Salvador Notes

GRACE XAVIERE E. ESCOSIA | ATENEO LAW 4A 2011

1 CLASS NOTES UNDER ATTY. SALVADOR

Jurisdiction Jurisdiction: Power of the court to hear and decide a case on the merits Authority given by law to a court or tribunal to hear and determine certain

controversies involving rights which are legally demandable and enforceable Granted by law; Cannot be stipulated Cannot be waived Civil Procedure I. Definition II. Jurisdiction over the subject matter III. Jurisdiction over the person IV. Filing Fees Criminal Procedure I. Definition II. Venue is jurisdictional III. Jurisdiction over the offense IV. Jurisdiction over the person ** Filing fees is not necessary; Actual damages need not be assessed. An action for recovery of possession is not necessarily an ejectment case.

Jurisdiction is determined by the assessed value. Principal action for damages is determined by the amount claimed. (Admin. Circ.

09-94) Generally, damages is established by proof. Jurisdiction over the subject matter RTC Jurisdiction Remember Sec. 19, BP 129 Family case regardless of amount always with the RTC (special jurisdiction) Family court is created by law Examples of incapable of pecuniary estimation:

1. Specific performance 2. Expropriation always with the RTC 3. Declaratory relief

o Can be filed in the SC if involves a constitutional issue 4. Support before the Family Court

5. Rescission 6. Foreclosure always with the RTC

o Extrajudicial foreclosure is not judicial. It is initiated by filing a complaint before the Clerk of Court. After payment of appropriate fees, the action is set for public sale.

MTC has a number of procedures:

1. Ordinary 2. Summary

o Probate is not subject to summary procedure. 3. Small claims

o Small claims does not make a distinction as long as the amount does not exceed 100K, exclusive of interests and costs

o Procedure: - No need a lawyer to file a complaint. Just file an affidavit. - Answer must be in the prescribed form. - Option is with the complainant whether to file before the MTC or

the small claims court. CA Jurisdiction

1. Original 2. Appellate

SC Jurisdiction

1. Original 2. Appellate

Take note of the Constitutional provision on SC Jurisdiction.

o Disciplinary cases against member of the Bar can be filed under the IBP or the SC

REMEMBER: The only way to go up to the SC is through a petition for review on

certiorari under Rule 45. EXCEPT: If penalty imposed is death, life imprisonment, or reclusion perpetua

Jurisdiction over the person

1. Proper service of summons (Rule 14) 2. Voluntary appearance ex. File an answer

o Special appearance qualify appearance o Voluntary appearance file pleading or personal appearance



GR: Lack of jurisdiction can be raised any time (even on appeal) EX: Tijam v. Sibonghanoy estoppel by laches

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Once court acquires jurisdiction, even if concurrent, excludes other courts. Filing fees Payment is jurisdictional. Jurisdiction is determined by the demand/claim (Rule 141, Sec. 7) vs. Filing fees is

determined by everything alleged in the complaint Time to file: Within the reglementary period

o Sun Insurance v. Asuncion no need to pay docket fees for a compulsory counterclaim

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o Korea Technologies (2009) case Rule 141 requires payment of filing fees for compulsory counterclaim; HOWEVER, in practice, based on an SC Resolution, payment of fees in compulsory counterclaims is suspended.

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o When you appeal, you still need to pay docket fees What if the claim ripened at the time of filing but by omission not

alleged/claimed?

1 The rules is that jurisdiction over the subject matter is conferred upon the courts exclusively

by law, and as the lack of it affects the very authority of the court to take cognizance of the case, the objection may be raised at any stage of the proceedings. However, a party may be barred by laches from invoking this plea for the first time on appeal for the purpose of annulling everything done in the case with the active participation of said party invoking the plea. A party can not invoke the courts jurisdiction and then deny it to escape a penalty. 2 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 fee within a reasonable time but in no case beyond the applicable prescriptive or reglementary period; 2. The 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 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. 3 Effective September 21, 2004 under Sec. 7, Rule 141, as amended by A.M. No. 04-2-04-SC,

docket fees are now required to be paid in compulsory counterclaim or cross-claims.

o Proton Philippines v. Banque If ripened during the pendency of the action, subject to lien on the judgment; But if failed to alleged, court cannot render an award.

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Insufficiency/deficient payment of filing fees o Rivera v. Del Rosario

5 versus Manchester v. CA

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o Clerk of court must make a deficiency assessment o Deficient payment + Intent to defraud = No jurisdiction o Assessment + Belief in Good Faith + Deficient payment = Acquired

jurisdiction because of reliance to assessment Appeals Decision of the HLURB appealable to the Office of the President Decision of the NLRC appealable to the CA via Rule 65 (St. Martin Funeral case)7 Decision of the Ombudsman (Nemencio case)

o For admin cases : To the CA via Rule 43 o For GADALEJ: To the SC via Rule 65

Enforcement of action v. Ordinary action Foreign judgment in rem v. in personam Procedurally, enforcement has no rehash of facts

4 The failure to state the rate of interest demanded was not fatal not only because it is the

Courts which ultimately fix the same, but also because Rule 141, Section 5(a) speaks of the sum claimed, exclusive of interest. This clearly implies that the specification of the interest rate is not that indispensable. 5 If the amount of docket fees paid is insufficient considering the amount of the claim, the clerk

of court of the lower court involved or his duly authorized deputy has the responsibility of making a deficiency assessment. The party filing the case will be required to pay the deficiency, but jurisdiction is not automatically lost. 6 All complaints, petitions, answers and other similar pleadings should specify the amount of

damages being prayed for not only in the body of the pleading but also in the prayer, and said damages shall be considered in the assessment of the filing fees in any case. Any pleading that fails to comply with this requirement shall not be accepted nor admitted, or shall otherwise be expunged from the record. The Court acquires jurisdiction over any case only upon the payment of the prescribed docket fee. An amendment of the complaint or similar pleading will not thereby vest jurisdiction in the Court, much less the payment of the docket fee based on the amounts sought in the amended pleading. 7 All references in the amended Section 9 of BP 129 to supposed appeals from the NLRC to the

Supreme Court are interpreted and declared to mean and refer to petitions for certiorari under Rule 65. Consequently, all such petitions should henceforth be initially filed in the CA.



In enforcement, you file an original complaint but no need to relitigate (UNLESS impugn judgment on the ground of mistake of law/fact, lack of notice, fraud, collusion, or lack of jurisdiction)

In ordinary action, there must be a cause of action or breach/violation; there is a need to litigate.

Arbitral award v. Foreign judgment If expressly stated, its an arbitral award, not a final judgment. Rule 65 is not an appeal, but a special civil action Concurrent jurisdiction between RTC, CA, SC Always respect the hierarchy of courts

Rules 1 & 2 (Actions) Effectivity of Rules of Civil Procedure: 1 July 1997

o Passed by the SC in the exercise of its constitutional powers

Kinds of actions: (MEMORIZE) 1. Civil

o Ordinary (OCA) - There is a cause of action (Rule 2, Sec 1) - Covered by ordinary rules (Rules 1-39)

o Special (SCA) - No need for a cause of action

2. Criminal o Once filed in court by the prosecutor o You file before the prosecutor for the purpose of preliminary

investigation. 3. Special proceedings

Requisites of a cause of action (COA).

1. Legal right of plaintiff 2. Correlative obligation of the defendant to respect plaintiffs right 3. Act or omission of the defendant in violation of the plaintiffs legal right

o Breach is the most important. You can join as many cause of action in one complaint.

o 1 COA = 1 breach/violation o As many breaches as COA

o 1 COA even if there are incidents (Ex. Attorneys fees, exemplary damages, etc.)

o How many COA? Breach of contract and moral damages, exemplary damages, attorneys fees, costs of suit. Only 1 COA.

o How many COA? Promissory note (PN) 1, for 25K, MTC Jurisdiction. PN2, for 500K, RTC jurisdiction. PN3, for 350K, MTC jurisdiction. There are 3 COAs.

o Joinder of action in the alternative you dont know who is the proximate cause. (Ex. Transport of goods and contract/quasi-delict)

o Is it possible to have alternative cause of action with only one defendant? Yes. (international express travel v. CA)

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o Example: Sir sued Ventura (owes 1K to Sir), Gregorio (borrowed car), Ortiz (arrangement of 1M), Lantion (contractor). All breached the contract. Cannot be sued in one action.

o There is no requirement that COA arise from the same transaction and series of transaction.

How do you initiate a civil action: 1. File complaint 2. Pay docket fees

Joinder of parties Requisites:

1. Same action/series of transaction 2. Multiple parties 3. Same facts

Joinder may vary on single/multiple parties o Single : Rule 3, Sec. 6 does not apply o Multiple : Rule 3, Sec. 6 applies

Joinder of actions Cannot join SCA with OCA Requisites:

1. Single/multiple 2. SCA 3. Venue/jurisdiction

8 Any person acting or purporting to act on behalf of a corporation which has no valid existence

assumes such privileges and obligations and becomes personally liable for contracts entered into or for other acts performed as such agent. As President of the corporation, he is presumed to have known about the corporate existence or non-existence of the corporation. He should be held liable for the unpaid obligations of the unincorporated corporation.



4. Totality rule total of all the sums can be joined o Even if the amounts vary, as long as one of the action fall within the

jurisdiction of the RTC Example: Sir sued Baldemor for breach of contract and failure to finish painting

his house. Since both claims involved sum of money, what is determined is the grand total (Totality Rule). You cannot do this if NOT a sum of money case.

Example: recover 800K, sue in RTC, but also recover land (40K). Can they be joined? Theoretically, yes. But can file MTD for improper venue. Remember that sum of money case is dictated by venue for personal action while recovery of possession case is dictated by venue for real action.

Bernardo v. CA9 Counterclaims RTC skys the limit MTC must be within the jurisdiction of the court; otherwise, waive the balance Misjoinder Not a ground for dismissal Proceed with separately court not bound to proceed with it

Rule 3 (Parties) Parties:

1. Natural person o Married sued jointly. (Remember EXCEPTIONS) o Minor or incapacitated must be assisted (Sec. 5)

Guardian ad litem appointed by the court for the purpose of receiving summons

o Every person who has the capacity can be a party. Capacity means of age of majority.

o Supervening incapacity (Sec. 18) case should not be dismissed; proceed against him but assisted by a legal guardian

9 There is a unity in the problem presented and a common question of law and fact involved

between the prayer of annulment of the judgment reconstituting TCT and that questioning the denial of the motion to dismiss the complaint for the annulment of titles. The joinder of the two causes of action is mandated by the need to avoid multiplicity of suits and to promote an efficient administration of justice. There should nevertheless be some unity in the problem presented and a common question of law and fact involved, subject always to the restriction thereon regarding jurisdiction, venue and joinder of parties. Unlimited joinder is not authorized.

2. Juridical person o Capacity given by law duly incorporated in the SEC

Summons:

1. Natural person o Served in person, wherever found o (1) Personal service; (2) Substituted service o Manotoc v. CA o Can be imprisoned if ignore summons

2. Juridical person o Corporation registered with the SEC (for domestic) o Domestic Rule 14, Sec. 11 (REMEMBER) o Foreign Rule 14 (Authorized agent or officer in the Phils.)

3. Unincorporated association (non-juridical entity) (Rule 3, Sec. 15) o No matter how famous the name, cannot institute action using common

name; must sue individually o But can be a defendant (if they misled the public) o Serve on one or person-in-charge (Rule 14, Sec. 8)

4. Entities authorized by law o Summons depend on type of entity o Ex. Estate of deceased, political parties, archdiocese, registered labor

union Real party in interest v. Locus Standi Real party in interest for private suits; applies to both plaintiff and defendant Locus Standi (Legal standing) directed to an act of the government where

person suffered an injury; not used in private suits, only in public suits Indispensable party v. Necessary party Indispensable for final determination of the case Necessary (1) not an indispensable party; (2) ought to be joined for complete

determination of the case In contracts, the real parties in interest are the parties to the agreement.

Although not signatory to the agreement, but has an interest on the subject matter of the contract, can still be an indispensable party.

GR: Plaintiff/defendant should be an indispensable party. EX: assignee, or if theres a stipulation pour autrui

Ex. In action to recovery of title, owner (necessary) and possessor (indispensable) Ex. In action for recovery of title, owner (indispensable) and possessor

(necessary)



Co-owners are all indispensable parties. Joint Obligation v. Solidary Obligation Joint can proceed against one only; can proceed against other one not

impleaded (if necessary) Solidary can be sued at the same time or sued separately (if indispensable) Failure to implead party Not mandated to implead Indispensable null and void judgment; dismiss case if fail to implead Necessary waiver (after failure to comply with order to implead) Domingo v. Scheer court order to implead the indispensable party; if not

comply, court can dismiss the case No order to implead necessary party and theres already judgment = can still

pursue case against the necessary party in a separate action Class suit Ex. M/V Princess of the Seas sunk. Can they file a class suit? NO. There is no

joinder of action (as to common fact). No general interest; every passenger has a different interest. There can be a class suit if all the heirs of the passengers agree for a fixed amount of damages.

Can there be a defendant class suit? YES.

Substitution of the parties 1. Death most common

o Action not extinguished by reason of death o Duty of counsel : Inform the court within 30 days counted from fact of

death o Duty of court : Order to appear and substitution o Legal representative : (1) heirs, (2) administrator/executor o Executor named in the will; Administrator appointed by the court o If heir already named, no need for executor/administrator o Heir refers to a compulsory heir. o If there is proper substitution, heir or administrator/executor cannot be

held personally liable. o Choice of opposing party for legal representative is limited to executor

and administrator only. o Ex. A-B filed against C, D, E. E dies. No need to name substitute; Counsel

of E can act as substitute. If C & D are also heirs of E, substitution is necessary.

o There is no successful substitution if no unity between duty of cunsel and duty of court.

o Order of substitution is needed to confer jurisdiction. o If no proper substitution, void as to party not impleaded. o Brioso v. Mariano

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o If client dies while the counsel is abroad = period counted from the day client dies, not from knowledge of counsel

2. Public officer dies, resigns, or cease to hold office o Successor not necessarily continue the case; Only if he

continues/threatens to continue acts of the predecessor o (1) Notice to successor; (2) Opportunity to be heard

3. Transfer of interest o Death is not required o Court must order substitution o With or without substitution, there must be a valid judgment.

Death in a contractual sum of money case (Sec. 20) Action must survive death If defendant dies : Continue against the estate until theres judgment; law does

not mandate substitution If plaintiff dies : Sec. 16 will apply Indigent Algura v. LGC of Naga11 Rule 141, Sec. 7 v. Rule 3, Sec. 21

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The complaint for recovery of possession of real property is an action which survives the death of a party. Such being the case, the rule on substitution of a deceased party is clearly applicable. Non-compliance with the rule on substitution of a deceased party renders the proceedings and judgment of the trial court infirm because the court acquired no jurisdiction over the persons of the legal representatives or of the heirs on whom the trial and the judgment would be binding. The proceedings and judgment of the trial court are void only as to the heirs who did not participate in the trial. Formal substitution of heirs is not necessary when the heirs themselves voluntarily appeared, shared in the case and presented evidence in defense of deceased defendant. 11

Recapitulating the rules on indigent litigants, therefore, if the applicant for exemption meets the salary and property requirements under Section 19 of Rule 141, then the grant of the application is mandatory. On the other hand, when the application does not satisfy one or both requirements, then the application should not be denied outright; instead, the court should apply the "indigency test" under Section 21 of Rule 3 and use its sound discretion in determining the merits of the prayer for exemption.



o If you fall within the definition of Rule 141 : Indigent (no need to convince court except through a document)

Wage does not exceed double the monthly minimum wage

Real property with fair market value does not exceed 300K o If in excess of Rule 141 : Rule 3 applies (indigency test); Court will ascertain if

income is enough after notice and hearing (judicial discretion) No need to pay filing fees lien on a judgment Free from payment of docket fees and transfer of stenographic notes If discover not an indigent:

1. Require party to pay 2. If refuse, order execution (Rule 39) 3. If failed to pay and ignore execution, dismiss the case (Rule 17, Sec. 3)

Pauper economically deficient (no income/way below decent living) You can be an employed indigent with property. Notice of lis pendens lie only to right/interest over a real property

Rule 4 (Venue) Kind of action:

1. Personal o Involves obligations (privity of contract) o Residence at the option of the principal plaintiff o Ileen Marcos Araneta case (2009) if there a number of

plaintiffs/defendants, look at the principal residence at the option of the plaintiff

2. Real o Involves real property o Affects title or possession of property

GR: Apply Rule 4 EX:

1. Agreement words of exclusivity; otherwise, considered only in addition to prescribed venue under the law o Can stipulation apply to a real action? YES.

2. Specific rule/law o Examples: Quo warranto, perpetuation of testimony (Rule 24), specpro,

writ of habeas corpus for custody of minor, ejectment

The fact that you can institute an action does not necessarily confer jurisdiction to court.

Ex. Development agreement into a memorial park. F resides in QC. Memorial park (juridical entity) resides in Pasig. Contract was completed in Rizal. The complaint is to rescind contract. Since its a personal action, venue is either QC or Pasig. Court is the RTC (incapable of pecuniary estimation)

Where do you file for extrajudicial foreclosure? Not a real action; not a judicial action; you file with the clerk of court; falls under Act 3135

Where do you file for judicial foreclosure? Action in rem; Rule 68; venue where property is located

Ex. Nullity of marriage. Where? (1) Residence, (2) Conjugal home Venue is waiveable. Remember Rule 9, Sec. 1 (Waiver & Objections). Improper venue can only be

invoked by the defendant. Ex. If defendant failed to file a motion to dismiss or answer for improper venue,

the court cannot motu proprio dismiss the case. (Dacoycoy v. IAC)12

Rule 5 (Preliminary Conference & Summary Procedure) Can MTC handle cases falling under the ordinary procedure? YES. Summary Procedure Default is not an option If no answer, render judgment. Memorize prohibited pleadings. Small claims Who can assist? Generally, BAR flunkers Pinga v. Heirs of German Can they present evidence during the hearing? No, court only reviews the

affidavits. There must be a dispute resolution. Prohibited pleadings different from summary procedure. In motion to dismiss,

the exception is only lack of jurisdiction. Decisions are final and unappealable. Remedy is Rule 65.

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Unless and until the defendant objects to the venue in a motion to dismiss, the venue cannot be truly said to have been improperly laid, as for all practical intents and purposes, the venue, though technically wrong, may be acceptable to the parties for whose convenience the rules on venue had been devised. The trial court cannot pre-empt the defendant's prerogative to object to the improper laying of the venue by motu proprio dismissing the case.



Forum non conveniens (International) v. Forum shopping (local)

Rules 6-8 (Pleadings) Kinds of pleadings:

1. Complaint o There must be a claim or cause of action. o How to make allegations? It must be brief, concise statement of ultimate

facts. o Particularity v. Generally give the antecedent facts o Claim based on actionable document, can be alleged in 2 ways o Effect of failure to specifically deny allegations

- Specifically deny under oath - Otherwise, deemed admit the due execution and genuineness - Exceptions: (1) not a party, (2) compliance with order was refused

2. Answer o Mandatory pleading o File within 15 days, 30 days (if foreign corp.) o Defenses:

- Negative - Affirmative MEMORIZE; include in motion to dismiss

o Kinds of specific denial of material allegations: - General - Partial - Lack of knowledge/information to form a belief

o Counterclaim - Found in the answer; no need for leave of court - Kinds: (1) Compulsory, (2) Permissive - Answered in 10 days (no distinction between permissive or

compulsory). In practice, no need to answer compulsory counterclaim.

- Ex. Sir sued Gregorio. - Can MTC award 600K in counterclaim? Only to the extent of its

jurisdiction. RTC? Regardless of amount. - Cannot raise counterclaim in ejectment case which is outside the

issue of possession. - If monetary counterclaim, award counterclaim within the

jurisdiction of the court. If counterclaims can be segretated, you cannot award counterclaim.

o Crossclaim

- Answer in 10 days - Found in the answer; no need for leave of court - If theres more than one party in one side and theres already

jurisdiction over the person. - Ex. Sir sued Gregorio. Gregorio sued Ele.

3. Third-party complaint o Need leave of court o Purpose: For contribution, indemnity, subrogation (MEMORIZE) o Answer in 15 days o Ex. Sir sued Gregorio. Gregorio impleaded Ele who is not a party to the

case. 4. Reply

o Not mandatory; optional o By original complainant/plaintiff o File within 10 days o Dispute or controvert new matters o Effect of failure to file : issues are deemed controverted (issues are

joined)

Controverted not judicially admitted; deemed disputed o New matter something complainant was not aware at the time of

filing; must arise from the complaint (Ex. Prescription, statute of frauds) Bringing new parties Summons; through amendment of pleading

Parts of a pleading:

1. Signature o Contents: (1) true, (2) read, (3) pleading is supported, (4) not for the

purpose of delay o Unsigned pleading produces no legal effect. o Duty of every lawyer to sign the pleading. o If counsel changes address, inform the court.

2. Verification o Contents: (1) under oath, (2) based on personal knowledge/records o Who signs? Applicant (not the lawyer unless for compelling reasons) o Example of compelling reasons: distance, accident o Not mandatory unless required by law o Absence of verification is not jurisdictional; can be cured o If not verified, dismissed by CA & SC because petitions under it are

required to be verified.



o After 1997 Rules, SC more on dismissing cases that dont comply with the Rules.

o Minor legal guardian sign for him o Husband and wife both sign unless common interest o Co-owner not all, one person may sign o Multiple parties all must sign except common interest

3. Certification Against Non-Forum Shopping (CNFS) o Signed by (1) party, (2) lawyer, (3) representative, (4) authorized officer

by the corporation through a board resolution, or (5) in-house counsel

In-house counsel duly authorized in a board resolution + personal knowledge; employed by the company and is included in the payroll

Retained counsel not employed but contract of service for a month-to-month or project basis

o Memorize Rule 7, Sec. 5 o Allegations: (1) issue, (2) status of the case, (3) inform court of pending

action within 5 days o If non-juridical entity, all must sign. o In practice, judges believe that all initiatory pleadings should be verified o Effect of absence of CNFS: (1) dismissed without prejudice, (2) cannot

cure by amendment but can be refilled o Effect of noncompliance/false: (1) indirect contempt, (2)

administrative/criminal case against you o Effect of willful/deliberate: (1) direct contempt, (2) administrative

sanctions, (3) summary dismissal How it looks like:

REPUBLIC OF THE PHILIPPINES NATIONAL CAPITAL JUDICIAL REGION

REGIONAL TRIAL COURT BRANCH 87, BATANGAS

Natassia Fortea Docket No.13

v.

Meinhart Dina x-------------------------x

COMPLAINT14

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Number depends on the date of filing and payment of docket fees; it does not indicate the nature of the action. 14

Title of the pleading.

1. I, John Gregorio, of legal age, residing15

I, Michael Canilao, . where served summons

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FIRST CAUSE OF ACTION State the facts (antecedent facts) SECOND CAUSE OF ACTION

PRAYER WHEREFORE, premises considered, it is respectfully prayed (summarize what you want) Date of pleading, Place. Signature of Counsel PTR IBP Roll of Attorneys Number MCLE Complaint : Plaintiff v. Defendant Petition : Petitioner v. Respondent Appeal : Appellant v. Appellee In the body, paragraphs must be numbered. REMEMBER: Each paragraph must

contain a single set of circumstance. (Ex. That he issued a promissory note amounting to 100K)

Each cause of action must have a heading. (Ex. Breach of contract, exemplary damages, attorneys fees)

Manchester v. CA damages, interest must be alleged in the body and prayer17 General prayer Other relief, just and equitable.

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If plaintiff. 16

If defendant. Only defendant is served with summons. 17

All complaints, petitions, answers and other similar pleadings should specify the amount of damages being prayed for not only in the body of the pleading but also in the prayer, and said damages shall be considered in the assessment of the filing fees in any case. Any pleading that fails to comply with this requirement shall not bib accepted nor admitted, or shall otherwise be expunged from the record. The Court acquires jurisdiction over any case only upon the payment of the prescribed docket fee. An amendment of the complaint or similar pleading will not thereby vest jurisdiction in the Court, much less the payment of the docket fee based on the amounts sought in the amended pleading.



If theres no date, it does not affect the validity of the pleading since it is corrected by the stamp.

Rule 8 Sec. 1 : Brief, concise, ultimate facts, devoid of evidentiary matter Under Rule 128, Fact + Evidence = Truth If the basis of the complaint is an actionable document, must attach the

document. How? 1. Annex 2. Reproduce text in the pleading

Condition precedent must be generally averred. (Ex. Conciliation process, pursuits among members of the family, exhaustion of administrative remedies)

Capacity: 1. Natural legal age 2. Juridical license to do business

Mistake/Fraud allege with particularity (time, place, specific acts) Malice allege generally (you cannot state particulars) All issues passed upon by the court are disputable; no need to allege jurisdiction

of court if theres already judgment Effect of failure to deny under oath : Deemed admitted

EXCEPT: (1) not a party to the instrument, (2) compliance with order is refused Usury must be specifically denied under oath. Strike out a pleading:

1. Redundant 2. Scandalous not a fact in issue 3. Immaterial

Example of strike out: the court ordered to file a deposition versus the court wanted counsel to remind

Rule 9 (Default) 1. GR: Objections/grounds not raised are deemed waived.

EX: (1) lack of jurisdiction, (2) litis pendentia, (3) res judicata, (4) prescription, (5) lack of cause of action

2. Fail to allege compulsory counterclaim, crossclaim = barred o You can amend. Rule 11, Sec. 10 o Claim against the estate is made within the time specified in the notice o Suit brought by the estate can raise a compulsory counterclaim

3. Kinds of default

o (1) General order of default in rem like land registration cases; forever barred; cannot oppose

o (2) Failure to attend pre-trial (as in default) absence of defendant o Proof of failure to answer show return o Order of default v. Judgment of default

- Order no answer within the reglementary period - Judgment order declaring default and later judgment by the court

o Remedies: - For Order of Default

(1) Motion to set aside an order of default

Under oath

Ground is FAME (must be extrinsic fraud)

Extrinsic fraud outside of the pleadings which prevented party from participating in the proceedings

Intrinsic fraud cited in the pleadings

Meritorious defense (not necessarily answer)

Saguid v. CA failure to appear in pre-trial, remedy is to file MR/set aside on the ground of FAME

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Example of mistake : wrong date, cut and paste, secretary placed pleading in another envelope

GR: Negligence of counsel is negligence of client. EX: If gross. - For Judgment of Default

(1) Appeal or MNT

Not MR because it presupposes presentation of evidence; MNT presupposes no opportunity to present evidence

File within the reglementary period (15 days) (2) Petition for relief

Theres already entry of judgment.

File within 6 months from entry and 60 days from knowledge of judgment

(3) Petition for certiorari for GADLAEJ (4) Annulment

All other remedies cannot be availed of

Judgment is final and executory

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Even before the 1997 Rules of Civil Procedure took effect on July 1, 1997, the filing of a pre-trial brief was required under Circular No. 1-89 which became effective on February 1, 1989. Pursuant to the said circular, "[f]ailure to file pre-trial briefs may be given the same effect as the failure to appear at the pre-trial," that is, the party may be declared non-suited or considered as in default.



Partial default there is no judgment yet Can file an order of default then judgment without presentation of evidence? YES Can court in its discretion require presentation of evidence ex parte? YES File an extension of time:

1. Do not assume that extension will be granted 2. Filed before expiration of the period

Not declared in default for failure to file answer: 1. Legal separation, annulment and nullity of marriage

o Prosecutor to determine if theres collusion 2. Summary procedure No default in summary procedure. If there is no

answer, render judgment. 3. SCA You file a comment, not an answer. EXCEPT in interpleader,

declaratory relief (ordinary rules apply)

Rule 10 (Amendments and Supplements) Civil

1. Reference: When answer is filed 2. Amendment as a matter of right

o Before answer o File notice to amend (not motion) o Amend form and substance

3. Amendment as a matter of relief o Leave of court is necessary after an answer is filed

4. Amendment to conform with evidence o Valid judgment even if not alleged in the pleading o Why need to amend? Rule 128, Sec. 1. Factual propositions should be

supported by evidence. What is alleged must be proven and serve as a basis of a judgment.

o If party does not object, amend even after judgment. o If party objects, allow amendment but subject to court discretion

Criminal

1. Reference: Plea (Rule 110, Sec 14) 2. Before plea only as to form/substance 3. After plea with leave of court, any form as long as not prejudicial to the

rights of the accused o TEST: original defense of accused will not change and is not prejudicial

(ex. Relationship, penalty)

Kinds of amendment:

1. Parties agree and there is no objection even after judgment 2. If there is an objection, its left to the sound discretion of the court.

Can you amend even if theres no application? Yes. (1) Formal amendment, (2)

Rule 12, Bill of particulars, (3) Motion to dismiss Court cannot amend to conform evidence without an application If jurisdiction is already acquired over the defendant, amend with new cause of

action, no need to issue new summons. Supplement Not a responsive pleading Supplemental memo or comment? NO It involves transactions, occurrences, events occurring after the filing of the

pleading. GR: All pleadings, EX: SC (interim rules) Supplement v. Amendment Supplement facts not yet in existence at the time of filing Amendment there was only an omission; facts sought to be introduced already

in existence

Rule 12 (Bill of Particulars)

To remember: Example is panlalait. maganda siya kaya lang pangit damit Counterpart: Rule 116, Sec. 9 of Criminal Procedure What : Not aver sufficient definiteness

1. Identify defects of the pleading 2. Paragraphs 3. Details denied

Period : 15 days (if pleading is an answer), 10 days (if pleading is a reply) o Cannot file after an answer has already been filed o After answer, BOP of answer through a reply o BOP stays period to file answer

Actions taken : Grant or deny outright, Set for hearing If granted:

1. File bill of particulars 2. Amend pleading even without motion

If denied, file responsive pleading.



Denial of motion for bill of particulars is interlocutory. If not satisfied with the bill of particulars filed:

1. File a motion to strike out pleading 2. Move for dismissal (Rule 17, Sec. 3)

Consequence : Rule 12, Sec. 4; Rule 17, Sec. 3 o Virata v. Sandiganbayan

19

Example: File complaint on Dec. 1 and has until Dec. 16 to file an answer. If you file BOP on Dec. 5, theres 12 days to file an answer. If you file BOP on Dec. 14, he has 5 days to file an answer.

Rule 22, Sec. 2 Act that caused the interruption is not included in the computation.

Rule 13 (Service)

Applies to all EXCEPT summons (rule 14)

MODES OF SERVICE PROOF OF SERVICE

Personal service Service to suitable person in

residence/office Completeness and actual

Written admission Official return of service refers to

service of the court Affidavit

Registered mail Actual or first notice after 5 days

Affidavit and registry receipt Return card and unclaimed letter

with copy of notice certified by the postmaster

Ordinary mail Expiration of 10 days

Affidavit

MODES OF FILING PROOF OF FILING

Personal service Record Received copy

Registered mail Registry receipt and return card

Registry receipt Affidavit

19

In view of the Republic's failure to obey this Court's directive and the Sandiganbayan's order to file the proper bill of particulars which would completely amplify the charges against Virata, this Court deems it just and proper to order the dismissal of the expanded Second Amended Complaint, in so far as the charges against Virata are concerned. This action is justified by Section 3, Rule 17 of the Rules of Court.

No ordinary mail because there is no way to know when you filed it. No proof of filing.

Return card

Sec. 9 court can order service Registry return card is required by law to be filed. In practice, no. Priority of service is personal service. If a person is represented by counsel, service must be made to him unless the

court orders service to the party. If document and return card are returned to sender, file it in court and get a

certification from the postmaster. Lis pendens only pending litigation in courts; not apply to quasi-judicial actions

o Atlantic Erectors v. Herbal Cove20

o No need for order of the court. Only need to send memo. HOWEVER, you

need an order to cancel the notice of lis pendens. o Only refer to real property. o Can you transfer? YES, notice serves to notify the world.

Rule 14 (Summons)

Remember Pascual v. Pascual citing Manotoc v. CA. Requirements to effect a

valid substituted service: 1. Impossibility of Prompt Personal Service

The party relying on substituted service or the sheriff must show that defendant cannot be served promptly or there is impossibility of prompt service. "Reasonable time" is defined as "so much time as is necessary under the circumstances for a reasonably prudent and diligent man to do, conveniently, what the contract or duty requires that should be done, having a regard for the rights and possibility of loss, if any, to the other party." To the plaintiff, "reasonable time" means no more than 7 days since an expeditious processing of a complaint is what a plaintiff wants. To the sheriff, "reasonable time" means 15 to 30 days because at the end of the month, it is a practice for the branch clerk of court to require the sheriff to submit a return of the summons assigned to the sheriff for service.

For substituted service of summons to be available, there must be several attempts by the sheriff to personally serve the summons within a

20

The pendency of a simple collection suit arising from the alleged nonpayment of construction services, materials, unrealized income and damages does not justify the annotation of a notice of lis pendens on the title to a property where construction has been done.



reasonable period [of one month] which eventually resulted in failure to prove impossibility of prompt service. "Several attempts" means at least 3 tries, preferably on at least two different dates. In addition, the sheriff must cite why such efforts were unsuccessful. It is only then that impossibility of service can be confirmed or accepted.

2. Specific Details in the Return The sheriff must describe in the Return of Summons the facts and

circumstances surrounding the attempted personal service. The date and time of the attempts on personal service, the inquiries made to locate the defendant, the name/s of the occupants of the alleged residence or house of defendant and all other acts done, though futile, to serve the summons on defendant must be specified in the Return to justify substituted service.

3. A Person of Suitable Age and Discretion A person of suitable age and discretion is one who has attained the

age of full legal capacity (18 years old) and is considered to have enough discernment to understand the importance of a summons. To be of sufficient discretion, such person must know how to read and understand English to comprehend the import of the summons, and fully realize the need to deliver the summons and complaint to the defendant at the earliest possible time for the person to take appropriate action. Thus, the person must have the "relation of confidence" to the defendant, ensuring that the latter would receive or at least be notified of the receipt of the summons. These matters must be clearly and specifically described in the Return of Summons.

4. A Competent Person in Charge The person on whom the substituted service will be made must be

the one managing the office or business of defendant, such as the president or manager; and such individual must have sufficient knowledge to understand the obligation of the defendant in the summons, its importance, and the prejudicial effects arising from inaction on the summons. Again, these details must be contained in the Return.

Can personal service and substituted service work simultaneously? NO. o Preference is personal. o Service to person is wherever he may be found. o Substituted service is made in the residence/office. o Substituted service justifiable circumstance; repeated efforts found in the

return; impossibility of personal service Under what circumstances can substituted service take place?

o Explanation must appear in the sheriffs return o Sheriffs return narrative of how the sheriff proceeded in serving the

summons

o How many times served? At least 3 times on 2 different occasions (Manotoc v. CA)

o There must be impossibility of service. o Fail to serve within reasonable time = dismissed for failure to prosecute

Alias summons made when summons is lost or returned unserved Tender as long as there is effort to tender; based on the narrative of return Suitable age and discretion age of majority and discernment Residing therein transient/visitor cannot be served by summons Competent person must be managing the office/business; appears to be in

charge like the president or manager Who can receive for corp? GCM PIT closed list, cannot be expanded No substituted summons to a corp, only personal service to its officers Can a janitor who is a law student receive summons? NO Can a lawyer-programmer, but employed only as a programmer and consulted at

times for legal concerns, receive summons? NO. Can substituted service affected if defendant if not a resident of the Philippines?

GR: NO. Sec. 15 not reside and not found in the Philippines, no substituted service; condition must be present before you apply EX: Gemperle v. Sheckner (attorney-in-fact who is a resident spouse)

21

There is no substituted summons. You issue either a summons or alias summons. Agilent Technologies v. Integrated Silicon22

o RIGHT OF A FOREIGN CORPORATION TO BRING SUIT IN PHILIPPINE COURTS 1. If a foreign corporation does business in the Philippines without a

license, it cannot sue before the Philippine courts. 2. If a foreign corporation is not doing business in the Philippines, it needs

no license to sue before Philippine courts on an isolated transaction or on a cause of action entirely independent of any business transaction.

3. If a foreign corporation does business in the Philippines without a license, a Philippine citizen or entity which has contracted with said corporation may be estopped from challenging the foreign corporations corporate personality in a suit brought before Philippine courts.

21

The lower court acquired jurisdiction over the nonresident husband by means of the said service of summons. As the wife had authority to sue, and had actually sued in behalf of her nonresident husband, so she was also empowered to represent him in suits filed against him, particularly in a case which is a consequence of the action brought by her in his behalf. 22

A foreign corporation without a license is not ipso facto incapacitated from bringing an action in Philippine courts. A license is necessary only if a foreign corporation is transacting or doing business in the country. To constitute doing business, the activity to be undertaken in the Philippines is one that is for profit-making.



4. If a foreign corporation does business in the Philippines with the required license, it can sue before Philippine courts on any transaction.

Rule 14 is waiveable but if not serve, court has no jurisdiction. Case must be remanded for issuance of summons. (Mason v. Columbus)

23

Summons through publication Sec. 14 unknown defendant, whereabouts unknown

o Cannot do personal service o Applies to any action o Publication is different from secs. 15-16 only publication and does not

require service by registered mail Sec. 15

o Application : Nonresident and not found in the Philippines o Subject Matter : (4) o Modes:

- Personal service outside the Philippines - Publication + Registered mail (last known address) - Other manner left to the discretion of the court

Romualdez-Licaros v. Licaros24

- Publication + summons to DFA o Service can never be through ordinary mail

Sec. 16 temporarily absent but there is an intention to return o Modes:

- Substituted service (Montalban v. Maximo)25

- Voluntary appearance

For Secs. 14-16, you can do personal service as long as you can serve it to the defendant; this applies to any action even if in personam

In personam affects only parties within

23

Notice to enable the other party to be heard and to present evidence is not a mere technicality or a trivial matter in any administrative or judicial proceedings. The service of summons is a vital and indispensable ingredient of due process. 24

Delivery to the Department of Foreign Affairs was sufficient compliance with the rule. After all, this is exactly what the trial court required and considered as sufficient to effect service of summons under the third mode of extraterritorial service pursuant to Section 15 of Rule 14. 25

In practical terms, we perceive that in suits in personam the more circuitous procedure delineated in Sections 17 and 18 is resorted to by a plaintiff if defendant's dwelling house or residence or place of business in this country is not known; or, if known, service upon him cannot be had thereat upon the terms of Section 8. Here, since personal service is impossible, resort to substituted service becomes a necessity. A comparison between the service in Section 8 and that in Sections 17 and 18 is beside the point. They both provide for substituted service. Anyway, as Goodrich observed: "[I]f a substitute is to be made where an actual personal service is impossible, 'the best is none too good'.

See Alaban v. CA (footnote 43) publication is sufficient notice

Rule 15 (Motions) 1. Definition

o Not a pleading but seeks relief o Ex. Motion for early resolution, motion for extension o All motions abide by Rule 15 o Motion to dismiss does not partake the nature of an answer.

2. Every motion should have a notice of hearing. o Directed to all parties concerned o In practice, include the clerk of court because its the clerk of court who

schedules the hearing (in custody of the calendar) o Absence : Treated as a mere scrap of paper

3. 3-day notice rule o Filed and served to other part at least 3 days before the hearing

4. 10-day rule o Hearing must be scheduled not later than 10 days after filing of the motion o Must still observe the 3-day rule

5. Omnibus motion rule o Include all grounds available EXCEPT Rule 9, Sec. 1

6. Motion day o Always on a Friday (mandatory!) o Only the judge can apply it liberally

Rule 16 (Motion to Dismiss)

Filed by the defendant

1. Grounds (REMEMBER)

o No jurisdiction over the subject matter conferred by law (RA 7691) o No jurisdiction over the defendant proper service of summons or voluntary

appearance o Improper venue Rule 4 or special rule/stipulation o No legal capacity

- Corp : registered with the SEC - Indiv : age of majority - Attorney : authority specified in the SPA

o Failure to state a cause of action specific allegations of breach; doesnt go to the truthfulness or falsity of allegation



o Litis pendentia 2 cases both pending involving the same facts, issue, relief o Res judicata and prescription statute sets a limit to institute an action o Paid, waived, abandoned or extinguished o Condition precedent waiveable; ex. Barangay conciliation, earnest efforts,

exhaustion of local remedies (Banares v. Balising)26

o Statute of frauds

2. Dismissal but cant refile o Prescription o Res judicata o Statute of frauds o Paid, waived or abandoned

3. Period to file : before filing an answer 4. How to count same with BOP, interruption (Rule 22) Improper service of summons. Lawyer filed an MTD. Instead on granting the

motion, the court issued alias summons. No grave abuse of discretion. If granted, you can refile. If dismissed, issue alias summons.

Preliminary hearing of affirmative defenses o Discretion of the court o Connected with the guidelines of pre-trial (2004) o Instead of MTD, file answer with affirmative defenses. o If you have once filed an MTD, there would be no hearing of the affirmative

defense. Remedy of defendant upon denial of MTD is Petition for certiorari under Rule 65

o Will it suspend the proceeding? NO, Rule 41, 45, 58, 65 were amended, unless TRO/injunction. (Eternal Gardens v. CA no longer holds)

27

26

The non-referral of a case for barangay conciliation when so required under the law is not jurisdictional in nature and may therefore be deemed waived if not raised seasonably in a motion to dismiss. 27

Although this Court did not issue any restraining order against the Intermediate Appellate Court to prevent it from taking any action with regard to its resolutions respectively granting respondents' motion to expunge from the records the petitioner's motion to discuss and denying the latter's motion to reconsider such, order, upon learning of the petition, the appellate court should have refrained from ruling thereon because its jurisdiction was necessarily limited upon the filing of a petition for certiorari with this Court questioning the propriety of the issuance of the above-mentioned resolutions. Due respect for the Supreme Court and practical and ethical considerations should have prompted the appellate court to wait for the final determination of the petition before taking cognizance of the case and trying to render moot exactly what was before this court.

If grant petition for certiorari, can court dismiss the case outright? Dismiss/Remand (Lu Ym v. Nabua)

28

Rule 17 (Dismissal of Actions)

Pinga v. Heirs of German vacated BA Finance case29 Sec. 1 notice (dismissal as a matter of right)

o Before answer, no counterclaim yet o Can it be refilled? YES, EXCEPT if dismissed twice

Sec. 2 Motion o If theres a counterclaim, dismissal is limited to the complaint regardless if

the counterclaim is permissive/compulsory. o Party may manifest if prosecute counterclaim in the same action

Sec. 3 failure to prosecute o Failure to present evidence in chief witness not available for direct

examination o Unreasonable length of time despite repeated instances o Not comply with express order from the court in CrimPro, counterpart is

right to speedy trial via a motion to quash

Rule 18 (Pre-Trial) Assumes that issues have already been joined (since an answer has already been

filed) Procedure:

1. File Answer 2. Within 5 days, move ex-parte for pre-trial

o If fail to move, Clerk of Court will issue notice of pre-trial

28

While it was error for the appellate court to rule that the trial court did not commit grave abuse of discretion in denying petitioners motion to dismiss, it does not necessarily follow that the motion to dismiss should have been granted. The instant petition raises significant factual questions as regards petitioners claim that the Amended Complaint should have been dismissed which are properly addressed to the trial court. Moreover, it cannot be gainsaid that the trial court should be given the opportunity to correct itself by evaluating the evidence, applying the law and making an appropriate ruling. A remand of the case to the trial court for further proceedings is, therefore, in order. 29

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. We confirm that BA Finance and all previous rulings of the Court that are inconsistent with this present holding are now abandoned.



3. At least 3 days before pre-trial, file a pre-trial brief o Once you receive notice: (1) Set pre-trial, (2) Set preliminary conference

4. Preliminary conference o Before the clerk of court o Recorded and forms part of records of the pre-trial

5. Pre-trial o 1

st day: issue order referring case to a mediator

- Suspend proceedings for 30/60 days - Set pre-trial in another particular date

o Inability to compromise, return records to the court o Pre-trial

- Judge talks to the parties again: (1) parties and counsel (together then one side only), (2) parties only

6. Failure to file pre-trial brief or appear during pre-trial o Defendant not file pre-trial brief or appear during pre-trial

- Plaintiff present evidence ex-parte o Plaintiff failed to appear during pre-trial

- Dismiss case Process:

1. Judicial admissions Rule 129, Sec. 4 2. Stipulations just proposals; if admitted, tantamount to an admission 3. Issues 4. Testimonial/documentary evidence

o Most Important Witness Rule o 1-day Examination of Witness Rule

5. Referral to commissioner 6. Compromises 7. Judgment on the pleadings, etc. 8. Discovery

Pre-marking only during pre-trial; it still has to be authenticated during trial o If not marked, cannot present as evidence UNLESS court allows you in the

interest of justice. o Same rule applies to witnesses

Can there be cancellation of pre-trial? YES, if theres a valid/good excuse or authorized representative to appear in your behalf

In CrimPro, if the prosecution/accused is absent during pre-trial, the case is rescheduled and lawyers are sanctioned. You do not allow the prosecution to present evidence ex-parte. o Admission in writing + assistance of counsel + signed by counsel and

accused

JDR before a JDR judge who acts as mediator, conciliator and independent evaluator; there must be a new raffle UNLESS parties consent in writing to continue with the JDR judge

After issuance of summons, it is the duty of a judge to issue Order requiring parties to avail of discovery.

Rule 19 (Intervention)

1. Concept

o Not delay proceedings of original parties o Prosecuted on the same/separate action

2. When you can intervene (Sec. 2) o Republic v. Gingoyon when can you intervene? Before rendition of

judgment in the trial court30

o After judgment? GR: No. EX: If indispensable party.

Nordic Asia v. CA31 There is no intervention in the appellate court. But subject to the sound

discretion of the court.

Rule 21 (Subpoena) Kinds:

1. Ad testificandum appear and testify

30

We now turn to the three (3) motions for intervention all of which were filed after the promulgation of the Courts Decision. All three (3) motions must be denied. Under Section 2, Rule 19 of the 1997 Rules of Civil Procedure the motion to intervene may be filed at any time before rendition of judgment by the court. Since this case originated from an original action filed before this Court, the appropriate time to file the motions-in-intervention in this case if ever was before and not after resolution of this case. To allow intervention at this juncture would be highly irregular. It is extremely improbable that the movants were unaware of the pendency of the present case before the Court, and indeed none of them allege such lack of knowledge. 31

The requirements for intervention are: [a] legal interest in the matter in litigation; and [b] consideration must be given as to whether the adjudication of the rights of the original parties may be delayed or prejudiced, or whether the intervenor's rights may be protected in a separate proceeding or not.

3 Petitioners failed to meet both requirements. Legal interest, which

entitles a person to intervene, must be in the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by direct legal operation and effect of the judgment. Petitioners, being co-creditors, are not the parties liable for the claims of the manning agent and crewmen. Also, petitioners' remedies as unpaid mortgagees remain preserved as the collection case will not preclude the foreclosure of the vessel.



2. Duces tecum bring docs etc. (but still appear) Who can issue: In crim, Office of the Prosecutor issue subpoena, received by the accused, is it

necessary for the Office of the Prosecutor to acquire jurisdiction over the accused? NO, irrelevant. Preliminary investigation is a statutory right and is waiveable. o Rule 112, Sec. 3(d) Prosecutor issues resolution; not imperative that

subpoena be received by accused Quashal of Subpoena (Sec. 4) the heart of subpoena) Ad testificandum

1. Not bound disqualification because of privilege (qualified) 2. Kilometrage and witness fees

o 100 km from home to court o You can be arrested to comply. (compulsory process)

Duces tecum 1. Fail to tender cost of production 2. Kilometrage fees 3. Unreasonable and oppressive 4. Relevancy 5. Sec. 3 failure to describe with particularity the document to be presented

Rules 23-29 (Discovery)

Rule 23

1. General provisions (Secs. 1-14) 2. Oral Depositions (Secs. 15-24) 3. Written Depositions (Secs. 25-28) 4. Errors and irregularities (Sec. 29)

Scope : Any matter, not privileged, relevant, direct relation to the fact in issue Not privileged not disqualified to be a witness Rules to Consider: 1. When file

o With leave of court acquire jurisdiction but before answer is filed o Without leave of court after answer is filed o GR: Before answer, you file a notice. EX: deposition (file a motion)

2. Before whom taken

o Phils. judge, notary public, authorized to administer oaths, agreement - Judge can be taken where the action is pending; applies to any judge in

the Philippines o Abroad (Sec. 14) o Stipulation of parties need consent of both parties o Letter Rogatory v. Commission

- Letters communication from one judicial authority to another; supervised by judicial authority in that country; follow rules of foreign court

- Commission appointment of a lower court - Dulay v. Dulay

32

- Ayala Land v. Tagle33

- To commission is to appoint

3. Process (Secs. 17, 19, 20, 21) o Who shall record : stenographer (under the direction and supervision of the

officer before whom deposition is taken o Deponent review then sign he can refuse to sign or waive signature o File in court with indication of name of deponent o May file a motion to suppress o Signature (1) authenticate, (2) witness read it

Memorize the uses under Sec. 4 1. Impeach or contradict witness

o Prior inconsistent statements (Rule 132, Sec. 11) o Lay the basis of time, place and person during the trial

32

While a court had the authority to entertain a discovery request, it is not required to provide judicial assistance thereto. This reality was recognized by the trial court when it ordered respondent to have the questioned depositions authenticated by the Philippine consulate. Indeed, refusing the allowance of the depositions in issue would be going directly against the purpose of taking the depositions in the first place, that is, the disclosure of facts which are relevant to the proceedings in court. Moreover, the authentication made by the consul was a ratification of the authority of the notary public who took the questioned depositions. The deposition was, in effect, obtained through a commission, and no longer through letters rogatory. 33

A deposition not signed does not preclude its use during the trial. A deponents signature to the deposition is not in all events indispensable since the presence of signature goes primarily to the form of deposition. The requirement that the deposition must be examined and signed by the witness is only to ensure that the deponent is afforded the opportunity to correct any errors contained therein and to ensure its accuracy. In any event, the admissibility of the deposition does not preclude the determination of its probative value at the appropriate time. The admissibility of evidence should not be equated with weight of evidence.



2. Adverse party = for any purpose 3. Any purpose

o Resides more than 100 km - Can a judge issue a subpoena? Yes. Rule 21, Sec. 5

o Sick etc. - Can the deposition of a dead person be presented in court? YES, hearsay

but subject to cross examination - Is cross examination necessary? YES (Rule 130, Sec. 47)

o Cannot be served with subpoena o Exceptional cases not compelled to present deponent in court

Who are disqualified (MEMORIZE) Irregularities (REMEMBER)

o GR: waived unless call the attention of the court o Can you take deposition after pre-trial? Must reserve right in pre-trial brief

- Jonathan Landoil v. Mangudadattu34

o GR: Deposition cannot replace oral examination in court. Must present

witness in court. EX: Uses of Deposition (Rule 23, Sec. 4) o Can you still cross examine in court even if cross examined during deposition

taking? YES. (Sabio case)35

o Can the court regulate? YES. If only purpose is to annoy, embarrass, oppress o Dismiss case if fail to answer? Exception: In a case where the failure to

answer was only an incident of the case and the plaintiff is a pauper litigant

Rule 24 Perpetuation of testimony If there is no pending case, you cannot take deposition. Must file a case in order

to file for taking of deposition. Venue:

o Before Action : Where expected adverse party resides o Pending Appeal : Where judgment is rendered

34

Deposition may be made after the trial court has acquired jurisdiction over any defendant or over property that is the subject of the action; or, without such leave, after an answer has been served. Deposition may also be taken during trial under Rule 23 Section 4. When a deposition does not conform to the essential requirements of law and may reasonably cause material injury to the adverse party, its taking should not be allowed. 35

It matters not that that opportunity for cross-examination was afforded during the taking of the deposition; for normally, the opportunity for cross-examination must be accorded a party at the time that the testimonial evidence is actually presented against him during the trial or hearing. However, depositions may be used without the deponent being actually called to the witness stand by the proponent, under certain conditions and for certain limited purposes.

Contents of a petition Pending appeal v. Before action

o For pending appeal : Petition for certiorari is not an appeal and is allowed as long as the principal action is alive.

Rule 25 Rule 23 v. Rule 25

o Rule 23: can take depo of anyone (party or witness); no fixed time; direct, cross, redirect, recross; answer only in the presence of deposition officer

o Rule 25 : directed only to the parties; 15 days to answer o Mode of application and Use are the same

Effect of failure to serve: Cannot be compelled to testify o Can call adverse party as witness (Rule 132) o Not considered as a hostile witness

Rule 26 Directed to the adverse party Fail to respond : Implied admission Documents must be attached Admit only due execution and genuineness Edades case Who will suffer cost? Party who refused but advanced by party applying

Rule 27 Production of documents v. Subpoena

o Production may be a preparatory act for the presentation of secondary evidence. - There must be notice to produce - Do not assume it is a mode of discovery - If directed to produce a specific evidence, be careful.

Compelled to be presented in court? NO. Only a mode of discovering evidence. Fishing expedition is not a defense.

Rule 28 1. Subject Matter Very limited application 2. When apply? Only for special cases involving mental and physical condition 3. Consequences waiver of doctor-patient privilege

o Privilege applies only when (1) blacken reputation, (2) only civil case o To avoid, do not ask for discovery. o Can ask for a copy of previous/subsequent examinations



o Testimony may be excluded at the outset

Rule 29 Consequences of refusal to answer: 1. May be placed in contempt 2. Can be arrested Cannot apply in a singular instance Discovery in SpecPro? Rule 72, Sec. 2 (default provision) Can Rule23 apply in a criminal case?

o Conditional examination of witnesses is akin to deposition o Rules 28 is inherent in criminal cases o Webb case did not clearly rule upon; too many documents already; but see

concurring opinion

Rule 30 (Trial) Value in the manner of presentation What is trial? Rule 119, Rule 30 Conduct of examination of witnesses (Rule 132) Order of presentation, can it be reserved? YES. Crim, in claim of self-defense. Civ,

??? (maybe a midterms question) Judgment without trial

o Hearing does not necessarily mean trial o If you breach a compromise agreement, proceed with execution.

Grounds for cancellation 1. Illness

o Presence is indispensable o Nature of illness is excused

2. Absence of evidence Can a subpoena be issued by the Clerk of Court in the absence of a pending

action? No. Can the Clerk of Court issue a subpoena? Only ad testificandum. Can the Clerk of Court resolve objections ex parte? NO, cannot determine

admissibility of evidence. He should only note down the objections and let the judge decide.

Judge can delegate to the Clerk of Court 1. Default proceeding 2. Ex parte as in default if not appear in pre-trial

3. Agreement Can an adoption case be delegated? NO.

Rule 31 (Consolidation)

It presupposes a pending action.

o More than one pending case o Commonality of fact and law o Ex. Pyramid scheme case

Can you consolidate cases pending in 2 different regions? YES.(Zulueta v. Asia Brewery)

36

Rule 32 (Trial by Commissioner)

A commissioner can hear any matter, can issue subpoena if within order of

reference, can resolve objections. Trial by commissioner resorted to in cases like expropriation (mandatory) and

partition (only when parties do not agree). Report of commissioner is not a judgment; it only serves to aid the court. Who shoulders payment? GR: losing party. EX: apportionment

Rule 33 (Demurrer to Evidence)

CIVIL CASE CRIMINAL CASE

When After prosecution has completed its case (Formal offer of evidence)

After prosecution rests its case

Leave No leave of court, but can file for leave

With leave of court (Can still present evidence if demurrer is denied) Without leave of court (Waive right to present evidence if demurrer is denied)

Remedy If granted, appeal If denied, continue case then appeal from judgment OR file MR

Cannot appeal/petition for certiorari until final judgment

36

When two or more cases involve the same parties and affect closely related subject matters, they must be consolidated and jointly tried, in order to serve the best interests of the parties and to settle expeditiously the issues involved. Consolidation, when appropriate, also contributes to the declogging of court dockets.



Valencia case (demurrer without leave) Dayap v. Sendiong (29 Jan 2009) demurrer in criminal case37

o Effect of dismissal : Amount to acquittal without prejudice o Is it reviewable by appeal? NO, double jeopardy has set in o Appeal not a remedy in acquittal o Reviewable only by Rule 65

- Usually subject is acquittal by trial court or CA - Need consent of SolGen

Cabador v. People demurrer partakes nature of motion to dismiss38 o If demurrer is granted, it amounts to an acquittal. Can accused evidence in

civil aspect of the case? YES, once criminal case is instituted, civil case is also instituted unless order specifies the fact that from which liability arise does not exist

o If demurrer is granted, it amounts to an acquittal granting civil liability. Judgment on civil aspect is a nullity because the accused was not given a chance to present evidence.

Radiowealth v. Del Rosario39 consequence of reversal on the grant of demurrer : if the next level court reverses the findings of the trial court, can defendant still adduce evidence? NO.

37

If demurrer is granted and the accused is acquitted by the court, the accused has the right to adduce evidence on the civil aspect of the case unless the court also declares that the act or omission from which the civil liability may arise did not exist. This is because when the accused files a demurrer to evidence, he has not yet adduced evidence both on the criminal and civil aspects of the case. The only evidence on record is the evidence for the prosecution. What the trial court should do is issue an order or partial judgment granting the demurrer to evidence and acquitting the accused, and set the case for continuation of trial for the accused to adduce evidence on the civil aspect of the case and for the private complainant to adduce evidence by way of rebuttal. Thereafter, the court shall render judgment on the civil aspect of the case 38

Since Cabador filed his motion to dismiss before he could object to the prosecutions formal offer, before the trial court could act on the offer, and before the prosecution could rest its case, it could not be said that he had intended his motion to dismiss to serve as a demurrer to evidence. Since Cabador filed a motion to dismiss on the ground of violation of his right to speedy trial, not a demurrer to evidence, he cannot be declared to have waived his right to present evidence in his defense. 39

If a demurrer to evidence is granted but on appeal the order of dismissal is reversed, the movant shall be deemed to have waived the right to present evidence. The movant who presents a demurrer to the plaintiffs evidence retains the right to present their own evidence, if the trial court disagrees with them; if the trial court agrees with them, but on appeal, the appellate court disagrees with both of them and reverses the dismissal order, the defendants lose the right to present their own evidence. The appellate court shall, in addition, resolve the

People v. Gatchiola MTD without leave (referring to demurrer) waives right to present evidence

40

Rule 34 (Judgment on the Pleadings)

File this at the very first instance If filed after pre-trial, it only procedurally delays the case. Allowed if answer (1) does not tender an issue, (2) admits allegations of the case

o Material allegations refer to cause of action o Practically admitted the cause of action

Procedure: o Who files : Plaintiff o Can there be partial judgment? NO, always FULL judgment. o Available during pre-trial since state willingness to avail of judgment on the

pleadings or summary judgment. o When : At least 3 days before hearing

Can court motu proprio render Judgment on the Pleadings? Yes, during pre-trial. NO, during trial, done only upon application.

Pasab v. Arandaya - administrative complaint against judge who render judgment on the pleadings motu proprio

Rule 35 (Summary Judgment) No genuine issue as to the material fact (MEMORIZE definition) Complaint + Documents + Affidavit + Depositions Fail to tender an issue v. No genuine issue

o Fail to tender an issue : (1) Simply stated the cause of action, (2) admit the allegations

o No genuine issue : Not go into the entire case, only material fact is admitted EXCEPT amount of damages (usually unliquidated and must be proved)

Ex. Claim of P50M, demand + interest, but admit only P25M in the letter, if defendant says later on that he doesnt own any money from plaintiff, letter can be shown as defendants own admission.

Woodtech v. Equitable Bank41

case and render judgment on the merits, inasmuch as a demurrer aims to discourage prolonged litigations. 40

When an accused files a demurrer to evidence without express leave of court, he is deemed to have waived his right to present his own evidence. 41

Applying the requisites of a judgment on the pleadings vis--vis a summary judgment, the judgment rendered by the RTC was not a judgment on the pleadings, but a summary judgment.



Narra Integrated Corp. v. CA42 existence of ostensible issues There can be a hearing. Promissory note with no date due and demandable. Can there be summary

judgment? YES. Judgment on the pleadings? NO. Court cannot grant summary judgment motu proprio

Rule 36 (Judgment) GR: Immutability of judgment (unalterable)

EX: 1. Nunc pro tunc judgment not speak the truth 2. Clerical errors 3. Void judgments

Support is never final and executory Is a judge required to take notes during hearing? NO. Is it necessary for the judge who heard the case to also render judgment? NO. Anama v. CA non-submission of memoranda part of trial; neither is it

indispensable for court to render judgment43

Separate judgment several claims of relief

o Ex. Expropriation (just compensation and authority to expropriate), Partial summary judgment

Several judgment several defendants

Although the Answer apparently raised issues, both the RTC and the Court of Appeals after considering the parties pleadings, petitioners admissions and the documents attached to the Complaint, found that the issues are not factual ones requiring trial, nor were they genuine issues. 42

The existence or appearance of ostensible issues in the pleadings, on the one hand, and their sham or fictitious character, on the other, are what distinguish a proper case for summary judgment from one for a judgment on the pleadings. In a proper case for judgment on the pleadings, there is no ostensible issue at all because of the failure of the defending partys answer to raise an issue. On the other hand, in the case a of a summary judgment, issues apparently exist i.e. 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 or not genuine, as shown by affidavits, depositions, or admissions 43

The filing of memoranda is not a part of the trial nor is the memorandum itself an essential, much less indispensable pleading before a case may be submitted for decision. As it is merely intended to aid the court in the rendition of the decision in accordance with law and evidence - which even in its absence the court can do on the basis of the judges personal notes and the records of the case - non-submission thereof has invariably been considered a waiver of the privilege.

Can a judgment be rendered against a non-juridical entity? YES.

Rule 37 (MR/MNT) Wait for judgment before apply for MR/MNT MR not a prerequisite before appeal EXCEPT summary procedure (prohibited

pleading) When : 15 days; cannot be extended Resolve : Within 30 days Can there be partial MR? YES. Grounds to file MR:

1. Extrinsic fraud 2. Mistake as to fact 3. Excusable neglect

Grounds to file MNT : newly discovered evidence 1. Material evidence 2. Not available during trial 3. May alter results

Neypes rule fresh period; not apply to Rule 42, 43, 45 since it is already provided for in the provision

44

You can only file one MR; You can file MNT twice Effect of grant of MNT : Trial de novo (new hearing but records of old trial is

retained) MNT under CA found under Rule 52; ground is only newly discovered evidence;

filed while court still has jurisdiction MNT in SC? Rule 56, Secs. 2 & 3. As a rule, NO, although left to the sound

discretion of the court. 2nd MR is available in lower courts in exceptional circumstances

o Court can motu proprio dismiss case if motion is a 2nd

MR If in a summary procedure, court dismissed the case for failure to file an answer,

MR is a prohibited pleading only if judgment rendered on the merits. (Lucas v. Falons)

44

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 Regional Trial Court, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration.

Henceforth, this fresh

period rule shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court.



Rule 38 (Petition for Relief)

Must be a party to a case Kinds:

1. Judgment 2. Denial of appeal prevented from filing an appeal

Where: 1. Court rendered judgment (for judgments not appealable) 2. Court that denied the appeal (for denial of appeal)

If appeal is filed out of time, file an MR. When : 60 days and 6 months when judgment is final and executor

o Both periods must be complied with o Cannot be extended o Goal is to move around the 6 months

- Ex. Judgment made on June 1. Learn only on Nov 15. Until Dec 1 to file petition for relief.

There must be no other remedy available. Grounds for petition for relief v. denial of appeal Grounds of FAME only available:

1. MNT (Rule 37) 2. Petition for relief (Rule 38) 3. Motion to set aside order of default (Rule 9) 4. MR order during pre-trial allowing plaintiff to present evidence (Saguid v. CA)

Alaban v. CA45 Does petition for relief apply in original cases filed before CA & SC? No clear

ruling on this matter. In sirs opinion, no. Procedure before CA is governed by Rules 46-55.

Rule 39 (Execution)

Secs. 1-14 : General provisions

45

A proceeding for the probate of a will is one in rem. Even though the petitioner-heirs were not mentioned in the petition for probate, they eventually became parties thereto as a consequence of the publication of the notice of hearing. As parties to the probate proceedings, they could have still filed a petition for relief from judgment after the denial of their motion to reopen. For failure to make use without sufficient justification of the remedies available to them, petitioner-heirs could no longer resort to a petition for annulment of judgment. Moreover, the non-inclusion of their names in the petition and the alleged failure to personally notify them of the proceedings do not constitute extrinsic fraud.

Secs. 15-34 : Conduct of sale; Redemption; Third party claim Secs. 35-43 : Remedies of inability to satisfy judgment Secs. 44-45 : Satisfaction of judgment Secs. 46-48 : Enforcement/Effects of judgment General Provisions Execution as a matter of right v. Discretionary execution

o As a matter of right: - Final and executory judgment. (as a rule, it is immutable) - Issued by the court of origin EXCEPT (1) interest of justice, (2) original

jurisdiction (Rule 46) - Filed in the court that rendered the judgment - Do you need a bond issue writ as a matter of right? No. Once judgment

is final and executor, execution is a matter of right. UNLESS GADALEJ and apply for injunction.

o Discretionary: - No bond required - Issued only for good reasons - Execution pending appeal and discretionary execution are the same. - Need a bond to stay execution

Intramuros Tennis Club v. PTA final order v. interlocutory order46 Writ of execution must conform to dispositive portion

o What is reproduced is only the dispositive portion. Do you need a full blown trial for motion of execution? NO. Can it be filed after perfection of appeal? YES, as long as RTC has not yet lost

jurisdiction over the case. GR: You can only issue a writ of execution when theres already a final judgment.

46

A "final" judgment or order is one that finally disposes of a case, leaving nothing more for the court to do in respect thereto such as an adjudication on the merits which, on the basis of the evidence presented at the trial, declares categorically what the rights and obligations of the parties are and which party is in the right, or a judgment or order that dismisses an action on the ground of res judicata or prescription, for instance.12 It is to be distinguished from an order that is "interlocutory", or one that does not finally dispose of the case, such as an order denying a motion to dismiss under Rule 16 of the Rules of Court, or granting a motion for extension of time to file a pleading. As such, only final judgments or orders (as opposed to interlocutory orders) are appealable. Now, a "final" judgment or order in the sense just described becomes "final and executory" upon expiration of the period to appeal therefrom where no appeal has been duly perfected or, an appeal therefrom having been taken, the judgment of the appellate court in turn has become final. It is called a "final and executory" judgment because execution at such point issues as a matter of right.



EX: (1) support pendente lite; (2) indigent (person is ordered to pay upon di