Remedial Law Review Lecture and Recitation NotesGlenn Tuazon, 4-AAtty. Tranquil SalvadorSY 2010-11

PART I: CIVIL PROCEDUREJurisdictionStuff to take note of in jurisdiction:

What is the definition of jurisdiction? Jurisdiction over the case or the subject matter? (Subject matter jurisdiction) Jurisdiction over the person or the defendant?

Know the rules on filing fees.

N.B. vis--vis for criminal cases: Definition the same, as conferred by law, except you have to add that venue is jurisdictional. Territory is intertwined with jurisdiction, unlike in civil cases, where parties can agree on venue or it can be subject to waiver. Jurisdiction over the offense. This is essentially the same as jurisdiction over subject matter. Jurisdiction over the person. This is jurisdiction over the person of the accused. Filing fees are not necessary. What is the definition of jurisdiction?

The power of the court to hear, try, or decide the case As conferred by law How will the court know that it has jurisdiction? From the allegations of the complaint. Where do you take jurisdiction over the case? Conferred by law as well. Study BP 129, amended by RA 7691. Do not assume that RA 7691 tells all. There are other laws too. What is the jurisdiction of the RTC? 1. Right/title/interest over real property, where value is: Value is > 20K (OMM), > 50K (MM) Claim for ejectment due to unpaid rentals of over 400K. Which has jurisdiction? MTC. Ejectment is always under MTC, regardless of the claim over unpaid rentals. Recovery of possession, not ejectment. Fair market value of property is 1.5M. The assessed value of the property is 80,000. Property is located in MM. Which has jurisdiction? RTC, based on assessed value (not FMV) which is over 50K. Recovery of possession does not necessarily mean ejectment (ex. Accion publiciana). Value is determined by assessed value if it involves right, title, or interest Ouano case? There was discussion whether FMV or assessed value dictates. Assessed value wins. 2. Amount incapable of pecuniary estimation Examples: rescission, reformation of contract, specific performance Is expropriation capable of pecuniary estimation? Expropriation is always filed with the RTC. Though the subject matter is capable of pecuniary estimation, the action is exclusively instituted in the RTC. What about declaratory relief? RTC always has jurisdiction, and the SC does not except when there is an issue of constitutionality. There is no such thing as determination of value; just a determination of validity. What about support? Even if its amount can be determined, the law confers it to the Family Courts.

Foreclosure of mortgage? Two views: one says that its always with the RTC, because it only covers the security of the property. The original action is always for recovery of money. The other view is that it must be governed by the value of the security. 3. Family cases/marriage Includes support, annulment, nullity, etc. 4. Juvenile/agrarian case

5. Other claims, where claim exceeds 300K (OMM) or 400K (MM) The original text gives lower values. When was it adjusted? Original costs took effect March 25, 1994

1999 adjusted OMM from 100K to 200K

2004 adjusted both MM and OMM to 400K and 300K respectively Always take note of the word exceeding so the exact amount is for the lower court.

6. Probate of will, determination of inheritance same amounts Considering that the MTC has jurisdiction over probate cases, at times, what if the value of the estate is 100K? Can the probate of a will be subject to summary procedure? No. The rules on summary procedure explicitly exclude probate proceedings. Note that the MTC has a number of procedures. There are ordinary proceedings and summary proceedings, and now, small claims.

So the not exceeding 100K (OMM) and not exceeding 200K (MM) only applies for summary proceedings. But it explicitly excluded probate proceedings. What is the jurisdiction of the MTC over small claims? Not exceeding 100K.

7. Admiralty cases same amounts

In determining the 300K/400K, can you include damages, interest, attorneys fees, litigation costs, etc? NO. Only limit the amount to the demand or the claim.

But remember that there can be a principal action for damages, in which the amount of damages claimed determines the amount. This is not covered by RA 7691, this is covered by 95-9-94.

Small claims What is the amount? Not exceeding 100K.

Is there a distinction between OMM and MM in small claims? No. What should be included in the 100K? The claim itself. Exclusive of damages What if the principal action is for damages?

Does not apply. Actions for damages are not covered by small claims actions, because these have to be ascertained. These are not akin to sum-of-money cases. Does it cover quasi-delicts? Yes. (Covers: fault/negligence, quasi-contract, or contract) What if it arises from commission of an offense?

Yes for the civil aspect of such (fault/negligence). Just remember that when you file a criminal case, the civil aspect is likewise filed (unless reserved, waived, or filed ahead). So it cannot be the subject of small claims. Do you need a lawyer to file the complaint? Do you need to prepare a regular complaint.

No need for a lawyer. There is also a standard form provided. How will you address the problem where the claim is for sum of money not exceeding 100K, and it is outside MM? There is an overlap here between summary procedure and small claims procedure. Which is preferred? This is still open for discussion, and is not yet clear. Sir suggests that the option is upon the complainant, since there is concurrent jurisdiction of both small claims court or court of summary procedure. What is the MTC jurisdiction? Just the opposite of everything in RTC Then just add ejectment/unlawful detainer What is the jurisdiction of the CA?

It has both original and appellate jurisdiction. Original: habeas corpus, habeas data, certiorari, prohibition, mandamus, quo warranto, writ of amparo, annulment of judgment

Appellate: ordinary appeal (notice of appeal), petition for review, over quasi-judicial bodies What is the jurisdiction of the SC?

Also both original and appellate jurisdiction. Original: habeas corpus, habeas data, certiorari, prohibition, mandamus, quo warranto, writ of amparo, disciplinary actions over PLUS Actions against members of the Bar [concurrent with IBP]; actions against ambassadors, public ministers, consuls, etc.; constitutionality of treaties, laws, proclamations, etc.; declaratory relief only when there is a question of constitutionality Appellate: decision of CA, decision of CTA en banc, decision of SB, decision of RTC on pure questions of law; REMEMBER this motherhood statement: the only way to go up to the SC is for petition for review on certiorari (RULE 45). This applies to civil and criminal cases, except if the penalty in a criminal case is death, RP, of life imprisonment. Jurisdiction over the person of the defendant: 1. Voluntary appearance By submitting to the jurisdiction of the court; ex. Appearing in court or filing an answer or filing motion for extension of time without disputing the courts jurisdiction 2. Proper service of summons

Rule 14

Filing fees: Rule #1: payment of filing fees is jurisdictional in civil cases Rule #2: how does the court determine filing fees? You include interest, damages, attorneys fees etc. pay everything that you allege for court fees But for jurisdictional purposes, just the principal claim

Rule #3: Sun Insurance Filing fees must be paid within prescriptive period or reglementary period (for appeals or compulsory counterclaims), or else it is deemed prescribed Rule #4: Alday v. FGU Insurance Permissive counterclaims require docket fees The claim does not arise from the principal action, but involves the same parties. This could easily have been filed separately.

Compulsory counterclaims do not require docket fees

BUT read Korean Technologies case of 2009 this is how you answer the question whether compulsory counterclaims require filing fees From nowhere, this case required that even compulsory counterclaims have docket fees paid. Korean Technologies cited Rule 141. But in practice, based on an SC Resolution, the collection of filing fees on compulsory counterclaims is suspended. This has not been lifted yet. Alday: Payment of filing fees for compulsory counterclaims is not required. But you have to take note of Korean Technologies now

Lien on the judgment? If there are damages granted to the complainant, but there has been lack of payment of filing fees. The payment of docket fees is a lien on the damages. What if the claim has already ripened upon the filing of the complaint, but by omission, but you were not able to allege it. Can this be a basis for a lien on the judgment? Proton Pilipinas v. Banque Nacional There was a claim that has ripened but was not included, and there were interests that would ripen once the action is pending.

SC said that a claim ripened during the pendency of the case, it can be a lien on the judgment.

But if you did not allege it, the court cannot grant an award because you did not pay docket fees.

What is the rule on deficient or insufficient payment of filing fees? Rivera v. Del Rosario You have to pay full filing fees. The deficiency must not be based on the fault of complainant. But if the fault lay on the wrong assessment of the clerk of court, there is a chance to pay the deficiency.

Jurisdiction is not automatically lost. Clerk of court makes a deficiency assessment.

There must be no intention to defraud. Thornton: Husband filed for habeas corpus in RTC Makati to recover child from wife What are the two kinds of habeas corpus? N.B.: there are two kinds of habeas corpus custody of minors and regular habeas corpus in the Rules of Court RTC Makati dismissed the case because the child was allegedly in Basilan. What is the effectivity of writs of habeas corpus? N.B.: Effectivity of writ issued by regular court only enforceable in the territorial jurisdiction. But CA and SC everywhere. Filed with the CA, but was denied because the RTC (Family Courts) have original jurisdiction over custody of minor Habeas Corpus cases. HELD: Can file with CA. It has jurisdiction. SC has jurisdiction, too. The CA and SC have concurrent jurisdiction over habeas corpus cases. But always remember that when you talk about concurrent jurisdiction, you still have to follow hierarchy of courts. Herrera v. Bollas Ejectment case (1 year period). Filed within the proper period, but the complaint was amended to add additional defendants beyond the 1 year period. Does the court still have jurisdiction? After the lapse of the year period for ejectment, has the claim prescribed? No. N.B. One year period is not prescriptive period. You just file action pubiciana with the appropriate court (RTC or MTC, depending on the assessed value), not the MTC by default (for ejectment). HELD: MTC still had jurisdiction for ejectment (based on original complaint.) Oca: Repetition of Tijam v. Sibonghanoy estoppel by laches. After active participation in a case, you cannot question the courts jurisdiction anymore. Went up to the SC through Rule 43 (appeal to CA from a QJA) Usually decisions of QJA go up to the CA under Rule 43. What are the exceptions? 1. HLURB decisions, as provided in charter, appealable to the Office of the President 2. CTA decisions, under amended rules, appealable to the CTA en banc, then SC 3. NLRC decisions, although by a QJA, are reviewable by the CA although not under Rule 43, but Rule 65 (GADALEJ). 4. OMB decisions go to the CA, under Rule 43, for administrative cases. But if there is GADALAEJ, go to the SC, under Rule 65. Mijares: Which court has jurisdiction over enforcement of foreign judgments? RTC, because enforcement of foreign judgments are incapable of pecuniary estimation. ALWAYS, regardless of amount of judgment, since it is not based on the amount of the claim. In this type of action, you dont need to prove the facts again, etc. Marcoss group that docket fees must be based on the value/amount of the claim, which is up to the Billions. Is this correct? This rule applies to money claims against an estate, but without judgment yet. Here, there already was a judgment in DC of Hawaii. How do you impugn a judgment? Lack of notice Lack of jurisdiction Collusion Fraud What is the rule on Arbitral awards? These must be should be enforced or recognized An arbitral award is not a foreign judgment (Under ADR Rules) Zamboanga Barter Goods: N.B. Rule 65 is not an appeal. It is a special civil action. Being one, RTC, CA, and SC have concurrent jurisdiction. When you discuss concurrent jurisdiction, you cannot avoid discussing hierarchy. But when you talk about appeals, no need to consider hierarchy. The law already makes a decision for you.Actions What are the kinds of actions? Civil Protection or enforcement of a right, or prevention or redress of a wrong

Two types? Ordinary

Special

Criminal

Once the information is in court, only then does it become a criminal action, that has already been prosecuted by the State through the prosecutor. Special proceedings

Establishes a right, status, or condition

Are civil actions always based on a cause of action?

No. Distinguish ordinary civil action from special civil action?

There is Cause of Action in ordinary civil action. Ex. Special Civil Action like declaratory relief does not need cause of action

Requisites of cause of action?

1. Right of one party 2. Obligation of the other to respect 3. Breach MOST IMPT! Is splitting cause of action a ground for MTD?

No it is Res Judicata and Litis Pendentia Can there be joinder of cause of action? Yes. BUT it is not mandatory. Does there have to be just one breach or numerous violations? Numerous.

For every cause of action, there is one breach. For as many breaches as there are, there are as many causes of action. If there is a claim for sum of money, and several claims for damages (moral, exemplary, etc.) are there multiple causes of action?

No. Just one, because claims for damages are incidents of the one breach (failure to pay). There are three promissory notes, with amounts of 50K, 100K, and 200K, and there is just one loan. There was failure to pay. How many causes of action do you have?

Three PNs, three causes of action. Can there be joinder of alternative causes of action? Yes. Example is shipping of goods. First cause of action is based on breach of shipping contract. In case it is void, the alternative is to sue based on quasi-delict.

If you join cause of action should it arise from the same series of transactions, or can it be totally unrelated? Scenario 1: X versus Y (just two parties). Can join as many causes of action, even if totally unrelated. Scenario 2: X versus ABCD (multiple defendants). Can only join the causes of action if it complies with the rule on PERMISSIVE JOINDER (series of actions arising from the same facts or law Rule 3 Section 5) Can you join ordinary civil actions with special civil actions? No. Can you join two special civil actions? No. Because they have their own special rules. Can you join recovery of sum of money and ejectment? No. Ejectment is summary proceeding, so it has its own rules. What is the totality rule? When all of the claims are claims for sums of money, even if one claim falls under the jurisdiction of the MTC but the rest may fall under the RTC, what controls is the sum of all claims. But you cannot do this when not all are for sums of money. There is a sum of money claim and recovery of property in Cavite. Can you join the action in Cavite? Note: sum of money is determined by amount (personal). Recovery of property is determined by location of the property (real). N.B. as well that venue is not jurisdictional in civil cases, unlike criminal cases. Note as well that venue is waivable. Answer: Theoretically, you can join. But the other party is expected to file a motion to dismiss on the ground of improper venue. FOLLOW THE GENERAL RULE: The higher court absorbs the claim (RTC > MTC). What is the rule on jurisdiction over counterclaims? In the RTC, there is no limit to the counterclaim. In the MTC, the counterclaim is limited to the jurisdiction of the inferior court. What happens to the balance?

Its lost. So its better to file a separate action in this scenario. Is misjoinder of cause of action a ground for its dismissal?

No, it will NOT cause dismissal of the principal action. It is severed and these proceed with separately. Although there can only be separate proceeding when there is separate filing. The court is not duty-bound to proceed with it, especially when it appears that it has no jurisdiction. What is a special civil action? Covered by special rules.Parties

Who can be parties to an action?

Natural persons Juridical persons Those authorized by law What is the general rule?

All those with capacity can be a party. For natural persons, that is the age of majority. Can a six year old boy be a party? Yes, but with assistance of parent, guardian, or guardian-ad-litem. A minor can sue, a minor can be sued if assisted. What is the rule on married parties? Sue and sued jointly. What are the exceptions?

Judicial separation of property Abandonment Exclusive property of spouses Involving practice of profession What if the natural person is incapacitated? Can sue and be sued, but must be assisted. What if the person becomes incapacitated (supervening incapacity), will the case be dismissed? No. Sec. 18 provides that the court will provide assistance. When can we say that a juridical person has capacity? Duly incorporated and registered with the SEC. [Mild segue into summons] If the defendant is a natural person, how do you serve summons? Priority is personal service. It must be served to the persons, wherever he may be found. (Ex. The James Yap rule they tried serving it to him in Araneta) If he cannot be found, substituted service to a a) person of sufficient age and discretion and b) residing therein. Either residence or office.

What is sufficient age and discretion? Recent ruling says age of majority.

Should not be a transient. Must reside therein. Can a foreign corporation sue and be sued? If its an isolated transaction, a foreign corporation can sue and be sued. If its doing business but not licensed, it CANNOT sue, but can be sued. If its doing business and is licensed, it can sue and be sued. Service of summons to a domestic corporation? Rule 14, Sec 11 How do you serve summons to a foreign corporation?

Resident agent one named to receive summons Representatives and officers found in the Philippines (if it has a branch, for instance)

What is a non-juridical entity? What is the rule? (Ex. Toro Boys) No separate juridical existence.

They can be parties, as defendants, and named as such (under the name under which they are generally and commonly known).

They CANNOT institute an action as a non-juridical entity. They have to institute it individually. How do you serve summons to a non-juridical entity? To anyone or person in charge of the office. Who are those authorized by law? Give examples. Political parties

Labor unions

Archdiocese Estate

How do you serve summons? Depending on the entity they have different rules. Can you serve summons to a natural person in prison? Yes. Serve it to the warden. For public corporations? Province executive head (governor)

City city mayor Municipality municipality mayor Who is a real party in interest?

A party who stands to be benefitted or prejudiced by the judgment. Does the concept extend even to defendants and third party plaintiffs/defendants? What about an intervener?

The law does not limit it to plaintiffs only it uses party as a generic term, so it can encompass any party impleaded, if he will benefit or be injured. Does this concept of real party in interest apply to all cases? No. The concept of real party in interest will only apply to private suits. Does it apply to a taxpayer suit?

No. Locus standi applies here. Does it apply to criminal cases?

[Not answered, but I think not] What is the difference from legal standing/locus standi?

This is from public suit filed by a private party. There is a broader policy concern here, even if there can be benefit or injury as well. A Congressman does not believe in the act of the President, so he questions it as part of his legislative prerogative. Is he a RPII? No. Locus standi applies as well. Thus, differentiate RPII from locus standi: Locus standi pertains to acts of government. By reason of this act, you suffered injury. You do NOT use legal standing in private suits. Only in public suits. Who is a necessary party? A) They are not indispensable, B) but ought to be joined if one needs complete determination of the case. Who is an indispensable party?

If not impleaded, there can be no final determination. N.B. The codal does not use the word complete. So they are compulsorily joined. What if there is a suit against joint debtors?

The other parties not sued are necessary parties. Can you sue one of them only?

Yes. The court can issue a valid judgment, although not complete. Can you then proceed against the other one, though not impleaded at first?

Yes. What if there is a solidary obligation, not joint? Ex. X and Y solidarily owe Z PHP 100,000. Z sues. [Neither necessary nor indispensable (?)] Can you sue X only? Yes. Can there be judgment?

Yes, because the obligation is joint and several (solidary). Can you sue Y later on, having recovered from X?

No, because you recovered already. Can you sue at the same time?

Yes. The case can proceed against either, or both. There is an action for recovery of title AND possession. X holds title; Y has possession of the property. The action is just for recovery of title. Can you sue X? Yes, because X is the proper party.

Same facts. Can you sue Y for recovery of title, without suing X? No. Y is a mere possessor. The court cannot render judgment without impleading X. X is an indispensable party in this case. What is the failure of failure to implead? If it is a necessary party, the general rule is that failure to implead is non-prejudicial. There is no waiver of right to implead. There is no waiver UNLESS there is an order to implead from the court.

If it is an indispensable party, the court should order that the indispensable party be impleaded (Domingo). If despite this order to implead, the plaintiff did not comply, the case should be dismissed. What if the court did not notice non-joinder, and thus did not order to implead the indispensable party, and renders a decision? The judgment is null and void.

When is there substitution of parties in a civil case? There are three. 1. Death Who should die?

Any party. The law does not distinguish.

This is the most common.

2. Change of holder of public position (death, resignation, removal, cease to hold position) This is a very limited application, since it just applies to public officers. 3. Transfer of interest What are the requisites of substitution by death? 1. A party dies 2. The pending action is not extinguished by reason of death (IMPT) Why does the law need to say this? Because there are actions that are extinguished by death. Examples are actions that are purely personal to the party Give examples.

Ex. Contract for Michael Jackson to sing in a party. Ex. Receipt of a widow of support. When she dies, the support from widowers estate is gone. What is the duty of the counsel after death? 1. Give notice of death of the party within 30 days. When is the 30 day period counted?

From the FACT of death, and not from the knowledge thereof. 2. Give names and addresses of the legal representatives Who should be legal representatives?

Legal heirs, administrator, or executor N.B. The law provides for legal heirs, because there is procedure to be done before appointment of administrator or executor (ex. probate of the will for the latter). 3. Court orders substitution and for the substitute to appear There is action of A and B against C, D, and E. What if E dies? The counsel of E names a substitute. The court will then act accordingly. Same facts. However, there was no successful substitution (i.e. the duties were not complied with). What happens? There can be a valid judgment, but only against C and D. There can be no valid judgment against E.

Same facts. No substitution of E either. But C and D are incidentally, heirs of E. Can there be a valid judgment as to C and D? Is there a need for substitution? There is still a need for substitution, even if C and D are already parties. That C and D are incidentally Es heirs as well does not change the result. This is the Brioso case. There is valid judgment only against C and D. It is wrong to say that C and D automatically substitute for E. There are other heirs who are affected by this improper automatic substitution.

[Non-recitation question what is the effect if E is necessary? If E is indispensable?] Relate the provisions above. If necessary, you can subsequently file a suit against Es heirs to complete the judgment. If indispensable, the judgment is null and void, even against C and D.

What are the requisites for substitution of public officer? 1. Removal/death of public officer and appointment of successor within 30 days unless otherwise provided 2. Successor adopts, continues, or threatens to continue the action sued against 3. There is substantial need to continue the action

Substitution is no automatic. What are needed to be done to substitute the new public officer? 1. Give notice to the new public officer 2. Opportunity to be heard for the new officer

Mere fact that he is inclined to continue the action of the predecessor is not enough

Give an example of transfer of interest. A sues B for judgment for sum of money based on contract. B assigns the contract to C and C accepts. Can the case continue against B despite the transfer of interest? Yes.

Can the court order that C be impleaded?

Yes. But there is no substitution here. C is just joined.

How then can there be substitution?

The court has to order a substitution, not mere impleading. BOTTOM LINE: there has to be a court order. In case of death of a defendant in a sum of money case, will there be substitution? (VERY IMPORTANT) Section 20. It will NOT go to the heirs, but it will continue against the estate. (Remember Succession!) This is the special rule against sum of money cases. Ratio for this?

Because you ultimately deal with the executor or administrator anyway. But its wrong to say there is substitution, because the law does not mandate it. This position is further supported by Rules 86 and 87. What are the requisites for this rule to apply? 1. The DEFENDANT must die 2. It must be a sum of money case based on contract What if the plaintiff dies? The general rule will apply, even if its a sum of money case. Indigents Algura v. Local Government of Naga: Resolves the apparent conflict between Rule 3, Sec. 21 and Rule 141, Sec. 19. If the indigent fits within the parameters set by Rule 141, Sec. 19, then the court must declare him to be an indigent. What is the Rule 141 requirement?

Gross income + family income does not exceed twice of monthly minimum wage And owns real property whose FMV is less or equal to PHP 300K

If he doesnt, he falls under Rule 3, Sec. 21 and must apply for indigent status. (Indigency test) Here, the court exercises discretion as to whether you are an indigent or not. So can a person owning real property with FMV of PHP 300,001 be declared an indigent? Yes, but under the indigency test.

If you are declared an indigent, you do not pay filing fees. But what happens when there is a judgment? There is a lien, as regards filing fees.

What is the rule on stenographic notes? It is free. There is no lien on the judgment.

What happens when the court finds out you are not an indigent? The court can require you to pay. What if you refuse to pay?

The court can order execution. What if you fail to pay or ignore the execution?

The court can dismiss the case, for failure to comply with an order of the court. Planters v. Fertiphil: Planters did not pay appellate docket fees. But this was in 1992, prior to the 1997 Rules on Civil Procedure, which began the requirement of appellate docket fees. The 1997 Rules must not apply retroactively. Atlantic Erectors: Collection for sum of money over construction project over property. The plaintiff attempted to make an annotation of lis pendens on the title of the property. HELD: You cannot do this. This is an action in personam, not in rem, as regards the property. A notice of lis pendens will only lie if it is a right, title, or interest over real property. Outside of this, you cannot avail of a notice of lis pendens. Diaz: Rule 43, up to the CA. Attached duplicate of decision, but not pleadings. This is enough for CA to give due course to the petition. PDIC: The main case is for declaratory relief (SCA). The question is whether there can be execution of such (yes). There can also be a counterclaim, even if declaratory relief is an SCA and the counterclaim is an ordinary action. Tolentino v. Natanauan: There is no res judicata between recovery of possession and nullity of deed of sale. Requisites of res judicata? A) Former judgment final B) Court had jurisdiction C) judgment on merits D) Identity of parties, subject matter, causes of actionVenue Do not make the mistake of confusing venue and jurisdiction in civil procedure. Jurisdiction is the power given by law to hear, try, and decide cases. Knowing what court is one thing, but knowing where to file it is different. There was an agreement to development of a piece of land in Tanay, Rizal to become a memorial park. The duty of the owner (living in Quezon City) of the piece of land is to provide property. The duty of the developer (located in Pasig) is to dig up the land, put drainages, etc. The owner of the land died, and the heirs are now substituting for their father. They want to rescind the agreement to develop. Where do they file?

There are two steps in venue problems. First, determine: is it a real action or a personal action?

Its a personal action. It involves rights and obligations of parties, although the subject matter involves land. Where do you file it? At the option of the plaintiffs. Either in their principal residence (Quezon City) or the defendants (Pasig) Which court has jurisdiction?

RTC, because it is an action incapable of pecuniary estimation (rescission) Aileen Marcos case: In cases where there are several plaintiffs and defendants, the codal provides the word principal before plaintiff and defendant, so that the plaintiffs will not file the case before far-flung or inconvenient areas. In this case, Aileen Marcos is filing a case to enforce a trust, and some nominees live in Batac, Ilocos. Marcos lives in Makati. She filed in Batac. HELD: Should have filed in Makati, because she is the principal plaintiff. Where do you file an action for extra-judicial foreclosure? Extrajudicial foreclosure of mortgage is NOT a judicial action. Its not covered by the Rules of Court, but Act 2135. For purposes of EJ foreclosure, it should be filed where the property is located. But the mere filing and payment of fees (for multiple properties in various areas0 can be paid in one office, as long as it can be established that it covers all areas. But the actual sale will only be done in the place where the properties are located. What about judicial foreclosure? Rule 68 does not provide for venue for this SCA. But it is filed where the property is located. But if it is for collection of a sum of money, file it as a personal action.

Where do you file an action for nullity of marriage? RTC where the plaintiff resides, where the defendant resides, or where their conjugal home is located (special rule in Family Courts issuance) What should be your first consideration? What is the general rule? Rule 4 (rules of venue) applies in general, UNLESS a specific law provides otherwise. On specific venues, as provided by law Give an example. Actions for Quo warranto What if you want to file an action for perpetuation of testimony? This is covered by Rule 24 (deposition before action or pending appeal). Special rule: Place of residence of any expected adverse party or defendant

What about adoption? Where the prospective adoptive parents reside What about probate?

Where the deceased last resided at his time of death Writ of habeas corpus on residence of minors? General rule: RTC where the minor is supposed to be found Thornton: But if unknown or cannot be found, in the CA or SC Can the parties stipulate on venue?

Yes, they can. In an ejectment case, the property is located in Cebu. Plaintiff resides in Makati, defendant in QC. Where do you file it? In the MTC of Cebu. Residence in general does not matter. What if I file it in Makati?

Yes. But what will you expect?

Motion to dismiss on the ground of wrong venue, coming from the defendant. But what if there was no motion to dismiss, and in the answer, there was no allegation of improper venue? There is waiver on the rules of venue. Remember Rule 9, Section 1. This is the general rule on waivers and objections on grounds not raised in an answer or MTD. Failure to raise these grounds in MTD or answer is a waiver. Exceptions: 1. Lack of jurisdiction over the subject matter 2. Litis pendentia

3. Res judicata

4. Statute of limitations

What is the distinction that you have to make as to stipulations? If there are no words of exclusivity, then it is only an additional venue. If there are words of exclusivity (ex. can only be filed in Cebu, waiving all other venues), then you can only file it there. (PBCom v. Lim is an example of a case with restrictive words) In this case, the stipulation on venue in the principal agreement (PN) applies to the accessory contract, which is the surety agreement which cannot exist without the prior agreement. What if there was no Motion to Dismiss and no answer filed? Apparently, the defendant did not notice the improper venue, or he decided to waive it. Can the judge later motu propio dismiss the case after noticing that the venue is wrong? No, he cannot motu propio dismiss the case on the ground of improper venue. (Gumabon) Distinguish between wrong venue and lack of jurisdiction (ex. wrongly filing an ejectment case in the MTC.) Here, while the rules on summary procedure include MTD as a prohibited pleading, an exception is lack of jurisdiction (contra. wrong venue). What is the local version of forum non conveniens? Prohibited forum shopping (Read Bank of America)Summary procedure 1. Filing of the complaint In summary procedure, after filing the complaint, what can the court do? A) Dismiss the case outright B) Issue summons What is the responsive pleading?

Answer. Can you file a MTD?

In general, no. It is a prohibited pleading. When do you file the answer?

10 days, not the usual 15. Can the plaintiff file a reply?

No. Its also a prohibited pleading. What if there is no answer? The plaintiff can file a motion for the court to render judgment. A motion to declare the defendant in default is a prohibited pleading. Just ask the court to render judgment.

After the filing of the last pleading, move on to next stage.

2. Preliminary conference. Take note, in SP, it is NOT pre-trial but preliminary conference. When does the court set this? Period of 30 days.

What happens here?

The parties can compromise, identify issues, etc. Can the court render a judgment based on what was presented in the preliminary conference? Yes, the court can, if it is convinced at this point in time. Assuming there is no judgment in steps 1 and 2, move to the next step 3. Submission of judicial affidavits or position papers Is there a hearing in summary proceeding or trial?

No hearing, no trial. Within how many days do you submit affidavits?

Within 10 days Can the court render judgment?

General rule: 30 days from the filing of the last pleading NOT submission for resolution, but submission of the last pleading Exception: 15 days, if the court asks for further clarificatory documents What are the prohibited pleadings? 1. MTD Except lack of jurisdiction over subject matter Or failure to refer to lupon 2. Reply 3. Bill of particulars 4. MR or MNT 5. Petition for relief from judgment

6. Motion to declare in default 7. Third party complaint

8. Memoranda

9. Dilatory motions for postponement

Does this cover motion for cancellation of hearing? If is not dilatory. But be careful with this, because the judge has to determine first if it is dilatory.

10. Motion for extension of time

11. Petition for certiorari, mandamus, prohibition against interlocutory orders of the court 12. Interventions

Jalique v. Dandan:

This is a case where the respondents filed a joint counter affidavit in an ejectment case, rather than a response. The MTC decided in favor of plaintiff. RTC affirmed. CA moved to have the case remanded to MTC for re-hearing. HELD: Valid action by CA. The court interpreted the rules on summary proceeding liberally here, because there was presence of a responsive pleading anyway and there was challenge of the material allegations of fact in the complaint. So the MTC should have considered it. Bonifacio v. Bellosillo The judge was sanctioned here, because there was no answer, and instead of promulgating judgment, he still called for a preliminary conference. Pascual v. Jovellanos The defendant filed a Motion to Strike Out instead of an answer, which was, in reality, a motion to dismiss. The judge should not have granted this. Boy v. CA: May the MTC pass upon questions of ownership in an ejectment case? YES, only provisionally and for the purpose of resolving forcible entry/unlawful detainer cases. This is a power granted by BP 129. Macasaet v. Macasaet: In the preliminary conference, representatives appeared on behalf of the original parties (as attorneys-in-fact). This special authorization is a valid cause for someone else to appear in the plaintiffs or defendants behalf.

What happens when the plaintiff is absent in preliminary conference?

Case is dismissed

What happens when the defendant does not appear?

As if he didnt file an answer. The court can render judgment. What is the stopgap? Have an explanation OR send a representative

Where does this rule come from? Provision on authorization does not appear in the rules on summary procedure. But the SC applied to Rule 70 suppletorily, the rules of Rule 18 on pretrial and appearance by representative.Small claims What should a plaintiff file? 1. Statement of claim

2. Together with certificate of non forum shopping

3. Authentic copies of document from which the action stems from (actionable documents) Who signs the statement of claim?

The claimant. No need for the lawyer. [Atty. Salvador: maybe this special rule is for bar flunkers to practice, because the claimant still needs to file certain documents he may not know how to execute] What happens after?

Court files notice for defendant to submit response Defendant has 10 days to file a response What are the formal requirements?

There is already a form provided for the plaintiff and defendant to fill in. They just need to attach documents. Can there be a counterclaim in a small claim action? Yes. And then? [review/cross-check these rules] The parties can decide for amicable settlement or judicial dispute resolution (JDR) Can a claimant apply as an indigent litigant? Yes. (Aldura) Will there be presentation of evidence? Yes, but it is not a strict and formal trial. You can only present the evidence attached to the claims. Is there a preliminary conference? None mentioned. Do the parties have to appear? Yes, or at least their representatives. Failure for the plaintiff to appear leads to dismissal without prejudice of the claim. Failure for the defendant to appear has the same effect as not filing a response. What happens after JDR?

In a multi-sala court, the executive judge refers to the pairing judge for hearing and decision within 5 working days from referral In a single sala court: Pairing judge hears and decides the case in the court of origin within 5 working days from referral by JDR judge Are there prohibited pleadings?

Same as summary procedure Except in MTD, only lack of jurisdiction over the SM is the exception. Failure to refer to the lupon is not an exception. Can it be appealed?

No. By express provision, it is final and executory. What then, is the remedy?

Rule 65 (petition for certiorari) because there is no plain, adequate, speedy remedyPleadings What must be in the complaint?

Claims a cause of action Must contain allegations brief and concise statement of ultimate facts, devoid of evidentiary matters You can also allege as to fraud, mistake, malice, illegality, condition of the mind, etc. As to matters of fraud, how must it be alleged?

With particularity As for mistake, how must it be alleged?

With particularity If its a condition of the mind (malice, intent, knowledge, etc.)?

Generally You can also base your claim on an actionable document. How to do you allege it? 1. You can attach or append the document To show the court that this is where your cause of action arises

2. You can reproduce the contents of the document in the pleading en toto (But in practice, just always append anyway) How do you deny an allegation under an actionable document?

Specifically denied, under oath What is the exception to when you need to specifically deny under oath an allegation from actionable document?

1) When the adverse party is not a party to the instrument

2) When there is an order for inspection and it is refused

What is the effect of failure to specifically deny under oath an actionable document?

It is an admission ONLY as to the genuineness and due execution of the actionable document But what about the rights and obligations of the parties arising from that document? It is up to the court to determine it. What is the period to file an answer?

15 days after service of summons

Could it be 30 days after receipt of summons? For foreign corporation and service is done to government official designated by law What are the defenses available in answer?

1) Affirmative defense

If you only hypothetically admit, without raising any defense, what happens? In this case, there is no more issue. This will lead to a judgment on the pleadings (Rule 34) This occurs when the answer does not tender an issue or admits the material allegations

2) Negative defense

Specific denial of facts alleged essential to the cause of action.

What are the kinds of specific denial? 1) general denial

2) specific denial

3) disavowal of knowledge (lack of knowledge and belief to form a specific denial)

Is the counterclaim or cross-claim in a separate pleading? No. What is a compulsory counterclaim?

Arises out of the transaction constituting subject matter of the action What is a permissive counterclaim?

Arising from an event unrelated. What is the period to answer a counterclaim?

10 days (In practice, you only answer a permissive counterclaim. In practice, a compulsory counterclaim is not answered.) What is a cross claim?

Made against a person/party on the same side. Can there be a counterclaim defendant cross claim? Yes. The counterclaim defendant is the original plaintiff. He can file a cross claim against a co-party. Is there a period to answer a cross claim?

10 days

Do you need leave of court to file a counter or cross claim?

No, whether it be a permissive/compulsory counterclaim or a cross claim, no. For a third party complaint, do you need leave of court?

Yes. You cannot just file a third party complaint. Who is usually the third party plaintiff?

The defendant in the main case, who feels that he should file a complaint against someone that court has yet to acquire jurisdiction from. This is the reason why there is need for leave of court. You need to have the third party impleaded.

Why would you want a third party complaint? To contribute or indemnify Classic case: car crash ( a hit b hit c. C sued B. B sued A for indemnification.

Subrogation

Any other similar ground

What is the period to answer a third party complaint? 15 days, because it is treated as an entirely new complaint Is the reply a mandatory pleading? No. What is the period to file a reply? 10 days. What do you do in a reply? To controvert the new matters raised in the answer

What is the effect of failure to file a reply?

All new matters stated in the answer are deemed controverted

What is the reason for this? [Didnt answer]

What happens after answer, etc?

Pre-trial Three important things:

Signature, verification, and CNFS What is the effect of a lawyer affixing his signature in a pleading? Indicates that he has read the pleading, and to the best of his knowledge, the information is correct And that the filing of the same is not for the purposes of delay There are some pleadings that are left unsigned. What happens? It has no legal effect at all. Is there a way to cure it?

If counsel can show it is due to mere inadvertence and not for delay Will the court just give effect to the pleading or will it still require actual signing?

[Didnt answer] If a lawyer changes his address, what is his duty? Inform the court. Failure to do so may lead to disciplinary action. What are the contents of the verification? That the affiant has read the pleading and the allegations are true. Must it be under oath? Yes. Is it mandatory?

No. Only when the law requires you to verify. Is it jurisdictional?

No. Failure to attach is not fatal. But why do the SC and CA dismiss cases for failure to attach verification? Although it can be cured, the court may dismiss a pleading for failure to comply with procedural requirements. Who signs the verification? The party filing the pleading. Can the lawyer sign it?

General rule, no. Unless there is some compelling reason. For example, the partys father is to be buried on the day of filing of the petition the court allowed it. Also, the distance of the petition from the counsel (ex. the petitioner is in the USA and the counsel is in Manila, and there are only 15 days to file.)

Can a minor sign? Must be assisted. Can a married person sign by himself or herself? One spouse is enough, but only if there is common interest. (N.B. but see note below) For co-owners or those in the same residence?

Signature of one is enough if there is common interest. (N.B. but see note below) TAKE NOTE: The key when it comes to multiple parties, all of them have to sign. However, if there is a common interest among the parties, a signature of a number of them may be enough.

BUT in practice, do not take chances.

CNFS: What about a juridical entity? Who can sign? [Anyone, as long as authorized by a board resolution] What are the contents of the form? Plaintiff/principal party shall certify under oath that he has not filed a similar complaint involving the same issues in another court, tribunal, QJ agency If there is any other pending claim, provide status

If he learns about similar action, report fact within 5 days to the court

Why does the law require that it is the party that signs? Because it is only the party, and not even the lawyer, that knows whether there is another action. For those with no separate juridical existence, who signs? All the parties, since there is no juridical personality. What is the effect of absence of CNFS? (Note: non-compliance is different from absence) It will be dismissed. It can be re-filed because it is without prejudice.

Can it be amended to cure? No, the defect cannot be cured by an amendment. Just re-file. What is the effect of non-compliance? (Note: this occurs when there is a CNFS, but you did not respect your commitment under the CNFS) Indirect contempt (Failure to comply with order or process of court) Administrative and criminal cases (since you lied under oath)

Dismissal of the case

What if there is willful and deliberate forum shopping? (Meaning, its not only false, but you also deliberately disregard it) Dismiss the case with prejudice

What kind of dismissal? Summary dismissal cannot contest Placed in direct contempt without opportunity BPI v. CA There was a CNFS filed in the first place. What was not attached was the board resolution showing the authority of the Vice President to sign the CNFS on behalf of the company. This authorization was submitted on the MR. NOTE: There was a valid CNFS. There was liberal interpretation of this provision for these reasons.

Donato Here, the lawyer signed the verification, not the party. This was validly excused by the court since the party was in the US, and could not sign the pleading in time given the 15 day period. There was physical impossibility. BUT as a general rule, the lawyer cannot sign.

Young v. Seng There was no forum shopping, because the first case was dismissed due to lack of cause of action. When a case is dismissed because of that, it is without prejudice, and that party can file the same case again.

Failure to disclose this fact is not a violation of the CNFS.

OSM Shipping Requires a duplicate original or CTC for the decision being appealed (here, NLRC decision) and not the prior one (Labor Arbiter in this case) Tan v. Kaakbay

No need for a CNFS for a compulsory counterclaim New Sampaguita There was no forum shopping here, because the first case questioned whether there can be a writ of execution when the parties agreed to compromise in the first place, when the court dismissed the initial case. The second case was whether the court approved the compromise agreement in the first place. These are different. Solar Is the rule on personal service mandatory? Yes. The rule is priority is by personal service. If you cannot do it by personal service, you can do it by registered mail, but you have to make an explanation. In this case, it was made by registered mail and there was no explanation. For this reason, the decision of the court to allow it was based on its reasonable discretion. BUT this is not the rule. Musa

What are the material dates here? Period only commences to run from date of receipt of the decision Date of filing of the MR Date of receipt of denial of the MRAmendments and supplements There is amendment for civil cases and there is amendment for criminal cases. For civil cases, amendment may either be:

1) As a matter of right 2) With leave of court

When is it a matter right? Before an answer or within 10 days of service of reply What do you need to file? NOTICE to amend When do you need leave of court?

After an answer has been made

What do you need to file?

Motion to amend

For criminal cases, the reference point is not an answer. Instead, it is plea. Before plea, can you amend? Yes, whether as to matter of form or substance

After plea, can you still amend?

Yes, but only as to matters of form, for as long as it will not prejudice the rights of the accused Dont forget that last bit!

What is the test when it will prejudice the rights of the accused, even if its a matter of form? If the original defense of the accused will not change.

What is amendment to conform to evidence? This is section 5 of Rule 10 Allegations are found in the body of the complaint/answer. What is alleged must be proven. If the evidence you presented went beyond the allegations, you may file a motion to amend the pleading to conform to evidence There are two kinds of amendments to conform to evidence. What are these?

First kind no objection on the part of the other party. For this reason, it will be allowed even after judgment. Second kind if the other party objects, the amendment is left to the sound discretion of the court.

Can you amend a complaint when it originally has no cause of action?

If in the first place there is no cause of action, no amendment will cure such an absence. Can the court order an amendment even if there is no application to amend?

1. Yes, if it is a mere formal (typo) amendment 2. For bill of particulars, the court can either order compliance OR an amendment 3. Motion to dismiss the court can either grant, deny, or order an amendment There was an amendment of an original complaint, which was the basis for the issuance of summons. If the original complaint is amended and that is granted by the court, is there a need for issuance of new summons? No, if you already lawfully obtained jurisdiction over the defendant through summons or voluntary appearance. It is a question of jurisdiction over the person, not a question of amendment. HOWEVER, if there are additional defendants, new summons must be served to them. What is a supplemental pleading? A pleading filed in addition to a prior one that has been filed, pursuant to new transactions, occurrences, or events that have arisen. Can there be a supplemental complaint? Yes Can there be a supplemental answer?

Yes Can there be a supplemental reply?

Yes

Can there be a supplemental petition?

Yes So what is the general rule? You can file a supplemental pleading as long as there are new transactions, occurrences, or events that occur after the filing of the first pleading.

What is the exception?

Usually you cannot do this to the Supreme Court, because you cannot file something to it unless it asked for it. You would be asked to explain why you are submitting such. What is the difference between amendments and supplements?

Amendments pertain to events, transactions, or occurrences that exist during the filing of the original pleading, but were not placed in the pleading. There was just an omission. May be filed without leave of court (before responsive pleading) For supplements, the events, transactions, or occurrence only arose after the filing of the original pleading. Always with leave of courtDefault

N.B. 1: What is the rule on objections? General rule: all objections on grounds not raised in an answer or motion to dismiss are deemed waived. What are the exceptions? 1. Lack of jurisdiction over SM 2. Res judicata 3. Litis pendentia 4. Prescription What is the fifth exception provided by jurisprudence? 5. Lack or absence of cause of action This is different from Rule 16 (that the pleading states no cause of action) N.B. 2: What is the rule on failure to allege a counterclaim?

Any compulsory counterclaim or cross claim not set-up: barred forever In special proceedings a claim against the estate must be made in the period provided for in the notice. Otherwise it will be forever barred. What is the exception? If there was a suit started by the estate against you, the claim can be raised as a counterclaim. N.B. 3: How many kinds of default do we have? 1. In actions in rem, there is a general order of default. There are no defendants, so notice is made to the public that all oppositors have to come forward and object. Otherwise, forever barred. 2. Failure to attend during pre-trial Called as in default in the 1964 Rules of Court If the defendant fails to attend, the plaintiff can present evidence ex parte When do you know when a party is in default? 1. Did not file responsive pleading

2. There is proof of such failure You have to show the return How can you set aside an order of default? 1) File a motion on any of these grounds: 1. Fraud 2. Accident 3. Mistake 4. Excusable negligence 2) It has to be under oath 3) State that you have a meritorious defense, without necessarily giving an answer

What kind of fraud is needed? Extrinsic fraud.

Is the fraud needed here the same fraud needed for motion for new trial, petition for relief from judgment, and motion for annulment of judgment?

YES. For all of these, you need extrinsic fraud.

How do you set aside an order of as in default [or allowance for plaintiff to present evidence ex parte for the plaintiff]? Saguid: Remedy is to file an MR or relief from order of default also on the ground of FAME Do you have to add that you have a meritorious defense?

No need. Youre already in pre-trial. Can there be partial default?

Yes.

In a case where you file a case against A, B, C, D, and E. E did not file an answer, while A to D did. Will A to D be allowed to present evidence? Yes.

Will E be allowed to present evidence?

No. He is in default. Can A to Ds evidence be used against E or in favor of E?

Yes. In fact, E can still win the case along with the others.

Can the court render a judgment after an order of default, without presentation of evidence ex parte? Yes. This is a new provision introduced only in the 1997 Rules of Civil Procedure.

This has not been asked in the Bar examination yet. So be careful.

Where can there be no order of default?

1. Nullification/annulment/legal separation Can there be default in Summary Procedure?

No. When there is failure to file answer, there can be judgment rendered by court.

2. Certiorari, Prohibition, etc. ( Some SCAs require a comment, so there can be no declaration of default Are there SCAs where there can be declaration of default? Yes, like interpleader where the special rules are deficient so there is suppletory application of the ROC Cerezo v. Tuazon: Order of default failure to submit an answer, so the defendant is declared in default Judgment by default after the defendant is given notice of the court processes, the court renders a decision without hearing defendants defense, which he lost Remedy for an order of default? Motion to set aside or lift an order of default based on FAME (under oath, and you have to show you have a good defense) SSS v. Chavez: This must be accompanied by a verification (under oath), affidavit of merit (that you have a good defense), and notice of hearing. If this is missing, the motion is lost. Remedy for a judgment by default? MR or MNT (FAME) ( within period for filing an appeal After the reglementary period (i.e. when there is entry of judgment) ( Petition for relief from judgment 6 months from entry of judgment AND within 60 days from knowledge If there is GADALEJ, Rule 65 certiorari Remington Steel: When there are multiple defendants, even if one has already answered, you may amend the complaint as a matter of right as to the other since there is no defense yet that would be affected or altered by the amendment. Philippine Export and Foreign Loans: When it is a dismissal without prejudice, appeal is not a remedy. Your remedy is to re-file a case or file for a petition for certiorari. Amendment to conform to evidence What if it was not allowed, but the evidence was proven, can there be a valid judgment based on that evidence? Yes. It is valid, even if it is not consistent with what was alleged.Bill of particular

Can there be Bill of Particulars in criminal cases?

Yes. Rule 116, Sec. 9. Only four things to remember in BOP:

1. What is the definition of BOP?

2. What is the period to file a BOP?

3. What is the action taken by the court in BOP?

4. What is the consequence of failure to comply with order to file a BOP? When you file for a BOP, what do you want to achieve?

A more definite statement of facts that appear in the complaint that are not averred with sufficient particularity You are to identify the defects and the details desired. Can you file a motion for BOP after an answer has been filed?

No more, because issues have already been joined. What is the effect of filing a motion for BOP on the period?

The period is interrupted upon filing, but you always have at least five days to file the answer after. Deadline to file an answer is December 15. You filed a motion on December 5. How many days do you have?

TWELVE, not eleven. You dont count the day causing the interruption. [VERY IMPT] This is the same way you count a motion to dismiss.

[Same facts] If you filed a motion for bill of particulars on December 14, the motion is interrupted. How many days do you have? You still have Five days. What action can the court take on a BOP if you fail to comply?

1. Motion to strike out

2. The case can be dismissed (Virata v. SB) Rule 17, Sec 3: non-compliance with court order What if the person fails to file an answer in the time left? Will be declared in defaultService and summons

Filing

What are the modes of filing?

1. Personal 2. Registered mail Can there be filing by ordinary mail?

None. Because here there is no way the court can find out when you filed it. But there can be service by ordinary mail. What are the requirements for personal and registered mail?

PERSONAL: Stamped, dated, and signed by the clerk of court. REGISTERED MAIL: Pay for registry receipt and you have to accomplish a return card

What is the proof that you personally filed?

Primary: if the pleading is found in the records of the court. If it does not appear, you can present the received copy What is your proof of registered mail filing?

Registry receipt Affidavit of the person mailing Return cardService

What are the modes of service?

1. Personal

2. Registered mail

3. Ordinary mail

What does rule 14 cover? 1. Covers party serving to another party,

2. party serving to court,

3. and the court itself serving notices (section 9) If the person to whom you are serving is not available, then how do you file substituted service? Delivery to the clerk of court with proof of failure of both personal service and service by mail.

There should be proof of both failure of personal service and service by mail. [This is different from substituted service of summons]

How do you prove service by ordinary mail?

Affidavit What is completeness of personal service?

Actual delivery What is completeness of registered mail?

Actual receipt or 5 days after notice of postmaster

whichever comes first

What about ordinary mail?

10 days after mailing

What are the proofs of personal service?

Written acknowledgement Affidavit of the person serving

Official return of server

This refers to service by the court

What are the proofs of registered mail?

Registry receipt Return card What are the proofs of ordinary mail?

Affidavit of person serving What if I used registered mail, but I got back the return card ALONG WITH the document itself (showing it is unclaimed). What do you do to prove delivery? You have to file the return card plus the unclaimed document, plus before you file, secure a certification from the post office.

Take note that a return card is required by law to be filed, but in practice, we do not.

What is the priority of service?

Personal service is always preferred

What is the effect of filing by registered mail?

Put an explanation why you did not serve it through personal service What if you dont comply? As if the pleading was not filed. Service of pleadings should be made to whom? To the counsel, if the party is represented by counsel. What if service was made to a security guard on the ground floor of a condominium building and your office is on the 3oth floor?

You cannot. You have to serve it to counsel. What is Lis Pendens? In an action involving right, title, or interest over a property, you annotate it on the title of the property.

I file a case in the bureau of lands to declare null and void a title. Can this be subject to a notice of Lis Pendens?

No. This is a quasi-judicial action. Notice of lis pendens only applies to judicial cases, not quasi-judicial. (Heir of Lopez) Atlantic Erectors: You can only apply for Lis Pendens if the property is the subject of the action. Can you put a notice of lis pendens in a partition case?

Yes. Do you need court approval to effect a notice of Lis Pendens?

Not at all. Just send a memorandum to the ROD, even without court involvement. When do you need court approval?

When you intend to cancel the notice.

Grounds:

1) purpose is to molest other party

2) no need for the notice to protect the rights of the parties who caused it Payongayong: Priority of service is ALWAYS personal. If you cannot do it personally, you give an explanation

Same as filing priority is personal. Otherwise, you give an explanation.

United Pulp: Hypothetical There is a principal who is out of the Philippines, and he designates X as his attorney-in-fact. Can X sign the certification against non-forum shopping?

In general, he cannot. But in this special case, he can, because the principal is out of the country. What is the test? Mere representation is not enough. There must be a specific authorization and clear authority given in the SPA that he can sign the CNFS.Summons

Can personal service and substituted service work simultaneously? No. Personal service first, and this is the priority. You cannot have these simultaneously. Where? WHEREVER HE IS FOUND. Always remember the James Yap rule. What are the requirements for substituted service? Under what circumstances? Only if personal service is IMPOSSIBLE.

Proof of this: defendant cannot be served summons after all efforts have been exhausted. Is there a set of standards given by law on how many times you have to try to serve?

A case says that it must be at least three times on two different days.

There has to be an explanation. Where will the explanation appear?

In the sheriffs return Summons must be served within reasonable time. What do you mean by this? For the sheriff, 15-30 days according to jurisprudence. After the 30th day, the court will require the sheriff to submit the return. Why is this important?

If you file a complaint and you dont see to it that the summons is served, your complaint can be dismissed for failure to prosecute. What is alias summons?

If the original summons has been lost or the original summons was returned to court, unserved.

Then you can apply for alias summons.

When do you talk about suitable age or discretion, to what kind of substituted service does this apply?

To service at the residence. When you talk about suitable age or discretion for substituted service, what do you mean?

There is nothing in the law that says there must be age of majority but from Manotoc to Pascual, there is consistent jurisprudence that it must be age of majority. Who must it be? Could it be a house helper?

She or he must reside therein. This must concur with suitable age or discretion. So these are two elements. A visitor or a transient cannot receive summons. But a house helper can.

For offices, to whom must it be served? To a a) competent person b) in charge. Can a middle manager the same rank as Mr. X receive summons for Mr. X?

He must be in charge of receiving summons in the office. What does in charge mean?

In charge of the office. President or manager. For corporations, what is the special rule?

President, General Manager, Managing Partner, Corporate Secretary, Corporate Treasurer, In-house Counsel Memorize this. It is a closed list. But for personal cases of an individual, will the office receive it for you?

Can substituted service be served on non-residents? No. None as a general rule. You cannot do substituted service to a non-resident. [Sec. 15 does not talk about this situation. Sec. 15 talks about non-resident and cannot be found.] Is there an exception?

Yes, but its very narrow. But there must a a) resident spouse b) who was previously appointed as attorney-in-fact. In Secs. 14, 15, and 16: how can summons be done?

By publication. Distinguish.

Section 14: Defendant is unknown or his whereabouts are unknown. How do you do this?

Just publish. Do you even have to try personal service?

No need for personal service (since you dont know him or where he is). In what kind of case? Whatever kind of action, whether in rem or in personam you can do it by publication, as clarified by the SC. Not just in rem or quasi in rem anymore. How does publication in 14 differ from 15 and 16? In 14, ONLY publication is needed. It does not require service by registered mail in the last known address. Section 15: Extra-territorial service

Against who? Against a defendant that does not reside in the Philippines and is not found in the Philippines. In what subject matter? 1. Involving personal status of the defendant 2. Property of non-resident defendant 3. Property is attached 4. Where defendant has actual or contingent interest over property What are the modes of service?

1. Personal service outside the Philippines 2. Publication AND service by registered mail in his last known address N.B. Both must concur. Take note of this. 3. Other modes deemed applicable by the court Section 16: Temporarily absent Can he be a resident of the Philippines?

Yes. But hes just temporarily absent. What is the length of time needed here?

None provided How do you do serve summons? Any of those in Sec. 15. Add: Substituted service, if there is impossibility and there are earnest efforts to serve. What is the purpose of summons? So the court can peg a date when it acquired jurisdiction over the person. What is the proof of service of summons? Sheriffs return. Note the rules on:

Provinces

Prisons

What is the rule on voluntary appearance? It is not equivalent to summons, but if there is voluntary appearance, summons can be dispensed with. What is the rule on Motions to Dismiss? If you file a Motion to Dismiss, even if you join other grounds other than lack of jurisdiction, you are not deemed to have submitted to the jurisdiction of the court. Old rule: you have to separate the MTD based on lack of jurisdiction. Maximo v. Montalban: In this case, his residence is known and he is just temporarily absent. So substituted service is not proper. Samarino v. Ralu:

Here, the sheriff did not prove that facts and circumstances that would allow substituted service (repeated failure to personally serve, etc.) it must be shown in the sheriffs return Ancheta: There are only a few remedies when the judgment is already final and executory. Here, the petitioner filed a petition to annul the judgment based on lack of jurisdiction over the person (because lack of jurisdiction is used, it can cover both lack of jurisdiction over both SM and the person). Gomez v. CA: Does it mean that if you are talking about an in rem action you can venture on trying to serve it personally? You can still do personal service, in case you find him somewhere in the Philippines by chance. Section 14 before limits itself to in rem or quasi in rem. It now extends likewise to actions in personam.Motions What is a motion?

It seeks relief, but not a pleading.

It does not raise a claim, nor does it raise defenses in an answer. Does a motion to dismiss take the nature of an answer?

No, because it will not lead to a joinder of issues What does EVERY motion need to have? A notice of hearing. Directed to whom?

To parties. But also give notice to the clerk of court (even if the provision does not say it), because he schedules the hearings. Absence of a notice of hearing has what effect? The motion becomes a mere scrap of paper. When must notice be given? The motion must be filed in court and served to the other party at least three days before the date of hearing. (Three day notice rule) What is the ten day rule? The hearing itself must be scheduled no later than 10 days from the filing of the motion

Ex. you file it December 6. The last date you can set the hearing for is December 16. Understand this along with the three day rule. What is the Omnibus Motion rule? Include all grounds available; or else, it is deemed waived. What are these exceptions?

1. Lack of subject matter jurisdiction 2. Res judicata 3. Litis pendentia 4. Statute of limitations What is motion day?

Friday afternoon. If it is a holiday, set it on the next working day

Is this mandatory? Yes. But some judges apply the rule liberally. But since 2008, this rule has been applied strictly.Motion to dismiss What are the kinds of dismissal in Civil Procedure?

1. There is a motion to dismiss in Rule 16, prompted by defendant. MOST COMMON

2. But there is also a motion to dismiss in Rule 17, filed by the very same plaintiff who filed.

Rule 17 also covers failure to prosecute, which is another form of motion to dismiss.

3. Demurrer to evidence

What are the grounds in Rule 16? 1. Lack of J over the SM

How do you determine subject matter jurisdiction? It is the law that confers the right to hear, try, and decide a case The most common source is RA 7691 amending BP 129 2. Lack of J over the defendant Look again into proper service of summons

Or voluntary appearance

3. Improper venue

Fall back to Rule 4, or special rule under law

4. No legal capacity to sue

Minor age of majority

Corporation must be duly registered with SEC

Attorney in fact look into scope of authority

5. Pleading Asserting the Claim States no COA (PACS-COA)

Does not go into the falsity or truthfulness of the claim

The pleading does not appear to state a COA

6. Res judicata

What are the elements? 1. Final judgment

2. J over SM and person

3. Judgment on merits

4. Identity of parties, SM, cause of action

7. Litis pendentia

Same as RJ, but without

8. Prescription

9. Failure to comply with condition precedent

Ex. Failure to refer to Katarungang pambarangay

Is this waivable? YES. Because it is not jurisdictional. Ex. Earnest efforts to compromise Ex. Exhaustion of administrative remedies

Does this fall under this ground? Some commentators say yes. But some say failure to exhaust must fall under PACS-COA

7. PWEA (Payment, waiver, extinguishment, or abandonment) 8. Unenforceable under Statute of Frauds Of all these grounds, if the court dismisses, can it be re-filed? ALL

Except [F,H,I] 1. Prescription 2. Unenforceable under Statute of Frauds 3. Res judicata 4. Extinguish of claim or demand (PWEA) When can you file a MTD? Within the reglementary period. Fifteen days. How do you count a period?

Just remember the rule on interruption. [Read up Bill of Particulars portion.] There was MTD filed on basis of lack of J over the defendant. The court, instead of dismissing the action, dismissing the MTD, or ordering amendment of the complaint, filed alias summons. Is this grave abuse of discretion? There was none. Instead of dismissing the case and waiting for re-filing, the court issued alias summons which will produce the same effect. Preliminary hearing of the affirmative defenses. What is this? You can file an answer, and the court has discretion to hold preliminary hearing of your affirmative defenses and use it to dismiss the complaint. Thus, an answer can be treated as a MTD.

This is a new feature of the 1997 Rules of Court. This has never been asked in the Bar. What is the reason for this new rule? Note: a MTD is not a prohibited pleading, but when it issues summons, the court persuades parties not to file an MTD, but to file an answer with an affirmative defense. Why is such court attitude? Because issues will be joined, and pre-trial sets in where parties can compromise. What is the difference between filing a MTD and an answer? There is no preliminary hearing of defenses in a MTD.

If the court mistakenly denies your MTD, what is your remedy?

Petition for certiorari on Rule 65 based on GADALEJ. Does this petition for certiorari suspend the main proceedings? No. Even if there is a pending petition for certiorari, the main proceedings will not be suspended unless you obtain a TRO. The Eternal Gardens rule, which has been repeatedly abused, invoking judicial courtesy here, does not apply anymore. Can the Court of Appeals dismiss the case if it feels the RTC committed GADALEJ? Or should it only remand? The court, subject to its discretion, can either dismiss or remand it. There is no hard and fast rule.

Dismissal of Actions What are the ways by which a plaintiff can dismiss a case? Filing a notice of dismissal any time before the answer is served. Dismissal is a matter of right. What happens to the counterclaim? There is no counterclaim yet, because there is no answer. Can this case be re-filed?

Yes. What is the exception? Dismissed a second time under this section. What if there is already an answer? See Pingga case File a motion for dismissal. What happens to the counterclaim, if there is? It does not get dismissed. Pingga limits the dismissal to the complaint, not the counterclaim. This abandoned BA Finance rule. Does this rule cover both permissive and compulsory counterclaim? Yes. This is why the provision says that within 15 days, the party would have to manifest its willingness to prosecute it in the same action; otherwise it will be prosecuted in a separate action.

Pre-trial When is pre-trial conducted?

Rule 18 Sec 1 does not say, it just says that the ex parte motion by the plaintiff to move the case for pre-trial must be done promptly

BUT the 2004 guidelines say it must be within 5 days after the last pleading has been filed

What if the plaintiff fails to move for pre-trial? The 1997 rules are silent. Before, dismissal was the consequence, for failure to comply with Rules of Court. But this is not the consequence anymore, because of the 2004 rules, which gives a specific outcome. 2004 rules: DUTY OF THE CLERK OF COURT to move for pre-trial. Before actual pre-trial, a few days before, what happens? Preliminary conference before the clerk of court. It will be recorded and will form part of the pre-trial record. They explore possibility of compromise, etc.

This is almost like a mini pre-trial.

Expect two dates in one notice

One setting the preliminary conference

One setting the pre-trial itself

On the first day of pre-trial what is the order of the day?

The court issues an order referring the case to a court-annexed mediator. Forward the records to him. You have to pay fees for a mediator. For the time-being, the pre-trial proceedings are suspended. What is the period for suspension? 30-60 days. But in the same order, the court will say that if within this period, there is no compromise, there will be resumption of pre-trial on a later day. What if there is inability to compromise? Records returned to court. The court will resume pre-trial. The Judge with all tact, patience, and impartiality, endeavor to [Missed something]

Judge talks to counsel and parties

Judge talks to only parties

[stepped out]

What do you need to submit at pre-trial? Pre-trial brief.

What if you fail to submit a PTB? Same effect as if you didnt appear at pre-trial.

Request for admissions: Rule 129 Section 4 Judicial Notice: No need for introduction of evidence

You want an admission to abbreviate the proceedings

You are submitting just proposals. If accepted by the other party, it becomes an admission. Issues to be submitted for resolution

Documentary and testimonial evidence to be presented: One day examination of witness rule if you can direct, cross, re-direct, and re-cross a witness in one day, do so. (This is in the guidelines, not in the Rules of Court.)

Submit the most important evidence first.

Evidence will be pre-marked.

What is the effect of failure to pre-mark? You can no longer present the evidence if you failed to pre-mark it.

Unless the court allows you in the interest of justice, or if newly discovered.

What if you fail to name the witness in court? You cannot present the witness anymore.

What are the other contents of the brief that you may put?

Referral to Commissioners Explore possibility of compromise

Possibility of judgment on pleadings or summary judgment

Avail of deposition/modes of discovery

How do you avoid consequences of absence?

According to the provision, if there is a good excuse for absence, the consequence will not vest. You can also authorize someone to appear on his behalf in pre-trial. What happens next? Pre-trial order is issued by the court. DIFFERENCES BETWEEN CRIMINAL AND CIVIL PRE-TRIAL What if it is a criminal case and the prosecution is absent. What happens? It will be re-scheduled. What if the accused is absent? The prosecution CANNOT present evidence ex-parte because it will violate the accused persons right to confront witnesses. RULE 118. TAKE NOTE OF THIS. THIS IS THE DIFFERENCE BETWEEN CRIMINAL AND CIVIL PRE-TRIAL. For an admission of the accused to take effect against him, what must be done?

It must be in writing and signed, by both the counsel and accused. No such requirement in civil admissions in pre-trial. Judicial Dispute Resolution In the past, the JDR process only applies in Makati. Now it also applies in QC and Manila. The judge here is both a mediator and a conciliator and an independent evaluator. Unless the parties consent to continue with the JDR judge, it is mandatory that there will be a new raffle and the new judge who will hear, try, and decide the case is the trial judge This step happens when the Clerk of Court receives the Mediators Report of a not settled mediation

Check http://www.pmc.org.ph/downloads/JDR_Guide.pdf

Intervention What is the concept of intervention? A third party takes part in a case between other parties Because he has a legal interest in the subject matter of the case or he will be adversely affected by distribution/disposition of property in custody of the court

What does the court look at?

Legal interest of the intervener 1) Such intervention will not unduly delay or prejudice the proceedings of the parties

2) Or if the right of the intervener can be protected in a separate action When can you intervene?

You can intervene any time before rendition of judgment in the trial court

There is nothing in the rules talking about intervention in the Appellate Court. But the court can exercise discretion to allow intervention in the Appellate Courts.

After judgment, can there still be intervention? As a rule, no. But if the rule is an indispensable party, the court will allow intervention even after judgment. Can there be a complaint intervention or answer in intervention, or a complaint against either/all of the original parties?

Yes, for all. Nordic: There was a mortgage over a vessel to secure a loan. There was a default in the payment. For this reason, there was an Extra-judicial foreclosure. While the petition was there, there was a subsequent case filed. There was a complaint filed by the crew members of the vessel against the vessel in RTC Manila (sum of money case). The mortgagee sought to intervene in the sum of money case, because it held a Preferred Ship Mortgage. HELD: No legal interest, no cause of action. There must be a personal cause of action in order to intervene. Here, the mortgagee had no interest in the sum of money case. And in this case, the mortgagee can protect its rights in the foreclosure case.Subpoena Types of subpoena?

Ad testificandum: appear and testify Duces tecum: appear and bring with him the documents or things N.B. Must appear too. Cannot just mail or send. Who can issue a subpoena? 1. Court where witness must attend 2. Court where deposition is taken 3. Officer/body conducting investigation 4. Any justice of CA/SC in any case/investigation pending Can the OMB issue a subpoena?

Yes.

Can the office of the prosecutor issue? Yes. Is the receipt of a subpoena by a respondent in a case filed before the office of the prosecutor necessary for the office to acquire jurisdiction over the respondent? No. It is totally irrelevant. Preliminary investigation before the Office of the Prosecutor is a statutory right, not constitutional right. You can altogether dispense with it, or waive it. It is not essential for DP. There is an express provision in Rule 112(D) that says failure to receive the subpoena will not bar the prosecutor from issuing a resolution. It is not imperative.

Can a regular court judge subpoena a convict?

The judge examines if it is for a valid purpose

For those under death/RP/Life and confined: must be authorized by the SC to appear under subpoena

Heart of the rule on subpoena is in Section 4 (Quashing a subpoena)

How do you quash a subpoena as testificandum? 1. Witness is not bound thereby What is an example of this? If the witness is not qualified. Ex the witness is the spouse of the person he/she is testifying against 2. Witness fees and kilometrage allowed by the Rules were not tendered Witness must live within 100 KM of the place where hearing is conducted You can also be arrested to compel you How do you quash a subpoena duces tecum? 1. Unreasonable and oppressive 2. Relevancy of the books, documents, etc. does not appear 3. Failure to tender the costs of production 4. Kilometrage/witness fees ( Not in the duces tecum part but you need the witness to appear too 5. Failure to describe with particularity ( N.B. not in the rules Can the clerk of court issue a subpoena in the absence of a judicial action? (Note, this is not referring to investigation by a quasi-judicial body.) No.Depositions (Rule 23) What can be subject of deposition? Any matter, as long as not privileged

AND relevant

What do you mean by not privileged? When the witness is disqualified (e.g. attorney-client, physician-patient, penitent-priest, husband-wife, public office in related to State)

Ayala Land applied section one (see Modes notes). It explained how to commence depositions. Can a judge before whom the action is pending take depositions? Yes. (Ayala Land)

Before whom should deposition be taken? If in the Philippines, 1. Judge, 2. Notary public, 3. Any party authorized to administer oath, 4. The parties by agreement/stipulation

In foreign country, 1. Embassy, legation, consular officer/agent 2. One authorized by commission or letters rogatory, 3. Stipulation of parties

Dulay v. Dulay A brother duped his brother; both are Filipinos. One brother is a naturalized American, and applied for the latters naturalization. The US government approved it. The later, once there, was made the trustee of the deposits of the former. He spent the money. Filed case in Philippines. Took deposition of bank manager in US. The local court communicated the request with foreign authority (letters rogatory communication by one judicial authority to another to follow the rules of the latter). This is distinguished by commission where a person is appointed commissioner; the deposition is governed by Philippine rules. In this case, the court of Boston ignored the letters rogatory, so they applied for deposition before a notary public. The local court refused to accept, requiring a consular certification. The court here allowed because the letters were ignored and there was no consular office in Boston, so they allowed deposition before NY notary. When is there need for leave of court? Whether an answer has been filed or not. When there is an answer, you do not need leave of court, just notice. When there is no answer yet, you need leave of court. Contrast with amendments: You need leave of court after answer; before answer, you just need notice. What is the process to take deposition? Rule 23, Sections 19-21. Who does