Civil Law Reviewer

Civil Procedure | Justice de Leon

K Suarez | 2D 2008 Page 1 of 66

Civil Procedure Justice de Leon

Basic principles

Remedial law distinguished from substantive law

Remedial Law Substantive Law

The legislation providing means or methods whereby causes of action may be effectuated, wrongs redressed and relief obtained

Law which creates, defines, or regulates rights concerning life, liberty, or property or the powers of agencies or instrumentalities for the administration of public affairs

Does not create vested rights Creates vested rights

Retroactive Prospective

SC is expressly empowered to promulgate procedural rules Cannot be enacted by the SC

Kinds of procedure

1. As to purpose a. Criminal b. Civil

2. As to formality a. Formal b. Summary proceeding

Civil action, criminal action and special proceedings distinguished

Civil Action Criminal Action Special Proceedings

Governed by ordinary rules Governed by Rules on Criminal Procedure

Also governed by ordinary rules but subject to specific rules prescribed (Rules 62-71)

Formal demand of one‘s legal rights in a court of justice in the manner prescribed by the court or by law

Special features not found in ordinary civil actions

Party sues another for the enforcement or protection of a right or prevention or redress of a wrong

State prosecutes a person for an act or omission punishable by law

Remedy by which a party seeks to establish a status, a right, or a particular fact

Rule 1 General Provisions

(Sections 1 to 6)

Rule making power of Supreme Court Art. VIII, Sec. 5 (5), Constitution

The Supreme Court has the power to promulgate rules concerning: a. The protection and enforcement of constitutional rights, pleadings, practice and procedure in all courts; b. The admission to the practice of law, the Integrated Bar, and c. Legal assistance to the underprivileged.

Such rules shall provide: a. A simplified and inexpensive procedure for the speedy disposition of cases b. Shall be uniform for all courts of the same grade, and c. Shall not diminish, increase, or modify substantive rights

Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court

Art. VI, Sec. 30

No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence.

Procedural and substantive rules



Procedural Rules Substantive Rules

Regulates procedure – the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction

Operates as a means of implementing an existing right Creates a right

Force and effect of Rules of Court

Force and effect of law, unless inconsistent with positive law Power of Supreme Court to suspend the Rules of Court

SC has the inherent power to suspend its own rules or to exempt a particular case from the operation of said rules whenever demanded by justice since it is the one that makes the procedure

May parties change the rules of procedure?

General Rule: No, because it involves matters of public interest Exception: Matters of procedure which:

a. May be agreed upon by the parties

Ex: venue b. Are waivable

Judgment in default may be waived by failure to give an answer w/in 15 days c. Fall within the discretion of the court

In the interest of substantial justice, rules of procedure may be relaxed

Jurisdiction 1. Generally

Jurisdiction – the capacity or power conferred by the Constitution or law to a court or tribunal to entertain, hear and determine certain controversies, and render judgment thereon. Determined by the law in force at the time of the commencement of the action

Determined by the allegations in the complaint and the character of the relief sought, not the defenses raised by defendant

Determined by the allegations in the complaint and the character of the relief sought, not the defenses raised by defendant

a. Subject matter o Based on actual allegations in the complaint o Refers to the nature of the cause of action and of the relief sought o Vested by law and is not acquired by consent or acquiescence of the parties, nor by the unilateral

assumption thereof by a tribunal o Cannot be fixed by the will of the parties o Cannot be enlarged or diminished by any act or omission of the parties o Cannot be conferred by the court or tribunal

b. Res or property o By actual custody thereof – such as by seizure, attachment, garnishment

c. Issues o Conferred by the pleadings or consent of the parties o Waivable

d. Parties o Over the plaintiff – when he files his complaint and upon payment of docket fees o Over the defendant – upon valid service of summons or by his voluntary appearance

2. Estoppel to deny jurisdiction

Heirs of Bertuldo Hinog vs. Melicor (455 SCRA 460) o After Bertuldo vigorously participated in all stages of the case before the trial court and even invoked

the trial court‘s authority in order to ask for affirmative relief, petitioners, considering that they merely stepped into the shoes of their predecessor, are effectively barred by estoppel from challenging the trial court‘s jurisdiction.



o Although the issue of jurisdiction may be raised at any stage of the proceedings as the same is conferred by law, it is nonetheless settled that a party may be barred from raising it on ground of laches or estoppel.

3. Jurisdiction at time of filing of action

People vs. Cawaling (293 SCRA 267) o The jurisdiction of a court to try a criminal case is determined by the law in force at the time of the

institution of the action. Once the court acquires jurisdiction, it may not be ousted from the case by any subsequent events, such as a new legislation placing such proceedings under the jurisdiction of another tribunal. The only recognized exceptions to the rule arise when:

1. There is an express provision in the statute, or 2. The statute is clearly intended to apply to actions pending before its enactment.

Regular Courts (MTC, RTC, CA, SC)

Art. VIII, Constitution BP 129 (Judiciary Reorganization Act of 1980) RA 7902 (expanding the jurisdiction of the CA, amending BP 129) RA 7961 (expanding the jurisdiction of MetroTC, MTC, MCTC, amending BP 129) SC Adm. Circular No. 09-94, in rel. to RA 7691 SC Circular No. 21-99, in rel. to RA 7691 RA 8369 (Family Courts Act of 1997) SC Circular No. 11-99, in rel. to RA 8369

Special Courts

Sandiganbayan PD 1616, as am. by RA 7975 and RA 8249

Quasi judicial bodies SEC (Sec. 5.2, RA 8799, Securities Regulation Code) CSC

Magpale vs. CSC (215 SCRA 398) o Rule is settled that a tribunal, board or officer exercising judicial functions acts without jurisdiction if no

authority has been conferred by law to hear and decide the case. HLURB

Sandoval vs. Caneba (190 SCRA 77) o The NHA, now the HLURB, has exclusive jurisdiction to hear and decide a complaint for collection of

unpaid installments against a subdivision lot buyer, not the regular courts. o Where RTC jurisdiction was timely questioned, its decision, on a subdivision collection suit over which it

has no jurisdiction, is null and void. Kinds of action

1. As to cause of action – distinction important in determining venue a. Personal

o Personal property is sought to be recovered or where damages for breach of contract are sought o Founded on privity of contract o Filed in the court where the plaintiff or defendant resides, at plaintiff‘s option

b. Real o Ownership or possession of real property is involved o Founded on privity of real estates o Filed in the court where the property or any part thereof is located

2. As to object – distinction important in service of summons a. In rem

o Directed against the thing itself o Jurisdiction over the person of the defendant is not required



o Proceeding to determine the state or condition of a thing o Judgment binds the whole world o Service done through publication of summons

b. In personam o Directed against a particular person o Jurisdiction over the person of the defendant is required o Action to impose a responsibility or liability upon a person directly o Binds only the parties impleaded or their successors in interest o Service through actual service

c. Quasi in rem o Directed against particular persons o Jurisdiction over the person of the defendant is not required as long as jurisdiction over the res is

acquired o Proceeding to subject the interest of a named defendant over a particular property to an obligation or

lien burdening it o Judgment binding upon particular persons

Commencement of action

By filing of the original complaint in court

If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court

1. Condition precedent Katarungang Pambarangay

Lumbuan vs. Ronquillo (489 SCRA 650) o Section 412(a) of RA 7160 requires the parties to undergo a conciliation process before the

Lupon Chairman or the Pangkat as a precondition to filing a complaint in court. the objective is to reduce the number of court litigations and prevent the deterioration of the quality of justice which has been brought about by the indiscriminate filing of cases in courts.

2. Payment of filing fee

Heirs of Bertuldo Hinog vs. Melicor (455 SCRA 460), reiterating SIOL vs. Asuncion (infra) o While the payment of the prescribed docket fee is a jurisdictional requirement, even its non-

payment at the time of filing does not automatically cause the dismissal of the case, as long as the fee is paid within the applicable prescriptive or reglementary period.

o Guidelines involving the payment of docket fees: 1. It is not simply the filing of the complaint or appropriate initiatory pleading, but the

payment of the prescribed docket fee that vests a trial court with jurisdiction over the subject matter or nature of the action. Where the filing of the initiatory pleading is not accompanied by payment of the docket fee, the court may allow payment of the fees within a reasonable time but in no case beyond the applicable prescriptive or reglementary period

2. Same rule applies to permissive counterclaims, third-party claims and similar pleadings, which shall not be considered filed until and unless the filing fee prescribed therefor is paid. The court may also allow payment of said fee within a reasonable time but also in no case beyond its applicable prescriptive or reglementary period

3. Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading and payment of the prescribed filing fee but, subsequently, the judgment awards a claim not specified in the pleading, or if specified the same has been left for determination by the court, the additional filing fee therefor shall constitute a lien on the judgment. It shall be the responsibility of the clerk of court or his duly authorized deputy to enforce said lien and assess and collect the additional fee

o SIOL effectively modified SC Circular No. 7 by providing that filing fees for damages and awards that cannot be estimated constitute liens on awards finally granted by the trial court.

Sun Insurance Office, Ltd. vs. Asuncion (170 SCRA 274) o It is not only the filing of the complaint, but the payment of the prescribed docket fee that vests

a trial court with jurisdiction over the subject matter or nature of the action.



o Permissive counterclaims, third-party claims and the like shall not be considered filed until and unless the prescribed filing fee is paid.

o When the judgment of the courts awards a claim not specified in the pleading, the additional filing fee shall constitute a lien on the judgment.

Rule 2 Cause of Action

(Rules 1 to 6)

Cause of action (Secs 1-2)

Every ordinary civil action must be based on a cause of action (Sec 1)

Cause of action – act or omission by which a party violates a right of another

Elements of cause of action: o Legal right of the plaintiff by whatever means and under whatever law it arises or is created; o Corresponding obligation of the defendant to respect or not to violate such right; and o An act or omission of the defendant which violates the legal right of the plaintiff constituting a breach of

the obligation of the defendant to the plaintiff. o Compliance with condition precedent.

Distinguished from right of action

Cause of action Right of action

Reason for bringing an action; the formal statement of the operative facts that give rise to remedial right

Remedy for bringing an action; the remedial right to litigate because of the operative facts

Matter of statement and governed by the law of procedure

Matter of right solely dependent on substantive law

Splitting a cause of action (Secs 3-4)

A party may not institute more than one suit for a single cause of action (Sec 3)

If two or more suits are instituted on the basis of a single c cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others (Sec 4)

Joseph vs. Bautista, 170 SCRA 540 (1989) o Where there is only one delict or wrong, there is only one cause of action regardless of the number of

rights that may have been violated belonging to one person

Del Rosario vs. Far East Bank and Trust Company (537 SCRA 571) o Rule 2, Section 3 proscribes a party from dividing a single or indivisible cause of action into several parts

or claims and instituting two or more actions based on it – the plaintiff cannot divide the grounds for recovery and he cannot be permitted to rely upon them by piecemeal in successive actions to recover for the same wrong or injury.

Progressive Development Corp. vs. CA (301 SCRA 367) o Jurisprudence is unequivocal that when a single delict or wrong is committed – like the unlawful taking or

detention of the property of another – there is but one single cause of action regardless of the number of rights that may have been violated, and all such rights should be alleged in a single complaint as constituting one single cause of action.

o A claim cannot be divided in such a way that part of the amount of damages may be recovered in one case and the rest, in another.

o If a suit is brought for part of a claim, a judgment obtained in that action precludes the plaintiff from bringing a second action for the residue of the claim, notwithstanding that the second form of action is not identical with the first or different grounds for relief are set forth in the second suit.

CGR Corporation vs. Treyes, Jr. (G.R. No. 170916) o Petitioners‘ filing of an independent action for damages other than those sustained as a result of their

dispossession or those caused by the loss of their use and occupation of their properties could not be considered as splitting of a cause of action.

Enriquez vs. Ramos (7 SCRA 265) o An action by the vendor based on the defendant‘s having unlawfully stopped payment of the check

issued in favor of the former as partial down payment for certain parcels of land, cannot be pleaded in



abatement by the defendant of the balance guaranteed by the mortgage, because the two actions are distinct from each other.

Remedy against splitting a single cause of action a. motion to dismiss – Rule 16, Sec 1(e) or Sec 1(f) b. answer alleging affirmative defense – Rule 16, Sec 6

Joinder of causes of action (Secs. 5-6)

A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, subject to the following conditions:

o Party joining causes of action shall comply with rules on joinder of parties; o Joinder shall not include special civil actions or actions governed by special rules; o Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the

joinder may be allowed in the RTC provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein; and

o Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. (Sec 5)

Misjoinder is not a ground for dismissal of an action. A misjoined cause of action may, on motion of a party or on the initiative of the court, be severed and proceeded with separately (Sec 6)

Flores vs. Mallare-Phillipps (144 SCRA 277) o Where a plaintiff sues a defendant, the total demand furnishes the jurisdictional test irrespective of

whether the several causes of action arose out of different transactions, although their joinder would be merely permissive, not mandatory.

o Where two or more plaintiffs sue one defendant in a single complaint or one plaintiff sues several defendants in a single complaint, based on several causes of action for or against each, respectively, the totality rule applies only where:

o The causes of action arose from the same series of transactions; and o There is a common question of fact or law among them.

What is the totality rule?

Where there are several claims or causes of action between the same or different parties embodied in the same complaint, the amount of the demand shall be the totality of the claims in all causes of action, irrespective of whether the cause of action arose out of the same or different transaction.

Rule 3 Parties to Civil Actions

(Sections 1 to 22)

Who may be parties (Sec. 1) 1. Natural persons 2. Juridical persons 3. Entities authorized by law (even if they lack juridical personality)

Plaintiff – the claiming party, counter-claimant, cross-claimant, third-party claimant

Defendant – original defending party, defendant in a counterclaim, cross-defendant, third-party defendant

Classification of parties Real party in interest (Sec 2)

The party who stands to be benefited or injured by the judgment in the suit

Unless otherwise authorized by law or these rules, every action must be prosecuted or defended in the name of the real party in interest

Lack of personality to sue

Evangelista vs. Santiago (475 SCRA 744) o Lack of legal capacity to sue – plaintiff is not in the exercise of his civil rights, or does not have

the necessary qualification to appear in the case, or does not have the character or representation he claims. Refers to general disability to sue – such as minority, insanity, incompetence, lack of juridical personality or other general disqualifications. Ground for MTD based on lack of legal capacity to sue



o Lack of personality to sue – plaintiff is not the real party-in-interest. Ground for MTD based on the fact that the complaint evidently states no cause of action.

Standing to sue

Domingo vs. Carague (456 SCRA 450) o Where petitioners have not shown any direct and personal interest in the COA Organizational

Restructuring Plan, where there is no indication that they have sustained or are in imminent danger of sustaining some direct injury as a result of its implementation, they do not have any legal standing to file a suit questioning the legality of said plan.

Representative parties (Sec 3)

Where the action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest

A representative may be a trustee of an express trust, a guardian, an executor or administrator, or a party authorized by law or these Rules

An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal

Oposa vs. Factoran (224 SCRA 792) o Petitioners‘ personality to sue in behalf of the succeeding generations can only be based on the

concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned

o The subject matter of the complaint is of common and general interest not just to several, but to all citizens of the Philippines.

Indispensable parties (Sec. 7)

Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants

Domingo vs. Scheer (421 SCRA 468) o The joinder of indispensable parties under Sec 7, Rule 3 is mandatory. Without the presence of

indispensable parties to the suit, the judgment of the court cannot attain real finality. Strangers to a case are not bound by the judgment rendered by the court. The absence of an indispensable party renders all subsequent actions of the court null and void. There is lack of authority to act not only as to the absent party but also as to those present. The responsibility of impleading all the indispensable parties rests on the petitioner/plaintiff.

o However, the non-joinder of indispensable parties is not a ground for dismissal of an action.

Uy vs. CA (494 SCRA 535) o An indispensable party is one whose interest will be affected by the court‘s action in the litigation and

without whom no final determination of the case can be had. The party‘s interest in the subject matter of the suit and in the relief sought are so inextricably intertwined with the other parties‘ that his legal presence as a party to the proceeding is an absolute necessity.

o Indispensable parties must be joined either as plaintiffs or defendants. Whenever it appears to the court in the course of a proceeding that an indispensable party has not been joined, it is the duty of the court to stop trial and to order the inclusion of such party. The absence of an indispensable party renders all subsequent actuations of the court null and void, for want of authority to act, not only as to the absent parties, but even as to those present.

o The responsibility of impleading all indispensable parties rests on the plaintiff. Defendant does not have the right to compel the plaintiff to prosecute the action against a party if he does not wish to do so, but the plaintiff will have to suffer the consequences of any error he might commit in exercising his option.

Necessary party or proper party (Secs 8-9)

Necessary party – one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action. (Sec 8)

Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court find the reason for the omission



unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained.

Failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party.

Non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party. (Sec 9)

Laperal Devt. Corp. vs. CA (223 SCRA 261) o A proper party is one which ought to be a party if complete relief is to be accorded as between those

already parties. Permissive joinder of parties (Sec 6)

All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in the rules, join as plaintiffs or be joined as defendants in one complaint where any question of law or fact common to all such defendants may arise in the action

But the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest

Effects of misjoinder and non-joinder of parties (Sec 11)

Neither is a ground for dismissal of an action

Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just

Any claim against a misjoined party may be severed and proceeded with separately Class suits (Sec. 12)

Subject matter of controversy is one of common or general interest to many persons so numerous it is impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all

Any party in interest shall have the right to intervene to protect his individual interest

Mathay vs. Consolidated Bank (58 SCRA 559) o Requirements of a class suit:

That the subject matter of the controversy be one of common or general interest to many persons, and

That such persons be so numerous as to make it impracticable to bring them all to the court o Existence of a class suit depends upon the attending facts, not upon the designation in the complaint o Subject matter – the physical facts, the things real or personal, the money, lands, chattels and the like, in

relation to which the suit is prosecuted, and not the delict or wrong committed by the defendant o Mathay is not a class suit, Mathay‘s interest wasn‘t the same as the shareholders‘ interest

Defendants

1. Unwilling co-plaintiff (Sec 10)

If the consent of any party who should be joined as plaintiff cannot be obtained, he may be made a defendant and the reason therefor shall be stated in the complaint

2. Alternative defendant (Sec 13)

Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right to relief against the other

3. Unknown defendant (Sec 14; Rule 14, Sec 14)

Whenever the identity or name of a defendant is unknown, he may be sued as the unknown owner, heir, devisee, or by such other designation as the case may require

When his identity or true name is discovered, the pleading must be amended accordingly (Sec 14)

In any action where the defendant is unknown or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order (Rule 14, Sec 14)

4. Entity without juridical personality as defendant (Sec 15; Rule 14, Sec 8)



When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known.

In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed (Sec 15)

Service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name

Such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought (Rule 14, Sec 8)

Death of party; duty of counsel (Secs 16, 20)

Duty of counsel to inform court within 30 days after death of the fact thereof, and to give the name and address of party‘s legal representative

Failure of counsel to comply shall be a ground for disciplinary action

Heirs of deceased may be allowed to be substituted for the deceased without requiring appointment of an executor or administrator and court may appoint a guardian ad litem for minor heirs

Court shall order said legal representative to appear and be substituted within a period of 30 days from notice

If no legal representative is named by counsel for deceased, or if one so named shall fail to appear within the specified period, court may order opposing party, within a specified time, to procure appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. Court charges in procuring such appointment, if defrayed by opposing party, may be recovered as costs (Sec 16)

1. If plaintiff dies during pendency of case

Action survives and continues, except if the action is purely personal to him, such as action for support or legal separation

Deceased plaintiff shall be substituted by legal representatives 2. If defendant dies, effect of his death depends upon nature of the pending action

Action on contractual money claims 1. Defendant dies before entry of final judgment:

o Action shall not be dismissed and shall be allowed to continue until entry of final judgment o A favorable judgment obtained by the plaintiff shall be enforced in the manner especially provided in

the rules for prosecuting claims against the estate of a deceased person 2. Defendant dies after entry of final judgment and a writ of execution has been issued but the sheriff has not

yet levied properties of the defendant o Sheriff shall not proceed with levy o Plaintiff should file money claim in the estate proceedings for the settlement of the estate of the

defendant o If no estate proceedings yet, plaintiff may initiate the same and file his claim therein

3. Defendant dies after entry of final judgment and levy o Judgment shall be enforced by a writ of execution by proceeding with the sale of the levied property

Action for recovery of real or personal property, or to enforce a lien on real or personal property

Action survives and shall continue

Deceased must be substituted by his heirs or legal representatives

When judgment against defendant becomes final and executory, said judgment can be enforced or executed against the executor or administrator of the estate of the deceased

Action for recovery of damages for injury to person or property

Action survives and shall continue

Heirs or legal representatives must be substituted

If judgment against defendant has become final and executory, judgment is actually for money so that it could not be enforced against the executor or administrator, remedy of plaintiff is to file judgment as money claim in the estate proceedings

If defendant dies after entry of final judgment and after levy – judgment enforced by proceeding with sale of levied properties

Effect of non-substitution of a deceased party

Heirs of Bertuldo Hinog vs. Melicor (455 SCRA 460)



o Non-compliance with the rule on substitution would render the proceedings and judgment of the trial court infirm because the court acquires no jurisdiction over the persons of the legal representatives or of the heirs on whom the trial and the judgment would be binding.

o The purpose behind the rule on substitution is the protection of the right of every party to due process, to ensure that the deceased party would continue to be properly represented in the suit through the duly appointed legal representative of his estate.

De la Cruz vs. Joaquin (464 SCRA 576) o When a party to a pending action dies and the claim is not extinguished, the rules require a substitution of

the deceased. o The rule on substitution of parties was crafted to protect every party‘s right to due process o Court has nullified not only trial proceedings conducted without the appearance of the legal

representatives of the deceased, but also the resulting judgments o Formal substitution by heirs is not necessary when they themselves voluntarily appear, participate in the

case, and present evidence in defense of the deceased. o Strictly speaking, the rule on substitution by heirs is not a matter of jurisdiction, but a requirement of due

process. Mere failure to substitute for a deceased plaintiff is not a sufficient ground to nullify a trial court‘s decision. Alleging party must prove that there was an undeniable violation of due process.

Death or separation of party who is a public officer (Sec 17)

When a public officer is a party in his official capacity and during its pendency he dies, resigns, or otherwise ceases to hold office, action may be continued and maintained by or against his successor if, within 30 days after the successor takes office or such time as may be granted by the court, it is satisfactorily shown to the court by any party that there is a substantial need for continuing or maintaining it and that the successor adopts or continues or threatens to adopt or continue the action of his predecessor.

Before a substitution is made, party or officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of the application therefor and accorded an opportunity to be heard

Incompetency or incapacity (Sec 18)

If a party becomes incompetent or incapacitated, the court upon motion with notice, may allow the action to be continued by or against the incompetent or incapacitated person assisted by his legal guardian or guardian ad litem

Transfer of interest (Sec 19)

Action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted or joined with the original party

Indigent party (Sec 21)

Indigent – one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family

Party will be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte application and hearing is satisfied that the party is indigent

If indigent wins, legal fees (which he did not pay) shall be a lien on any judgment he wins, unless the court otherwise provides

Notice to Solicitor General (Sec 22)

In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules or regulations, the court in its discretion, may require the appearance of the Solicitor General who may be heard in person or through a representative duly designated by him.

Rule 4 Venue of Actions (Sections 1 to 4)

Venue defined

Venue – place where the action is to be commenced/instituted and tried. The place of trial and geographical location on which an action should be brought

Distinguished from jurisdiction

Venue Jurisdiction

Place where action is to be instituted and tried Power of court to try and decide a case

May be waived Jurisdiction over the SM or nature of the action is



conferred by law, therefore, cannot be waived

Procedural Substantive

May be changed by written agreement of the parties Cannot be the subject of an agreement of the parties

Venue of real actions (Sec 1)

Location of property Venue of personal actions (Sec 2)

Against resident defendant – where plaintiff resides or where defendant resides, at the election of the plaintiff

Against non-resident defendant – where plaintiff resides or where defendant may be found, at the election of the plaintiff

Resides – place of abode, whether permanent or temporary, of the plaintiff or defendant. Actual residence, not domicile or legal residence.

Venue of actions against non-residents (Sec 3) Quasi in rem = action affects personal status of plaintiff – residence of plaintiff In rem = action affects property of defendant in Phils. – location of property

When rule not applicable (Sec 4)

1. Where a specific rule or law provides otherwise

Diaz vs. Adiong (219 SCRA 631) o According to the RPC, an offended party who is at the same time a public official can only institute

an action arising from libel in two venues: the place where he holds office and the place where the alleged libelous articles were printed and first published.

2. Where parties have validly agreed in writing before filing of the action on exclusive venue thereof

Phil. Banking Corp. vs. Tensuan (228 SCRA 385) o Parties, by written agreement, may change or transfer the venue of an action o Stipulation where parties expressly submit to jurisdiction of a particular court any legal action may

arise out of the promissory note must be distinguished from stipulations which purport to require or compel the parties to lay venue of an action in a specified place, and in that particular place only.

Waiver of improper venue

1. express waiver 2. implied waiver

Dacoycoy vs. IAC (195 SCRA 641) o Dismissing the complaint on the ground of improper venue is certainly not the appropriate course of

action at this stage of the proceeding, particularly as venue, in inferior courts as well as in the RTC, may be waived expressly or impliedly. Where a defendant fails to challenge timely the venue in a motion to dismiss, and allows the trial to be held and a decision to be rendered, he cannot appeal or belatedly challenge the wrong venue, which is deemed waived.

How to question improper venue

1. Motion to dismiss (Rule 16, Sec 1(c)) 2. Affirmative defense in answer (Rule 16, Sec 6)

Pleadings (Substantial Requirements)

In general

Defined (Rule 6, Sec 1)

Pleadings – written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment

Distinguished from motion (Rule 15, Sec 1)

Motion – application for relief other than by pleading What allowed (Rule 6, Sec 2)

1. Complaint



2. Counterclaim 3. Cross-claim 4. Third (Fourth, etc)-party complaint 5. Complaint-in-intervention 6. Answer – pleading w/c alleges defenses to the pleadings asserting a claim 7. Reply – pleadings w/c responds to the answer

* 1-5 are pleadings w/c assert the party‘s claim Parts of a pleading (Rule 7)

A. Caption 1. Name of the Court 2. Title of the Action – name of parties and their respective participation 3. Docket number, if assigned

B. Body – sets forth its

Designation

Allegations of the party‘s claims or defenses

Relief prayed for

Date of pleading 1. Paragraphs 2. Headings 3. Reliefs 4. Date of pleading

C. Signature and Address

Every pleading must be signed by the party or his counsel – unsigned pleadings have no legal effect

His address w/c should not be a post office box should be indicated D. Verification

General Rule: Pleadings need not be under oath, verified or accompanied by affidavit Exception: When otherwise specifically required by law: 1. Petition to take deposition before action; 2. Petition for relief from judgment; 3. Appeal by Certiorari from the CA to the SC; 4. Application for Preliminary Injunction or Temporary Restraining Order; 5. Application for appointment of a receiver; 6. Petition for Certiorari, Prohibition, or Mandamus; 7. All pleadings of forcible entry and unlawful detainer; 8. Petition for appointment of general guardian; 9. Petition of guardian for leave to sell or encumber property of estate; 10. Petition to declare competency of ward; 11. Application for Writ of habeas corpus; 12. Petition for change of name; 13. Petition for voluntary dissolution of corporation; 14. Petition to correct entries in civil registry; 15. Pleadings in Summary Procedure.

How verified?

By an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his knowledge and belief

E. Certification against Forum Shopping

Required only for complaint or initiatory pleading

Certification may be in the complaint or in a sworn statement annexed and simultaneously filed

Shall contain the following undertakings:

That he has not commenced any action or filed any claim involving the same issues in any court, tribunal, or quasi-judicial agency and, to the best of his knowledge, no such action or claim is pending therein;

If there is such pending action or claim, a complete statement of the present status thereof; and



If he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact w/in 5 days therefrom to the court where his aforesaid complaint or initiatory pleading has been filed

Effect of lack of certification or failure to comply:

Failure to comply is not curable by mere amendment of complaint;

Dismissal of case is w/o prejudice, unless otherwise provided

Effect of submission of false certification or non-compliance with the undertakings:

Indirect contempt of court

Administrative or criminal action

Effect of willful and deliberate forum-shopping

Summary dismissal (of case) w/ prejudice

Direct contempt

Administrative sanction How allegations made

In general (Rule 8, Sec 1) –

Every pleading shall contain in a methodical and logical form, a plain concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts

Ultimate Facts – those facts w/c directly form the basis of the right sought to be enforced, or the defense relied upon

If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated

Capacity (Rule 8, Sec 4)

Must be averred

Party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader‘s knowledge

Alternative Claims and defenses (Rule 8, Sec 2)

Party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses

When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements

Conditions precedent (Rule 8, Sec 3)

A general averment of the performance or occurrence of all conditions precedent shall be sufficient Fraud and mistake, condition of mind (Rule 8, Sec 5)

Must be stated w/ particularity Judgments (Rule 8, Sec 6)

Sufficient to aver the judgment w/o setting forth matter showing jurisdiction to render it Official documents (Rule 8, Sec 9)

Sufficient to aver that the document was issued or the act done in compliance w/ law Need to bring in new parties (Rule 6, Sec 12)

When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained

Complaint

Defined and in general (Rule 6, Sec 3)

Complaint – pleading alleging the plaintiff‘s cause or causes of action Allegations

In general (Rule 8, Sec 1)



Every pleading shall contain in a methodical and logical form, a plain concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts

Ultimate Facts – those facts w/c directly form the basis of the right sought to be enforced, or the defense relied upon

If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated

Mathay vs. Consolidated Bank and Trust Company (58 SCRA 559) o When ground for motion to dismiss is based on lack of cause of action, only allegations of the

complaint must be considered o A motion to dismiss based on lack of cause of action hypothetically admits the truth of factual

allegations in the complaint o Allegation that an act was unlawful or wrongful is a mere conclusion of law, the same not being

necessarily inferable from the ultimate facts stated in the causes of action Capacity of parties (Rule 8, Sec 4)

Must be averred

Party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader‘s knowledge

Actions based upon a document (Rule 8, Sec 7)

Sufficient to aver that the document was issued or the act done in compliance w/ law

Substance of such instrument or document shall be set forth in the pleading, and the original or a copy shall be attached to the pleading as an exhibit, which shall be deemed to be part of the pleading, or said copy may with like effect be set forth in the pleading

Answer Defined and in general (Rule 6, Sec 4)

Answer – a pleading in which a defending party sets forth his defenses Types of defenses

Negative (Rule 6, Sec 5(a))

The specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action

How alleged, generally (Rule 8, Sec 10)

Specify each material allegation of fact the truth of which he does not admit and, whenever practicable, set forth the substance of the matters upon which he relies to support his denial

Where a defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny only the remainder

Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint, he shall so state, and this shall also have the effect of a denial

Capacity of parties (Rule 8, Sec 4)

Facts showing capacity must be averred

Party desiring to raise as an issue the capacity of any party shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader‘s knowledge

Genuineness of documents (Rule 8, Sec 8)

Genuineness is deemed admitted unless the adverse party, under oath, specifically denies them and sets forth what he claims to be the facts

Oath requirement does not apply when adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original document is refused

Negative pregnant

Philamgen vs. Sweet Lines (212 SCRA 194) o Negative pregnant – denial pregnant with the admission of the substantial facts in the

pleading responded to which are not squarely denied. It is in effect an admission of the averment it is directed to

Affirmative (Rule 6, Sec 5(b))



An allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him

Affirmative defenses include: o Fraud o Statute of limitations o Release o Payment o Illegality o Statute of frauds o Estoppel o Former recovery o Discharge in bankruptcy o Any other matter by way of confession and avoidance

Implied admissions (Rule 9, Sec 1)

Defenses and objections not pleaded either in a MTD or in the answer are deemed waived

However, when it appears from the pleadings or evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim

Periods to plead (Rule 11, Secs 1-3)

Answer to the complaint: within 15 days after service of summons, unless a different period is fixed by the court

Answer of a defendant foreign private juridical entity: if service of summons is made on the government official designated by law to receive the same, answer shall be within 30 days after receipt of summons by such entity

Answer to amended complaint – o matter of right: within 15 days after being served with a copy o not a matter of right: within 10 days from notice of the order admitting the same

An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed Waiver of defenses (Rule 9, Sec 2)

Compulsory counterclaim or a cross-claim not set up shall be barred

Counterclaims Defined and in general (Rule 6, Sec 6)

Counterclaim – any claim which a defending party may have against an opposing party How raised Included in answer (Rule 6, Sec 9; Rule 11, Sec 8)

Counterclaim may be asserted against an original counter-claimant. A cross-claim may also be filed against an original cross-claimant (Rule 6, Sec 9)

Compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein (Rule 11, Sec 8)

After answer (Rule 6, Sec 9; Rule 11, Sec 9)

Counterclaim may be asserted against an original counter-claimant. A cross-claim may also be filed against an original cross-claimant (Rule 6, Sec 9)

Counterclaim or a cross-claim which either matured or was acquired by a party after serving his pleading may, with the permission of the court, be presented as a counterclaim or cross-claim by supplemental pleading before judgment (Rule 11, Sec 9)

Kinds of counterclaims Compulsory (Rule 6, Sec 7; Rule 9, Sec 2)

Compulsory counterclaim – one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party‘s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.

o Must be within the jurisdiction of the court both as to the amount and nature thereof,

Except that in an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount. (Rule 6, Sec 7)



A compulsory counterclaim, or a cross-claim, not set up shall be barred (Rule 9, Sec 2) – Cannot be independently adjudicated – Jurisdiction (both as to amount and nature; exception) – Filing fees and non-forum certification not required

Permissive

Permissive counterclaim – does not arise out of the opposing party‘s claim or necessarily connected with the transaction or occurrence constituting the subject matter of the opposing party‘s claim.

Not barred even if not pleaded

May be filed as an independent action

Korea Exchange Bank vs. Gonzales (456 SCRA 224) o Counterclaim – any claim for money or other relief which a defending party may have

against an opposing party. o A counterclaim is compulsory if:

a. It arises out of, or is necessarily connected with, the transaction or occurrence which is the subject matter of the opposing party‘s claim;

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

c. The court has jurisdiction to entertain the claim. o Compulsory counterclaim cannot be made the subject of a separate action but should be

asserted in the same suit involving the same transaction or occurrence giving rise to it. o Test to determine compulsory or permissive nature of specific counterclaims:

a. Are the issues of fact and law raised by the claim and counterclaim largely the same? b. Would res judicata bar a subsequent suit on defendant‘s claim absent the

compulsory counterclaim rule? c. Will substantially the same evidence support or refute plaintiff‘s claim as well as

defendant‘s counterclaim? d. Is there any logical relation between the claim and the counterclaim?

BA Finance Corp. vs. Co (224 SCRA 163) o Counterclaim of private respondents is not merely permissive but compulsory in nature: it

arises out of, or is necessarily connected with, the transaction or occurrence that is the subject matter of the opposing party's claim; it does not require the presence of third parties of whom the court cannot acquire the presence of third parties of whom the court cannot acquire jurisdiction; and, the trial court has jurisdiction to entertain the claim.

o The counterclaim of private respondents is denominated "compulsory" and consists of claims for alleged overpayments and damages. They assert that they are no longer indebted to petitioner and are in fact entitled to reimbursement for overpayments. They ask for damages for expenses incurred and inconveniences suffered by them as a result of the filing of the present action.

o Clearly, the same evidence needed to sustain the counterclaim of private respondents would also refute the cause of action in petitioner's complaint. For, if private respondents could successfully show that they actually made overpayments on the credit accommodations extended by petitioner, then the complaint must fail. The counterclaim is therefore compulsory.

Remedies

For failure to raise compulsory counterclaim (Rule 9, Sec 2) Oversight, inadvertence, excusable neglect (Rule 11, Sec 10) In case main action fails

BA Finance Corp. vs. Co, supra o Compulsory counterclaim cannot "remain pending for independent adjudication by the

court." This is because a compulsory counterclaim is auxiliary to the proceeding in the original suit and merely derives its jurisdictional support therefrom.

o It necessarily follows that if the trial court no longer possesses jurisdiction to entertain the main action of the case, an when it dismisses the same, then the compulsory counterclaim



being ancillary to the principal controversy, must likewise be similarly dismissed since no jurisdiction remains for the grant of any relief under the counterclaim.

o But this ruling has already been abandoned! See Perkin vs. Dakila.

Answer to counterclaim In general (Rule 6, Sec 4)

Answer – pleading in which a defending party sets forth his defenses Period to plead (Rule 11, Sec 4)

Within 10 days from service

Reply Defined and in general (Rule 6, Sec 10)

Reply – pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters

If a party does not file such reply, all new matters alleged in the answer are deemed controverted When required (Rule 6, Sec 10)

Generally optional.

In case of failure to reply, new matters alleged in the answer are deemed controverted

Compulsory where it is necessary to deny under oath the following: o Defense in the answer based on actionable document o Allegation of usury in a complaint to recover usurious interest

Challenge due to authenticity of documents (Rule 8, Sec 8)

When an action or defense is founded upon a written instrument, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts

Oath requirement does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused

Third/Fourth Party Complaint Defined (Rule 6, Sec 11)

Third (fourth, etc)-party complaint – claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc)-party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent‘s claim

Remedies when denied – ?

Answer to Third/Fourth Party Complaint In general (Rule 6, Sec 13)

Third (fourth, etc)-party defendant may allege in his answer his defenses, counterclaims or cross-claims, including such defenses that the third-party plaintiff may have against the original plaintiff‘s claim

In proper cases, he may also assert a counterclaim against the original plaintiff in respect of the latter‘s claim against the third-party plaintiff

Time to plead (Rule 11, Sec 5)

Governed by the same rule as the answer to the complaint (15 days after service of summons unless a different period is fixed by the court)

Extension of time to plead (Rule 11, Sec 11)

Upon motion and on such terms as may be just, court may extend the time to plead provided in these rules

Court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these rules.

(Formal Requirements) Filing and Service of Pleadings, Motions and Orders



Verification (Rule 7, Sec 4)

General Rule: Pleadings need not be under oath, verified or accompanied by affidavit Exception: When otherwise specifically required by law or rule:

1. Petition to take deposition before action; 2. Petition for relief from judgment; 3. Appeal by Certiorari from the CA to the SC; 4. Application for Preliminary Injunction or Temporary Restraining Order; 5. Application for appointment of a receiver; 6. Petition for Certiorari, Prohibition, or Mandamus; 7. All pleadings of forcible entry and unlawful detainer; 8. Petition for appointment of general guardian; 9. Petition of guardian for leave to sell or encumber property of estate; 10. Petition to declare competency of ward; 11. Application for Writ of habeas corpus; 12. Petition for change of name; 13. Petition for voluntary dissolution of corporation; 14. Petition to correct entries in civil registry; 15. Pleadings in Summary Procedure.

Certification against forum shopping (Rule 7, Sec 5)

Required only for complaint or initiatory pleading

May be in the complaint or in a sworn statement annexed

Shall contain the following undertakings: 1. That he has not commenced any action or filed any claim involving the same issues in any court, tribunal, or

quasi-judicial agency and, to the best of his knowledge, no such action or claim is pending therein; 2. If there is such pending action or claim, a complete statement of the present status thereof; and 3. If he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall

report that fact w/in 5 days therefrom to the court where his aforesaid complaint or initiatory pleading has been filed

Effect of lack of certification or failure to comply: o Failure to comply is not curable by mere amendment of complaint; o Dismissal of case is w/o prejudice, unless otherwise provided

Effect of submission of false certification or non-compliance with the undertakings: o Indirect contempt of court o Administrative or criminal action

Effect of wilful and deliberate forum-shopping o Summary dismissal (of case) w/ prejudice o Direct contempt o Administrative sanction

Ao-As vs. CA (491 SCRA 353) o Elements of forum shopping:

a. Identity of parties; b. Identity of the rights asserted or the relief prayed for; and c. Identity of two preceding particulars, such that any judgment rendered in the other action will,

regardless of which party is successful, amount to res judicata in the action under consideration. o Forum shopping consists of filing multiple suits involving the same parties for the same cause of action,

either simultaneously or successively, for the purpose of obtaining a favorable judgment. o Forum shopping can be committed in three ways:

1. Filing multiple cases based on the same cause of action and with the same prayer, the previous case not having been resolved yet (litis pendentia);

2. Filing multiple cases based on the same cause of action and with the same prayer, the previous having been finally resolved (res judicata);

3. Filing multiple cases based on the same cause of action but with different prayers (splitting cause of action, where the ground of dismissal is also either litis pendentia or res judicata)



o If the forum shopping is not considered willful and deliberate, the subsequent cases shall be dismissed without prejudice on one of the two grounds earlier mentioned.

o If the forum shopping is willful and deliberate, both (or all, if there are more than two) actions shall be dismissed with prejudice.

Forum shopping certificate for a corporation

PAL vs. Flight Attendants and Stewards Assn of the Phils (FASAP) (479 SCRA 605) o As no distinction is made as to which party must execute the certificate, the requirement is made

to apply to both natural and juridical entities. When petitioner is a corporation, the certification should be executed by a natural person.

o Further, not just any person can be called upon to execute the certification, although such a person may have personal knowledge of the facts to be attested to.

o Only individuals vested with authority by a valid board resolution may sign the certificate of non-forum shopping in behalf of a corporation. Petition is subject to dismissal if a certification was submitted unaccompanied by proof of the signatory‘s authority

o An invalid certificate cannot be remedied by a subsequent submission of a Secretary‘s Certificate that vests authority only after the petition had been filed.

Filing and service defined (Rule 13, Sec 2)

Filing – the act of presenting the pleading or other paper to the clerk of court

Service – act of providing a party with a copy of the pleading or paper concerned. Done upon the party or his counsel if he has appeared by counsel, unless service upon the party himself is ordered by the court. If one counsel appears for several parties, he shall only be entitled to one copy

Coverage (Rule 13, Secs 1-4)

The rule governs the filing of all pleadings and other papers, as well as the service thereof, except those for which a different mode of service is prescribed

The rule applies to pleadings subsequent to the complaint which is served through summons under Rule 14

Example of the exception: Rule 14 on service of summons

Papers to be filed and served: judgment, resolution, order; pleadings subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers

Modes of service In general, filing (Rule 13, Sec 3)

Presenting the original copies, plainly indicated as such personally to the clerk of court

By sending by registered mail In general, service (Rule 13, Secs 5, 9)

May be made either personally or by mail (Sec 5)

When a party summoned by publication has failed to appear, he shall be served by publication at the prevailing party‘s expense (Sec 9) Personal (Rule 13, Sec 6)

By delivering a copy personally to the party or his counsel (actual personal service) o Service to a party is allowed only if he is not represented by counsel, unless service upon the

party himself is ordered by the court

By leaving a copy in his office with his clerk or with a person having charge thereof o If no person is found in his office, or if his office is not known, or he has no office:

Leave a copy between 8am and 6pm at the party or counsel‘s residence, if known, with a person of sufficient age and discretion then residing (constructive personal service)

Mail (Rule 13, Sec 8)

By registered mail,

Ordinary mail if no registry service exists in the locality of either the sender or addressee Substituted service (Rule 13, Sec 8)

If service cannot be made personally or by mail, the office and residence of party or counsel being unknown: o By delivering the copy to the clerk of court, with proof of failure of both personal service and

service by mail. Service is complete at the time of such delivery Priority (Rule 13, Sec 11)

Personal service is preferred



Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally

Violation of the rule may cause to consider the paper as not filed Upon party in default (Rule 9, Sec 3)

If defending party fails to answer w/in the time allowed, the court will declare defending party in default upon motion of the claiming party w/ notice to defending party and proof of such failure. Court will then render judgment granting claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence

Reception of evidence may be delegated

Party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial (Sec 3[a])

Party declared in default may at any time after notice and before judgment, file a motion under oath to set aside the order of default upon proper showing his failure to answer was due to FAME and that he has a meritorious defense (Sec 3[b])

When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and other fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented (Sec 3[c])

Judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages (Sec 3[d])

If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, court shall order the prosecuting attorney to investigate w/n a collusion between the parties exists. If there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated

Completion of service (Rule 13, Sec 10)

Personal service – upon actual delivery

Ordinary mail – upon the expiration of 10 days after mailing, unless the court otherwise provides

Registered mail – upon actual receipt by the addressee, or after 5 days from the date he received the first notice of the postmaster whichever date is earlier

Proof of filing and service (Rule 13, Secs 12, 13)

Proof of filing o The pleading‘s or paper‘s existence in the record of the case o If not in the record but claimed to have been filed personally – by written or stamped acknowledgment of its

filing by the clerk of court on copy of the same o Registered mail – by registry receipt and by the affidavit of the person who did the mailing, containing a full

statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after 10 days if not delivered

o No filing by ordinary mail nor substituted service

Proof of service o Personal service – written admission of the party served; or the official return of the server; or affidavit of the

party serving, containing a full statement of date, place and manner of service o Ordinary mail – affidavit of the person mailing of facts showing compliance of Rule 13, sec 7 o Registered mail – affidavit of the person mailing and the registry receipt issued by the mailing office. Registry

return card shall be filed immediately upon receipt by the sender, or in lieu thereof, the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee

o Substituted service – written acknowledgment of the clerk of court of the copy delivered to him Lis pendens (Rule 13, Sec 14)

Recording of a notice of pendency of an action affecting the title or right of possession of real property in the RD of the province or city where the property is situated (remember Land Titles...)

Notice shall contain the names of the parties and the object of the action or defense, and a description of the property in that province affected thereby

Only from time of filing such notice for record shall a purchaser or encumbrancer of the property affected be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names



Notice may only be cancelled upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be recorded

Amended and Supplemental Pleadings

Amendments In general (Rule 10, Sec 1)

Done by adding or striking out an allegation, or the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect

Purpose: so actual merits of the controversy may be speedily determined, without regard to technicalities, and in the most expeditious and inexpensive manner

Liberality

Barfel Devt Corp vs. CA (223 SCRA 268) o The amendment sought by respondents which is to include a new party defendant at a late stage in

the proceeding is not a formal but a substantial one. Form (Rule 10, Sec 7)

When amended, a new copy of the entire pleading incorporating the amendments, which shall be indicated by appropriate marks, shall be filed

Effect (Rule 10, Sec 8)

Supersedes the pleading that it amends

Admissions in superseded pleadings may be received in evidence against the pleader

Claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived

Kinds Formal amendments (Rule 10, Sec 4)

Defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action,

At the court‘s initiative or upon motion,

Provided no prejudice is caused to the adverse party Substantial amendments

Matter of right (Rule 10, Sec 2)

Party may amend his pleading once as a matter of right: o At any time before a responsive pleading is served, or o In case of a reply, at any time w/in 10 days after it is served

Defendant may amend his answer before an answer to his counterclaim is served by plaintiff if there is counterclaim, or before reply has been served by plaintiff if answer contains no counterclaim

Matter of discretion (Rule 10, Sec 3)

Substantial amendments may be made only upon leave of court

Leave may be refused if it appears to the court that motion was made w/ intent to delay

Made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard

Prohibition against the amendment: o When the court has no jurisdiction over the case and the purpose of the amendment is to confer

jurisdiction on the court o If there was no cause of action at the time of the original complaint and the purpose of the

amendment is to introduce a subsequently accrued cause of action To conform to evidence (Rule 10, Sec 5)

When issues not raised by pleadings are tried w/ the express or implied consent of the parties, they shall be treated in all respects as if raised in the pleadings

Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment

Failure to amend does not affect the result of the trial of these issues



If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, court may allow pleadings to be amended and shall do so w/ liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby

Court may grant continuance to enable the amendment to be made

Swagman Hotels & Travel, Inc. vs. CA (455 SCRA 175) o The curing effect under Sec 5, Rule 10 is applicable only if a cause of action in fact exists at

the time the complaint is filed, but the complaint is defective for failure to allege the essential facts.

o A complaint whose cause of action has not yet accrued cannot be cured or remedied by an amended or supplemental pleading alleging the existence or accrual of a cause of action while the case is still pending

Remedies Periods to answer

Amendments (Rule 11, Sec 3)

If amended as a matter of right (before service of answer) – within 15 days after being served a copy thereof

If not as a matter of right (after service of the answer to the original complaint) – o Within 10 days from notice of the order admitting the same; o An answer earlier filed (before the amendment) may serve as answer to the amended complaint if no new

answer is filed Supplemental complaint (Rule 11, Sec 7)

Within 10 days from notice of answer admitting the same, unless a different period is fixed by the court

Answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed

Supplemental pleadings (Rule 10, Sec 6)

Always by leave of court upon motion, upon reasonable notice and upon such terms as are just

Seeks to include transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented

Adverse party may plead thereto within 10 days from notice of the order admitting the supplemental pleading Distinguished from amended pleadings

Amended pleading Supplemental pleading

Subject Matter

Facts already existing on the date of the original pleading sought to be amended but were not pleaded due to inadvertence

Facts that occurred since the date of the pleading sought to be supplemented

Right Matter of right when made once before responsive pleading

Always by leave of court

Form

Party must file a new copy of the entire pleading incorporating the amendments, which shall be indicated by appropriate marks

Party need not file a new copy of the entire pleading since the supplemental pleading would be an entirely new pleading

Effect Original pleading is replaced/superseded by the amended pleading

Original pleading stands. Supplemental pleading is added to and forms part of the original pleading

Shoemart, Inc. vs. CA (190 SCRA 189) o A supplemental pleading supplies deficiencies in aid of an original pleading, not to entirely substitute

the latter.

Bill of Particulars/Intervention

Bill of particulars (Rule 12, Secs 1 to 6)



Bill of particulars – a more definite statement of any matter w/c is not averred with sufficient definiteness and particularity and its objective is to enable the opposing party to prepare his responsive pleading (Sec 1)

If the pleading is a reply – motion must be filed w/in 10 days from service

Motion shall point out the defects complained of, the paragraphs where they are contained and the details desired

Upon filing of the motion, clerk of court must immediately bring it to the attention of the court w/c may either deny it or grant it outright, or allow the parties the opportunity to be heard (Sec 2) o There‘s no actual trial, since there are no factual issues to be resolved. Resolution of the motion may be based

solely on the allegations of the pleading sought to be particularized or made more definite o Order denying or granting the motion is interlocutory and therefore not appealable

If motion is granted in whole or in part – compliance must be effected w/in 10 days from notice of the order, unless a different period is fixed by the court (Sec 3)

The bill of particulars may be filed either in a separate or in an amended pleading, serving a copy on the adverse party

If the order is not obeyed, or in case of insufficient compliance – court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just (Sec 4)

After service of the bill of particulars, or after notice of denial of the motion – the moving party may file his responsive pleading w/in the period to w/c he was entitled at the time of filing of his motion, w/c shall not be less than 5 days at any event (Sec 5)

A bill of particulars becomes part of the pleading for w/c it is intended (Sec 6) Office and purpose

Virata vs. Sandiganbayan (221 SCRA 52) o The proper preparation of an intelligent answer requires information as to the precise nature, character,

scope and extent of the cause of action in order that the pleader may be able to squarely meet the issues raised, thereby circumscribing them within determined confines and preventing surprises during the trial, and in order that he may set forth his defenses which may not be so readily availed of if the allegations controverted are vague, indefinite, uncertain or are mere general conclusions.

o The latter task assumes added significance because defenses not pleaded (save those excepted in Sec 2, Rule 9, and whenever appropriate, the defense of prescription) in a MTD or in the answer are deemed waived

o The proper office of a bill of particulars is to inform the opposite party and the court of the precise nature and character of the cause of action the pleader has attempted to set forth, and thereby to guide his adversary in his preparations for trial and reasonably protect him against surprise at the trial.

What is beyond its scope

Tan vs. Sandiganbayan (180 SCRA 34) o The complaint for which a bill for a more definite statement is sought, need only inform the defendant of

the essential (or ultimate) facts to enable the defendant to prepare an intelligent answer.

Intervention (Rule 19, Secs 1 to 4)

Intervention – a proceeding in a suit or action by which a third person is permitted by the court to make himself a party, either joining plaintiff in claiming what is sought by the complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding something adversely to both of them; the act or proceeding by which a third person becomes a party in a suit pending between others; the admission, by leave of court, of a person not an original party to pending legal proceedings, by which such person becomes a party thereto for the protection of some right of interest alleged by him to be affected by such proceedings (Metrobank vs. CA, 182 SCRA 820)

The following may intervene – a person who (Sec 1): o Has legal interest in the matter in litigation; o Has legal interest in the success of either of the parties; o Has an interest against both parties; o Is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the

court or of an officer thereof. Court shall consider w/n the intervention will unduly delay or prejudice the adjudication of the rights of the

original parties, and w/n the intervenor‘s rights may be fully protected in a separate proceeding

Motion to intervene may be filed at any time before rendition of judgment by the trial court (Sec 2) o A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties



o After judgment by the trial court, it is too late to intervene. Intervenor is not an indispensable party. Remedy would be a separate action to vindicate his right

Intervenor shall file a complaint-in-intervention if he asserts a claim against either or all of the original parties (Sec 3)

Answer-in-intervention – if he unites w/ the defending party in resisting a claim against the latter (Sec 3)

Answer to the complaint-in-intervention shall be filed w/in 15 days from notice of the order admitting the same, unless a different period is fixed by the court (Sec 4)

Ancillary to pending action

Saw vs. CA (195 SCRA 740) o Intervention is not an independent proceeding, but an ancillary and supplemental one which, in the

nature of things, unless otherwise provided for by the statute or Rules of Court, must be in subordination to the main proceeding. It may be laid down as a general rule that an intervenor is limited to the field of litigation open to the original parties.

Exception

Metropolitan Bank & Trust Co. vs. Presiding Judge (182 SCRA 820) o There is here no final dismissal of the main case. The aforementioned order of the lower court has the

effect not only of allowing the intervention suit to proceed but also of vacating its previous order of dismissal. The reinstatement of the case in order to try and determine the claims and rights of the intervenor is proper. The joint motion of therein plaintiff and the original defendants to dismiss the case, without notice to and consent of the intervenor, has the effect of putting to rest only the respective claims of the said original parties inter se but the same cannot in any way affect the claim of private respondent which was allowed by the court to intervene without opposition from the original parties.

o After the intervenor has appeared in the action, the plaintiff has no absolute right to put the intervenor out of court by the dismissal of the action. The parties to the original suit have no power to waive or otherwise annul the substantial rights of the intervenor. When an intervening petition has been filed, a plaintiff may not dismiss the action in any respect to the prejudice of the intervenor.

o It has even been held that the simple fact that the trial court properly dismissed plaintiff s action does not require dismissal of the action of the intervenor. An intervenor has the right to claim the benefit of the original suit and to prosecute it to judgment. The right cannot be defeated by dismissal of the suit by the plaintiff after the filing of the petition and notice thereof to the other parties. A person who has an interest in the subject matter of the action has the right, on his own motion, to intervene and become a party to the suit, and even after the complaint has been dismissed, may proceed to have any actual controversy established by the pleadings determined in such action. The trial court's dismissal of plaintiffs‘ action does not require dismissal of the action of the intervenor.

o The intervenor in a pending case is entitled to be heard like any other party. A claim in intervention that seeks affirmative relief prevents a plaintiff from taking a voluntary dismissal of the main action. Where a complaint in intervention was filed before plaintiff's action had been expressly dismissed, the intervenor's complaint was not subject to dismissal on the ground that no action was pending since dismissal of plaintiffs‘ action did not affect the rights of the intervenor or affect the dismissal of intervenor's complaint. An intervenor's petition showing it to be entitled to affirmative relief will be preserved and heard regardless of the disposition of the principal action.

Rule 14

Summons

Definition and purpose

Summons – writ directed to the defendant, notifying him of the civil action against him

Purpose: For the court to acquire jurisdiction over the person of the defendant o If additional defendants are joined – they must be served with another summons o If a defendant dies and the action survives, and he is substituted by his executor, administrator or heir – no

need to serve new summons Duty to issue (Secs 1, 5)

Who issues: Clerk of Court, upon filing of complaint and payment of requisite legal fees (Sec 1)



Alias summons: if a summons is returned w/o being served on any or all of the defendants, the server shall also serve a copy of the return on the plaintiff‘s counsel, stating the reasons for the failure of service w/in 5 days therefrom. In such a case, or if the summons has been lost, the clerk, on demand of the plaintiff may issue an alias summons (Sec 5)

Form Content (Sec 2)

1. Name of the court and the names of the parties to the action; 2. A direction that the defendant answer w/in the time fixed by the Rules; 3. Notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief

prayed for If with leave of court (Sec 17)

If service is to be effected in any manner for which leave of court is necessary, it shall be made: o By motion o In writing o Supported by affidavit of the plaintiff or some person on his behalf o Setting forth the grounds for the application

Who serves (Sec 3)

The sheriff, or

His deputy, or

Other proper court officer, or

Any suitable persons authorized by the court issuing the summons – for justifiable reasons On whom In general (Secs 1, 6)

To the defendants (Sec 1) o Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in

person, or if he refuses to receive and sign for it, by tendering it to him Entity without juridical personality (Sec 8)

When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected:

o Upon all defendants by serving upon any one of them; or o Upon the person in charge of the office or place of business maintained in such name

But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought

Associations Domestic (Sec 11)

Service may be made on: o The president; o Managing partner; o General manager; o Corporate secretary; o Treasurer; or o In-house counsel

List exclusive

E.B. Villarosa & Partner Co., Ltd. vs. Benito (312 SCRA 65) o The designation of persons or officers who are authorized to accept summons for a domestic

corporation or partnership is now limited and more clearly specified in Sec 11, Rule 14 – rule now states ―general manager‖ instead of only ―manager‖; ―corporate secretary‖ instead of ―secretary‖; and ―treasurer‖ instead of ―cashier‖

o Strict compliance with the mode of service is necessary to confer jurisdiction of the court over a corporation. The officer upon whom service is made must be the one who is named in the statute, otherwise the service is insufficient. x x x. The purpose is to render it reasonably certain that the corporation will receive prompt and proper notice in an action against it or to insure that the summons be served on a representative so integrated with the corporation that such person will know what to do with the legal papers served on him. In other words, ‗to bring home to the corporation notice of the filing of the action.‘ x x x. The liberal construction rule cannot be



invoked and utilized as a substitute for the plain legal requirements as to the manner in which summons should be served on a domestic corporation

o Service of summons upon persons other than those mentioned in Sec 13 of Rule 14 (old rule) has been held as improper

Foreign (Sec 12)

Service may be made on: o Its resident agent designated in accordance with law for that purpose, or o If there be no such agent, on the government official designated by law to that effect, or o On any of its officers or agents within the Philippines

Northwest Orient Airlines, Inc. vs. CA (241 SCRA 192) o It is settled that matters of remedy and procedure such as those relating to the service of process

upon a defendant are governed by the lex fori or the internal law of the forum. In this case, it is the procedural law of Japan where the judgment was rendered that determines the validity of the extraterritorial service of process on Sharp.

o It was then incumbent upon Sharp to present evidence as to what Japanese procedural law is and to show that under it, the assailed extraterritorial service is invalid

o In light of the absence of proof regarding Japanese law, the presumption of identity or similarity or the so-called processual presumption may be invoked

o Extraterritorial service of summons on it by the Japanese Court was valid not only under the processual presumption but also because of the presumption of regularity of performance of official duty

Public corporation (Sec 13)

When the defendant is o The Republic of the Philippines – service may be effected on the Solicitor General o A province, city or municipality, or like public corporations – service may be effected on its executive

head, or on such other officer or officers as the law or the court may direct Minors (Sec 10)

Service shall be made upon him personally and on his legal guardian if he has one, or if none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff

Service may also be made on his father or mother Insane, incompetents (Sec 10)

Service shall be made upon him personally and on his legal guardian if he has one, or if none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff

Prisoners (Sec 9)

Service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose

Unknown defendant (Sec 14) * whether in rem, quasi in rem or personal

Where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order

Any action – in rem, in personam, quasi in rem Residents temporarily out (Sec 16)

Service may, by leave of court, be also effected out of the Philippines, as under the preceding section (Sec 15 – Extraterritorial Service)

Service can also be done here – to the residence in the Philippines Non-resident (Sec 15) * in rem, quasi in rem

In cases where the defendant is a non-resident who cannot be found in the Philippines and the action is in rem or quasi in rem, service of summons may, by leave of court, be effected out of the Philippines in three ways, known as extraterritorial service:

o By personal service as under Sec 6; o By publication in a newspaper of general circulation with the sending of a copy of the summons and

order by registered mail to the last known address of the defendant; or



o In any other manner the court may deem sufficient Modes of service Personal (Sec 6)

By handing a copy to the defendant in person, or

If he refuses to receive and sign for it, by tendering it to him – o Proposed amendment: leave the summons in a place within the premises where the defendant can see it.

Defendant must have seen it. Considered as valid service o Proof of service: sheriff‘s report

Substituted (Sec 7)

If for justifiable causes, the defendant cannot be served by personal service within a reasonable time, service may be effected:

o By leaving copies of the summons at the defendant‘s residence with some person of suitable age and discretion then residing therein

Requisites for valid service of summons to the ―person‖ therein:

He must be a resident therein;

Of suitable age;

He must have discretion. o By leaving the copies at the defendant‘s office or regular place of business with some competent person

in charge thereof

Robinson vs. Miralles (510 SCRA 678) o Summons is a writ by which the defendant is notified of the action brought against him or her. In civil

actions, service of summons is the means by which the court acquires jurisdiction over the person of the defendant. Any judgment without service, in the absence of a valid waiver, is null and void. Where the action is in personam and the defendant is in the Philippines, the service of summons may be made through personal or substituted service in the manner provided for in Secs 6 and 7, Rule 14 of the 1997 Rules of Civil Procedure, as amended

o For substituted service to be justified, the following circumstances must be clearly established:

Personal service of summons within a reasonable time was impossible;

Efforts were made to locate the party; and

The summons was served upon a person of sufficient age and discretion residing at the party‘s residence or upon a competent person in charge of the party‘s office or place of business

o Where the sheriff was refused entry by the security guard upon the defendant‘s strict instructions not to allow anybody to proceed to her residence whenever she is out, making it impossible for the sheriff to effect personal or substituted service upon such defendant, service upon the guard is deemed sufficient for the court to acquire jurisdiction over the said defendant

Publication (Sec 14)

In a newspaper of general circulation

Service upon a defendant whose identity or whereabouts are unknown Extraterritorial (Secs 15, 16)

When the defendant does not reside and is not found in the Philippines and the action: o Affects the personal status of the plaintiff; or o Relates to, or the subject of which is, property within the Philippines in which the defendant has or

claims a lien or interest, actual or contingent; or o In which the relief demanded consists, wholly or in part, in excluding the property of the defendant from

any interest therein (property in the Philippines); or o The property of the defendant has been attached within the Philippines,

Service may, by leave of court, be effected: o Out of the Philippines by personal service as under Sec 6; or o By publication in a newspaper of general circulation in such places and for such time as the court may

order, in which case:

A copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant; or

o In any other manner the court may deem sufficient



Any order granting such leave shall specify a reasonable time, which shall not be less than 60 days from notice, within which the defendant must answer.

Valmonte vs. CA (252 SCRA 92) o A resident defendant in an action in personam who cannot be personally served with summons may be

summoned either by means of substituted service in accordance with Rule 14, Sec 8 or by publication as provided in Secs 17 and 18 of the same Rule

o If the action is in rem or quasi in rem, jurisdiction over the person of the defendant is not essential for giving the court jurisdiction so long as the court acquires jurisdiction over the res

o What gives the court jurisdiction in an action in rem or quasi in rem is that it has jurisdiction over the res, and the service of summons in the manner provided in Sec 17 is not for the purpose of vesting it with jurisdiction but for complying with the requirements of fair play or due process

o Service of summons upon a non-resident who is not found in the Philippines must be made either:

By personal service;

By publication in a newspaper of general circulation; or

In any other manner which the court may deem sufficient o The three modes of service of summons upon a non-resident must be made outside the Philippines, such

as through the Philippine Embassy in the foreign country where the defendant resides.

See Q#1 in 2008 Bar Remedial Law

To make publication complete, serve summons on last known address – makes extraterritorial service complete

Perkin Elmer Singapore Pte Ltd. vs. Dakila Trading Corporation (530 SCRA 170) * registered mail invalid service of summons

o Four instances when extraterritorial service is

Affects the personal status of the plaintiff; or

Relates to, or the subject of which is, property within the Philippines in which the defendant has or claims a lien or interest, actual or contingent; or

In which the relief demanded consists, wholly or in part, in excluding the property of the defendant from any interest therein (property in the Philippines); or

The property of the defendant has been attached within the Philippines, o Only for in rem and quasi in rem – jurisdiction over person of defendant is immaterial

Voluntary appearance (Sec 20)

The defendant‘s voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance

Delos Santos vs. Montesa (221 SCRA 15) o Assuming in gratia argumenti that the statutory norms on service of summons have not been strictly

complied with, still, any defect in form and in the manner of effecting service thereof were nonetheless erased when petitioner‘s counsel moved to re-examine the impugned decision and posed a subsequent bid on appeal to impede immediate execution. Such demeanor is tantamount to voluntary submission to the competencia of the court within the purview of Sec 23, Rule 14 since any mode of appearance in court by a defendant or his lawyer is equivalent to service of summons, absent any indication that the appearance of counsel for petitioner was precisely to protest the jurisdiction of the court over the person of defendant

Orion Security Corporation vs. Kalfam Enterprises, Inc. (512 SCRA 617) o A party who makes a special appearance in court challenging the jurisdiction of the court based on the

ground of invalid service of summons is not deemed to have submitted himself to the jurisdiction of the court

Return of Service (Sec 4)

When the service has been completed, the server shall, within 5 days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiff’s counsel, and shall return the summons to the clerk who issued it, accompanied by proof of service

Proof of service (Sec 18)

Made in writing by the server and shall set forth the: o Manner



o Place o Date of service o Any papers served with the process o Name of person who received the same o Sworn to when made by a person other than a sheriff or his deputy

Publication (Sec 19)

Made by the affidavit of publication by the printer, his foreman or principal clerk, or of the editor, business or advertising manager,

And the affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address

Rule 15 Motions

In general (Sec 1)

Motions – application for relief other than by a pleading Form (Sec 2)

All motions shall be in writing except those made in open court or in the course of a hearing or trial Generally (Sec 10)

Rules applicable to pleadings shall apply to written motions so far as concerns caption, designation, signature and other matters of form

May be oral (Sec 2)

―x x x those made in open court or in the course of a hearing or trial‖ Motion for leave (Sec 9)

A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted

Prohibited motions a. Motion to dismiss the complaint or to quash the complaint or information on the ground of lack of

jurisdiction over the subject matter, or failure to refer the case to the Lupon. b. Motion for a bill or particulars c. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; d. Petition for relief from judgment; e. Motion for extension of time to file pleading, affidavits, or any other paper; f. Memoranda; g. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; h. Motion to declare the defendant in default; i. Dilatory motions for postponement; j. Reply; k. Third-party complaints; l. Interventions.

Contents (Sec 3)

1. Relief sought to be obtained 2. Grounds relied upon 3. Supporting affidavits and other papers if required by the Rules or necessary to prove facts alleged therein

Omnibus motion rule (Sec 8)

Omnibus motion – a motion attacking a pleading, order, judgment or proceeding

Omnibus motion rule – the motion filed shall include all objections then available, and all objections not so included shall be deemed waived

Exceptions (Rule 9, Sec 1)

General Rule: Defenses and objections not pleaded either in a motion to dismiss or in an answer are deemed waived

Exception: When it appears from the pleadings or the evidence on record that: o The court has no jurisdiction over the subject matter;



o There is another action pending between the same parties for the same cause; or o The action is barred by a prior judgment or by statute of limitations;

The court shall dismiss the claim Notice of hearing (Secs 4, 5)

Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant.

Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least 3 days before the date of hearing, unless the court for good cause sets the hearing on shorter notice (Sec 4)

Notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than 10 days after the filing of the motion

General Rule: Without compliance, the motion is a mere scrap of paper Exceptions Motions which may be granted ex parte

Ex parte motion – one which does not require that the parties be heard and which the court may act upon without prejudicing the rights of the other party. They are frequently permissible in procedural matters, and also in situations and under circumstances of emergency; and an exception to the rule requiring notice is made where notice or the resulting delay might tend to defeat the objective of the motion

Example: one filed by the plaintiff pursuant to Rule 18, Sec 1 – motion that the case be set for pre-trial. Res judicata, litis pendentia, prescription – need not be pleaded

Where adverse party had opportunity to oppose

Llanto vs. Dimaporo (16 SCRA 599) o Lack of previous notice of hearing of the motion to dismiss granted by the court, was fully cured

by the aggrieved party‘s motion for reconsideration which was overruled by the court, ―and the previous objection of lack of notice or opportunity to be heard fully met.‖ What the law prohibits ―is not the absence of previous notice, but the absolute absence thereof and lack of opportunity to be heard.‖

Vlason Enterprises Corp. vs. CA (330 SCRA 26) o Service of a copy of a motion containing the time and place of hearing of that motion is a

mandatory requirement, and failure of the movants to comply with these requirements renders their motions fatally defective.

o However, there are exceptions to this rule where liberal construction has been allowed in cases: 1. Where a rigid application will result in a manifest failure or miscarriage of justice;

especially if a party successfully shows that the alleged defect in the questioned final and executory judgment is not apparent on its face or from the recitals contained therein;

2. Where the interest of substantial justice will be served; 3. Where the resolution of the motion is addressed solely to the sound and judicious

discretion of the court; and 4. Where the injustice to the adverse party is not commensurate to the degree of his

thoughtlessness in not complying with the procedure prescribed. Proof of service (Sec 6)

No written motion set for hearing shall be acted upon by the court without proof of service thereof

See Rule 13 Hearing of motions (Sec 7)

Friday afternoon, or if Friday is a non-working day, in the afternoon of the next working day

Rule 16 Motion to Dismiss

Four general types of motion to dismiss under the Rules

1. Motion to dismiss before answer (Rule 16) 2. Motion to dismiss by plaintiff (Rule 17)



3. Motion to dismiss on demurrer to evidence after plaintiff has rested his case under Rule 33 4. Motion to dismiss appeal either in:

a. RTC (Rule 41, Sec 13); b. CA (Rule 50, Sec 1); or c. SC (Rule 56, Sec 5)

Grounds (Sec 1)

a. Court has no jurisdiction over the person of the defending party; b. Court has no jurisdiction over the subject matter of the claim; c. Venue is improperly laid; d. Plaintiff has no legal capacity to sue; e. There is another action pending between the same parties for the same cause; f. Cause of action is barred by a prior judgment or by the statute of limitations; g. Pleading asserting the claim states no cause of action; h. Claim or demand set forth in the plaintiff‘s pleading has been paid, waived, abandoned, or otherwise extinguished; i. Claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and j. Condition precedent for filing the claim has not been complied with.

Lack of jurisdiction

Boticano vs. Chu (148 SCRA 541) o Defect in service of summons cannot be raised for the first time on appeal. One of the circumstances

considered by the Court as indicative of waiver by the defendant-appellant of any alleged defect of jurisdiction over his person arising from defective or even want of process, is his failure to raise the question of jurisdiction in the Court of First Instance and at the first opportunity. Defects in jurisdiction arising from irregularities in the commencement of the proceedings, defective process or even absence of process may be waived by a failure to make seasonable objections. x x x. The question of jurisdiction which was never raised before the trial court cannot be done at this stage and level

Res judicata

Del Rosario vs. Far East Bank and Trust Company (537 SCRA 571) o ―Bar by former judgment‖ makes the judgment rendered in the first case an absolute bar to the

subsequent action since that judgment is conclusive not only as to the matters offered and received to sustain it but also as to any other matter which might have been offered for that purpose and which could have been adjudged therein – it is this concept that the term res judicata is more commonly and generally used as a ground for a motion to dismiss in civil cases

o The second rule of res judicata is ―conclusiveness of judgment‖ – it refers to a situation where the judgment in the prior action operates as an estoppel only as to the matters actually determined or which were necessarily included therein

o Requisites of bar by former judgment a. Finality of the former judgment; b. Court which rendered it had jurisdiction over the subject matter and the parties; c. It must be a judgment on the merits; and d. There must be, between the first and second actions, identity of parties, subject matter and

causes of action o Requisites of conclusiveness

In determining whether causes of action are identical to warrant the application of the rule of res judicata, the test is to ascertain whether the same evidence which is necessary to sustain the second action would suffice to authorize a recovery in the first even in cases in which the forms or nature of the two actions are different

o A party cannot, by varying the form of action or adopting a different method of presenting his case, or by pleading justifiable circumstances, escape the operation of the principle that one and the same cause of action shall not be twice litigated. Authorities tend to widen rather than restrict the doctrine of res judicata on the ground that public as well as private interest demands the ending of suits by requiring the parties to sue once and for all in the same case all the special proceedings and remedies to which they are entitled



o Re-litigation of matters already settled by a court‘s final judgment merely burdens the courts and the taxpayers, creates uneasiness and confusion, and wastes valuable time and energy that could be devoted to worthier cases – interest reipublicae ut sit finis litium

Jurisdiction over the person may be waived

Lack of jurisdiction over the subject matter may be raised at any time No cause of action

Halimao vs. Villanueva (253 SCRA 1) o Rule that a motion to dismiss is to be considered as a hypothetical admission of the facts alleged in the

complaint applies more particularly to cases in which the ground for dismissal is the failure of the complaint to state a cause of action.

o The rule does not unqualifiedly apply to a case where the defendant files a MTD based on lack of jurisdiction; improper venue; lack of capacity to sue; litis pendencia, res judicata, prescription, unenforceability or on the allegation that the suit is between members of the same family and no earnest efforts towards a compromise have been made. In such cases, the hypothetical admission is limited to the facts alleged in the complaint which relate to and are necessary for the resolution of these grounds as preliminary matters involving substantive or procedural laws, but not to the other facts of the case.

o Where the motion is based on payment, waiver, abandonment, release, compromise or other form of extinguishment, the MTD does not hypothetically but actually admits the facts alleged in the complaint.

Tan vs. CA (295 SCRA 247) o Although the general rule is that averments in the complaint are deemed hypothetically admitted upon the

filing of a motion to dismiss grounded on the failure to state a cause of action, it must taken into account the equally established limitations to such rule, i.e. that a motion to dismiss does not admit the truth of mere epithets of fraud; nor allegations of legal conclusions; nor an erroneous statement of law, etc.

o A more judicious resolution of a motion to dismiss necessitates that the court be not restricted to the consideration of the facts alleged in the complaint and inferences fairly deducible therefrom. Courts may consider other facts within the range of judicial notice as well as relevant laws and jurisprudence which the courts are bound to take into account, and they are also fairly entitled to examine records/documents duly incorporated into the complaint by the pleader himself in ruling on the demurrer to the complaint.

Statute of Frauds

Asia Production Co., Inc. vs. Pano (205 SCRA 458) o The statute of frauds will apply only to executory rather than executed contracts. Partial execution is enough

to bar the application of the statute. o The action in the case at bar is not for specific performance, hence the Statute of Frauds does not apply.

Even if the action were for specific performance, it was premature for the respondent judge to dismiss the complaint by reason of the statute of frauds despite explicit allegations of partial payment.

Condition precedent

Sunville Timber Products, Inc. vs. Abad (206 SCRA 482) o Non-observance of the doctrine of exhaustion of administrative remedies although not jurisdictional results

in lack of cause of action which is one of the grounds allowed in the Rules of Court for dismissal of the complaint.

Who files

Defendant. Obviously. How pleaded Period (Sec 1)

Within the time for but before filing the answer to the complaint or pleading asserting a claim As affirmative defense (Sec 6)

If no MTD has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a



Counterclaim which may be prosecuted in same or separate action refers to permissive counterclaim Hearing and resolution (Secs 2, 3)

At hearing of the motion, parties shall submit their arguments on the questions of law and their evidence on questions of fact involved except those not available at that time. Should the case go to trial, the evidence presented during the hearing shall automatically be part of the evidence of the party presenting the same. (Sec 2)

After the hearing, court may dismiss the action or claim, deny the motion, or order the amendment of the pleading. Court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. In every case, resolution shall state clearly and distinctly reasons therefor. (Sec 3)

Municipality of Binan vs. CA (219 SCRA 69) o Preliminary hearing under Sec 5, Rule 16 is not mandatory even when the same is prayed for. It rests largely

on the sound discretion of the trial court. o A preliminary hearing on an affirmative defense for failure to state a cause of action is not necessary.

Effects Of dismissal (Sec 5)

Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f – cause of action is barred by a prior judgment or by the statute of limitations), (h –claim or demand set forth in plaintiff‘s pleading has been paid, waived, abandoned, or otherwise extinguished) and (i – claim on which the action is founded is unenforceable under the provisions of the statute of frauds) of section 1 hereof shall bar the refilling of the same action or claim.

On periods for pleading (Sec 4)

If motion denied – movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than 5 days in any event, computed from his receipt of the notice of the denial. If the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from service of amended pleading, unless the court provides a longer period.

On other grounds and omnibus motion rule (Rule 9, Sec 1; Rule 15, Sec 8)

Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim (Rule 9, Sec1)

Subject to the provisions of sec 1, Rule 9, a motion attacking a pleading, order, judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed waived (Rule 15, Sec 8 – omnibus motion rule)

Remedies If motion granted – appeal or refile complaint If motion denied – file answer, unless without jurisdiction, in which case, Rule 65 petition

NPC vs. CA (185 SCRA 169) o It is significant that this case is elevated to the CA and now the SC because of the denial of the

petitioner‘s motion to dismiss Meralco‘s amended petition. Unquestionably, it is but an incident to the main case and the ordinary procedure would have been to file an answer, go to trial and if the decision is adverse, reiterate the issue on appeal. But this general rule is subject to certain exceptions, among which are, if the court in denying the motion to dismiss acts without or in excess of jurisdiction or with grave abuse of discretion.

o The reason is, it would be unfair to require the defendant to undergo the ordeal and expense of trial under such circumstances as the remedy of appeal would not be plain and adequate. More importantly, petitioner‘s motion to dismiss is based on the ground that the complaint states no cause of action, so that there is no need for a full blown trial

Rule 17 Dismissal of Actions

Upon motion by plaintiff – before answer (Sec 1)

A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment



Upon such notice being filed, the court shall issue an order confirming the dismissal

Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim

O.B. Jovenir Construction and Development Corp. vs. Macamir Realty and CA (485 SCRA 446) o The 1997 Rules of Civil Procedure now requires that upon the filing of the notice of dismissal, the court issue

an order confirming the dismissal. The new requirement is intended to qualify the right of a party to dismiss the action before the adverse party files an answer or asks for summary judgment

Upon motion of plaintiff – after answer (Sec 2)

Except as provided in Sec 1, a complaint shall not be dismissed at plaintiff‘s instance save upon approval of the court and upon such terms and conditions as the court deems proper

If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff‘s motion for dismissal, the dismissal shall be limited to the complaint

Dismissal shall be without prejudice to the right of the defendant to prosecute his claim in a separate action unless within 15 days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action

Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice

A class suit shall not be dismissed or compromised without the approval of the court Due to default of plaintiff (Sec 3)

If, for no justifiable cause, plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court‘s own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action.

This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court.

Cruz vs. CA (482 SCRA 379) o Once a case is dismissed for failure to prosecute, this has the effect of an adjudication on the merits and is

understood to be with prejudice to the filing of another action unless otherwise provided in the order of dismissal.

o A ruling based on a motion to dismiss, without any trial on the merits or formal presentation of evidence, can still be a judgment on the merits.

Effect on counterclaim

Pinga vs. Santiago (494 SCRA 393) o The dismissal of the complaint due to the fault of the plaintiff does not necessarily carry with it the dismissal

of the counterclaim. In fact, the dismissal of the complaint is without prejudice o the right of defendants to prosecute the counterclaim.

Perkin Elmer Singapore Pte Ltd. vs. Dakila Trading Corp. (530 SCRA 170) o The dismissal of a complaint due to fault of the plaintiff is without prejudice to the right of the defendant to

prosecute any pending counterclaims of whatever nature in the same or separate action. The SC confirms that BA Finance vs. Co and all previous rulings of the Court that are inconsistent with this present holding are now abandoned.

Remedy of plaintiff

Ko vs. PNB (479 SCRA 298) o An order by the RTC of dismissal for failure to prosecute has the effect of an adjudication based on the

merits which must be appealed by means of a notice of appeal, not a petition for review on certiorari. Dismissal of counterclaims (Sec 4)

The provisions of this Rule shall apply to the dismissal of any counterclaim, cross-claim, or third-party complaint

A voluntary dismissal by the notice as in section 1 of this rule, shall be made before a responsive pleading or a motion for summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing.

Default Rule 9, Sec 3

Nature in general (Sec 3, first par.)



When may a defendant be declared in default? 1. Failure to file answer (Rule 9, Sec 3) 2. Failure to furnish copy of answer 3. Failure to appear at pre-trial (Rule 18, Sec 5) 4. Failure to comply with modes of discovery (Rule 29, Sec 3[d])

When allowed (Sec 3, first par.)

If the defending party fails to answer within the time allowed, court shall upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default

Court shall proceed to render judgment granting claimant such relief as his pleading may warrant, unless court in its discretion requires claimant to submit evidence

Such reception of evidence may be delegated to the clerk of court

Effect (Sec 3[a], [c])

Effect of order of default: party in default entitled to notice of subsequent proceedings but not to take part in the trial (Sec 3[a])

Effect of partial default: when a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented (Sec 3[c])

Gajudo vs. Traders Royal Bank (485 SCRA 108) o There is no incompatibility between Rule 9, Sec 3 and Rule 133, Sec 1 that would preclude the application of

either one of them. Rule 9, Sec 3 governs the procedure which the trial court is directed to take when a defendant fails to file an answer. According to the provision, the court ―shall proceed to render judgment granting the claimant such relief as his pleading may warrant,‖ subject to the court‘s discretion on whether to require the presentation of evidence ex parte. The same provision also sets down guidelines on the nature and extent of the relief that may be granted. In particular, the court‘s judgment ―shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages.‖

Vlason Enterprises Corp. vs. CA (310 SCRA 26) o The reception of evidence ex parte against a non-defaulting party is procedurally indefensible. Without a

declaration that petitioner is in default as required in Rule 18, Sec 1, the trial court had no authority to order the presentation of evidence ex parte against petitioner to render judgment against it by default. The trial judge must have thought that since it failed to appear despite summons and was in default, it effectively waived any objection to the presentation of evidence against it. This rule, however, would have applied only if petitioner had submitted itself to the jurisdiction of the trial court.

Order of default When some answer and others default (Sec 3[c])

When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented

Extent of relief to be awarded (Sec 3[d])

Not exceed the amount or be different in kind from that prayed for nor award unliquidated damges Where not allowed (Rule 9, Sec 3[e])

If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated

Procedure after order of default (Sec 3, first par.)

Court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence – such reception of evidence may be delegated to the clerk of court

Remedy from order of default Motion to set aside (Sec 3[b])



Any time after notice and before judgment, file motion under oath to set aside order of default upon proper showing that his failure to answer was due to FAME and that he has a meritorious defense. In such case, order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice

Ramnani vs. CA (221 SCRA 582) o Remedies available to a defendant declared in default:

1. Defendant in default may, at any time after discovery thereof and before judgment, file a motion under oath, to set aside the order of default on the ground that his failure to answer was due to FAME, and that he has a meritorious defense (Rule 18, Sec 3);

2. If the judgment has already been rendered when the defendant discovered the default, but before the same has become final and executory, he may file a motion for new trial under Rule 37, Sec 1(a);

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

4. He may also appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no petition to set aside the order of default has been presented by him. (Rule 41, Sec 2)

Remedies from judgment by default Before finality Motion for reconsideration or new trial (Rule 37) Appeal (Rules 40 and 41)

Martinez vs. Republic (506 SCRA 134) o A defaulted defendant has the right to appeal the adverse decision of the trial court even without

seeking to set aside the order of default. o The right of defaulted defendant to appeal remains extant. o A defendant party declared in default retains the right to appeal from the judgment by default on the

ground that the plaintiff failed to prove the material allegations of the complaint, or that the decision is contrary to law, even without need of prior filing of a motion to set aside the order of default.

After finality Petition for relief from judgment (Rule 38) Annulment of judgment (Rule 47)

Is certiorari a proper remedy?

Jao vs. CA (251 SCRA 391) o The proper remedy of a party wrongly declared in default is either to appeal from the judgment by default

or to file a petition for relief from judgment, and not certiorari.

Indiana Aerospace University vs. CHED (356 SCRA 367) o Remedies of defendant declared in default:

1. Motion to set aside order of default under Rule 9, Sec 3(b) – if default was discovered before judgment could be rendered

2. Motion for new trial under Rule 37, Sec 1(a) – if default was discovered after judgment but while appeal still available

3. Petition for relief under Rule 38 – if judgment has become final and executory 4. Appeal from the judgment under Rule 41, Sec 1 – even if no petition to set aside order of default

has been resorted to o Remedies of a defendant declared in default are available only to a defendant who has been validly

declared in default since a defendant improvidently declared in default may retain and exercise such right after the order of default and the subsequent judgment by default are annulled, and the case remanded to the court of origin

o If, in the course of a trial, a judge proceeds without or in excess of jurisdiction, the rule prohibiting an appeal from an interlocutory order does not leave the aggrieved party without any remedy – a special civil action of certiorari is the plain, speedy and adequate remedy.

o An order denying a motion to dismiss is interlocutory, and so the proper remedy in such a case is to appeal after a decision has been rendered. A writ of certiorari is not intended to correct every controversial interlocutory ruling, it is resorted to only to correct a grave abuse of discretion or a whimsical exercise of judgment equivalent to lack of jurisdiction.



Rule 18 Pre-Trial

Nature (Sec 2)

Mandatory!

Court shall consider: a. Possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; b. Simplification of issues; c. Necessity or desirability of amendments to the pleadings; d. Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; e. Limitation of number of witnesses; f. Advisability of a preliminary reference of issues to a commissioner; g. Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a

valid ground therefor be found to exist; h. Advisability or necessity of suspending proceedings; i. Such other matters as may aid in the prompt disposition of the action

When (Sec 1)

After the last pleading has been served and filed, it shall be the plaintiff‘s duty to promptly move ex parte that the case be set for pre-trial

LCK Industries Inc. vs. Planters Development Bank (538 SCRA 634) o The conduct of pre-trial in civil actions has been mandatory as early as 01 January 1964 upon the effectivity

of the Revised Rules of Court. Pre-trial is an answer to the clarion call for the speedy disposition of cases. Hailed as the most important procedural innovation in Anglo-Saxon justice in the nineteenth century, pre-trial is a device intended to clarify and limit the basic issues between the parties.

o The purpose of entering into a stipulation of facts is to expedite trial and to relieve the parties and the court as well as of the costs of proving facts which will not be disputed on trial and the truth of which can be ascertained by reasonable inquiry.

o While the parties, to obviate the element of surprise, are expected to disclose at the pre-trial conference all issues of law and fact they intend to raise at the trial, in cases which the issue may involve privileged or impeaching matters, or if the issues are impliedly included therein or may be inferable therefrom by necessary implication to be integral parts of the pre-trial order as much as those that are expressly stipulated, the general rule will not apply.

Requirements for Appearance (Sec 4)

Duty of the parties and their counsel to appear at pre-trial

Non-appearance of a party may be excused only if a valid cause is shown therefor or if a representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents.

Procedure Duty to set (Sec 1)

Duty of the plaintiff to promptly move ex parte that the case be set for pre-trial Effect of I.A.1.2, A.M. No. 03-1-09-SC (Rule on Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures), which took effect on August 16, 2004

Within 5 days from date of filing of reply, plaintiff must promptly move ex parte that the case be set for pre-trial conference.

If plaintiff fails to file said motion within the given period, the branch clerk of court shall issue a notice of pre-trial

Notice (Sec 3)

Shall be served on counsel, or on the party who has no counsel

Counsel served with such notice is charged with the duty of notifying the party represented by him Pre-trial brief required (Sec 6)

File with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least 3 days before the date of pre-trial, their respective pre-trial briefs which shall contain, among others:



a. Statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating desired terms;

b. Summary of admitted facts and proposed stipulation of facts; c. Issues to be tried or resolved; d. Documents or exhibits to be presented, stating the purpose thereof; e. Manifestation of their having availed or their intention to avail themselves of discovery procedures or referral

to commissioners; and f. Number and names of witnesses and the substance of their respective testimonies

Failure to file pre-trial brief shall have the same effect as failure to appear at the pre-trial Record or order of pre-trial (Sec 7)

Proceedings in pre-trial shall be recorded

Upon termination, court shall issue an order which shall recite in detail: o Matters taken up in the conference, o Action taken thereon, o Amendments allowed to the pleadings, and o Agreements or admissions made by the parties as to any of the matters considered

Should the action proceed to any trial, the order shall explicitly define and limit the issues to be tried

Contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice

Consequences Order (Sec 7) Effect of failure to appear (Secs 5, 6(last par))

Failure of plaintiff to appear when so required pursuant to Sec 4 shall be cause for dismissal of the action. Dismissal shall be with prejudice, unless otherwise ordered by the court.

Failure on part of defendant shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof

Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial

Calalang vs. CA (217 SCRA 462) o Pre-trial cannot validly be held until the last pleading has been filed which last pleading may be the plaintiff‘s

reply, except where the period to file the last pleading has lapsed. o Though it is within the discretion of the trial court to declare a party non-suited for non-appearance in the

pre-trial conference, such discretion must not be abused o To be a sufficient ground for dismissal, delay must not only be lengthy but also unnecessary and dilatory

resulting in the trifling of judicial process o Test for dismissal of a case due to failure to prosecute (non prosequitur): whether, under the circumstances,

plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude. In the absence of a pattern or scheme to delay the disposition of the case or a wanton failure to observe the mandatory requirement of the rules on the part of the plaintiff, as in the case at bar, courts should decide to dispense with rather than wield their authority to dismiss.

On plaintiff (see Rule 17, Sec 3)

If , for no justifiable cause, plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court‘s own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action

This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court.



On defendant, compare with default (Rule 9, Sec 3)

Rule 18 Rule 9, Sec 3 (default)

Allows plaintiff to present evidence ex parte and the court to render judgment on the basis thereof

Court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court

Citibank N.A. vs. Chua (220 SCRA 75) o We reiterate the previous admonitions of this Court against ―precipitate orders of default as these

have the effect of denying the litigant the chance to be heard. While there are instances, to be sure, when a party may be properly defaulted, these should be the exceptions rather than the rule and should be allowed only in clear cases of an obstinate refusal or inordinate neglect to comply with the orders of the court. Absent such a showing, the party must be given every reasonable opportunity to present his side and to refute the evidence of the adverse party in deference to due process of law.

o No default order should be made where defendant has meritorious defense, simply for defect in authority to represent party. Litigants should be allowed to settle their claims on the arena of the court based on a trial on the merits rather than on mere technicalities.

No pre-trial brief (Rule 18, Sec 7) – Sec 6 yata dapat

Failure to file pre-trial brief shall have the same effect as failure to appear at pre-trial

Rule 20 Calendar of Cases

Calendar (Sec 1)

Clerk of court, under the direct supervision of the judge, shall keep a calendar of cases for pre-trial, for trial, those whose trials were adjourned or postponed, and those with motions to set for hearing

Preferences (Sec 1)

Given to habeas corpus cases, election cases, special civil actions, and those so required by law Assignment of cases (Sec 2)

Done exclusively by raffle

Done in open session of which adequate notice shall be given so as to afford interested parties the opportunity to be present

Rule 22 Computation of Time

(Sections 1 and 2)

How to compute time (Sec 1)

The day of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included

If the last day of the period falls on a Saturday, a Sunday or a legal holiday in the place where the court sits, the time shall not run until the next working day

Effect of interruption (Sec 2)

Allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof

The day of the act that caused the interruption shall be excluded in the computation of the period

Rule 30 Trial

Notice of trial (Sec 1)

Upon entry of a case in the trial calendar, the clerk shall notify the parties of the date of its trial in such manner as shall ensure his receipt of that notice at least 5 days before such date (of trial)



Adjournments and postponements (Sec 2)

Court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may require, but shall have no power to adjourn a trial for a longer period than 1 month for each adjournment, nor more than 3 months in all, except when authorized in writing by the Court Administrator, SC.

Absence of evidence (Sec 3)

Motion to postpone trial on ground of absence of evidence can be granted only upon affidavit showing materiality or relevancy of such evidence, and that due diligence has been used to procure it

But if adverse party admits the facts to be given in evidence, even if he objects or reserves the right to object to their admissibility, trial shall not be postponed

Illness of party or counsel (Sec 4)

Motion to postpone trial on ground of illness of party or counsel may be granted if it appears upon affidavit or sworn certification that the presence of such party or counsel at the trial is indispensable and that the character of his illness is such as to render his non-attendance excusable.

Subpoena, Rule 21

Subpoena – process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition

Subpoena duces tecum – process directed to a person requiring him to bring with him any books, documents, or other things under his control (Sec 1)

By whom issued (Sec 2) a. Court before whom witness is required to attend; b. Court of the place where the deposition is taken; c. Officer or body authorized by law to do so in connection with investigations conducted by said officer or body;

or d. Any Justice of the SC or of the CA in any case or investigation pending within the Phils.

When application for a subpoena to a prisoner is made, the judge or officer shall examine and study carefully such application to determine whether the same is made for a valid purpose

No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in any penal institution shall be brought outside the said penal institution for appearance or attendance in any court unless authorized by the SC

Form and contents (Sec 3)

Shall state name of the court and title of action for investigation

Directed to the person whose attendance is required

In the case of subpoena duces tecum – a reasonable description of the books, documents or things demanded which must appear to the court prima facie relevant

Quashing a subpoena (Sec 4)

Quashing a subpoena duces tecum: Upon motion promptly made and, in any event, at or before the time specified therein if it is unreasonable and oppressive, or the relevancy of the books, documents or things does not appear, or if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof

Quashing a subpoena ad testificandum: on the ground that the witness is not bound thereby

In either case, subpoena may be quashed on the ground that the witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served

Subpoena for depositions (Sec 5)

Proof of service of notice to take deposition, as provided in sections 15 and 25 of Rule 23, shall constitute sufficient authorization for issuance of subpoenas for persons named in said notice by the clerk of court of the place in which the deposition is to be taken

Clerk of court shall not issue a subpoena duces tecum to any such person without order of the court Service (Sec 6)

Made in the same manner as personal or substituted service of summons



Original shall be exhibited and a copy thereof delivered to the person on whom it is served, tendering to him the fees for one day‘s attendance and the kilometrage allowed by these Rules, except that, when a subpoena is issued by or on behalf of the Republic or an officer or agency thereof, the tender need not be made

Service must be made so as to allow witness a reasonable time for preparation and travel to the place of attendance

If subpoena duces tecum, reasonable cost of producing the books, documents or things demanded shall also be tendered

Personal appearance in court (Sec 7)

A person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued by such court or officer

Compelling attendance (Sec 8)

In case of failure of a witness to attend – court or judge issuing subpoena, upon proof of service and of failure of witness, may issue a warrant to the sheriff of the province, or his deputy, to arrest the witness and bring him before the court or officer where his attendance is required

The cost of such warrant and seizure of such witness shall be paid by the witness if the court issuing it shall determine that his failure to answer subpoena was wilful and without just excuse

Contempt (Sec 9)

Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which the subpoena is issued

If subpoena not issued by court, disobedience shall be punished in accordance with the applicable law or Rule Exceptions (Sec 10)

Secs 8 and 9 shall not apply to a witness who resides more than 100km from his residence to the place where he is to testify by the ordinary course of travel, or to a detention prisoner if no permission of the court in which his case is pending was obtained

Conduct Order of trial (Sec 5)

Subject to the provisions of sec 2, Rule 31 (separate trials), and unless the court for special reasons otherwise directs, trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows:

o Plaintiff shall adduce evidence in support of his complaint; o Defendant shall adduce evidence in support of his defense, counterclaim, cross-claim and third-party

complaint o Third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim and fourth-

party complaint; o Fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them; o Parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support

of their defense in the order to be prescribed by the court; o Parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in

the furtherance of justice, permits them to adduce evidence upon their original case; and o Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs

the parties to argue or to submit their respective memoranda or any further pleadings

If several defendants or third party defendants and so forth, having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence

Agreed statement of facts (Sec 6; Rule 18, Secs 2(d), 7)

Parties to any action may agree, in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence.

If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe.

Court shall consider the possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof (Rule 18, Sec 2(d))

Record of pre-trial (Rule 18, Sec 7) Statement of judge (Sec 7)



During the hearing or trial of a case, any statement made by the judge with reference to the case, or to any of the parties, witnesses or counsel, shall be made of record in the stenographic notes

Suspension of actions (Sec 8)

Governed by the provisions of the Civil Code Arts 2030 & 2035, Civil Code

Art 2030. Every civil action or proceeding shall be suspended: 1. If willingness to discuss a possible compromise is expressed by one or both parties; or 2. If it appears that one of the parties, before the commencement of the action or proceeding, offered

to discuss a possible compromise but the other party refused the offer. The duration and terms of the suspension of the civil action or proceeding and similar matters shall be

governed by such provisions of the rules of court as the SC shall promulgate. Said rules of court shall likewise provide for the appointment and duties of amicable compounders.

Art 2035. No compromise upon the following questions shall be valid: 1. The civil status of persons; 2. The validity of a marriage or a legal separation; 3. Any ground for legal separation; 4. Future support; 5. The jurisdiction of courts; 6. Future legitime.

Duty of judge to receive evidence and power to delegate to clerk of court (Sec 9)

Judge shall personally receive the evidence to be adduced by the parties

In default or ex parte hearings, and in any case where the parties agree in writing, the court may delegate the reception of evidence to its clerk of court who is a member of the bar

The clerk of court shall have no power to rule on objections to any question or to the admission of exhibits, which objections shall be resolved by the court upon submission of his report and the transcripts within 10 days from termination of the hearing

Trial by commissioner, Rule 32, Secs 1 to 3 only

By written consent of both parties, the court may order any or all of the issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court.

Commissioner – includes a referee, an auditor and an examiner

When parties do not consent, court may, upon application of either or of its own motion, direct a reference to a commissioner in the following cases:

o When trial of an issue of fact requires the examination of a long account on either side, in which case the commissioner may be directed to hear and report upon the whole issue or any specific question involved therein;

o When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect;

o When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or for carrying a judgment or order into effect

When a reference is made, clerk shall furnish the commissioner with a copy of the order of reference

The order may specify or limit the powers of the commissioner, and may direct him to report only upon particular issues, or to do or perform particular acts, or to receive and report evidence only, and may fix the date for beginning and closing the hearings and for the filing of his report

Subject to the specifications and limitations stated in the order, commissioner has and shall exercise the power to regulate the proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order

Commissioner may issue subpoenas and subpoenas duces tecum, swear witnesses, and unless otherwise provided in the order of reference, may rule upon the admissibility of evidence

Trial or hearing before him shall proceed in all respects as it would if held before the court



Consolidation of trial, Rule 31, Sec 1, Compare with Rule 2, Sec 5 & Rule 3, Sec 6

Rule 31, Sec 1 – Consolidation Rule 2, Sec 5 – Joinder of

causes of action Rule 3, Sec 6 – Permissive

joinder of parties

Actions involving a common question of law or fact, court may order joint hearing or trial of any or all the matters in issue; order all actions consolidated; and make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay

A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, subject to conditions

All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, may join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action

Severance of trial, Rule 31, Sec 2

Court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party complaints or issues

Lack of cause of action may be cured by evidence presented during the trial and amendments to conform to the evidence

Swagman Hotels & Travel, Inc. vs. CA (455 SCRA 175) o The curing effect under Section 5 of Rule 10 of the 1997 Rules of Civil Procedure is applicable only if a cause

of action exists at the time the complaint is filed, but the complaint is defective for failure to allege the essential facts.

o For example, if a complaint failed to allege the fulfillment of a condition precedent upon which the cause of action depends, evidence showing that such condition has already been fulfilled when the complaint was filed may be presented during the trial, and the complaint may accordingly be amended thereafter. Thus in Roces vs. Jalandoni, the SC upheld the trial court in taking cognizance of an otherwise defective complaint which was later cured by the testimony of the plaintiff during the trial. In that case, there was in fact a cause of action and the only problem was the insufficiency of the allegations in the complaint.

o A complaint whose cause of action has not yet accrued cannot be cured or remedied by an amended or supplemental pleading alleging the existence or accrual of a cause of action while the case is pending.

Rule 33 Demurrer to Evidence

After the plaintiff has completed presentation of his evidence, defendant may move for dismissal on the ground that upon the facts and the law, the plaintiff has shown no right to relief

If his motion is denied, he shall have the right to present evidence

If the motion is granted but on appeal the order of dismissal is reversed, he shall be deemed to have waived the right to present evidence.

Republic vs. Tuvera (516 SCRA 113) o The general rule is that upon the dismissal of the demurrer in the appellate court, the defendant loses the

right to present his evidence and the appellate court shall then proceed to render judgment on the merits on the basis of plaintiff‘s evidence.

Distinguished from motion to dismiss for failure to state a cause of action (Rule 16, Sec 1(g))

The Manila Banking Corp. vs. University of Baguio, Inc. (516 SCRA 371) o

Demurrer to Evidence (Rule 33)

Motion to Dismiss (Rule 16, Sec 1(g))

When moved After plaintiff has completed presentation of evidence

Within the time for but before filing the answer to the complaint



or pleading asserting a claim

o In this case, the university‘s motion to dismiss the amended complaint was improper under Rule 16 because it was filed after the respondent university filed its responsive pleading, its answer. Also the motion‘s merit could not be determined based solely on the allegations of the initiatory pleading, the amended complaint, since the motion was based on the deed of dacion en pago, which was not even alleged in the complaint. And since the deed of dacion en pago had been expunged from the record, the trial court erred in its finding of payment and lack of cause of action based on the deed.

Distinguished from demurrer in criminal case (Rule 119, Sec 23)

Demurrer to Evidence in a Civil Case (Rule 33)

Demurrer to evidence in a Criminal Case (Rule 119)

When moved After plaintiff has completed presentation of his evidence

After prosecution rests its case

By whom Defendant Defendant or the court motu proprio

Grounds Upon the facts and the law, plaintiff has shown no right to relief

Insufficiency of evidence

Effect of denial

Defendant still has the right to present evidence Note: if motion is granted but on appeal, order of dismissal is reversed, defendant is deemed to have waived the right to present evidence

If w/ leave of court: accused may still adduce evidence in his defense If w/o leave of court: accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution

Rule 34 Judgment on the Pleadings

Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party‘s pleading, the court may, on motion of that party, direct judgment on such pleading

However, in actions for declaration of nullity or annulment of marriage or for legal separation, the material facts alleged in the complaint shall always be proved

Meneses vs. Secretary of Agrarian Reform (505 SCRA 90) o A judgment on the pleadings may be sought only by a claimant, who is the party seeking to recover upon a claim,

counterclaim or cross-claim; or to obtain a declaratory relief Distinguished from summary judgment

Diman vs. Alumbres (299 SCRA 459) o

Judgment on the Pleadings Summary Judgment

A judgment on the facts as pleaded Judgment on the facts as summarily proven by affidavits, depositions or admissions

There is no ostensible issue at all, but the absence of any because of the failure of the defending party‘s answer to raise an issue

Issues apparently exist – facts are asserted in the complaint regarding which there is as yet no admission, disavowal or qualification; or specific denials or affirmative defenses are in truth set out in the answer – but the issues thus arising from the pleadings are sham, fictitious, not genuine, as shown by admissions, depositions or affidavits

May be sought only by the claimant May be applied for by either a claimant or a defending party



Rule 35 Summary Judgments

(Sections 1 to 6) For claimant (Sec 1)

Party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favour as to all or any part thereof

For defending party (Sec 2)

Party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits, depositions or admissions for a summary judgment in his favour as to all or any part thereof

Motion and proceedings (Sec 3)

Motion shall be served at least 10 days before time specified for hearing. Adverse party may serve opposing affidavits, depositions, or admissions at least 3 days before hearing.

o After hearing, judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that moving party is entitled to a judgment as a matter of law

Case not fully adjudicated on motion (Sec 4)

If judgment not rendered upon whole case or for all reliefs sought and a trial is necessary, court at the hearing of motion, by examining pleadings and evidence before it and by interrogating counsel shall ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted

o Court shall thereupon may make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just

o Facts so specified shall be deemed established, and trial shall be conducted on controverted facts accordingly Form of affidavits and supporting papers (Sec 5)

Made on personal knowledge

Set forth such facts as would be admissible in evidence

Show affirmatively that affiant is competent to testify to the matters stated

Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith

Affidavits in bad faith (Sec 6)

If presented in bad faith, or solely for purpose of delay – court shall forthwith order offending party or counsel to pay to other party amount of reasonable expenses which the filing of the affidavits caused him to incur, including attorney‘s fees. It may, after hearing, further adjudge the offending party or counsel guilty of contempt

Ontimare vs. Elep (479 SCRA 257) o For a summary judgment to be proper, two requisites must concur:

1. There must be no genuine issue on any material fact, except for the amount of damages; and 2. The moving party must be entitled to a judgment as a matter of law

o When on their face, the pleadings tender a genuine issue, summary judgment is not proper. An issue is genuine if it requires the presentation of evidence as distinguished from a sham, fictitious, contrived or false claim.

Motion required

Asian Construction and Development Corp. vs. PCIB (488 SCRA 192) o Summary or accelerated judgment – procedural technique aimed at weeding out sham claims or defenses at

an early stage of litigation thereby avoiding the expense and loss of time involved in a trial. o Summary judgment is appropriate when there are no genuine issues of fact which call for the presentation of

evidence in a full-blown trial. Even if on their face the pleadings show that such issues are not genuine, then summary judgment must ensue as a matter of law. The determinative factor, therefore, in a motion for summary judgment is the presence or absence of a genuine issue as to any material fact.

o ―genuine issue‖ – an issue of fact which requires the presentation of evidence as distinguished from a sham, fictitious, contrived or false claim



Rule 36 Judgments, Final Orders and Entry

(Sections 1 to 8)

Form (Rule 36, Sec 1)

Judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the court.

Concept of final judgment and final order See also Rule 41, Sec 1

BA Finance Corp. vs. CA (229 SCRA 566) o Only a final order or judgment on the merits may be the subject of an appeal o Final order and interlocutory order distinguished

Final order Interlocutory order

Disposes of the whole subject matter or terminates a particular proceeding or action, leaving nothing to be done but to enforce by execution what has been determined

Does not dispose of a case completely but leaves something more to be done upon its merits

Kinds (as to finality) Rendition of judgment (Rule 36, Sec 1)

Judgment or final order determining the merits of the case Entry of judgment (Rule 36, Sec 2)

If no appeal or MNT or MR is filed within the time provided, judgment or final order shall be entered by the clerk in the book of entries of judgments

The date of finality of the judgment or final order shall be deemed to be the date of its entry

Record shall contain the dispositive part of the judgment or final order and shall be signed by the clerk, with a certificate that such judgment or final order has become final and executory

Entry of satisfaction of judgment (Rule 39, Secs 44 and 45)

Satisfaction of judgment shall be entered by the clerk of court in the court docket, and in the execution book, upon the return of a writ of execution showing the full satisfaction of the judgment, or upon the filing of an admission to the satisfaction of the judgment executed and acknowledged in the same manner as a conveyance of real property by the judgment oblige or by his counsel unless a revocation of his authority is filed, or upon the endorsement of such admission by the judgment oblige or his counsel on the face of the record of the judgment (Rule 39, Sec 44)

Whenever a judgment is satisfied in fact or otherwise than upon an execution, on demand of the judgment obligor, the judgment oblige or his counsel must execute and acknowledge , or indorse, an admission of the satisfaction as provided in the last preceding section, and after notice and upon motion the court may order either the judgment oblige or his counsel to do so, or may order the entry of satisfaction to be made without such admission

Kinds (as to process of procuring) Judgment on the pleadings, Rule 34 Judgment on demurrer to evidence, Rule 33 Summary judgments, Rule 35 Default judgments, Rule 9, Sec 3 Judgments after ex parte presentation of evidence, Rule 18, Sec 5 Orders for dismissal Motion to dismiss, Rule 16 Dismissals under Rule 17 Dismissals under Rule 18, Sec 5 Dismissals under Rule 29, Sec 5



Kinds (as to parties) As against one or more several parties, Rule 36, Sec 3

Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants.

When justice so demands, the court may require the parties on each side to file adversary pleadings as between themselves and determine their ultimate rights and obligations

Several judgment, Rule 36, Sec 4

In an action against several defendants, the court may, when a several judgment is proper, may render judgment against one or more of them, leaving the action to proceed against the others

Difference from Sec 3: in this section, there‘s only one plaintiff Against entity without juridical personality, Rule 36, Sec 6

When judgment is rendered against two or more persons sued as an entity without juridical personality, the judgment shall set out their individual or proper names, if known

Kinds (as to claims)

Entire At various stages or separate judgments, Rule 36, Sec 5

When more than one claim for relief is presented in an action, the court, at any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may render a separate judgment disposing of such claim.

The judgment shall terminate the action with respect to the claim so disposed of and the action shall proceed as to the remaining claims.

In case a separate judgment is rendered, the court by order may stay its enforcement until the rendition of a subsequent judgment or judgments and may prescribe such conditions as may be necessary to secure the benefit thereof to the party in whose favour the judgment is rendered See also Rule 41, Sec 1(f)

No appeal may be taken from a judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints while the main case is pending, unless the court allows an appeal therefrom. In this case, the aggrieved party may file an appropriate special civil action as provided in Rule 65

Kinds (as to how executed)

Judgments not stayed on appeal, Rule 39, Sec 4

Judgments in actions for injunction, receivership, accounting and support, and such other judgments as are now or may hereafter be declared to be immediately executory, shall be enforceable after their rendition and shall not be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court.

On appeal therefrom, the appellate court in its discretion may make an order suspending, modifying, restoring or granting the injunction, receivership, accounting, or award of support.

The stay of execution shall be upon such terms as to bond or otherwise as may be considered proper for the security or protection of the rights of the adverse party

Example of judgment which is immediately executory: ejectment cases where the RTC affirms the MTC‘s judgment against the defendant (Rule 70, Sec 21)

Judgments for money, Rule 39, Sec 9 a. Immediate payment on demand. - The officer shall enforce an execution of a judgment for money by

demanding from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. The judgment obligor shall pay in cash, certified bank check payable to the judgment obligee or his authorized representative if present at the time of payment. The lawful fees shall be handed under proper receipt to the executing sheriff who shall turn over the said amount within the same day to the clerk of court of the court that issued the writ.

If the judgment obligee or his authorized representative is not present to receive payment, the judgment

obligor shall deliver the aforesaid payment to the executing sheriff. The latter shall turn over all the amounts coming into his possession within the same day to the clerk of court of the court that issued the writ, or if the same is not practicable, deposit said amount to a fiduciary account in the nearest government depository bank of the Regional Trial Court of the locality.



The clerk of court shall thereafter arrange for the remittance of the deposit to the account of the court that

issued the writ whose clerk of court shall then deliver said payment to the judgment obligee in satisfaction

of the judgment. The excess, if any, shall be delivered to the judgment obligor while the lawful fees shall be retained by the clerk of court for disposition as provided by law. In no case shall the executing sheriff demand that any payment by check be made payable to him.

b. Satisfaction by levy. - If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed of for value and not otherwise exempt from execution giving the latter the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, an then on the real properties if the personal properties are insufficient to answer for the judgment.

The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been levied upon.

When there is more property of the judgment obligor than is sufficient to satisfy the judgment and lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees.

Real property, stocks, shares, debts, credits, and other personal property, or any interest in either real or

personal property, may be levied upon in like manner and with like effect as under a writ of attachment. c. Garnishment of debts and credits. - The officer may levy on debts due the judgment obligor and other

credits, including bank deposits, financial interests, royalties, commissions and other personal property not

capable of manual delivery in the possession or control of third parties. Levy shall be made by serving

notice upon the person owing such debts or having in his possession or control such credits to which the judgment obligor is entitled. The garnishment shall cover only such amount as will satisfy the judgment and all lawful fees.

The garnishee shall make a written report to the court within five (5) days from service of the notice of garnishment stating whether or not the judgment obligor has sufficient funds or credits to satisfy the amount of the judgment. If not, the report shall state how much funds or credits the garnishee holds for the judgment obligor. The garnished amount in cash, or certified bank check issued in the name of the judgment obligee, shall be delivered directly to the judgment obligee within ten (10) working days from service of notice on said garnishing requiring such delivery, except the lawful fees which shall be paid directly to the court.

In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the judgment, the judgment obligor, if available, shall have the right to indicate the garnishee or garnishees who shall be required to deliver the amount due; otherwise, the choice shall be made by the judgment obligee.

The executing sheriff shall observe the same procedure under paragraph (a) with respect to delivery of payment to the judgment obligee.

Levy – attach. Separate/segregate the properties Judgments for specific acts, Rule 39, Sec 10

a. Conveyance, delivery of deeds, or other specific acts; vesting title. - If a judgment directs a party who execute a conveyance of land or personal property, or to deliver deeds or other documents, or to perform any other specific act in connection therewith, and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done shall have like effect as if done by the party. If real or personal property is situated within the Philippines, the court in lieu of directing a conveyance thereof may be an order divest the title of any party and vest it in others, which shall have the force and effect of a conveyance executed in due form of law.

b. Sale of real or personal property.— If the judgment be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgment.

c. Delivery or restitution of real property.- The officer shall demand of the person against whom the judgment for the delivery or restitution of real property is rendered and all person claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession thereof to the judgment obligee; otherwise, the officer shall oust and such persons therefrom with the assistance, if necessary of appropriate peace officers, and employing such means as may be reasonably necessary to retake possession,



and place the judgment obligee in possession of such property. Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money.

d. Removal of improvements on property subject of execution.- When the property subject of the execution contains improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court issued upon motion of the judgment obligee after due hearing and after the former has failed to remove the same within a reasonable time fixed by the court.

e. Delivery of personal property.- In judgments for the delivery of personal property, the officer shall take possession of the same and forthwith deliver it to the party entitled thereto and satisfy any judgment for money as therein provided.

Special judgments, Rule 39, Sec 11

When a judgment requires the performance of any act other than those mentioned in the two preceding sections, a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered, or upon any other person required thereby, or by law, to obey the same, and such party or person may be punished for contempt if he disobeys such judgment

Effect of judgments and final orders

Local, Rule 39, Sec 47

The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows:

a. In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate;

b. In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and

c. In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.

Foreign, Rule 39, Sec 48

The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows:

a. In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing; and

b. In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title.

In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.

Why just presumptive evidence? Why different effect from local judgments? o Because foreign jurisdiction, different laws/legal system

Amendment of judgment

Before it becomes final and executory [vs. Final judgment = judgment and final order – nothing left to be done]

Eternal Gardens Memorial vs. IAC (165 SCRA 439) o Courts have the inherent power to amend their judgments, to make them conformable to the law

applicable provided that the same have not obtained finality. In fact, motions for reconsideration are allowed to convince the court that their rulings are erroneous and improper and in so doing, said courts are given sufficient opportunity to correct their errors.

When is it deemed executory? Reckon appeal period, so 15 days after notice of judgment is received. o How to compute # of days – exam question (accdg to Justice de Leon)

After it becomes final and executory



Nuñal vs. CA (221 SCRA 26) o When a final judgment becomes executory, it thereby becomes immutable and unalterable. The judgment

may no longer be modified in any respect even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the Court rendering it or the highest Court of the land.

o The only recognized exceptions are the correction of clerical errors or the making of so-called nunc pro tunc entries which cause no prejudice to any party, and of course, where the judgment is void.

o Any amendment or alteration which substantially affects a final and executory judgment is null and void for lack of jurisdiction, including the entire proceedings held for that purpose

o Remedy where the judgment has become final, for inclusion of a party-heir, is to file an independent civil suit.

Industrial Timber Corp. vs. NLRC (233 SCRA 597) o When after a judgment has become final and executory, it can no longer be modified or otherwise

disturbed. o However, this principle admits of exceptions, as where facts and circumstances transpire which render its

execution impossible or unjust and it therefore becomes necessary, ―in the interest of justice, to direct its modification in order to harmonize the disposition with the prevailing circumstances.‖

Supplemental judgment

Esquivel vs. Alegre (172 SCRA 315) o Difference between amended judgment and supplemental judgment:

Amended judgment Supplemental judgment

Lower court makes a thorough study of the original judgment and renders the amended and clarified judgment only after considering all the factual and legal issues and is considered an entirely new decision which supersedes the original decision.

Does not take the place or extinguish the existence of the original. It only serves to bolster or add something to the primary decision. It exists side by side with the original. It does not replace that which it supplements

o The supplemental decision in the case at bar cannot stand alone as a judgment on the merits as there was no declaration of the respective rights of the parties

Judgments nunc pro tunc

Nunc pro tunc – phrase applied to acts allowed to be done after the time when they should have been done, with a retroactive effect, i.e. with the same effect as if regularly done. Describes the power of the court to make its records speak the truth, i.e. to correct record at later date to reflect what actually occurred at trial. (Black‘s Law Dictionary)

Cardoza vs. Singson (181 SCRA 45) o Acting not only as a court of law but also as a court of equity, the trial court correctly made the entry of a

judgment nunc pro tunc pursuant to the decision of the CA. In so doing, the lower court merely ordered the CA judgment to be executed

o The issuance of a nunc pro tunc order was recognized in Lichauco vs. Tan Pho where an order or judgment actually rendered by a court at a former time had not been entered of record as rendered. There is no doubt that such entry operates to save proceedings had before it was made.

o A judgment which has become final and executory can no longer be amended or corrected by the court except for clerical errors or mistakes. In such a situation, the trial court loses jurisdiction over the case except to execute the final judgment, as in this case.

Law of the case

The principle that if an appellate court has passed on a legal question and remanded the case back to the court bellow for further proceedings, the legal question thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain the same.

Determination of questions of law will generally be held to govern the case throughout all its subsequent stages where such determination has already been made on a prior appeal to a court of last resort. (Black‘s Law Dictionary)

Bar by former judgment and conclusiveness of judgment distinguished



Del Rosario vs. Far East Bank and Trust Company (537 SCRA 571) o Distinguished:

Bar by prior judgment or estoppel by judgment Conclusiveness of judgment

Makes the judgment rendered in the first case an absolute bar to the subsequent action since that judgment is conclusive not only as to the matters offered and received to sustain it but also as to any other matter which might have been offered for that purpose and which could have been adjudged therein – it is in this concept that the term res judicata is more commonly and generally used as a ground for a motion to dismiss in civil cases

The second rule of res judicata, which refers to a situation where the judgment in the prior action operates as an estoppel only as to the matters actually determined or which were necessarily included therein

o Requisites:

Finality of the former judgment;

The court which rendered it had jurisdiction over the subject matter and the parties;

It must be a judgment on the merits; and

There must be, between the first and second actions, identity of parties, subject matter, causes of action [and reliefs]

Immutability of final judgment

Griffith vs. Estur (554 SCRA 102) o A decision that has attained finality can no longer be modified even if the modification is meant to

correct erroneous conclusions of fact or law. o While petitioner can no longer challenge the decision which has become final and executory, he can

question the manner of its execution especially if it is not in accord with the tenor and terms of the judgment

o A judgment becomes final and executory by operation of law, not by judicial declaration. Accordingly, finality of judgment becomes a fact upon the lapse of the reglementary period of appeal if no appeal is perfected. In such a situation, the prevailing party is entitled as a matter of right to a writ of execution.

General Rule: No appeal, but if included in Rule 41, Sec 1 – remedy is certiorari

Problem with Griffith ruling, it did not reconcile w/ Rule 41, Sec 1(i)

Remedies against Judgments or Final Orders

Remedies before finality of judgment 1. Motion for reconsideration 2. Motion for new trial 3. Appeal

a. Ordinary appeal Rule 40 Rule 41

b. Petition for review Rule 42 Rule 43

c. Petition for review on certiorari Rule 45

Remedies after finality of judgment 1. Petition for relief from judgment 2. Annulment of judgment 3. Petition for certiorari



New Trial or Reconsideration Rule 37

(Sections 1 to 9)

Grounds and nature (Sec 1)

Motion for New Trial Motion for Reconsideration

Grounds

1. FAME which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights a. Fraud – extrinsic and

collateral b. Accident – actual surprise

incident that prevents one from appearing at trial

c. Mistake – of facts d. Excusable Negligence – as

when lawyer fails to get notice of hearing on time

2. Newly discovered evidence, which movant could not, with reasonable diligence, have discovered and produced at trial, and which if presented would probably alter the result

1. Damages awarded are excessive 2. Evidence insufficient to justify

decision or final order 3. Decision or final order contrary

to law

Nature Order granting or denying it is interlocutory (?)

Motion for new trial (Sec 1, par 1)

Distinguish from motion to reopen trial (? – not sure, got this from crim pro)

Motion for New Trial Motion to Reopen Trial

When filed After rendition of judgment, within

the period for taking an appeal

After both parties have presented and closed their evidence but before

rendition of judgment (?)

By whom Aggrieved party Either the aggrieved party or the

judge motu proprio

Grounds FAME or newly discovered evidence Miscarriage of justice

Motion for reconsideration (Sec 1, par 2) Periods (Sec 1)

For filing

Within the period for taking an appeal Effect of motion for extension of time to file

Appeal period is interrupted by a timely motion for new trial or reconsideration

No motion for extension of time to file a motion for new trial or reconsideration shall be allowed See also Rule 41, Sec 3, par 2; Rule 40, Sec 2, par 2

Not required for appeal Second motion for new trial (Sec 5, par 1)

Must be based on a ground not existing or available when the first motion was filed

May be filed within the time provided excluding the time during which the first motion had been pending Second motion for reconsideration (Sec 5, par 2)



Not allowed For resolution (Sec 4)

Resolved within 30 days from time submitted for resolution

Contents In general (Sec 2.). See also Rule 15, Sec 3

Made in writing

Stating the grounds

Written notice of which shall be served by the movant on the adverse party

Rule 15, Sec 3 – motions shall contain: o Relief sought to be obtained o Grounds upon which it is based o Accompanied by supporting affidavits and other papers – if required by the Rules or if necessary to

prove facts alleged Motion for new trial (Sec 2, par 2)

If ground is FAME – motion shall be supported by affidavits of merits which may be rebutted by affidavits

If ground is newly discovered evidence – motion shall be supported by affidavits of witnesses by whom such evidence is expected to be given, or duly authenticated documents which are proposed to be introduced in evidence

Motion for reconsideration (Sec 2, par 3)

Point out specifically findings or conclusions of the judgment or final order which are not supported by evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions

Pro forma motion and its effects (Sec 2, par 4)

Pro forma motion – does not follow the requirements on form

Does not toll the reglementary period of appeal

Marina Properties Corp. vs. CA (294 SCRA 273) o An MR is deemed pro forma if it does not specify findings or conclusions in the judgment which are not

supported by the evidence or contrary to law, making express reference to the pertinent evidence or legal provisions.

o Although an MR may merely reiterate issues already passed upon by the court, that by itself does not make it pro forma and is immaterial because what is essential is compliance with the requisites of the rules.

Action by court

Options in general (Sec 3)

Motion for New Trial Motion for Reconsideration

1. Set aside judgment or final order and grant new trial upon such terms as may be just

2. Deny the motion

1. Amend such judgment or final order if: - Excessive damages - Judgment or final order contrary to

evidence or law

Grant of motion for new trial (Sec 6)

Original judgment or final order vacated and action shall stand for trial de novo;

But recorded evidence taken upon former trial, in so far as it is material and competent to establish the issues, shall be used at the new trial without retaking the same

Partial new trial or reconsideration (Secs 7, 8)

If the grounds for a motion under this Rule appear to the court to affect issues to only a part, or less than all of the matter in controversy, or only one, or less than all, of the parties to it, court may order new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest (Sec 7)

When less than all of the issues are ordered retried, the court may either: o Enter a judgment or final order as to the rest, or



o Stay the enforcement of such judgment or final order until after the new trial. (Sec 8) Denial

Remedies (Sec 9; Rule 41, Sec 1 (a))

An order denying a motion for new trial or reconsideration is not appealable

Remedy is an appeal from the judgment or final order (Sec 9)

No appeal may be taken from an order denying a petition for relief or any similar motion seeking relief from judgment. The aggrieved party may file an appropriate special civil action as provided in Rule 65. (Rule 41, Sec 1 (a))

Appeal

Ordinary Appeal

Rule 40 MTC to RTC

(Sections 1 to 9)

Where to appeal (Sec 1)

To the RTC exercising jurisdiction over the area to which the MTC pertains

Case title remains as it was in the court of origin, but the party appealing shall be further referred to as the appellant and the adverse party as the appellee

When to appeal (Sec 2)

Appeal may be taken within 15 days after notice to the appellant of the judgment or final order appealed from

Where a record on appeal is required, appellant shall file notice of appeal and a record on appeal within 30 days after notice of the judgment or final order

Period of appeal interrupted by timely motion for new trial or reconsideration

No motion for extension of time to file motion for new trial or reconsideration allowed How to appeal (Sec 3)

By filing a notice of appeal with the court that rendered judgment or final order appealed from

Notice of appeal shall indicate: o Parties to the appeal o Judgment or final order or part thereof appealed from o Material dates showing timeliness of appeal

Record on appeal shall be required only in special proceedings and in other cases of multiple or separate appeals

Form and contents of record on appeal shall be as provided in Rule 41, Sec 6: o Full names of all parties to the proceedings shall be stated in the caption of the record on appeal o Judgment or final order from which appeal is taken o In chronological order – copies of only such pleadings, petitions, motions and all interlocutory orders as are

related to the appealed judgment or final order for the proper understanding of the issue involved, together with such data as will show that the appeal was perfected on time

o If an issue of fact is to be raised on appeal, the record on appeal shall include by reference:

All evidence, testimonial and documentary, taken upon the issue involved

Reference shall specify documentary evidence by exhibit numbers or letters by which it was identified when admitted or offered at the hearing, and the testimonial evidence by the names of the corresponding witnesses

If the whole testimonial and documentary evidence in the case is to be included, a statement to that effect will be sufficient without mentioning the names of the witnesses or the numbers or letters of exhibits

o Every record on appeal exceeding 20 pages must contain a subject index

Copies of notice of appeal, and record on appeal where required, shall be served on the adverse party



Perfection of appeal (Sec 4) See Rule 41, Sec 9

Notice of Appeal Record on Appeal

When deemed perfected Upon filing of notice of appeal in due time

With respect to the subject matter, upon approval of the record on appeal filed in due time

When MTC loses jurisdiction

Upon perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties

Only over the subject matter, upon approval of the records on appeal filed in due time and the expiration of time to appeal of the other parties

Residual Powers

Prior to the transmittal of the original record or record on appeal, MTC may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with sec 2 of Rule 39, and allow withdrawal of the appeal

Appellate court and other lawful fees (Sec 5)

Same as Rule 41, Sec 4

Within the period for taking an appeal, appellant shall pay to the clerk of court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other fees

Proof of payment of said fees shall be transmitted to the appellate court together with the original record or the record on appeal

Procedure in RTC (Sec 7)

Upon receipt of the complete record or the record on appeal, RTC clerk of court shall notify the parties of such fact

Within 15 days from such notice, appellant‘s duty is to submit a memorandum which shall briefly discuss the errors imputed to the lower court, a copy of which shall be furnished by him to the adverse party. Within 15 days from receipt of appellant‘s memorandum, appellee may file his memorandum. Failure of the appellant to file a memorandum shall be a ground for dismissal of the appeal

Upon filing of the appellee‘s memorandum, or the expiration of time to do so, case shall be considered submitted for decision. RTC shall decide the case on the basis of the entire record of the proceedings had in the court of origin and such memoranda as are filed.

Appeal from MTC order dismissing case a. without trial on the merits (Sec 8, par 1)

RTC may affirm or reverse, as the case may be

In case of affirmance AND the ground of dismissal is lack of jurisdiction over the subject matter, RTC if it has jurisdiction, shall try the case on the merits as if the case was originally filed with it

In case of reversal, case shall be remanded for further proceedings b. with trial on the merits (Sec 8, par 2)

If case tried on the merits by the lower court without jurisdiction over the subject matter, RTC on appeal shall not dismiss the case if it has original jurisdiction, but shall decide the case in accordance with the preceding section, without prejudice to the admission of amended pleadings and additional evidence in the interest of justice

Provost vs. CA (492 SCRA 675) o While RTCs have jurisdiction over complaints for recovery of ownership or accion reivindicatoria, Sec 8 of Rule

40 nonetheless allows the RTC to decide the case brought on appeal from the MTC which, even without jurisdiction over the subject matter, may decide the case on the merits

o In this case, the MTC should have dismissed the complaint outright for lack of jurisdiction, but since it decided the case on the merits, the RTC rendered a decision based on the MTC‘s findings

Encarnacion vs. Amigo (502 SCRA 172) o Respondent‘s actual entry on petitioner‘s land was in 1985 but it was only in 2001 (16 years later) when

petitioner filed his ejectment case. Respondent should have filed an accion publiciana case which is under the



RTC‘s jurisdiction instead of the accion interdictal he filed with the MTC. However, the RTC should have taken cognizance of the case. Sec 8, Rule 40 provides that if the case is tried on the merits by the MTC without jurisdiction over the subject matter, the RTC on appeal may no longer dismiss the case if it has original jurisdiction thereof. Moreover, the RTC shall no longer try the case on the merits, but shall decide the case on the basis of the evidence presented in the lower court, without prejudice to the admission of the amended pleadings and additional evidence in the interest of justice.

Rule 41

RTC to CA (Sections 1 to 13)

Subject of appeal (Sec 1)

An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by the Rules to be appealable.

Non-appealable orders a. order denying a petition for relief or any similar motion seeking relief from judgment; b. interlocutory order; c. order disallowing or dismissing an appeal; d. order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud,

mistake or duress, or any other ground vitiating consent; e. order of execution; f. judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims

and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and g. order dismissing an action without prejudice.

A.M. No. 07-7-12-SC (dated December 4, 2007 - took effect on December 27, 2007) – Amendments to Rules 41, 45, 58, 65

AM removed from the list the order denying MNT or MR – such is now covered by Rule 37, Sec 9

Remedy of Rule 37, Sec 9 admits of an exception: if the subject matter of the MR is an interlocutory order, then the remedy is certiorari

Modes of appeal (Sec 2) a. Ordinary appeal (appeal on writ of error)

Appeal to CA in cases decided by the RTC in exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party

No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or the Rules so require. In such cases, the record on appeal shall be filed and served in like manner

Record on appeal is filed with the court of origin b. Petition for review

Appeal to CA in cases decided by the RTC in exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42

By a verified petition for review to the CA c. Appeal by certiorari

In all cases where only questions of law are raised or involved, the appeal shall be to the SC by petition for review on certiorari in accordance with Rule 45

By a verified petition for review on certiorari to the SC Period of ordinary appeal (Sec 3)

Appeal shall be taken within 15 days from notice of the judgment or final order appealed from

Where a record on appeal is required, the appellants shall file a notice of appeal and a record on appeal within 30 days from notice of the judgment or final order

On appeal in habeas corpus cases shall be taken within 48 hours from notice of the judgment or order appealed from Interrupted by timely MNT or MR No motion for extension of time to file MNT or MR



MR filed on last day of 15-day period – based on the Rules

Manila Memorial Park vs. CA (344 SCRA 769) o In an ordinary appeal from the final judgment or order of a MTC to the RTC, and from the RTC to the

CA in actions or proceedings originally filed in the RTC, the 15-day period for appeal prescribed by Sec 39 of BP 129 and Sec 19(a) of the Interim Rules is interrupted or suspended by a motion for new trial or reconsideration duly filed, and if the motion for new trial or reconsideration is denied, the moving party has only the remaining period from notice of denial within which to file a notice of appeal. No motion for extension of time to file such a notice of appeal is neither required nor allowed.

o In this case, when respondents filed their MR on the last day of the 15-day prescribed period for taking an appeal, which motion was subsequently denied, they only had 1 days from receipt of a copy of the order denying the MR, within which to perfect their appeal, i.e., excluding the day of receipt and including the next day.

Same rule for an MR filed on the 14th day and the 15th day

For Rule 40, appellant files a memorandum. Rule 41, a brief. New rule on appeal after denial of MR or MNT

Neypes vs. CA (469 SCRA 633) o To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal

their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the RTC, counted from receipt of the order dismissing a motion for new trial or motion for reconsideration.

Justice de Leon says that an MNT/MR is denied, not dismissed

Before Neypes, only Rules 42, 43 and 65 had the fresh period rule. Neypes standardized all appeals

Despite this, an ordinary appeal‘s new period is non-extendible, while Rules 43, 45 and 65 – the new period is extendible

When taking the exam, differentiate the Neypes ruling from the period provided for in the Rules!

When appeal allowed even if period to appeal has expired

Trans International vs. CA (285 SCRA 49) o Appellate jurisdiction of the courts is conferred by law, and must be exercised in the manner and in

accordance with the provisions thereof and such jurisdiction is acquired by the appellate court over the subject matter and parties by the perfection of the appeal; Strict compliance with the Rules of Court is indispensable for the prevention of needless delays and for the orderly and expeditious dispatch of judicial business.

o Nonetheless, the Court has on several occasions relaxed this strict requirement; For a party to seek exception for its failure to comply strictly with the statutory requirements for perfecting its appeal, strong compelling reasons such as serving the ends of justice and preventing a grave miscarriage thereof must be shown, in order to warrant the Court‘s suspension of the rules.

o The trend in the rulings of the Court is to afford every party-litigant the amplest opportunity for the proper and just determination of his cause, free from the constraints of technicalities.

RTC cannot dismiss appeal on ground that only questions of law involved

Kho vs. Camacho (204 SCRA 150) o Issues that involve pure questions of law are within the exclusive jurisdiction of the SC. However, Rule 41

does not authorize the Trial Court to disallow an appeal on the ground that there is no question of fact, but only a question of law, involved. x x x whether an appeal involves only question of law or both questions of fact and law, this question should be left for the determination of an appellate court, and not by the court which rendered the subject decision appealed from.

o What the respondent Judge should have done under the circumstances was to sustain his approval of the notice of appeal and leave it to the CA to certify the case to the proper tribunal if warranted. Judge Leviste had absolutely no authority to disapprove the notice of appeal. His role is to approve or disapprove the record on appeal (when required) and the appeal bond, but not a notice of appeal. A notice of appeal does not require the approval of the trial court.

Appellee who has not appealed may not obtain affirmative relief from appellate court

Custodio vs. CA (253 SCRA 483)



o An appellee in a civil case, who has not himself appealed may not obtain from the appellate court any affirmative relief other than what was granted in the decision of the lower court.

Exception - when there is solidarity in obligations

Citytrust Banking Corp. vs. CA (196 SCRA 553) o The Court will not allow the absurd situation where a co-defendant who is adjudged to be primarily

liable for sums of money and for tort would be charged for an amount lesser than what its co-defendant is bound to pay to the common creditor and allowed to collect from the first co-defendant. Such a situation runs counter to the principle of solidarity in obligations as between co-defendants established by a judgment for recovery of sum of money and damages. Substantial justice shall not allow Marine Midland, which is the source which is the source of the injury afflicted, to be unjustly enriched either by the direct execution against him of the judgment for the reduced amount or by the indirect execution by way of reimbursement at a later time.

o Though as a matter of procedure, the modification shall be applied only to the appellant, substantial justice and equity also demand that we re-interpret the decision to refer to petitioner as well. There exists a strong and compelling reason to warrant an exception to the rule that a judgment creditor is entitled to execution of a final and executory judgment against a party especially if that party failed to appeal.

Perfection of appeal (Sec 9, 1st and 2nd pars)


Upon filing of notice of appeal in due time

Over the the subject matter, upon approval of the record on appeal filed in due time

Loss of jurisdiction (Sec 9, 3rd and 4th pars)


Upon perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties

Only over the subject matter, upon approval of the records on appeal filed in due time and the expiration of time to appeal of the other parties

Residual powers (Sec 9, 5th par) – ordinarily the court would no longer have jurisdiction because the appeal is already perfected, but:

Prior to the transmittal of the original record or record on appeal, the court may IAPOA

o Issue orders for the protection and protection of the rights of the parties which do not involve any matter litigated by the appeal,

o Approve compromises, o Permit appeals of indigent litigants, o Order execution pending appeal in accordance with sec 2 of Rule 39, o Allow withdrawal of the appeal

Dismissal of appeal (Sec 13)

a. late filing b. non-payment of docket and other lawful fees

Prior to the transmittal of the original record or the record on appeal to the appellate court, the trial court may, motu proprio or on motion, dismiss the appeal for having been taken out of time or for non-payment of the docket and other lawful fees within the reglementary period.



Petition for Review

Rule 42 RTC to CA

(Sections 1 to 8)

Appeal from RTC decision rendered in the exercise of its appellate jurisdiction

Ross Rica Sales Center, Inc. vs. Ong (467 SCRA 35) o Since the unlawful detainer case was filed with the MTC and affirmed by the RTC, respondents should

have filed a Petition for Review with the CA and not a Notice of Appeal with the RTC. However, this has been remedied by the timely filing of the MR on the following day. Sec 3, Rule 50 allows the withdrawal of appeal at any time, as a matter of right, before the filing of the appellee‘s brief. Applying this rule contextually, the filing of the MR may be deemed as an effective withdrawal of the defective Notice of Appeal.

o Re: invoking People vs. De la Cruz which held that once notice of appeal is filed, it cannot be validly withdrawn to give way to a MR: People vs. De la Cruz is a criminal case governed by criminal procedure. In the case at bar, a petition for review before the CA is the proper mode of appeal from a decision of the RTC. Since the filing of the notice of appeal is erroneous, it is considered as if no appeal was interposed.

Party desiring to appeal from an RTC decision rendered in the exercise of its appellate jurisdiction may file a verified petition for review with the CA, paying at the same time to the CA clerk of court the corresponding docket and other lawful fees, depositing 500 for costs and furnishing the RTC and adverse party with a copy of the petition

Petition shall be filed and served within 15 days from notice of decision sought to be reviewed or of denial of petitioner‘s MNT or MR filed in due time after judgment

Upon proper motion and payment of full amount of docket and other lawful fees and deposit for costs before expiration of reglementary period, CA may grant additional 15 days only within which to file the petition for review

No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days.

Pure questions of law may be raised (Sec 2)

Macawiwili Gold Mining and Devt. Co, Inc. vs. CA (297 SCRA 602) o Summary of rules on appeal from judgments of the RTC in civil cases:

1. Original jurisdiction – in all cases decided by the RTC in the exercise of their original jurisdiction, appeal may be made to:

a. CA – where appellant raises questions of fact or mixed questions of fact and law, by filing a mere notice of appeal.

b. SC – where the appellant solely raises questions of law, by filing a petition for review on certiorari under Rule 45

2. Appellate jurisdiction All appeals from judgments rendered by the RTC in the exercise of their appellate jurisdiction, whether the appellant raises questions of fact, of law, or mixed questions of fact and law, shall be by filing a petition for review under Rule 42.

Exceptions when questions of law allowed to CA: Rule 42, Sec 2 and Rule 43, Sec 3

Section 2 – Form and contents: o Filed in 7 legible copies o Original copy intended for the court indicated as such by the petitioner o Shall:

a. State full names of parties to the case, without impleading the lower courts or judges thereof either as petitioners or respondents;

b. Indicate specific material dates showing it was filed on time c. Set forth concisely a statement of the matters involved, the issues raised, the specification of errors of

fact or law, or both, allegedly committed by the RTC, and the reasons or arguments relied upon for the allowance of the appeal

d. Be accompanied by clearly legible duplicate originals or true copies of the judgments or final orders of both lower courts, certified correct by the RTC clerk of court



o Together with the petition, submit a certification under oath that he has not theretofore commenced any other action involving the same issues in the SC, CA or different divisions thereof, or any other tribunal or agency, if there is such other action or proceeding, he must state the status of the same

o If he thereafter learns that a similar action or proceeding has been filed or is pending before the SC, the CA, or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within 5 days therefrom.

o (for short, certificate of non-forum shopping)

For Rules 40 to 45, never implead the court, judge or agency as parties – they aren‘t parties to the case!

Effect of failure to comply with requirements (Sec 3)

The failure of the petitioner to comply with any of the requirements regarding the payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof.

Sufficient ground – court has discretion to decide what constitutes sufficient ground

Action by court (Sec 4) a. Require filing of comment or b. Dismiss petition outright

PPQ

Patently without merit

Prosecuted manifestly for delay

Questions raised therein are too unsubstantial to require consideration

When petition given due course (Sec 6)

Prima facie finding that court or agency committed errors of fact or law warranting reversal or modification Petition dismissed for late filing after finding the same prima facie meritorious

Ditching vs. CA (263 SCRA 343) o A motion for extension of time to file a petition should be filed prior to the expiration or lapse of the

period fixed by law, and if the motion is filed after the expiration of the period sought to be extended, then there is no longer any period to extend, and the judgment or order to be appealed from will have become final and executory.

o The respondent court cannot be faulted for stating that the petition filed with it was prima facie meritorious, only to dismiss it thereafter for being filed out of time. Where no timely appeal was taken, the judgment becomes final, and the legality of the allowance of the appeal may be raised at any stage of the proceedings in the appellate court. Respondent court was not precluded from dismissing the petition on the ground that it was filed late, inasmuch as the recognition of the merit of the petition did not carry with it any assumption or conclusion that it was timely filed.

Clerk of court has the duty to inform the ponente w/n there are technical defects which warrant dismissal

Perfection of appeal (Sec 8, 1st par)

Upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees

Different from Rule 41 in the manner of perfection Loss of jurisdiction (Sec 8, 2nd par)

Upon perfection of the appeals filed in due time and the expiration of the time to appeal of other parties

Same as Rule 41 Residual powers (Sec 8, 3rd par)

IAPOA

Issue orders for the protection and protection of the rights of the parties which do not involve any matter litigated by the appeal,

Approve compromises,

Permit appeals of indigent litigants,

Order execution pending appeal in accordance with sec 2 of Rule 39,

Allow withdrawal of the appeal



Effect of appeal (Sec 8, 4th par) General Rule: shall STAY judgment or final order Exceptions:

a. Civil cases decided under the Rule on Summary Procedure b. When CA, law or Rules of Court provide otherwise

Rule 43 Quasi-Judicial Agencies to CA

(Sections 1 to 13)

Scope (Sec 1)

Rule applies to appeals from judgments or final orders of the CTA and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are:

o Civil Service Commission o Central Board of Assessment Appeals o Securities and Exchange Commission o Office of the President o Land Registration Authority o Social Security Commission (SSS) o Civil Aeronautics Board o Bureau of Patents o Trademarks and Technology Transfer o National Electrification Administration o Energy Regulatory Board

o National Telecommunications Commission o Department of Agrarian Reform under RA

No. 6657 (CARP) o Government Service Insurance System o Employees Compensation Commission o Agricultural Inventions Board o Insurance Commission o Philippine Atomic Energy Commission o Board of Investments o Construction Industry Arbitration Commission o Voluntary arbitrators authorized by law

List not exclusive

Fabian vs. Desierto (295 SCRA 440) o Section 27 of RA 6770 (Ombudsman Act of 1989) is involved only whenever an appeal by certiorari

under Rule 45 is taken from a decision in an administrative disciplinary action – it cannot be taken into account where an original action for certiorari under Rule 65 is resorted to as a remedy for judicial review, such as from an incident in a criminal action.

o Whenever the legislature intends that the decisions or resolutions of the quasi-judicial agency shall be reviewable by the SC or CA, a specific provision to that effect is included in the law creating that quasi-judicial agency and, for that matter, any special statutory court.

o Appeals from judgments and final orders of quasi-judicial agencies are now required to be brought to the CA on a verified petition for review, under the requirements and conditions in Rule 43 which was precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasi-judicial agencies.

o Appeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the CA under the provisions of Rule 43.

Ombudsman criminal cases – Supreme Court via Rule 65

Garcia-Rueda vs. Pascasio (278 SCRA 269) o While the Ombudsman has the full discretion to determine whether or not a criminal case should be

filed, the SC is not precluded from reviewing the Ombudsman‘s action when there is an abuse of discretion.

o Being the proper investigating authority with respect to misfeasance, non-feasance and malfeasance of public officials, the Ombudsman should have been more vigilant and assiduous in determining the reasons behind the ―buckpassing‖ to ensure that no irregularity took place.

Cases not covered (Sec 2)

Rule shall not apply to judgments or final orders issued under the Labor Code of the Philippines

St. Martin Funeral Home vs. NLRC (295 SCRA 494) o The Court feels that it is now exigent and opportune to re-examine the functional validity and systemic

practicability of the mode of judicial review it has long adopted and still follows with respect to decisions of the NLRC. The increasing number of labor disputes that find their way to the SC and the legislative



changes introduced over the years into the provisions of the Labor Code and the Judiciary Reorganization Act of 1980 now stridently call for and warrant a reassessment of that procedural aspect.

o Sec 9(3) of BP 129 now grants exclusive appellate jurisdiction to the CA over all final adjudications of the RTC and quasi-judicial agencies generally or specifically referred therein except, among others, ―those falling within the appellate jurisdiction of the SC in accordance with x x x the Labor Code x x x.‖ This contradicts what has been ruled and said all along that appeal does not lie from decisions of the NLRC. Yet, under such excepting clause literally construed, the appeal from the NLRC cannot be brought to the CA, but to the SC by necessary implication.

o There are no cases in the Labor Code the decisions, resolutions, orders or awards wherein are within the appellate jurisdiction of the SC or of any other court for that matter.

o Ever since appeals from the NLRC to the SC were eliminated, the legislative intendment was that the special civil action of certiorari was and still is the proper vehicle for judicial review of decisions of the NLRC. Appeals by certiorari and the original action for certiorari are both modes of judicial review addressed to the appellate courts.

o All references in the amended Section 9 of BP 129 to supposed appeals from the NLRC to the SC are interpreted and hereby declared to mean and refer to petitions for certiorari under Rule 65 – consequently, all such petitions should henceforth be initially filed in the CA.

What cannot be appealed can still be reviewed! Decisions of Secretary of Labor and Director of Bureau of Labor Relations – petition for certiorari to CA under Rule 65 Decisions of DOJ secretary in petitions for review prosecutors‘ resolutions – petition for certiorari to CA under Rule 65

Santos vs. Go (473 SCRA 350) o Rule 43 clearly shows that it governs appeals to the CA from decisions and final orders of the CTA or

quasi-judicial agencies in the exercise of their quasi-judicial functions. The DOJ is not among the agencies enumerated in Sec 1, Rule 43. Inclusio unius est exclusio alterius. We cannot agree with petitioners‘ submission that a preliminary investigation is a quasi-judicial proceeding and that the DOJ is a quasi-judicial agency exercising a quasi-judicial function when it reviews the findings of a public prosecutor regarding the presence of probable cause.

o Since the DOJ is not a quasi-judicial body and it is not one of those agencies whose decisions, orders or resolutions are appealable to the CA under Rule 43, the resolution of the Secretary of Justice finding probable cause to indict petitioners for estafa is, therefore, not appealable to the CA via a petition for review under Rule 43.

Not applicable where there is error of jurisdiction

Fortich vs. Corona (289 SCRA 624) o Error of judgment and error of jurisdiction compared:

Error of Judgment Error of Jurisdiction

When committed In the exercise of its

jurisdiction

Act complained of was issued by the court, officer or a quasi-

judicial body without or in excess of jurisdiction, or with

grave abuse of discretion which is tantamount to lack or in

excess of jurisdiction

How reviewable/corrected By appeal Writ of certiorari

o Remedy prescribed in Rule 43 is inapplicable where the petition contains an allegation that the challenged resolution is ―patently illegal‖ and was issued with ―grave abuse of discretion‖ and ―beyond the public respondent‘s jurisdiction‖ when said resolution substantially modified the earlier decision which had long become final and executory

Where to appeal (Sec 3)

Court of Appeals, within the period and in the manner provided whether the appeal involves questions of fact, of law, or mixed questions of fact and law

Pure questions of law may be raised Period of appeal (Sec 4)



Within 15 days from notice of the award, judgment, final order or resolution, or from the date of its last publication, if publication is required by law for its effectivity, or of the denial of the petitioner‘s MNT or MR duly filed in accordance with the governing law of the court or agency a quo

Only 1 MR allowed

Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the CA may grant an additional period of 15 days only within which to file the petition for review

No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days How appeal taken (Sec 5)

By filing a verified petition for review in 7 legible copies with the CA, with proof of service of a copy thereof on the adverse party and on the court or agency a quo

Original copy of the petition intended for the CA shall be indicated as such by the petitioner

Upon filing of the petition, petitioner shall pay to the CA clerk of court the docketing and other lawful fees and deposit P500 for costs

Exemption from payment of docketing and other lawful fees and the deposit for costs may be granted by the CA upon a verified motion setting forth valid grounds therefor

o If the CA denies the motion, the petitioner shall pay the docketing and other lawful fees and deposit for costs within 15 days from notice of denial

Form and contents (Sec 6)

The petition for review shall: a. Full names of the parties to the case, without impleading the court or agencies either as petitioners or

respondents; b. Concise statement of facts and issues involved and the grounds relied upon for the review; c. Be accomplished by a clearly legible duplicate original or a certified true copy of the award, judgment, final

order or resolution appealed from, together with certified true copies of such material portions of the record referred to therein and such other supporting papers;

d. Contain a sworn certification against forum shopping as provided in the last paragraph of sec 2, Rule 42 e. State the specific material dates showing that it was filed within the period fixed herein

Effect of failure to comply with requirements (Sec 7) – sufficient ground for dismissal Action by court (Sec 8)

a. Require filing of comment not a motion to dismiss, within 10 days from notice or b. Dismiss petition outright if it finds the same to be PPQ

Patently without merit,

Prosecuted manifestly for delay, or

Questions raised therein are too unsubstantial to require consideration When petition given due course (Sec 10)

Prima facie finding that court or agency committed errors of fact or law warranting reversal or modification of the award, judgment, final order or resolution sought to be reviewed

Otherwise, dismissed

Findings of fact of the court or agency concerned, when supported by substantial evidence, shall be binding on the CA

Effect of appeal (Sec 12) General rule: shall NOT STAY award, judgment, final order or resolution Exceptions:

a. when CA directs otherwise – through TRO, injunction b. when the law directs otherwise (additional exception)

Lapid vs. CA (334 SCRA 738) o The fact that the Ombudsman Act gives the parties the right to appeal from its decisions should

generally carry with it the stay of these decisions pending appeal, otherwise the essential nature of these judgments as being appealable would be rendered nugatory.

o The general rule is that judgments by lower courts or tribunals become executory only after they have become final and executory, execution pending appeal being an exception to that general rule. There is no general legal principle that mandates that all decisions of quasi-judicial agencies are immediately executory.



o Where the legislature has seen fit to declare that the decision of the quasi-judicial agency is immediately final and executory pending appeal, the law expressly so provides. Section 12, Rule 43 should therefore be interpreted as mandating that the appeal will not stay the award, judgment, final order or resolution unless the law directs otherwise.

Petition for Review on Certiorari

Rule 45 (Sections 1 to 9)

What to file; from what courts (Sec 1)

CA, SB, CTA, RTC only [or other courts, whenever authorized by law]

File with the SC a verified petition for review on certiorari

Petition may include an application for a writ of preliminary injunction or other provisional remedies

Shall raise forth only questions of law, which must be distinctly set forth

Petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency

Remedies of appeal and certiorari mutually exclusive; Rule 45 distinguished from Rule 65; petition for certiorari treated as petition for review

Mutually exclusive – once you file one, you exclude the other

Distinguished:

Rule 45 – Petition for review on certiorari

(appeal by certiorari)

Rule 65 – Petition for certiorari (special civil action of certiorari)

Involves correction of errors of judgment Involves errors of jurisdiction

Mode of appeal Special civil action

Petition based on question of law Petition raises issues as to w/n the lower court acted w/o jurisdiction or in excess of jurisdiction or with GADALEJ

Involves review of the judgment award or final order on the merits

Directed against an interlocutory order of the court where there is no appeal or any other plain, speedy and adequate remedy

Must be made within the reglementary period

Filed not later than 60 days from notice of judgment, order or resolution appealed from

Stays the judgment or order appealed from Unless a writ of preliminary injunction or TRO is issued, does not stay the challenged proceeding

Petitioner and respondent are original parties to the action, lower court or quasi-judicial agency not impleaded

Parties are the aggrieved party against the lower court, quasi-judicial bodies and prevailing party

MR not required

MR or MNT required. If MR or MNT filed, period shall not be interrupted but another 60 days shall be given to the petitioner

Court is in the exercise of appellate jurisdiction and power of review

Court exercises original jurisdiction

Nunez vs. GSIS Family Bank (475 SCRA 305) o The remedies of appeal and certiorari are mutually exclusive and not alternative nor successive. The

distinctions between Rules 45 and 65 are far and wide. However, the most apparent is:

Rule 45 – Petition for review on certiorari

(appeal by certiorari)

Rule 65 – Petition for certiorari (special civil action of certiorari)

Involves correction of errors of judgment Involves errors of jurisdiction



Mode of appeal Special civil action

o The SC, in accordance with the liberal spirit which pervades the Rules of Court and in the interest of justice, may treat a petition for certiorari as having been filed under Rule 45, more so if the same was filed within the reglementary period for filing a petition for review.

o Records show that the petition was filed on time both under Rules 45 and 65. Following Delsan Transport vs. CA, the petition, stripped of allegations of ―grave abuse of discretion,‖ actually avers errors of judgment which are the subject of a petition for review.

Only questions of law may be raised Questions of law and questions of fact distinguished; if no questions of fact, Rule 45 petition.

China Road and Bridge Corp. vs. CA (348 SCRA 401) o Questions of law and questions of fact distinguished:

Question of law Question of fact

Doubt or controversy as to what the law is on a certain state of facts

Doubt or difference arises as to the truth or falsehood of facts, or when the query necessarily invites calibration of the whole evidence considering mainly the credibility of witnesses, existence and relevancy of specific surrounding circumstances, their relation to each other and to the whole and probabilities of the situation

o Ordinarily, the determination of whether an appeal involves only questions of law or both questions of law and fact is best left to the appellate court, and all doubts as to the correctness of such conclusions will be resolved in favour of the CA.

o In a motion to dismiss based on failure to state a cause of action, there cannot be any question of fact or ―doubt or difference as to the truth or falsehood of facts,‖ simply because there are no findings of fact in the first place. What the trial court merely does is to apply the law to the facts as alleged in the complaint, assuming such allegations to be true. It follows then that any appeal therefrom could only raise questions of law or ―doubt or controversy as to what the law is on a certain state of facts.‖ Therefore, a decision dismissing a complaint based on failure to state a cause of action necessarily precludes a review of the same decision on questions of fact. One is the legal and logical opposite of the other. What inevitably arise from such a review are pure questions of law, and not questions of fact.

o The test of whether a question is one of law or of fact is not the appellation given to such question by a party raising the same but whether the appellate court can determine the issue raised without reviewing or evaluating the evidence, in which case it is a question of law, otherwise it is a question of fact. Applying the test to the instant case, it is clear that private respondent raises pure questions of law which are not proper in an ordinary appeal under Rule 41, but should be raised by way of a petition for review on certiorari under Rule 45.

SC‘s Choice: dismiss – for being the wrong remedy or remand to CA

SC has discretion to dismiss or remand

CA can only dismiss, no discretion

Time for filing (Sec 2)

Within 15 days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner‘s MNT or MR filed in due time after notice of the judgment

On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the SC may for justifiable reasons grant an extension of 30 days only within which to file the petition

o 30 days only – hindi hulugan like w/ the CA Docket and other lawful fees (Sec 3)

Unless he has theretofore done so, petitioner shall pay corresponding docket and other lawful fees to the SC clerk of court and deposit the amount P500 for costs at the time of the filing of the petition



Proof of service (Sec 3)

Proof of service of a copy thereof on the lower court concerned and on the adverse party shall be submitted together with the petition

Contents of and documents to accompany petition (Sec 4)

Filed in 18 copies, with the original copy intended for the court being indicated as such by the petitioner

Shall: a. State the full name of the appealing party as petitioner and adverse party as respondent, without impleading

the lower courts or judges thereof either as petitioners or respondents; b. Indicate material dates showing when notice of judgment or final order or resolution subject thereof was

received, when a MNT or MR, if any, was filed and when notice of the denial thereof was received; c. Set forth concisely a statement of the matters involved, and the reasons or arguments relied on for the

allowance of the petition; d. Be accompanied by a clearly legible duplicate original, or a certified true copy of the judgment or final order

or resolution certified by the clerk of the court a quo and the requisite number of plain copies thereof, and such material portions of the record as would support the petition; and

e. Contain a sworn certification against forum shopping as provided in the last paragraph of sec 2, Rule 42. Effect of failure to comply with requirements (Sec 5, par 1)

Sufficient ground for dismissal Denial motu proprio (Sec 5, par 2)

W(P)PQ

(Patently) Without merit, or is

Prosecuted manifestly for delay, or

Questions raised therein are too unsubstantial to require consideration

Dismissal – technical defects

Denial – on merits Review discretionary (Sec 6)

Not a matter of right but of sound judicial discretion o Ordinary appeal is a matter of right

Granted only when there are special and important reasons

The following, while neither controlling nor fully measuring the court‘s discretion, indicate the character of the reasons which will be considered:

o When the court a quo has decided a question of substance, not theretofore determined by the SC, or has decided it in a way probably not in accord with law or with the applicable decisions of the SC; or

o When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision.

Pleadings and documents that may be required (Sec 7)

to determine whether to dismiss or deny petition under Sec 5

where petition given due course under Sec 8 o SC may require elevation of the complete record of the case or specified parts thereof within 15 days from

notice (Sec 8)

SC may require or allow the filing of pleadings, briefs, memoranda or documents as it may deem necessary within such periods and under such conditions as it may consider appropriate, and impose the corresponding sanctions in case of non-filing or unauthorized filing of such pleadings and documents or non-compliance with the conditions therefor.

Rule applicable to both civil and criminal cases (Sec 9)

Except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment