January 21, 2013 transcription (28:40-end of class)

Section 3. Amendments by leave of court. — Except as provided in the next preceding section, substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard. (3a)

GENERAL RULE: Substantial amendments may be made only upon leave of court (amendment shall be allowed even if it will alter the cause of action).

Requisites:

1. Motion filed in court to allow or admit the proposed amended complaint.2. Notice to the adverse party.3. Opportunity to be heard (other party may oppose it).

• Established jurisprudence tells us that the court should always allow the amendment because of the liberal policy of the rules.

- Amendment of pleadings should be liberally allowed in order that the real merits of the case can be ventilated in court without regard to technicalities.

Limitations to the Liberal policy (court may refuse to allow amendments):

1. When motion was made with intent to delay (sec. 3)2. It is for the purpose of making the complaint confer jurisdiction. (based on the original complaint

the court has no jurisdiction over the SM)

3. It is for the purpose of curing a premature or non-existing cause of actions

Tama ba siya that the amendments should be allowed? No. Kasi, that is an amendment that has the purpose of making the complaint confer jurisdiction to courts. Which, up to the present, one of the rules that is not allowed. That after the making of the complaint, the courts will not be given jurisdiction over the subject matter.

4. Amendment is made to cure violation of non-forum shopping.

Rule 7, Section 5. Certification against forum shopping. — The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore 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 other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If

the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. (n)

Bakit? Specific yun siya di ba? Sa Rule 7, Section 5, dib a klaro yung dun? “shall not be curable by mere amendment.” Even if the amendmendment is a matter of right, kasi even it is a matter of right, it is prohibited specifically by the rules.

For me, one of the interesting questions in Rule 10 is Section5.

Section 5. Amendment to conform to or authorize presentation of evidence. — When issues not raised by the pleadings are tried with the express or implied consent of the parties they shall be treated in all respects as if they had been 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; but failure to amend does not effect 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, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. (5a)

So, ano yung basic? There must be allegations, and such allegations must be proved. Derived from that, we have that principle that a judge can only rule on the issue that has been raised in the pleadings. Kelangan ang cause of action is clear in the complaint before it can be considered by the court.

Now, kunwari, you are a lawyer from the defendant and the prosecution tried to present an evidence on an issue that was never raised in the pleadings. So, what will you do? You will object. But, what is your objection? Your objection should be that it is irrelevant or immaterial. Yung isa diyan proves or disproves. Yung isa diyan, tends to prove the probability or improbability.

It is basically this, you can only present evidence that can prove or disprove, or can prove the probability or improbability of the facts and issues. It has to be in issue. What does that mean? It has to be in relation to the issue and the facts in the pleading. So, if evidence will not to prove or disprove, or will not tend to prove the probability or improbability of the facts in the pleading, it is irrelevant or immaterial.

The problem is, under Section 5, Rule 10 is:

When issues not raised by the pleadings are tried with the express or implied consent of the parties they shall be treated in all respects as if they had been raised in the pleadings.

And that you will be allowed to make amendments of the pleadings as may be necessary to cause them to conform to the evidence.

Is that what Section 5 means? Actually, you will be allowed to amend. But the mere fact of failure to object on the part of the opposing parties, they shall be treated in all respects as if they had been raised in the pleadings.

So, you don’t even need to make amendments, or to request the court to make the amendments. It is as if amendments were already made. In other words, the amendment that will be made to conform to the evidence is only to set the records straight. Kita mo nga, even after judgment, pwede. So, it does not affect the results whether or not there is an amendment of the pleadings.

Pano kung may nag-object because the question that is sought to be answered is irrelevant or immaterial? The judge will review. What will the judge review? He must review the pre-trial order. Why? Because the pre trial order will be followed insofar as the order is concerned. Kahit nakalagay yan sa complaint, kung hindi yan naisama sa pre-trial order, hindi yan pwedeng isama sa trial. It is considered immaterial or irrelevant.

But you can file a motion to allow, go back in time, so that you can be authorized the presentation of evidence.

“If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made.”

Phil Export vs Phil Infrastracture (January 13, 2004)

HELD:

It is settled that even if the complaint be defective, but the parties go to trial thereon, and the plaintiff, without objection, introduces sufficient evidence to constitute the particular cause of action which it intended to allege in the original complaint, and the defendant voluntarily produces witnesses to meet the cause of action thus established, an issue is joined as fully and as effectively as if it had been previously joined by the most perfect pleadings. Likewise, when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings

And what is the rule on objection is. You have to raise your objection as soon as the ground becomes apparent. Because the failure to object will cure the defect in the pleadings by the presentation of evidence on the lacking matter.

Section 6. Supplemental pleadings. — Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. (6a)

Amendment of pleadings? Mali. Supplemental? Allowed. It supersedes the original, di ba? You remember that?

The best example is that, there is an admission in the pleadings. What is that? An admission in the pleadings is a judicial admission. A judicial admission is binding upon the parties. Just like any admission. It is binding. But a judicial admission cannot be controverted even with contrary evidence. The original admission will still be binding.

Pano kung nag-file ngayon ng amended answer, tinanggal yung admission. Is it no longer an admission? Admission pa rin. You can rely upon it. But it is no longer a judicial admission. Bakit? Because the amended answer supersedes the original answer. It is as if the original answer is no longer part of the records. Now, you have to treat it as an extrajudicial admission. If you are going to rely in that extrajudicial

admission, you have to present the original answer as evidence of an extrajudicial admission. And, it is no longer part of the notice.

A supplemental pleading, merely adds to the original pleading. And the matters to be added must only cover those that happened between the time the original pleading was filed and the time the supplemental pleading was filed. Dagdag lang siya. Okay?

So, kung meron kang judicial admission sa original pleading, tapos nag-file ka ng supplemental pleading, meron pa bang judicial admission? Yes. Because the original pleading is technically part of the records.

Section 7. Filing of amended pleadings. — When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. (7a)

Ang rule of thumb niya, kung hindi ka pa kasali sa case, 15 days. If kasali ka na, 10 days.

Example, nag file ng amended complaint. Di pa siya nag-answer. 15 days pa rin, kasi di pa siya nag-answer.

Yun ang rule of thumb. Mas maganda kung alam mo ang rule, kesa yung thumb.

Section 8. Effect of amended pleadings. — An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader, and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived. (n)

BILL OF PARTICULARS

RULE 12

Section 1. When applied for; purpose. — Before responding to a pleading, a party may move for a definite statement or for a bill of particulars of any matter which is not averted with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading. If the pleading is a reply, the motion must be filed within ten (10) days from service thereof. Such motion shall point out the defects complained of, the paragraphs wherein they are contained, and the details desired. (1a)

Section 2. Action by the court. — Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court which may either deny or grant it outright, or allow the parties the opportunity to be heard. (n)

Section 3. Compliance with order. — If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten (10) days from notice of the order, unless a different period is fixed by the court. The bill of particulars or a more definite statement ordered by the court may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party. (n)

Section 4. Effect of non-compliance. — If the order is not obeyed, or in case of insufficient compliance therewith, the 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. (1[c]a)

Section 5. Stay of period to file responsive pleading. — After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than five (5) days in any event. (1[b]a)

Section 6. Bill a part of pleading. — A bill of particulars becomes part of the pleading for which it is intended. (1[a]a)

Sa criminal case, sino ang mag-file ng bill of particulars? Ang accused, ang HINDI mag-file ng bill of particulars. Ang ipa-file ng accused, motion for a bill of particulars. Pag ginrant ng judge yan, ang prosecution ang magpa-file ng bill of particulars.

Ano ba yang bill of particulars? In criminal cases, it is a statement of greater details of matters that are vaguely stated in the information.

Sa civil cases, before responding to an appeal. Kasi remember, pwede rin mag-claim ang mga parties. May counterclaim for example. Before responding to a pleading, a party can file a motion for bill of particulars for matters that are with insufficient indefiniteness or with particularity. The motion must specify what matters are to be specified. So, in civil cases, either parties can file for motion of bill of particulars. As long as it is done before filing a responsive pleading.

Another thing to remember is Section 4, what if the order is not obeyed? The 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.

So, the court may even order the dismissal. Because if you strike out the complaint, what do you have there? There is nothing.

Or, you can file dismissal under Rule 17 for failure to comply court order.