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Remedial Law

Bar 2011 Notes

Roland Glenn T. Tuazon

Ateneo de Manila University

TABLE OF CONTENTS:

1. CIVIL PROCEDURE

a. POST-JUDGMENT REMEDIES

b. PROVISIONAL REMEDIES

c. SPECIAL CIVIL ACTIONS

2. CRIMINAL PROCEDURE

3. EVIDENCE

4. SPECIAL PROCEEDINGS

5. ENVIRONMENTAL CASES

PART I: CIVIL PROCEDURE

Jurisdiction

Stuff 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?

o The power of the court to hear, try, or decide the case

o As conferred by law

How will the court know that it has jurisdiction?

o From the allegations of the complaint.

o What if the defense interposes claims or defenses outside

the jurisdiction of the court?

It does not divest the court of its jurisdiction;

otherwise, jurisdiction will be at the mercy of the

defense.

Where do you take jurisdiction over the case?

o Conferred by law as well.

o Study BP 129, amended by RA 7691.

Do not assume that RA 7691 tells all. There are other

laws too.

Distinguish jurisdiction from venue:

o Jurisdiction is the power to hear and decide a case. Venue is

where the action is instituted and tried.

o Venue can be waived; jurisdiction, not.

Distinguish errors of jurisdiction from errors of judgment:

o When a court takes cognizance of a case over the subject

matter of which it has no jurisdiction, it commits an error of

jurisdiction. It is reviewable by certiorari.

o When a court makes errors in the exercise of such jurisdiction,

it is just an error of judgment, reviewable by appeal.

What is the jurisdiction of the RTC?

o 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?

2

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.

o 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.

o 3. Family cases/marriage

Includes support, annulment, nullity, etc.

o 4. Juvenile/agrarian case

o 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.

o 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.

o 7. Admiralty cases same amounts

o 8. All cases not within the exclusive jurisdiction of any court,

tribunal, person, or body exercising judicial or quasi-judicial

functions

In determining the 300K/400K, can you include damages, interest,

attorneys fees, litigation costs, etc?

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o NO. Only limit the amount to the demand or the claim. The

totality rule only covers purely money claims, and does not

include incidental claims.

o 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

o What is the amount?

Not exceeding 100K.

o Is there a distinction between OMM and MM in small

claims?

No.

o 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.

o Does it cover quasi-delicts?

Yes. (Covers: fault/negligence, quasi-contract, or

contract)

o 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.

BUT if it is filed ahead or reserved, then it can be the

subject of an action for small claims.

o What, therefore, are the actions covered by small claims?

A. Money owed under:

Contract of lease

Contract of loan

Contract for services

Contract of sale

Contract of mortgage

B. Damages from:

Fault or negligence

Quasi-contract

Contract

C. Enforcement of a barangay amicable settlement

o 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.

o What must be filed in the MTC to commence the claim?

1. Accomplished and verified Statement of Claim

(Form 1-SCC)

2. CNFS

3. 2 photocopies of the actionable document

4. Affidavits of witnesses and other evidence

Is joinder allowed?

Yes, as long as the aggregate amount

doesnt exceed 100K

o What is the next step?

1. Court may dismiss the small claim

2. Otherwise, it issues summons on the same day

directing respondent to submit a verified response

3. Court also issues a notice to both parties directing

them to appear for hearing on a specified date with

warning against unjustified postponement.

4. Respondent submits verified response within 10

days from receipt of summons, with photocopies of

documents and affidavits of witnesses.

What if there is no response?

o Court grants the claim.

o But may reduce the amount of

damages claimed, if excessive.

o When is a counterclaim allowed requisites?

1. It is within the coverage of the small claims court,

exclusive of interests and costs

2. Arises from the same transaction or event as

plaintiffs claim

3. Does not require joinder of third parties

4. Not subject of another pending action

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What if the defendant fails to raise such

counterclaim?

It is barred.

o 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 and court of summary procedure.

o How is the hearing conducted?

The judge first attempts to arrive at mediation,

conciliation, early neutral evaluation, or any mode of

JDR.

Failing that, the JDR judge also proceeds to hearing,

which must terminate within 1 day.

N.B. Sec. 21 of BP 129, as amended, provides that the RTC has

concurrent original jurisdiction for:

o 1. Certiorari, prohibition, mandamus, quo warranto, habeas

corpus, injunction, enforceable within respective regions

o 2. Actions affecting ambassadors, other public ministers, and

consuls

What is the MTC jurisdiction?

o Just the opposite of everything in RTC

o Then just add ejectment/unlawful detainer

o How do you know whether its ejectment/UD or claim over

real property or a title therein?

If the issue is just possession, its E/UD. If it involves

rights of the parties to the property, then its not.

What is the jurisdiction of the CA?

o It has both original and appellate jurisdiction.

o Original: habeas corpus, habeas data, certiorari, prohibition,

mandamus, quo warranto, writ of amparo, annulment of

judgment of RTC

N.B. Its original jurisdiction is exclusive as regards

annulment of judgment of RTC

o Appellate: ordinary appeal (notice of appeal), petition for

review, over quasi-judicial bodies

What is the jurisdiction of the SC?

o Also both original and appellate jurisdiction.

o 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

o 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:

o 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

o 2. Proper service of summons

Rule 14

Filing fees:

o Rule #1: payment of filing fees is jurisdictional in civil cases

o 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

o 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

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o 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

o 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.

Also applies if damages are awarded in the judgment

but not specified in the pleading.

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.

o 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.

Planters v. Fertiphil:

o 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.

Thornton:

o Husband filed for habeas corpus in RTC Makati to recover

child from wife

o 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

o RTC Makati dismissed the case because the child was

allegedly in Basilan.

o 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.

o Filed with the CA, but was denied because the RTC (Family

Courts) have original jurisdiction over custody of minor Habeas

Corpus cases.

o HELD: Can file with CA. It has jurisdiction. SC has

jurisdiction, too. The CA and SC have concurrent jurisdiction

over habeas corpus cases.

o But always remember that when you talk about concurrent

jurisdiction, you still have to follow hierarchy of courts.

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Herrera v. Bollas

o 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?

HELD: MTC still had jurisdiction for ejectment (based

on original complaint.)

o 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).

Oca:

o Repetition of Tijam v. Sibonghanoy estoppel by laches. After

active participation in a case, you cannot question the courts

jurisdiction anymore.

o Went up to the SC through Rule 43 (appeal to CA from a QJA)

o But what is the general rule?

Question of jurisdiction can be raised even for the first

time on appeal, as long as estoppel by laches does

not apply.

One cannot question jurisdiction which he himself

invoked. (Ex. obtaining affirmative relief against the

other party and then after failing to obtain that relief,

question the courts jurisdiction)

Usually decisions of QJA go up to the CA under Rule 43. What are

the exceptions?

o 1. HLURB decisions, as provided in charter, appealable to the

Office of the President

o 2. CTA decisions, under amended rules, appealable to the

CTA en banc, then SC

o 3. NLRC decisions, although by a QJA, are reviewable by the

CA although not under Rule 43, but Rule 65 (GADALEJ).

o 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:

o 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.

o 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.

o How do you impugn a judgment?

Lack of notice

Lack of jurisdiction

Collusion

Fraud

o 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:

o N.B. Rule 65 is not an appeal. It is a special civil action.

o Being one, RTC, CA, and SC have concurrent jurisdiction.

When you discuss concurrent jurisdiction, you cannot avoid

discussing hierarchy.

o But when you talk about appeals, no need to consider

hierarchy. The law already makes a decision for you.

Can a court lose jurisdiction after acquiring it?

o Generally, no.

o Exceptions:

1. Subsequent law provides prohibition for continued

exercise of jurisdiction

2. Law penalizing the act is repealed by a subsequent

law

3. Accused deprived of constitutional right

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4. Proceedings are terminated, abandoned, declared

void

5. Appeal has been perfected

6. Curative law

What is the principle of exercise of equity jurisdiction?

When the court is called upon to decide a particular situation

and release the parties from correlative obligations, but if it

would result in adverse consequences to the parties and the

public, the court would go beyond its powers to avoid negative

consequences in the release of the parties

Jurisdiction of special bodies and courts

CHR:

o Can it review court decisions?

No; separation of powers

o Can it issue injunctions?

No. Just fact finding and investigative.

What is the extent of the labor arbiters power on claims for

damages by employees?

o Action for damages incident to dismissal is part of LAs powers.

o BUT NOT if the damages are based on quasi-delict not arising

from ER-EE relations.

What is the remedy for annulment of NHA awards?

o With the Office of the President.

o And then from there, Rule 65.

What are the cases under HLURB jurisdiction?

o 1. Claims of condo buyers against project owner, developer, or

dealer

o 2. Specific performance of contractual and statutory obligations

filed by condo buyers against same parties

o Does HLURBs jurisdiction cover actions filed by the

project owner, developer, or dealer?

No. Its always the other way around.

COMELEC:

o When can the SC review COMELEC decisions?

Only when there is GADALEJ

o Can the COMELEC issue writs of certiorari, prohibition, or

mandamus?

No.

What is the jurisdiction of Family Courts?

o 1. Criminal cases where one or more of the accused is below

18 or one or more of the victims was a minor

o 2. Petition for guardianship, custody of children, habeas corpus

for custody of children

o 3. Adoption of children and revocation

o 4. Annulment, nullity, and actions on status and property

relations of married people

o 5. Support and/or acknowledgement

o 6. Summary judicial proceedings other the FC

o 7. Declaration of status of children (abandoned, dependent,

neglected, etc.) and actions on parental authority

o 8. Constitution of family home

o 9. Cases against minors under the DDA

o 10. Violation of Child Abuse Act (RA 7610)

o 11. VAWC cases

What are the provisional remedies the Family Court can issue?

o Restraining order against accused or defendant if there is

finding of abuse

o Temporary custody over children

o Support pendente lite

What is the Katarungang Pambarangay Law?

o There must be settlement of disputes between individual

residents of the same city or municipality, through mediation,

arbitration, or conciliation, before the Katarungang

Pambarangay. Compliance with this is a condition precedent

to filing a complaint or information before the fiscal or court.

What are the cases over which the lupon can take cognizance of?

o ALL cases between parties residing in the same municipality or

city.

o What is determinative, residence or postal address?

Residence, which is actual place which one inhabits.

Must be more or less permanent, not merely

transient.

But it need not be domicile or legal residence;

physical presence is controlling.

o X filed a case against Y, who lived in the same barangay,

and Z, who didnt. Is barangay conciliation needed?

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No. At least one respondent lived elsewhere.

What are the exceptions to this rule?

o [Nature of a party]

o 1. One party is the government or any

subdivision/instrumentality

o 2. One party is a public officer or employee and the dispute is

re: official functions

o 3. There is no private offended party

o 4. Complaint against juridical entities

o [Nature of complaint]

o 5. Offenses punishable by imprisonment of more than 1 year or

fine exceeding 1000 pesos

o 6. Labor disputes arising from ER-EE

o 7. Disputes arising from CARL

o 8. Action to annul judgment upon compromise

o [City/municipality requirement]

o 9. Dispute is re: real properties in different cities or

municipalities

Can be waived by the parties by consenting to submit

the case to the lupon first

o 10. Parties reside in barangays of different cities or

municipalities

Except where the barangays adjoin each other and

the parties consent to submit the case to the lupon

o [Equity]

o 11. As determined by the President in the interest of justice, or

upon recommendation by the SOJ

o 12. Where urgent legal action is necessary to prevent injustice,

specifically:

A. criminal case where the accused is under custody

or detention

B. habeas corpus filed by one illegally detained

C. actions with provisional remedies

D. action may be barred by statute of limitations

Where are objections raised?

o For objections to referral to the lupon, raise before the punong

barangay else, waived

o Failure to refer to lupon may be raised as a ground for motion

to dismiss else, waived

What is the procedure before the lupon?

o 1. Pay filing fees and submit complaint

o 2. Within the next day the lupon summons respondents and

complainants for mediation

o 3. Failure of mediation within 15 days from first meeting:

constitute the pangkat

o 4. Pangkat has 15 days to resolve the dispute from when it

convenes, extendible for another 15 days

o Who appears before the lupon or pangkat?

Just the parties, without counsel or representative,

except minors who may be assisted by next of kin

who are not lawyers

What is the form for settlement needed?

o 1. In writing

o 2. In a language known to the parties

o 3. Signed by them

o 4. Attested by lupon chairman

o When may it be executed by the lupon?

Within 6 months from date of settlement.

If it exceeds 6 months, then it can be enforced by

action in the MTC.

o Within what period may the settlement be repudiated?

10 days, on the ground of vitiation of consent.

Actions

What are the kinds of actions?

o Civil

Protection or enforcement of a right, or prevention or

redress of a wrong

Two types?

Ordinary

Special

o 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.

o Special proceedings

Establishes a right, status, or condition

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When is a civil action commenced?

o Upon filing of original complaint in court.

o For additional defendants later impleaded, on the date of filing

of the later pleading.

Are civil actions always based on a cause of action?

o No.

Distinguish ordinary civil action from special civil action?

o There is Cause of Action in ordinary civil action.

o Ex. Special Civil Action like declaratory relief does not need

cause of action

Requisites of cause of action?

o 1. Right of one party

o 2. Obligation of the other to respect

o 3. Breach MOST IMPT!

Distinguish cause of action from right of action:

o Right of action is the right to commence and prosecute an

action to obtain the relief sought. Elements:

1. Existence of cause of action

2. Performance of all conditions precedent to bring

the action

3. Right to bring an maintain the action must be held

by the person instituting it

What is the test of sufficiency of a complaint?

o Whether or not, admitting the facts alleged, the court can

render a valid judgment upon the same in accordance with the

prayer in the complaint

o Determined by the facts alleged, not defense alleged

What is splitting of a cause of action?

o Dividing one cause of action into different parts and making

each part a separate complaint

o Test: how many wrongs or breaches are there?

o Is splitting cause of action a ground for MTD?

No it is Res Judicata and Litis Pendentia

o Is the rule against splitting of causes of action absolute?

No. Except: if the reliefs sought for are cognizable by

different tribunals. An example is an Ejectment suit

cannot include recovery for unpaid telephone, electric,

and water bills, which must be filed in a separate

action.

Can there be joinder of cause of action?

o Yes.

o BUT it is not mandatory.

Does there have to be just one breach or numerous violations?

o Numerous.

o For every cause of action, there is one breach.

o 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?

o 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?

o Three PNs, three causes of action.

Can there be joinder of alternative causes of action?

o 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?

o Scenario 1: X versus Y (just two parties). Can join as many

causes of action, even if totally unrelated.

o 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 6)

o Scenario 3: XYZ against A (multiple plaintiffs). 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 6)

Can you join ordinary civil actions with special civil actions?

o No.

Can you join two special civil actions?

o No. Because they have their own special rules.

Can you join recovery of sum of money and ejectment?

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o No. Ejectment is summary proceeding, so it has its own rules.

What is the totality rule?

o 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.

o But you cannot do this when not all are for sums of money.

o When does the totality rule apply?

1. Single plaintiff with multiple causes of action

against the defendant

2. Multiple plaintiffs with separate causes of action

against the defendant join in a single complaint

o Xs claims against Y are both for claim of ownership for

real property: property 1 is assessed at 49K, and property

2 is assessed at 15K and both are in manila. Can X file in

the RTC?

No. While the total exceeds the 50K threshold in

Manila, neither property falls within RTC jurisdiction

so the action cannot be filed there.

There is a sum of money claim and recovery of property in Cavite.

Can you join the action in Cavite?

o Note: sum of money is determined by amount (personal).

Recovery of property is determined by location of the property

(real).

o N.B. as well that venue is not jurisdictional in civil cases, unlike

criminal cases. Note as well that venue is waivable.

o 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?

o In the RTC, there is no limit to the counterclaim. In the MTC,

the counterclaim is limited to the jurisdiction of the inferior

court.

o 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?

o 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.

o 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?

o Covered by special rules.

Distinguish actions in rem, actions in personam, and actions

quasi-in-rem:

o Action in rem is one instituted against the whole world.

o Action in personam is one against a definite defendant. It is

intended to subject the interest of the defendant on a property

to an obligation or lien.

o Action quasi-in-rem

When jurisdiction over the person cannot be acquired

(usually, non-residents) and instead, jurisdiction over

the res is acquired, although the owner is still named

as defendant, unlike true cases in rem

Ex. by attaching the property of the non-

resident

The relief granted can only be limited to the res

because there is no jurisdiction to grant a personal

judgment

If the person appears, it becomes an action in

personam. If the person does not, jurisdiction is

limited to the property

What are personal and real actions?

o 1. Real action is one affecting title to or recovery of possession

or partition, condemnation, or foreclosure of mortgage on real

property

o 2. Personal action covers all others

Specific performance for delivery of real property is a

personal action

What are the tests to determine the nature of an action?

o 1. Ultimate objective test

If the ultimate objective is to recover real property, it is

a real action

o 2. Allegations and prayer test

The allegations of fact and relief prayed for determine

the nature of the action

11

What is a local action?

o One founded on privity of estates only and there is no privity of

contracts

What is a transitory action?

o One founded on privity of contracts between the parties

Atlantic Erectors:

o 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.

o 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:

o 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:

o 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:

o There is no res judicata between recovery of possession and

nullity of deed of sale.

o Requisites of res judicata?

A) Former judgment final

B) Court had jurisdiction

C) judgment on merits

D) Identity of parties, subject matter, causes of action

Parties

Who can be parties to an action?

o Natural persons

o Juridical persons

o Those authorized by law

What is the general rule?

o All those with capacity can be a party.

o For natural persons, that is the age of majority.

Can a six year old boy be a party?

o Yes, but with assistance of parent, guardian, or guardian-ad-

litem.

o A minor can sue, a minor can be sued if assisted.

What is the rule on married parties?

o Sue and sued jointly.

o What are the exceptions?

Judicial separation of property

Abandonment

Exclusive property of spouses

Involving practice of profession

What if the natural person is incapacitated?

o Can sue and be sued, but must be assisted.

o 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?

o Duly incorporated and registered with the SEC.

[Mild segue into summons] If the defendant is a natural person, how

do you serve summons?

o 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)

o 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?

o If its an isolated transaction, a foreign corporation can sue and

be sued.

o If its doing business but not licensed, it CANNOT sue, but can

be sued.

o If its doing business and is licensed, it can sue and be sued.

Service of summons to a domestic corporation?

12

o Rule 14, Sec 11: president, managing partner, general

manager, corporate secretary, treasurer, in-house counsel

How do you serve summons to a foreign corporation?

o Resident agent one named to receive summons

o 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)

o No separate juridical existence.

o They can be parties, as defendants, and named as such

(under the name under which they are generally and

commonly known).

o 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?

o To anyone or person in charge of the office.

Who are those authorized by law? Give examples.

o Political parties

o Labor unions

o Archdiocese

o Estate

How do you serve summons?

o Depending on the entity they have different rules.

Can you serve summons to a natural person in prison?

o Yes. Serve it to the warden.

For public corporations?

o Province executive head (governor)

o City city mayor

o Municipality municipality mayor

Who is a real party in interest?

o 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?

o 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?

o No. The concept of real party in interest will only apply to

private suits.

o Does it apply to a taxpayer suit?

No. Locus standi applies here.

o Does it apply to criminal cases?

[Not answered, but I think not]

o 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.

o 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:

o Locus standi pertains to acts of government. By reason of this

act, you suffered injury.

o You do NOT use legal standing in private suits. Only in public

suits.

Who is a necessary party?

o A) They are not indispensable, B) but ought to be joined if one

needs complete determination of the case.

Who is an indispensable party?

o If not impleaded, there can be no final determination.

o N.B. The codal does not use the word complete. So they are

compulsorily joined.

What if there is a suit against joint debtors?

o The other parties not sued are necessary parties.

o Can you sue one of them only?

Yes. The court can issue a valid judgment, although

not complete.

o 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.

o Neither necessary nor indispensable.

o Can you sue X only?

Yes.

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o Can there be judgment?

Yes, because the obligation is joint and several

(solidary).

o Can you sue Y later on, having recovered from X?

No, because you recovered already.

o 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?

o Yes, because X is the proper party.

Same facts. Can you sue Y for recovery of title, without suing X?

o 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?

o 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.

BUT if there is an order to implead by the court and

there is failure to comply, there is a waiver of claim.

o 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.

o 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.

What is a class suit?

o One where the subject matter of the controversy is of common

or general interest to many persons so numerous that it is

impracticable to join all as parties

o What is the rule?

The court will allow a number of them sufficiently

numerous and representative to fully protect the

interests of all to sue or defend on behalf of all

o What is the right of an individual party in interest?

May intervene to protect his individual interest

When is there substitution of parties in a civil case? There are

three.

o 1. Death

Who should die?

Any party. The law does not distinguish.

This is the most common.

o 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.

o 3. Transfer of interest

What are the requisites of substitution by death?

o 1. A party dies

o 2. The pending action is not extinguished by reason of death

(IMPT)

o 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?

o 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.

o 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).

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o 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?

o 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?

o There can be a valid judgment, but only against C and D.

o 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?

o 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.

o 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.

o 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 if no legal representative is named by the counsel for the

deceased party or the one named fails to appear?

o The court may order the other party to procure the appointment

of an executor or administrator for the estate of the deceased.

o The costs for appointment may be recovered by the appointing

party.

What are the requisites for substitution of public officer?

o 1. Removal/death of public officer and appointment of

successor within 30 days unless otherwise provided

o 2. Successor adopts, continues, or threatens to continue the

action sued against

o 3. There is substantial need to continue the action

Substitution is not automatic. What are needed to be done to

substitute the new public officer?

o 1. Give notice to the new public officer

o 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.

o A sues B for judgment for sum of money based on contract. B

assigns the contract to C and C accepts.

o Can the case continue against B despite the transfer of

interest?

Yes.

o Can the court order that C be impleaded?

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

joined.

o 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 contractual sum of money

case, will there be substitution? (VERY IMPORTANT)

o Section 20. It will NOT go to the heirs, but it will continue

against the estate. (Remember Succession!)

o This is the special rule for contractual sum of money cases.

o 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.

o This position is further supported by Rules 86 and 87.

o 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

o 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.

o 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

15

And owns real property whose FMV is less

or equal to PHP 300K

o 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.

o 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?

o There is a lien, as regards filing fees.

What is the rule on stenographic notes?

o It is free. There is no lien on the judgment.

What happens when the court finds out you are not an indigent?

o The court can require you to pay.

o What if you refuse to pay?

The court can order execution.

o 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.

When does the court in its discretion require the Solicitor General

to be heard in person or through a representative?

o When the action involves validity of a law, treaty, ordinance,

EO, PD, or rules and regulations.

Venue

What is the appropriate venue for:

o 1. Real actions where the real property is found

o 2. Personal actions residence of (principal) plaintiff,

residence of (principal) defendant, or wherever a non-resident

may be found

o 3. Against non-residents and (a) the action affects the personal

status of the plaintiff or (b) any property of the defendant in the

Philippines

Residence of plaintiff

Or where the non-residents property may be found

N.B. I suppose this pertains to the two situations,

respectively

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 develop 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?

o 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.

o Where do you file it?

At the option of the plaintiffs. Either in their principal

residence (Quezon City) or the defendants (Pasig)

o Which court has jurisdiction?

RTC, because it is an action incapable of pecuniary

estimation (rescission)

Aileen Marcos case:

o 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.

o 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.

o HELD: Should have filed in Makati, because she is the

principal plaintiff.

Where do you file an action for extra-judicial foreclosure?

o 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.

o But the mere filing and payment of fees (for multiple properties

in various areas) can be paid in one office, as long as it can be

16

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?

o Rule 68 does not provide for venue for this SCA. But it is filed

where the property is located.

o 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?

o 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?

o Rule 4 (rules of venue) applies in general, UNLESS a specific

law provides otherwise.

On specific venues, as provided by law

o Give an example.

Actions for Quo warranto if the Solicitor general

commences it, in can be in the SC, CA, or RTC of

Manila

o 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

o What about adoption?

Where the prospective adoptive parents reside

o What about probate?

Where the deceased last resided at his time of death

o 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?

o Yes, they can.

o 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.

o 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:

o 1. Lack of jurisdiction over the subject matter

o 2. Litis pendentia

o 3. Res judicata

o 4. Statute of limitations

What is the distinction that you have to make as to stipulations?

o If there are no words of exclusivity, then it is only an additional

venue.

o If there are words of exclusivity (ex. can only be filed in Cebu,

waiving all other venues), then you can only file it there.

o (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?

o 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?

17

o Prohibited forum shopping (Read Bank of America)

Summary procedure

1. Filing of the complaint

o In summary procedure, after filing the complaint, what can

the court do?

A) Dismiss the case outright

B) Issue summons

o 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.

o Can the plaintiff file a reply?

No. Its also a prohibited pleading.

o 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.

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

o N.B. all pleadings (complaint, compulsory counterclaim, cross-

claim, answer) must be verified

2. Preliminary conference.

o Take note, in SP, it is NOT pre-trial but preliminary conference.

o When does the court set this?

Within period of 30 days.

o What happens here?

The parties can compromise, identify issues, etc.

o 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.

o Assuming there is no judgment in steps 1 and 2, move to the

next step

3. Submission of judicial affidavits or position papers

o Is there a hearing in summary proceeding or trial?

No hearing, no trial.

o Within how many days do you submit affidavits?

Within 10 days from the receipt of the order (record of

preliminary conference)

o What is required for the affidavits submitted?

Must be within personal knowledge of affiants; or

else, expunge the affidavit and subject the party or

counsel to disciplinary action

o 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?

o [Standard pleadings]

o 1. MTD

Except lack of jurisdiction over subject matter

Or failure to refer to lupon

o 2. Bill of particulars

o 3. Reply

o 4. Motion to declare in default

o 5. Memoranda

o [Adding other people]

o 1. Interventions

o 2. Third party complaint

o [Remedial pleadings]

o 1. MR or MNT

o 2. Petition for relief from judgment

o 3. Petition for certiorari, mandamus, prohibition against

interlocutory orders of the court

o [Extensions]

o 1. Dilatory motions for postponement

Does this cover motion for cancellation of

hearing?

18

If is not dilatory. But be careful with this,

because the judge has to determine first if it

is dilatory.

o 2. Motion for extension of time

Jalique v. Dandan:

o 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.

o 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

o 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

o 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:

o 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:

o 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.

o What happens when the plaintiff is absent in preliminary

conference?

Case is dismissed

o What happens when the defendant does not appear?

As if he didnt file an answer. The court can render

judgment.

o What is the stopgap?

Have an explanation OR send a representative

o 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?

o 1. Statement of claim

o 2. Together with certificate of non forum shopping

o 3. Authentic copies of document from which the action stems

from (actionable documents)

Who signs the statement of claim?

o The claimant. No need for the lawyer.

o [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?

o Court files notice for defendant to submit response

o Defendant has 10 days to file a response

o 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.

o Can there be a counterclaim in a small claim action?

Yes. As long as within jurisdiction of the court, and

arising from the same transaction, and does not

require joinder of third parties.

And then? [review/cross-check these rules]

o The parties can decide for amicable settlement or judicial

dispute resolution (JDR)

o Can a claimant apply as an indigent litigant?

Yes. (Aldura)

o 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.

19

o Is there a preliminary conference?

None mentioned.

o 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?

o In a multi-sala court, the executive judge refers to the pairing

judge for hearing and decision within 5 working days from

referral

o 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?

o Same as summary procedure

o Except in MTD, only lack of jurisdiction over the SM is the

exception.

o Why is failure to refer to the lupon not an exception?

Because the claim is below P100K (no barangay

conciliation required)

Can it be appealed?

o No. By express provision, it is final and executory.

o What then, is the remedy?

Rule 65 (petition for certiorari) because there is no

plain, adequate, speedy remedy

Pleadings

What must be in the complaint?

o Claims a cause of action

o 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?

o With particularity

As for mistake, how must it be alleged?

o With particularity

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

o Generally

You can also base your claim on an actionable document. How to

do you allege it?

o 1. You can attach or append the document

To show the court that this is where your cause of

action arises

o 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?

o Specifically denied, under oath

o What is the exception to the oath requirement?

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?

o 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?

o It is up to the court to determine it.

What is the period for a motion to strike out a pleading or a matter

contained therein?

o 1. Before responding to a pleading

o 2. If no responsive pleading is allowed, then within 20 days of

service of that pleading upon him

o 3. Upon courts initiative, at any time

o What are the grounds to strike out a matter from a

pleading?

1. Sham or false

2. Redundant, immaterial, impertinent

3. Scandalous

What is the period to file an answer?

o 15 days after service of summons

o Could it be 30 days after receipt of summons?

20

For foreign corporation and service is done to

government official designated by law

What is the period to answer an amended complaint?

o A. If amended as a matter of right, 15 days from service of

copy of the amended pleading (N.B. not from summons

anymore since the defendant has already been summoned)

o B. If not a matter of right, 10 days from notice of order

admitting it

N.B. This is not from receipt but notice of admission

because the proposed amended pleading is attached

to the motion to amend the complaint anyway.

What if there is no new answer filed?

o The prior answer serves as the new answer too if no new one

is filed

What are the defenses available in answer?

o 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

o 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)

o What is a negative pregnant?

A denial which implies its affirmative opposite by

seeming only to deny a qualification of the allegation

and not the allegation itself (Ex. I have never

consumed cocaine while on duty implies the

defendant has consumed cocaine otherwise)

Is the counterclaim or cross-claim in a separate pleading?

o No.

What is a compulsory counterclaim?

o Arises out of the transaction constituting subject matter of the

action and does not require the presence of third parties of

whom the court cannot acquired jurisdiction

What is a permissive counterclaim?

o Arising from an event unrelated.

What is the period to answer a counterclaim?

o 10 days

o (In practice, you only answer a permissive counterclaim. In

practice, a compulsory counterclaim is not answered.)

What is the remedy of the other party if the facts from which the

counterclaim arises from only came about or ripened after the

answer has been filed?

o With leave of court, may be presented as a counterclaim (or

cross-claim) by supplemental pleading before judgment

What is a cross claim?

o Made against a person/party on the same side.

Can there be a counterclaim defendant cross claim?

o 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?

o 10 days

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

o No, whether it be a permissive/compulsory counterclaim or a

cross claim, no.

For a third party complaint, do you need leave of court?

o Yes. You cannot just file a third party complaint.

o 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

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o Classic case: car crash a hit b hit

c. C sued B. B sued A for

indemnification.

Subrogation

Any other similar ground

o 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?

o No.

What is the period to file a reply?

o 10 days.

What do you do in a reply?

o To controvert the new matters raised in the answer

What is the effect of failure to file a reply?

o All new matters stated in the answer are deemed controverted

What happens after answer, etc?

o Pre-trial

Three important things:

o Signature, verification, and CNFS

What is the effect of a lawyer affixing his signature in a pleading?

o 1. He has read the pleading

o 2. To the best of his knowledge, the information is correct

o 3. The filing of the same is not for the purposes of delay

There are some pleadings that are left unsigned. What happens?

o It has no legal effect at all.

o Is there a way to cure it?

If counsel can show it is due to mere inadvertence

and not for delay

o 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?

o Inform the court. Failure to do so may lead to disciplinary

action.

What are the contents of the verification?

o Affidavit stating:

o 1. That the affiant has read the pleading

o 2. The allegations are true and correct based on personal

knowledge or authentic records

Based on personal knowledge, not information and

belief or knowledge, information and belief

Must it be under oath?

o Yes.

Is it mandatory?

o No. Only when the law requires you to verify.

o Give examples:

Rule 45 (Petition for review on certiorari)

Rule 65 (Petition for certiorari)

Rules 57-61 (Provisional remedies)

Is it jurisdictional?

o No. Failure to attach is not fatal.

o 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?

o The party filing the pleading.

Can the lawyer sign it?

o General rule, no. Unless there is some compelling reason.

o For example, the partys father is to be buried on the day of

filing of the petition the court allowed it.

o 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?

o Must be assisted.

Can a married person sign by himself or herself?

o 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?

o Signature of one is enough if there is common interest. (N.B.

but see note below)

22

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.

o BUT in practice, do not take chances.

When is a verified pleading/motion needed?

o 1. Rule 24 (depositions pending action/depositions pending

appeal)

o 2. Rule 38 (petition for relief from judgment)

o 3. Rule 42 (petition for review: RTC to CA)

o 4. Rule 43 (appeal from quasi-judicial agency to CA)

Also: exemption from payment of lawful fees under

Rule 43

o 5. Rule 45 (petition for review on certiorari)

o 6. Rule 47 (annulment of judgment (CA))

o 7. Rule 58 (application for preliminary injunction)

o 8. Rule 59 (application for receivership)

o 9. Rule 61 (application for support pendente lite)

Also: comment on the application for support

pendente lite

o 10. Rule 64 (review of judgments/final orders of COMELEC

and COA)

o 11. Rule 65 (petition for certiorari, prohibition, or mandamus)

o 12. Rule 66 (quo warranto)

o 13. Rule 67 (expropriation)

o 14. Rule 70 (forcible entry and unlawful detainer)

N.B. covers all pleadings, including answer,

compulsory counterclaim, and cross-claim

o 15. Rule 71 (petition for indirect contempt)

o 16. ROP of envi cases, Part II: a) civil complaints, b) answer

o 17. ROP of envi cases, Part III: a) petition for writ of kalikasan,

b) return to writ of kalikasan, c) motion for ocular inspection or

production/inspection

o 18. Rule 93 (appointment of guardians)

o 19. Rule 95 (petition of guardian to sell or encumber property

of the ward)

o 20. Rule 97 (petition to examine competency of a ward, for

termination of guardianship)

o 21. Rule 102 (application for writ of habeas corpus)

o 22. Rule 103 (change of name)

o 23. Rule 108 (cancellation or correction of entries in civil

registry)

o 24. Habeas data: a) petition for writ, b) written return by

respondent, c) return of service by officer executing judgment

o 25. Writ of amparo: a) petition, b) written return by respondent,

c) motion for inspection, d) motion for production, e)

o 26. Rule 126 (Sec. 26: inventory of things seized under

warrant)

CNFS:

When is a CNFS required?

o For a complaint or other initiatory pleading

o So a compulsory counterclaim does not require a CNFS

What about a juridical entity? Who can sign?

o [Anyone, as long as authorized by a board resolution]

What are the contents of the form?

o 1. 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

o 2. If there is any other pending claim, provide status

o 3. 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?

o 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?

o All the parties, since there is no juridical personality.

What is the effect of absence of CNFS? (Note: non-compliance is

different from absence)

o It will be dismissed. It can be re-filed because it is without

prejudice.

Can it be amended to cure?

o 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)

o 1. Dismissal of the case

o 2. Indirect contempt (Failure to comply with order or process of

court)

23

o 3. Administrative and criminal sanctions (since you lied under

oath)

What if there is willful and deliberate forum shopping?

o (Meaning, its not only false, but you also deliberately disregard

it)

o 1. Dismiss the case with prejudice

What kind of dismissal?

Summary dismissal cannot contest

o 2. Placed in direct contempt

o 3. Administrative sanctions

BPI v. CA

o 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.

o NOTE: There was a valid CNFS. There was liberal

interpretation of this provision for these reasons.

Donato

o 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.

o BUT as a general rule, the lawyer cannot sign.

Young v. Seng

o 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.

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

OSM Shipping

o 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

o No need for a CNFS for a compulsory counterclaim

New Sampaguita

o 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

o 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.

o 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

o 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 MR

Amendments and supplements

There is amendment for civil cases and there is amendment for criminal

cases.

For civil cases, amendment may either be:

o 1) As a matter of right

o 2) With leave of court

When is it a matter right?

o Before an answer or within 10 days of service of reply (if the

reply is the one being amended)

o What do you need to file?

NOTICE to amend

When do you need leave of court?

o After an answer has been made

o What do you need to file?

Motion to amend

For criminal cases, the reference point is not an answer. Instead, it is

plea.

o Before plea, can you amend?

Yes, whether as to matter of form or substance

24

o 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?

o This is section 5 of Rule 10

o Allegations are found in the body of the complaint/answer.

What is alleged must be proven.

o If the evidence you presented went beyond the allegations, you

may file a motion to amend the pleading to conform to

evidence

o What if evidence is objected to on the ground that it is not

within the issues in the pleadings?

1. The court may sustain the objection

2. The court may allow the pleadings to be amended

if the ends of substantial justice will be served

There are two kinds of amendments to conform to evidence. What

are these?

o First kind no objection on the part of the other party. For this

reason, it will be allowed even after judgment.

o 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?

o If in the first place there is no cause of action, no amendment

will cure such an absence.

o 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?

o No, if you already lawfully obtained jurisdiction over the

defendant through summons or voluntary appearance.

o It is a question of jurisdiction over the person, not a question of

amendment.

o HOWEVER, if there are additional defendants, new summons

must be served to them.

What is a supplemental pleading?

o A pleading filed in addition to a prior one that has been filed,

pursuant to new transactions, occurrences, or events that have

arisen.

o Can there be a supplemental complaint?

Yes

o Can there be a supplemental answer?

Yes

o Can there be a supplemental reply?

Yes

o Can there be a supplemental petition?

Yes

So what is the general rule?

o 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.

o 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?

o 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)

o For supplements, the events, transactions, or occurrence only

arose after the filing of the original pleading.

Always with leave of court

What is the period to respond to a supplemental pleading?

25

o 10 days from notice of order admitting the supplemental

pleading

Default

N.B. 1: What is the rule on objections?

o General rule: all objections on grounds not raised in an answer

or motion to dismiss are deemed waived.

o What are the exceptions?

1. Lack of jurisdiction over SM

2. Res judicata

3. Litis pendentia

4. Prescription

o 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?

o Any compulsory counterclaim or cross claim not set-up: barred

forever

o 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?

o 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.

o 2. Failure to attend during pre-trial

C