeding 1 day

Punishment:If committed against RTC:

Fine not exceeding P30,000 and/or

imprisonment not exceeding 6 months

If committed against MTC: Fine not exceeding P5,000 and/or imprisonment not

exceeding 1 month

Remedy is certiorari or prohibition

Remedy is appeal

Otherwise known asContempt in Facie Curiae

Otherwise known as Constructive Contempt

Contempt, whether direct or indirect, may be civil or criminal depending on the nature and effect of contemptuous act. 

The real character of the proceedings in contempt cases is to be determined by the relief sought or by the dominant purpose.  The proceedings are to be regarded as criminal when the purpose is primarily punishment, and civil when the purpose is primarily compensatory or remedial.

DIRECT CONTEMPT

For a person to be adjudged guilty of direct contempt, he must commit a “misbehavior in the presence of or so near a judge as to interrupt the administration of justice …”

Grounds for Direct Contempt (Rule 71, Sec. 1)1. DISRESPECT toward the court;2. OFFENSIVE personalities toward others3. REFUSAL to be sworn or answer as witness or

subscribe an affidavit when lawfully required to do so

4. MISBEHAVIOR in the presence of or so near a court as to obstruct or interrupt the proceedings

5. When the counsel WILLFULLY and deliberately engages in forum shopping

Procedure: Summarily adjudged in contempt by such court

By whom initiated:1. Generally, civil contempt proceedings should be

instituted by an aggrieved party, or his successor, or someone who has pecuniary interest in the right to be protected

2. In criminal contempt proceedings, it is generally held that the State is the real prosecutor

Penalties:

OFFENSE PENALTY

If RTC or a court of equivalent or higher rank

Fine not exceeding P2,000 and/or

Imprisonment not exceeding 10 days

If lower court:Fine not exceeding P200

and/orImprisonment not

exceeding 1 day

Remedy of a person adjudged in direct contempt (Rule 71, Sec. 2)

1. He cannot appeal2. But he may file certiorari or prohibition

a. Execution of judgment shall be suspended pending resolution of such petition, PROVIDED:(1) He files a bond fixed by the court which

rendered judgment, and(2) Conditioned that he will abide by and

perform the judgment should the petition be decided against him

INDIRECT CONTEMPT

Specific acts constituting indirect contempt (Rule 70, Sec. 3)

1. MISBEHAVIOR of an officer of a court in the performance of his official duties or in his official transactions

2. ABUSE of or any unlawful interference with processes or proceedings of a court not constituting direct contempt

3. DISOBEDIENCE or resistance to lawful writ, process, order, or judgment of a court, or any unlawful intrusion to any real property after being ejected

4. FAILURE to obey subpoena duly served 5. ASSUMING to be an attorney or officer of a court,

and acting as such without authority 6. IMPROPER conduct tending to impede, obstruct,

or degrade administration of justice 7. RESCUE, or attempted rescue, of a person or

property in custody of an officer 8. Failure by COUNSEL to inform the court of the

death of his client

Procedural requisites for indirect contempt proceedings:1. A charge in writing or an order of the court to

appear and explain 2. An opportunity for respondent to comment on

the charge and to appear and explain his conduct

Two modes of commencing a proceeding for indirect contempt (Rule 70, Sec. 4)

1. Motu proprio by the court against which contempt was committed a. By order or any other formal charge

requiring respondent to show why he should not be punished for contempt

2. Independent action in all other casesa. By a charge commenced by a verified petition

with supporting particulars

Where Charge is to be Filed (Rule 70, Sec. 5)1. General rule: Proceeding for Indirect Contempt

shall be filed and tried by the court against which the contumacious conduct was committed.

2. Exceptions:a. If committed against a lower court, it may be

tried by the RTC, regardless of the imposable penalty; and

b. If committed against the SC, it may cause it to be investigated by the prosecutor and filed with the RTC, or for hearing and recommendation where the charge involves questions of fact

Penalties for indirect contempt (Rule 71, Sec. 7)

OFFENSE PENALTY

If against RTC, or court of equivalent or

higher rank

Fine not exceeding P30,000 and/or

Imprisonment not exceeding 6 months

If committed against lower court

Fine not exceeding P500, and/orImprisonment not exceeding 1

month

If contempt consists in violation of a writ

of injunction, TRO, or status quo order

Offender may also be ordered to make complete restitution to the party injured by such violation of

the property involved or such amount as may be alleged and

proved.

If there is nothing more to return, offender is personally liable for the restitution of the money equivalent to the lost

thing (Rosario Textile Mills v. CA)If committed against

a person or entity exercising quasi-judicial functions

Penalty shall depend upon the provisions of the law which

authorizes penalty for contempt against such persons or entities

Remedy of a person adjudged in indirect contempt (Rule 71, Sec. 11)

May be appealed to the proper court as in criminal cases, but execution shall not be suspended until BOND is filed.

WHEN IMPRISONMENT SHALL BE IMPOSED

When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. (Rule 71, Sec. 8)

The respondent “carried the keys to his prison in his own pocket.” [Galvez v. Republic Surety & Insurance Co., Inc. (1959)]

Only the judge who ordered the confinement of the person for contempt of court can issue the Order of Release. [Inoturan v Limsiaco, Jr. (2005)]

Rule 71, Sec. 8 does not apply to tenants who refused or failed to pay their rentals to the special administratrix of the property. The non-payment of rentals, which is a civil debt, is covered by the constitutional guarantee against imprisonment. [Regalado]

CONTEMPT AGAINST QUASI-JUDICIAL BODIES (Rule 71, Sec. 12)

Rule 71 shall apply to contempt committed against persons, entities, bodies, or agencies exercising quasi-judicial functions or have suppletory effect to such rules as they may have adopted.

RTC of the place where the contempt was committed shall have jurisdiction.

It is not within the jurisdiction and competence of quasi-judicial bodies to decide indirect contempt cases. The requirement for a verified petition must also be complied with (e.g. DARAB has no power to decide the contempt charge filed before it). [Land Bank v Listana (2003)]

Rule 71, Sec. 12 confers contempt powers on all Quasi-Judicial entities or supplements their rules, unless the applicable law provides otherwise.

Acts or violations against quasi-judicial bodies punishable as contempt: where a person, without lawful excuse, fails to appear, make oath, give testimony or produce documents when required to do so by the official or body exercising such powers. Other acts or violations cannot be punished as contempt unless specifically defined in the governing law as contempt of court or if it authorizes the quasi-judicial body to punish for contempt, and providing the corresponding penalty. [People v. Mendoza (1953), §13, Ch. 3, Bk VII, Admin Code of 1987]

THE SPECIAL CIVIL ACTIONS

JURISDICTION VENUE

INTERPLEADER

Personal Property:1. MTC – if value not more than P300,000 outside Metro Manila, or not

more than P400,000 in Metro Manila (Sec. 33, BP129)2. RTC – value exceeds P300,000 outside Metro Manila, or P400,000 in

Metro Manila, or if incapable of pecuniary estimation (Sec. 19, BP129)

Real Property1. MTC – assessed value not more than P20,000 outside Metro Manila or

not more than P50,000 in Metro Manila (Sec. 33, BP 129)2. RTC – value exceeds P20,000 if outside Metro Manila, or P50,000 if in

Metro Manila, or incapable of pecuniary estimation (Sec. 19, BP129)

Rule 4 applies

If the action affects title to or possession of real propertyVenue is where the real property involved or a portion thereof is situated

All other actions—At the election of the plaintiff1. Where plaintiff or any of the principal plaintiffs reside; or2. Where defendant or any of the principal defendants resides; or3. In case of an non-resident, where he may be found

DECLARATORY RELIEF

GENERAL RULE: In the appropriate RTC

EXCEPTION: Where the action is for reconveyance, cancellation or quieting of title to real property, jurisdiction will depend on the assessed value of the property

Rule 4 applies

If the action affects title to or possession of real propertyVenue is where the real property involved or a portion thereof is situated

All other actions—At the election of the plaintiff1. Where plaintiff or any of the principal plaintiffs reside; or2. Where defendant or any of the principal defendants resides; or3. In case of an non-resident, where he may be found

REVIEW OF JUDGMENTS AND FINAL

ORDERS OF COMELEC/COA

With the SCVia Special Civil Action of Certiorari

Certiorari rules apply

CERTIORARIPROHIBITIONMANDAMUS

RTC, CA, SC,Sandiganbayan (in aid of its appellate jurisdiction),COMELEC (in election cases involving an act or omission by MTC or RTC, in aid of its appellate jurisdiction_

RTC where the respondent is situated, where petition relates to an act or omission of a corporation, board, an officer, or person(Rule 65, Sec. 4)

QUO WARRANTO

RTC, CA, SCSandiganbayan (exclusive original jurisdiction over quo warranto cases filed by the PCGG)COMELEC (exclusive jurisdiction over cases falling under the OEC)SEC for quo warranto against duly licensed association (Corp Code rules apply, not the ROC)

Action can be brought in: The SC, CA, or RTC exercising jurisdiction over the territorial area where respondent resides or any of the respondent resides

If commenced by the SolGen, it may be filed with: RTC Manila, CA, or SC

File in the SEC (following the Corp Code):If petition for quo warranto is against a corporation or against persons who usurp an office in a corporation

EXPROPRIATION With the RTC Where the real property involved, or a portion thereof, is situatedJUDICIAL

FORECLOSUREWith the RTC Where the real property involved, or a portion thereof, is situated

PARTITION With the RTC

Rule 4 applies

If the action affects title to or possession of real propertyVenue is where the real property involved or a portion thereof is situated

All other actions—At the election of the plaintiffFORCIBLE ENTRY AND UNALWFUL DETAINER

With the MTC Where the real property involved, or a portion thereof, is situated

CONTEMPT MTC, RTC, CA, SC

If committed against RTC or a court of equivalent or higher rank, or against an officer appointed by it: File with such courtIf committed against a lower court. File with the RTC of the place in which lower court is sittingIf act was committed against persons or entities exercising quasi-judicial functions: File with the RTC of the place wherein contempt was committed

SPECIAL RULESREVISED RULES ON SUMMARY PROCEDURE

CASES COVERED BY THE RULE (Sec. 1)

Rule shall govern the summary procedure in the MTC, MTC in Cities, MCTC in the following cases falling within their jurisdiction:

For Civil Cases:1. Cases of forcible entry and unlawful detainer

a. Irrespective of the amount of damages or unpaid rentals sought to be recovered

b. Where attorney’s fees are awarded, it shall not exceed P20,000

2. All other civil cases where total amount of plaintiff’s claim does not exceed P100,000 or P200,000 in Metropolitan Manila, exclusive of interest and costsa. EXCEPT: probate proceedings

For Criminal Cases 1. Traffic laws, rules, and regulations violation2. Rental law violations 3. Municipal or city ordinance violations4. All other criminal cases where penalty prescribed

by law for offense charged is imprisonment not exceeding 6 months and/or a fine not exceeding P1,000a. Irrespective of other imposable penalties,

accessory or otherwise, or of civil liability arising therefrom

b. In offenses involving damage to property through criminal negligence, this rule shall govern where imposable fine does not exceed P10,000

Rule shall not apply:1. To a civil case where plaintiff’s cause of action is

pleaded in the same complaint with another cause of action subject to ordinary procedure

2. To a criminal case where offense charged is necessarily related to another criminal case subject to ordinary procedure

EFFECT OF FAILURE TO ANSWER (Sec. 6)

If defendant fail to answer the complaint within the period provided, court (motu proprio or on motion of plaintiff) shall render judgment

The judgment:1. As may be warranted by the facts alleged in the

complaint and2. Limited to what is prayed for

The court may in its discretion reduce the amount of damages and attorney’s fees claimed for being excessive

or unconscionable without prejudice to the applicability of Sec. 4, Rule 18 ROC, if there are 2 or more defendants

PRELIMINARY CONFERENCE AND APPEARANCES OF PARTIES (Sec. 7)

A preliminary conference shall be held not later than 30 days after the last answer is filed.

Rules on pre-trial in ordinary cases shall be applicable unless inconsistent with the provisions of this Rule

Failure of plaintiff to appear in preliminary conference1. Cause for dismissal of complaint 2. Defendant who appears in the absence of plaintiff

shall be entitled to judgment on his counterclaim in accordance with Sec. 6

3. All cross-claims shall be dismissed

If sole defendant shall fail to appear 1. Plaintiff entitled to judgment in accordance with

Sec. 6 2. Rule shall not apply where one of 2 or more

defendants sued under a common cause of action who had pleaded a common defense shall appear at preliminary conference

KATARUNGANG PAMBARANGAY LAW (PD 1508; RA 7160 as amended)

SCOPE AND APPLICABILITY OF THE RULE

RA 7610 Sec. 399-422, and 515 is applicable. The LGC is now the governing law on Katarungang Pambarangay. PD 1508 was expressly repealed

CASES COVERED

All disputes, civil and criminal in nature, where parties actually reside in the SAME CITY/MUNICIPALITY are subjected barangay conciliation.

SUBJECT MATTER FOR AMICABLE SETTLEMENT (Sec. 408, RA 7160)

The lupon of each barangay shall have authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all disputes.

WHEN PARTIES MAY GO DIRECTLY TO COURT

In these cases, referral to barangay conciliation is not a condition precedent for filing a case to court:

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 one (1) year or a fine exceeding Five thousand pesos (P5,000.00);

4. Offenses where there is no private offended party;

5. Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon;

6. Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon;

7. Such other classes of disputes which the President may determine in the interest of Justice or upon the recommendation of the Secretary of Justice.

The court in which non-criminal cases not falling within the authority of the lupon under this Code are filed may, at any time before trial motu propio refer the case to the lupon concerned for amicable settlement.

VENUE (RA 7610, Sec. 409)

PARTIES LUPONBetween actual residents

of the same barangayLupon of said barangay

Between actual residents of different barangays but

within same city/municipality

Lupon of the barangay where the respondent or any of the respondents actually resides at the option of complainant

Involving real property or any interest therein

Lupon of barangay were the real property or the larger portion thereof is

locatedBetween parties arising at

the workplace or at institutions of learning

Lupon of the barangay were the workplace or

institution is located

EXECUTION

The amicable settlement or arbitration award may be enforced by execution by the lupon within six (6) months from the date of the settlement. After the lapse of such time, the settlement may be enforced by action in the appropriate city or municipal court. (Sec. 417, RA 7160)

REPUDIATION

Any party to the dispute may, within ten (10) days from the date of the settlement, repudiate the same by filing with the lupon chairman a statement to that effect sworn to before him, where the consent is vitiated by fraud, violence, or intimidation. Such repudiation shall be sufficient basis for the issuance of the certification for filing a complaint as hereinabove provided. (Sec. 418, RA 7160)

RULES OF PROCEDURE FOR SMALL CLAIMS CASES (A.M. No. 08-8-7-SC)

SCOPE AND APPLICABILITY OF THE RULE

This Rule shall govern the procedure in actions before the MeTC, MTC in Cities, MTC and MCTC for payment of money where the value of the claim does not exceed P100,000 exclusive of interest and costs. (Sec. 2)

This Rule is applicable in all actions which are; (Sec. 4) 1. Purely civil in nature where the claim or relief

prayed for by the plaintiff is solely for payment or reimbursement of sum of money, and

2. Civil aspect of criminal action, or reserved upon the filing of the criminal action in court, pursuant to Rule of 111 of the Revised Rules of Criminal Procedure.

These claims or demands may be;1. For money owned under any of the following;

a. Contract of Lease;b. Contract of Loan;c. Contract of Services;d. Contract of Sale; ore. Contract of Mortgage;

2. For damages arising from any of the following;a. Fault or negligence;b. Quasi-contract; orc. Contract;

3. The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this Rule pursuant to Sec. 417, LGC.

COMMENCEMENT OF SMALL CLAIMS ACTION; RESPONSE (Sec. 5)

How commenced: By filing with the court an accomplished and verified STATEMENT OF CLAIM in duplicate

Attachments to the Statement of Claim:1. Certification of Non-forum Shopping 2. Two (2) duly certified photocopies of the

actionable document/s subject of the claim 3. Affidavits of witnesses and other evidence to

support the claim

NOTE: No evidence shall be allowed during the hearing which was not attached to or submitted together with the Claim. UNLESS good cause is shown for admission of additional evidence.

No formal pleading, other than the Statement of Claim, is necessary to initiate a small claims action.

After examination of allegations of the Claim, the court may dismiss outright the case for any of the grounds apparent for the dismissal of a civil action. (Sec. 9)

If no ground of dismissal is found, the court shall issue Summons directing defendant to submit a verified response. (Sec. 10)

The defendant shall file with the court and serve on the plaintiff a duly accomplished and verified Response within a non - extendible period of ten (10) days from receipt of summons (Sec. 11). Attachments:

1. Certified photocopies of documents 2. Affidavits of witnesses3. Evidence in support

NOTE: No evidence shall be allowed during hearing which was not attached or submitted together with the Response.

Should the defendant fail to file his response within the required period, the court by itself shall render judgment as may be warranted by the facts alleged in the Statement of claim limited to what is prayed for. The court however, may, in its discretion, reduce the amount of damages for being excessive or unconscionable. (Sec. 12)

PROHIBITED PLEADINGS AND MOTIONS (Sec. 14)

The following pleadings, motions, and petitions shall not be allowed in the cases covered by this Rule:

1. Motion to dismiss the compliant except on the ground of lack of jurisdiction;

2. Motion for a bill of particulars;3. Motion for new trial, or for reconsideration of a

judgment, or for reopening of trial;4. Petition for relief from judgment;5. Motion for extension of time to file pleadings,

affidavits, or any other paper;6. Memoranda;7. Petition for certiorari, mandamus, or prohibition

against any interlocutory order issued by the court;

8. Motion to declare the defendant in default;9. Dilatory motions for postponement;10. Reply;11. Third-party complaints; and12. Interventions.

APPEARANCES

The parties shall appear at the designated date of hearing personally or through a representative authorized under a Special Power of Attorney to:

1. Enter into an amicable settlement, 2. Submit of Judicial Dispute Resolution (JDR) and3. Enter into stipulations or admissions of facts and

of documentary exhibits (Sec. 16)

No attorney shall appear in behalf of or represent a party at the hearing, unless the attorney is the plaintiff or defendant. (Sec. 17)

Failure to appear:1. If plaintiff fails to appear – it shall be a cause for

dismissal without prejudice. Defendant present shall be entitled to judgment on permissive counterclaim.

2. If defendant fails to appear – same effect as failure to file Response.

HEARING; DUTY OF THE JUDGE

At the beginning of the court session, the judge shall read aloud a short statement explaining the nature, purpose and the rule of procedure of small claims cases. (Sec. 20)

At the hearing, the judge shall conduct JDR through mediation, conciliation, early neutral evaluation, or any other mode of JDR. (Sec. 21)

If JDR fails and the parties agree in writing that the hearing of the case shall be presided over by the judge who conducted the JDR, the hearing shall so proceed in an informal and expeditious manner and terminated within one (1) day. (Sec. 22)

Absent such agreement1. In case of a multi-sala court , the case shall, on the

same day, be transmitted to the Office of the Clerk of Court for immediate referral by the Executive Judge to the pairing judge for hearing and decision within five (5) working days from referral; and

2. In case of single sala court, the pairing judge shall hear and decide the case in the court of origin within five (5) working days from referral by the JDR judge.

FINALITY OF JUDGMENT

After the hearing, the court shall render its decision on the same day, based on the facts established by the evidence.

The decision shall immediately be entered by the Clerk of Court in the court docket for civil cases and a copy thereof forthwith served on the parties.

The decision shall be final and unappealable. (Sec. 23)

EFFICIENT USE OF PAPER RULE (A.M. No. 11-9-4-SC)

FORMAT AND STYLE

All pleadings, motions and similar papers intended for the court and quasi-judicial body’s consideration and action (court-bound papers) shall:

1. Be written in single space with one-and-a –half space between paragraphs,

2. Use an easily readable font style of the party’s choice, of 14-size font, and on a 13 –inch by 8.5- inch white bond paper

All decisions, resolutions and orders issued by courts and quasi-judicial bodies under the administrative supervision of the Supreme Court shall comply with these requirements. Similarly covered are the reports submitted to the courts and transcripts of stenographic notes.

MARGINS AND PRINTS

The parties shall maintain the following margins on all court-bound papers:

1. Left hand margin of 1.5 inches from the edge; 2. Upper margin of 1.2 inches from the edge;3. Right hand margin of 1.0 inch from the edge;4. Lower margin of 1.0 inch from the edge.

Every page must be consecutively numbered.

COPIES TO BE FILED

Unless otherwise directed by the court, the number of court- bound papers that a party is required or desires to file shall be as follows:

In the Supreme Court, 1. One original (properly marked) and 4 copies2. Two sets of annexes, one attached to the original

and an extra copy

If the case is referred to the Court En Banc:a. Parties shall file 10 additional copies. b. For the En Banc, the parties need to submit

only 2 sets of annexes, one attached to the original and an extra copy.

All members of the Court shall share the extra copies of annexes in the interest of economy of paper.

In the Court of Appeals and the Sandiganbayan, 1. One original (properly marked) and 2. Two copies with their annexes;

In the Court of Tax Appeals, 1. One original (properly marked) and 2. 2 copies with annexes

On appeal to the En Banc:a. One Original (properly marked) b. 8 copies with annexes; and

In other courts,1. One original (properly marked) 2. With the stated annexes attached to it.

ANNEXES SERVED ON ADVERSE PARTY

A party required by the rules to serve a copy of his court-bound on the adverse party need not enclose copies of those annexes that based on the record of the court such party already has in his possession.

In the event a party requests a set of the annexes actually filed with the court, the part who filed the paper shall comply with the request within five days from receipt.

APPLICABILITY

This Rule applies to all courts and quasi-judicial bodies under the administrative supervision of the Supreme Court.

END OF CIVPRO!!!