158234303-Dean-Riano-Civil-Procedure-Part-3.pdf

2005 CENTRALIZED BAR OPERATIONS

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CIVIL PROCEDURE RULE 1 GENERAL PROVISIONS Statutes regulating the procedure of courts will be construed as applicable to actions pending and undetermined at the time of their passage so long as vested rights will not be impaired. Under the 1987 Constitution, the rulemaking power of the Supreme Court has the following limitations: 1. shall provide a simplified and inexpensive procedure for the speedy disposition of cases; 2. Uniform for all courts of the same grade, and 3. Shall not diminish, increase or modify substantive rights (Art. VIII Sec. 5[5]). Section 3. Cases governed. ACTION CLAIM An ordinary suit in a court of justice

A right possessed by one against another

One party prosecutes The moment said another for the claim is filed before a enforcement or court, the claim is protection of a right converted into an or the prevention or action or suit. redress of a wrong.

CLASSIFICATION OF ACTIONS. (A) ORDINARY CIVIL SPECIAL CIVIL ACTION ACTION Governed by ordinary rules

Also governed by ordinary rules but SUBJECT to specific rules prescribed (Rules 62 to 71).

Formal demand of Special features not one’s legal rights in a found in ordinary civil court of justice in the actions manner prescribed by the court or by the law

(B) ACTION IN REM Directed against the thing itself

ACTION IN ACTION PERSONAM QUASI IN REM Directed against particular persons

Directed against particular persons

Judgment is Judgment is Judgment binding on the binding only binding upon whole world upon parties particular impleaded or persons, but their the real motive successors in is to deal with interest real property or to subject said property to certain claims. Ex. Land Ex. action to Ex. Unlawful registration recover detainer or case; probate damages; forcible entry; proceedings action for judicial for allowance breach of foreclosure of of a will. contract mortgage.

The distinction determining the judgment. (C) REAL ACTION

is important in EFFECT of the

PERSONAL ACTION

MIXED ACTION

Ownership or personal property is Both real and possession of sought to be personal real property is recovered or where properties are involved damages for breach involved of contract are sought Founded on Founded on privity Founded on privity of of contract both estate ex. Accion Ex. Action for a sum ex. Accion reinvidicatoria of money publiciana with a claim for damages

The distinction is significant in the determination of venue. With respect to mixed actions, the rules on venue of real actions shall govern, i.e., where the real property is located.

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

2005 CENTRALIZED BAR OPERATIONS

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(D) LOCAL ACTION

TRANSITORY ACTION

Must be brought in a particular place, in the absence of an agreement to the contrary Ex. Action to recover real property

Generally, must be brought where the party resides regardless of where the cause of action arose Ex. Action to recover sum of money

Section 5. Commencement of action. An action is commenced by: 1. filing of the complaint (the date of the filing determines whether or not the action has already prescribed); and 2. payment of the requisite docket fees (determined on the basis of the amount of the claim including the damages indicated in body or the prayer of the pleading) It is not simply the filing of the complaint or the appropriate initiatory pleading but also the payment of the prescribed docket fee that vests a trial court with jurisdiction over the subject matter or nature of the action. The court may allow the payment of the deficient docket fee within a reasonable period but not beyond the applicable prescriptive or reglementary period. An action can be commenced by filing the complaint by registered mail. In which case, it is the date of mailing that is considered as the date of filing, and not the date of the receipt thereof by the clerk of court. The date of the filing of an amended complaint joining additional defendant is the date of the commencement of the action with regard to such additional defendant.

Section 6. Construction. General Rule: Liberal construction . Exceptions: a. reglementary periods b. rule on forum shopping RULE 2 CAUSE OF ACTION Section 2. Cause of Action, defined. Essential elements of cause of action 1. Existence of a legal right of the plaintiff; 2. Correlative legal duty of the defendant to respect one’s right; 3. Act or omission of the defendant in violation of the plaintiff’s legal right; and 4. Compliance with a condition precedent. CAUSE OF ACTION RIGHT OF ACTION delict or wrongful act remedial right or right or omission committed to relief granted by by the defendant in law to a party to violation of the institute an action primary rights of the against a person who plaintiff has committed a delict or wrong against him The reason for the the remedy or means action afforded or the consequent relief the formal statement right that is given – of alleged facts the right to litigate because of the occurrence of the alleged facts Determined by facts determined by as alleged in the substantive law complaint and not the prayer therein

RELIEF

REMEDY

SUBJECT MATTER

the redress, the the thing, protection, procedure or wrongful act, award or type of contract or coercive action which property which measure which may be is

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 12

MEMORY AID

IN

REMEDIAL LAW

the breach total,” hence there can only be one action for damages (Blossom & Co. vs. Manila Gas Corp., 55 Phil. 226) the plaintiff prays the court to render in his favor as a consequence of the delict committed by the defendant

availed of by directly the plaintiff involved in the as the means action, to obtain the concerning desired which the relief wrong has been done and with respect to which the controversy has arisen.

Section 5. Joinder of causes of action. Rule in this section is PERMISSIVE and the plaintiff can always file a separate action for each cause of action.

Section 4. Splitting a single cause of action, effect of.

Par. (a): The joinder of causes of action may involve the same or different parties. If the joinder involved different parties, it must comply with Sec. 6 Rule 3, thus, there must be a question of fact or law common to both parties joined arising out of the same or series of transactions.

SPLITTING OF CAUSE OF ACTION – is the practice of dividing one cause of action into different parts and making each part subject of a separate complaint.

Par. (b) requires that: only causes of action in ordinary civil actions may be joined, obviously because they are subject to the same rules.

Applies NOT only to complaints but also to counterclaims and crossclaims.

Par. (c) As long as one cause of action falls within the jurisdiction of the RTC, the case can be filed there even if the MTC has jurisdiction over the others.

Remedy against splitting a single cause of action: A. Motion to dismiss on the ground of:  Litis pendentia, if the first complaint is still pending (Rule 16, Sec. 1[e]); or  Res judicata, if any of the complaints is terminated by final judgment (Rule 16, Sec. 1[f]) B. An answer alleging either of the above-cited grounds as affirmative defense (Rule 16, Sec. 6) General Rule on Divisible Contract A contract to do several things at several times is divisible, and judgment for a single breach of a continuing contract is not a bar to a suit for a subsequent breach. Doctrine of Anticipatory Breach Even if the contract is divisible in its performance and the future periodic deliveries are not yet due, if the obligor has already manifested his refusal to comply with his future periodic obligations, “the contract is entire and

Pars. (d) embodies the TOTALITY RULE Section 33 BP129, as amended by RA 7691 - Where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of actions, irrespective of whether the causes of action arose out of the same or different transactions. SPLITTING OF JOINDER OF CAUSE OF ACTION CAUSES OF ACTION There is a single cause Contemplates several of action causes of action PROHIBITED. Causes multiplicity of suits and double vexation on the part of the defendant

ENCOURAGED. Minimizes multiplicity of suits and inconvenience on the parties

Section 6. Misjoinder of causes of action. Not a ground for dismissal of an action. A misjoined cause of action may be

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

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severed and proceeded with separately. There is no sanction against non-joinder of separate causes of action since a plaintiff needs only a single cause of action to maintain an action. RULE 3 PARTIES TO CIVIL ACTIONS Section 1. Who may plaintiff and defendant.

be

parties;

REQUIREMENTS FOR A PERSON TO BE A PARTY TO A CIVIL ACTION: 1. he must be a natural or juridical person or an entity authorized by law; 2. he must have a legal capacity to sue; and 3. he must be the real party in interest. PLAINTIFFS- Those having an interest in the subject matter of the action or in obtaining the relief demanded. DEFENDANTS: 1. persons who claim an interest in the controversy or the subject thereof adverse to the plaintiff; or 2. who are necessary to a complete determination or settlement of the questions involved therein; or 3. all those who ordinarily should be joined as plaintiffs but who do not consent thereto, the reason therefore being stated in the complaint. Neither a dead person nor his estate may be a party plaintiff in a court action… Considering that capacity to be sued is correlative of the capacity to sue, to the same extent, a decedent does not have the capacity to be sued and may not be named a party defendant in a court action (Ventura vs. Militante 316 SCRA 226). Section 3. Representatives as parties. REAL PARTY IN INTEREST – the party who stands to be benefited in the suit or

the party entitled to the avails of the suit.

Impleading the beneficiary as a party in the suit is now mandatory, in cases allowed to be prosecuted or defended by a representative. CLASSIFICATION OF PARTIES IN INTEREST 1. Indispensable parties – those without whom no final determination can be had of an action. (must be joined) 2. Necessary (or proper) parties – those who are not indispensable but ought to be parties if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action. (may or may not be joined) 3. Representative parties – someone acting in fiduciary capacity. Maybe a trustee, guardian, executor or administrator, or a party authorized by law or these Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal 4. Pro forma parties – those who are required to be joined as co-parties in suits by or against another party as may be provided by the applicable substantive law or procedural rule such as in the case of spouses under Sec. 4. 5. Quasi parties – those in whose behalf a class or representative suit is brought. Section 5. persons.

Minor

or

incompetent

Under the present rule, a person need not be judicially declared to be incompetent in order that the court may appoint a guardian ad litem. It is enough that he be alleged to be incompetent. The suit can be brought by or against the minor or incompetent person personally

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 14

MEMORY AID BUT with the assistance of his parents or guardian.

Section parties.

6.

Permissive

joinder

REMEDIAL LAW

JOINT DEBTORS – indispensable party with respect to own share and a necessary party with respect to the share of the others.

of

PERMISSIVE JOINDER – the aggregate sum of all the claims, determines the jurisdiction of the court. Requisites of permissive joinder of parties. 1. Right to relief arises out of the same transaction or series of transactions; 2. There is a question of law or fact common to all the plaintiffs or defendants; and 3. Such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction and venue. SERIES OF TRANSACTIONS – transactions connected with the same subject of the action. INDISPENSABLE PARTIES

NECESSARY PARTIES

The action cannot proceed unless they are joined

The action can proceed even in the absence of some necessary parties

No valid judgment if indispensable party is not joined

The case may be determined in court but the judgment therein will not resolve the entire controversy if a necessary party is not joined

They are those with such an interest in the controversy that a final decree would necessarily affect their rights so that the court cannot proceed without their presence

IN

They are those whose presence is necessary to adjudicate the whole controversy but whose interests are so far separable that a final decree can be made in their absence without affecting them

SOLIDARY DEBTORS – either is indispensable and the other is not even a necessary party because complete relief may be obtained from either. Section 9. Non-joinder of necessary parties to be pleaded. The non-inclusion of a necessary party may be excused only on meritorious grounds. The court may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained by ordering plaintiff to file an amended complaint impleading the necessary party therein as co-defendant. The only sanction for failure to implead a necessary party when ordered by the court and jurisdiction can be obtained over said party is a waiver of the claim against him. This is considered as an exception to the provision on penalties imposed on a disobedient party under Sec. 3 of Rule 17 which would have entailed the dismissal of the complaint itself. Section 11. Misjoinder and non-joinder of parties. Neither misjoinder nor non-joinder of parties is a ground for dismissal of the action. Objections to defects in parties should be made at the earliest opportunity – the moment such defect becomes apparent – by a MOTION TO STRIKE THE NAMES OF THE PARTIES impleaded. If there is misjoinder, a separate action should be brought against the party misjoined.

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

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The absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present.

Service of summons upon a defendant whose identity is unknown may be made by publication in a newspaper of general circulation in accordance with Section 14 of Rule 14.

Section 12. Class suit. REQUISITES OF A CLASS /REPRESENTATIVE SUIT. 1. subject matter of the controversy is one of common or general interest to many persons; 2. parties affected are so numerous that it is impracticable to bring them all before the court; 3. parties bringing the class suit are sufficiently numerous or representative of the class and can fully protect the interests of all concerned. Class Suit

Permissive Joinder of Parties

There is one single cause of action pertaining to numerous persons

There are multiple causes of action separately belonging to several persons.

Section 14. Unknown identity or name of defendant. Requisites: 1. there is a defendant 2. his identity or name is unknown 3. fictitious name may be used because of ignorance of defendant’s true name and said ignorance is alleged in the complaint 4. identifying description may be used: sued as unknown owner, heir, devisee, or other designation 5. amendment to the pleading when identity or true name is discovered 6. defendant is the defendant being sued, not a mere additional defendant

Section 15. Entity without juridical personality as defendant. They may be sued under the name by which they are generally known, but they cannot sue under such name for lack of juridical personality. The service of summons may be effected upon all the defendants by serving upon any of them, or upon the person in charge of the office or place of business maintained under such name. (Sec. 8, Rule 14) INSTANCES WHERE SUBSTITUTION OF PARTIES IS PROPER: A. Death of party; duty of counsel (Sec. 16) This provision applies where the claim is not thereby extinguished as in cases involving property and property rights such as: 1. recovery of real and personal property against the estate. 2. enforcement of liens on such properties 3. recovery for an injury to person or property by reason of tort or delict committed by the deceased. In this case, the heirs will be substituted for the deceased OR if no legal representative is named then the court will order the opposing party to procure the appointment of an executor or administrator for the estate of the deceased. In case of minor heirs, the court may appoint a guardian ad litem for them. The substitute defendant need not be summoned. The ORDER OF

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 16

MEMORY AID SUBSTITUTION shall be served upon the parties substituted for the court to acquire jurisdiction over the substitute party

If there is failure to notify the fact of death: the case may continue and proceedings will be held valid, and judgment will bind the successors in interest. B. Death or separation of a party who is a public officer (Sec. 17) The action may be maintained by and against his successor. The action contemplated here is one brought against the public officer in his official capacity. C. Supervening Incompetence or incapacity of a party (Sec. 18) The action shall continue to be prosecuted by or against him, personally or assisted by the corresponding guardian. D. Transfer of interest (Sec. 19) Substitution of parties in this section is NOT mandatory, it being permissible to continue the action by or against the original party in case of transfer of interest pendente lite. Unless the substitution by or the joinder of the transferee is required by the court, failure to do so does not warrant the dismissal of the case. A transferee pendente lite is a proper, and not an indispensable party. The case will be dismissed if the interest of plaintiff is transferred to defendant UNLESS there are several plaintiffs, in which case, the remaining plaintiffs can proceed with their own cause of action. Section 20. Action money claims.

on

Requisites:

contractual

IN

REMEDIAL LAW

1. The action must primarily be for recovery of money, debt, or interest thereon, and not where the money sought therein is merely incidental thereto. 2. The claim, subject of the action, arose from a contract, express or implied, entered into by the decedent in his lifetime or the liability for which had been assumed by or is imputable to him. If defendant dies before entry of final judgment in the court where it was pending at that time, the action shall not be dismissed but shall be allowed to continue until entry of final judgment thereon. However, execution shall not issue in favor of the winning party. It should be filed as a claim against the estate of the decedent. Section 21. Indigent party. Indigent – one who has no property or income sufficient for his support aside from his labor, even if he is selfsupporting when able to work and in employment. He need not be a pauper to entitle him to litigate in forma pauperis. While the authority to litigate as an indigent party may be granted upon an ex parte application and hearing, it may be contested by the adverse party at any time before judgment is rendered. RULE 4 VENUE OF ACTIONS VENUE – the place where an action must be instituted and tried. VENUE

JURISDICTION

Place where the action Power of the court to is instituted hear and decide a case May be waived

Jurisdiction over the subject matter and

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

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over the nature of the action is conferred by law and cannot be waived Procedural

Substantive

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

The rule on VENUE IS NOT APPLICABLE in cases 1) Where a specific rule or law provides otherwise; or 2) The parties have validly agreed in writing before the filing of the action on the exclusive venue thereof (Sec. 4). Requisites for venue to be exclusive 1. A valid written agreement 2. Executed by the parties before the filing of the action; and 3. Exclusive nature of the venue. In the absence of qualifying or restrictive words, venue stipulation is merely permissive meaning that the stipulated venue is in addition to the venue provided for in the rule (Polytrade Corp. vs. Blanco 30 SCRA 187) Section 1. Venue of real actions. If property is located at the boundaries of two places: file one case in either place at the option of the plaintiff. If case involves two properties located in two different places: 1. If the properties are the object of the same transaction, file it in any of the two places. 2. If they are the subjects of two distinct transactions, separate actions should be filed in each place unless properly joined. Section 2. Venue of personal actions. RESIDENCE – the place where the party actually resides with continuity and consistency, whether permanent or temporary, at the time the action is instituted.

Means of waiving venue: 1. failure to object via motion to dismiss 2. affirmative relief sought in the court where the case is filed 3. voluntary submission to the court where the case is filed 4. laches Section 3. Venue of actions against non-residents. RULES 1. NON-RESIDENT FOUND IN THE PHIL. – a. for personal actions – where the plaintiff resides; and b. for real actions – where the property is located. 2. NON RESIDENT NOT FOUND IN THE PHIL. – An action may be filed only when the case involves: a. Personal status of plaintiff – venue: where plaintiff resides; b. Any property of said defendant located in the Phil. – venue: where the property or any portion thereof is situated or found. The Supreme Court has the power to order a change of venue to prevent a miscarriage of justice. Dismissal of Action for Improper Venue The court may not motu propio dismiss a complaint on the ground of improper venue. An exception is provided in Section 4 of the Revised Rule on Summary Procedure.

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 18

MEMORY AID

Filing of verified complaint with the MTC

court may summon the defendant

court may dismiss the case outright

RULES ON W/in 10 days from receipt of summons, defendant answers, incoporating compulsory counterclaim or crossclaim, and serves a copy on plaintiff

If Defendant fails to answer in 10 days – The court, motu propio or on plaintiff’s motion, may render judgment based on facts alleged in the complaint w/o prejudice to R9, S3 (c)

SUMMARY PROCEDURE SUMMARY PROCEDURE IN CIVIL CASES Answer to counterclaim and crossclaim w/in 10 days

Preliminary conference w/in 30 days after last answer is filed

W/in 5 days after conference, court issues record of preliminary conference

W/in 10 days from receipt of order, submission by the parties of affidavits and position papers

REMEDIAL LAW COMMITTEE

If plaintiff fails to appear in prelim conference, complaint may be dismissed. Defendant entitled to decision based on his counterclaim. All crossclaims dismissed.

If sole defendant fails to appear, plaintiff entitled to judgment based on complaint and what is proved therein

IN

REMEDIAL LAW

The Court should not dismiss the complaint or counterclaim if they are not verified. The requirement is merely a formal one, and not jurisdictional. It should therefore simply direct the party concerned to have it verified. PROHIBITED PLEADINGS / MOTIONS UNDER THE RULE ON SUMMARY PROCEDURE. 1. Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter or failure to comply with prior barangay conciliation (referral to the Lupon) 2. Motion for a bill of particulars 3. Motion for a new trial or for reconsideration of a judgment or for reopening of trial 4. Petition for relief from judgment 5. Motion for extension of time to file pleadings, affidavits, or any other paper 6. Memoranda 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court 8. Motion to declare defendant in default 9. Dilatory motions for postponement 10. Reply 11. Third party complaints 12. Interventions The filing of a prohibited pleading will not suspend the period to file an answer or to appeal. Although a motion to dismiss is a prohibited pleading, its filing after the

Rendition of judgment  CHAIRPERSON : Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae w/in 30 Jocelyn days from Ventura, Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and receipt of last Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence) affidavit, or w/in 15 days after last clarificatory paper

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2005 CENTRALIZED BAR OPERATIONS

answer had already been submitted does not constitute a pleading prohibited by the summary rules. What the rules proscribe is a motion to dismiss that would stop the running of the period to file an answer and cause undue delay. While a motion to declare the defendant in default is prohibited by the rules on summary procedure, the plaintiff may nevertheless file a motion to render judgment as may be warranted when the defendant fails to file an answer. The issuance of the pre-trial order is an important part of the summary procedure because it is its receipt by the parties that begins the ten-day period to submit the affidavits and other evidence. TRIAL PROCEDURE IN CIVIL CASES No trial date is set. No testimonial evidence is required nor crossexamination of witnesses allowed. All that is required is that within (10) days from receipt by the parties of the court’s pre-trial order, they shall submit (1) the affidavits of their witnesses (2) and other evidence on the factual issues set forth in the pre-trial order, Together with their position papers setting forth the law and the facts relied upon by them. Judgments of inferior courts in cases governed by summary procedure are appealable to the RTC. The decision of the RTC in civil cases under this rule, including ejectment cases, are IMMEDIATELY executory. KATARUNGANG PAMBARANGAY LAW (Title One, Book III, RA 7160)

No complaint, petition, action, or proceeding involving any matter within the authority of the lupon shall be filed or instituted directly in court or any other government office for adjudication UNLESS 1. there has been a confrontation between the parties before the lupon chairman or pangkat, AND

2. that no conciliation or settlement has been reached OR unless the settlement has been repudiated by the parties thereto.

CASES NOT COVERED BY THE KATARUNGANG PAMBARANGAY LAW: 1. Where one party is the government or any subdivision or instrumentality thereof; 2. Where one party is a public officer or employee, and the dispute relates to the performance of his official functions; 3. Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5,000.00; 4. Offenses where there is no private offended party; 5. Where the dispute involves real properties located in different cities or municipalities UNLESS the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon; 6. Disputes involving parties who actually reside in barangays of different cities or municipalities, EXCEPT where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon; 7. Such other classes of disputes which the President may determine in the interest of justice. However, the court may, at any time before trial, motu proprio refer the case to the lupon concerned for amicable settlement, non criminal cases not falling within the authority of the latter. While the dispute is under mediation, conciliation, or arbitration, the

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 20

MEMORY AID prescriptive periods for offenses and cause of action under existing laws shall be interrupted upon filing of the complaint with the punong barangay.

THE PARTIES MAY GO DIRECTLY TO COURT IN THE FOLLOWING INSTANCES: 1. Where the accused is under detention; 2. Where the person has otherwise been deprived of personal liberty calling for habeas corpus proceeding; 3. Where the actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendente lite; and 4. Where the action may otherwise be barred by the statute of limitations. The parties may, at any stage of the proceedings, agree in writing to have the matter in dispute decided by arbitration by either the Punong Barangay or Pangkat. In such case, arbitrational hearings shall follow order of adjudicative trials. The settlement and arbitration agreement may be repudiated on the ground that consent is vitiated by fraud, violence, or intimidation. Such repudiation shall be sufficient basis for the issuance of the certification for filing a complaint in court or any government office for adjudication. RULES ON VENUE UNDER THE KATARUNGANG PAMBARANGAY LAW 1. Disputes between residents of the same barangay shall be brought for settlement before lupon of said barangay 2. Residents of different barangays within the same city or municipality – in the barangay where the respondent or any of

IN

REMEDIAL LAW

the respondents reside at the election of the complainant 3. Disputes involving real property or any interest therein- where real property or larger portion thereof is situated

4. Disputes arising at the WORKPLACE where the contending parties are employed or at the INSTITUTION where such parties are enrolled for study – in the barangay where such workplace or institution located. CHART ON KATARUNGANG PAMBARANGAY, SEE PAGE 22.

PROCEDURE IN REGIONAL TRIAL COURTS RULE 6 KINDS OF PLEADINGS Section 1. Pleadings defined. PLEADINGS – the written allegations of the parties of their respective claims and defenses submitted to the court for appropriate judgment. A motion to dismiss is NOT a pleading. It is the allegations or averments in the pleading that determines the jurisdiction of the court and the nature of the action.

PLEADING

MOTION

It relates to the cause An application for an of action; interested order not included in in the matters to be the judgment included in the judgment. May be initiatory

Cannot be initiatory as they are always made in a case already filed in court

Always filed before

May be filed even

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

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judgment

after judgment

Section 3. Complaint. COMPLAINT – is a concise statement of the ultimate facts constituting the plaintiff’s cause or causes of action, with

a specification of the relief sought, but it may add a general prayer for such further relief as may be deemed just or equitable. ULTIMATE FACTS - essential facts constituting the plaintiff’s cause of action. What are NOT ultimate facts: 1. Evidentiary or immaterial facts. 2. Legal conclusions, conclusions or inferences of facts from facts not stated, or incorrect inferences or conclusions from facts stated. 3. The details of probative matter or particulars of evidence, statements of law, inferences and arguments. 4. An allegation that a contract is valid or void is a mere conclusion of law.

2 kinds of defenses that may be set forth in the answer: a. AFFIRMATIVE DEFENSES – allegation of a new matter which while hypothetically admitting the material allegations in the pleading, would nevertheless prevent or bar recovery by him. It is in the nature of Confession and Avoidance b. NEGATIVE DEFENSES – specific denial of the material facts or facts alleged in the pleading Insufficient denial or denial amounting to admissions: 1. General denial 2. Denial in the form of a negative pregnant Section 6. Counterclaim COUNTERCLAIM – any claim which a defending party may have against an opposing party.

TEST OF SUFFICIENCY: if upon admission or proof of the facts being alleged, a judgment may be properly given. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient.

Nature of counterclaim: A counterclaim is in the nature of a cross-complaint. Although it may be alleged in the answer, it is not part of the answer. Upon its filing, the same proceedings are had as in the original complaint. For this reason, it must be answered within ten (10) days from service.

Section 4. Answer

Section 7. Compulsory Counterclaim

ANSWER – the pleading where the defendant sets forth his affirmative or negative defenses.

RULES ON COUNTERCLAIM A counterclaim before the MTC must be within the jurisdiction of said court, both as to the amount and nature thereof (De Chua vs. IAC).

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 22

MEMORY AID

IN

REMEDIAL LAW

Filing of complaint

KATARUNGANG PAMBARANGAY w/ the Punong PROCEDURE Barangay (PB)

W/in the next working day

At any time during the Proceedings…

Issuance of summons to the parties and the witnesses

Parties agree to submit the dispute for arbitration

Arbitration Hearings Mediation (hearing)

Failure of mediation efforts

Constitution of the Pangkat

Settlement

Execution w/in 6 months from date thereof

Pangkat convenes not later than 3 days from its constitution and summons the parties Pangkat must arrive at a settlement w/in 15 days from the day it convenes

Repudiation of arbitration agreement within 5 days from date of agreement

Award to be made after the lapse of the period to repudiate and w/in 10 days thereafter

Execution w/in 6 months from the date of the award

Conciliation (hearing)

Settlement

Execution w/in 6 months from the date of settlement REMEDIAL LAW COMMITTEE

Repudiation of settlement w/in 10 days from date thereof

Note: Repudiation shall only be allowed on ground of vitiation of consent by fraud, violence or intimidation.

Failure of Conciliation hearings at the Pangkat ISSUANCE OF Level and of Arbitration CERTIFICATION FOR  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae hearings shall and also lead to OF Alnaiza A Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (CivilFILING Procedure); Hasiman (Special Civil Actions the issuance of Special Proceedings); Jeenice de Sagun (Criminal Procedure); ElaineINMasukat COMPLAINT COURT(Evidence) certification for filing a complaint in court.

2005 CENTRALIZED BAR OPERATIONS

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DOCTRINE OF ANCILLARY JURISDICTION In an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount (Sec. 7, Rule 6 ). If a counterclaim is filed in the MTC in excess of its jurisdictional amount, the excess is considered waived (Agustin vs. Bacalan). In Calo vs. Ajax Int’l, the remedy where a counterclaim is beyond the jurisdiction of the MTC is to set off the claims and file a separate action to collect the balance. COMPULSORY COUNTERCLAIM

PERMISSIVE COUNTERCLAIM

One which arises out It does not arise out of of or is necessarily nor is it necessarily connected with the connected with the transaction or subject matter of the occurrence that is the opposing party’s subject matter of the claim. opposing party’s claim. It does not require for It may require for its its adjudication the adjudication the presence of third presence of third parties of whom the parties over whom the court cannot acquire court cannot acquire jurisdiction. jurisdiction. It is barred if not set up in the action.

It is NOT barred even if not set up in the action.

Need not be answered; no default.

Must be answered, otherwise, the defendant can be declared in default.

GENERAL RULE: A compulsory counterclaim not set up in the answer is deemed barred. EXCEPTION: If it is an after-acquired counterclaim, that is, such claim matured after filing of the answer. In this case, it may be pleaded by filing an amended answer or a supplemental answer or pleading.

Section 8. Cross-claim CROSS-CLAIM – any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or counterclaim. If it is not set up in the action, it is barred, except: 1. when it is outside the jurisdiction of the court or; 2. if the court cannot acquire jurisdiction over third parties whose presence is necessary for the adjudication of said cross-claim. In which case, the considered permissive.

cross-claim

is

The dismissal of the complaint carries with it the dismissal of a cross-claim which is purely defensive, but not a cross-claim seeking affirmative relief. Cross Claim Counterclaim

3rd-party Complaint

Against a co- Against an Against a party opposing party person not a party to the action Must arise out May arise out of Must be in of the or be necessarily respect of transaction connected with the that is the the transaction opponent’s subject matter or that is the claim of the orig. subject matter (Plaintiff) action or of a of the opposing counterclaim party’s claim, in therein. which case, it is called a compulsory counterclaim, or it may not, in which case it is called a permissive counterclaim.

Section 10. Reply. REPLY - the response of the plaintiff to the defendant’s answer. EFFECT OF FAILURE TO REPLY: new facts that were alleged in the answer are

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 24

MEMORY AID deemed controverted. Hence, the filing of the reply is optional except for the denial of the genuineness and due execution of an actionable document used as defense in the answer. Section 11. Third (fourth, etc.) – party complaint. THIRD (FOURTH,ETC.) – PARTY COMPLAINT – a claim that a defending party may, with leave of court, file against a person not a party to the action for contribution, indemnity, subrogation or any other relief, in respect of his opponent’s claim. THIRD-PARTY COMPLAINT

COMPLAINT IN INTERVENTION

Brings into the action a third person who was not originally a party.

Same

Initiative is with the Initiative is with a person already a party non-party who seeks to the action. to join the action.

TESTS to determine whether the thirdparty complaint is in respect of plaintiff’s claim: 1. Where it arises out of the same transaction on which the plaintiff’s claim is based, or, although arising out of another or different transaction, is connected with the plaintiff’s claim; 2. Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiff’s claim against the original defendant; and 3. Whether the third-party defendant may assert any defenses which the third-party plaintiff has or may have to the plaintiff’s claim. Leave of court to file a third-party complaint may be obtained by motion under Rule 15.

IN

REMEDIAL LAW

Summons to new party (third, fourth, etc.) is needed for the court to obtain jurisdiction over his person, since he is not an original party. Where the trial court has jurisdiction over the main case, it also has jurisdiction over the third party complaint, regardless of the amount involved as a third party complaint is merely auxiliary to and is a continuation of the main action (Republic v. Central Surety & Insurance Co. L-27802, Oct. 26, 1968). Section 12. Bringing new parties. Distinguished from 3rd-party complaint: A 3rd-party complaint is proper when not one of the third-party defendants therein is a party to the main action. But if one or more of the defendants in a counterclaim or cross-claim is already a party to the action, then the other necessary parties may be brought in under this section. RULE 7 PARTS OF A PLEADING Section 3. Signature and address. The signature of the counsel is a certification that: 1. That he has read the pleading; 2. There is good ground to support it; and 3. It is not interposed for delay Only the original copies must be signed. UNSIGNED PLEADING may be stricken out as sham and false, and the action may proceed as though the pleading has not been served. It has no legal effect. Section 4. Verification. Pleadings need NOT be verified EXCEPT when otherwise provided by the law or rules. A verification must now be based on personal knowledge or based on authentic records.

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

2005 CENTRALIZED BAR OPERATIONS

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Section 5. Certification against forum shopping. FORUM SHOPPING – the filing of a two or more cases based on the same cause of action in different courts for the purpose of obtaining a favorable decision in either. Test to determine the presence of forum-shopping: whether in the two (or more) cases pending, there is identity of (a) parties, (b) rights or causes of action, and (c) reliefs sought. The certificate is to be executed by petitioner, and not by counsel. Required ONLY for initiatory pleadings.

complaints

or

Certificate of non-forum shopping is not required in a compulsory counterclaim (UST Hosp. vs. Surla). EFFECT OF FAILURE TO COMPLY: 1. Not curable by amendment of said pleading 2. shall be cause for the dismissal of the case, without prejudice, unless otherwise provided, upon motion and after hearing EFFECT OF SUBMISSION OF FALSE CERTIFICATION OR NON-COMPLIANCE WITH THE UNDERTAKINGS THEREIN: 1. indirect contempt 2. administrative and criminal actions EFFECT OF WILFULL AND DELIBERATE FORUM SHOPPING: 1. shall be ground for summary dismissal of the case with prejudice; 2. direct contempt. RULE 8 MANNER OF MAKING ALLEGATIONS IN A PLEADING

ULTIMATE FACTS: those which directly form the bases of the right sought to be enforced or the defense relied upon. If the ultimate facts are NOT alleged, the cause of action would be insufficient. Section 4. Capacity. Capacity to sue and be sued either personally or in representative capacity must be specifically averred by the party suing or being sued, and specifically denied by the party questioning such capacity. Capacity is challenged by specific denial, motion to dismiss or bill of particulars. Section 5. Fraud, mistake, condition of the condition FACTS THAT MAY BE AVERRED GENERALLY: 1. Conditions precedent (BUT there must still be an allegation that the specific condition precedent has been complied with, otherwise, it will be dismissed for failure to state a cause of action) 2. Malice, intent, knowledge, or other condition of the mind 3. Judgments of domestic or foreign courts, tribunals, boards, or officers (no need to show jurisdiction) 4. Official document or act FACTS THAT MUST BE AVERRED PARTICULARLY: 1. Circumstances showing fraud or mistake in all averments of fraud or mistake 2. Capacity ACTIONABLE DOCUMENT – written instrument upon which the action or defense is based.

Pleadings should state ultimate facts essential to the right of action. 2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 26

MEMORY AID Two permissible ways of pleading an actionable document: 1. By setting forth the substance of such document in the pleading and attaching said document thereto as an annex (contents of the document annexed are controlling, in case of variance in the substance of the document set forth in the pleading and in the document attached); or 2. By setting forth said document verbatim in the pleading.

IN

REMEDIAL LAW

5. prescription; 6. want or illegality consideration; or 7. estoppel

of

BUT the following defenses are waived: a. forgery in the signature; b. want of authority of an agent or corporation; c. want of delivery; or d. the party charged signed the instrument in some other capacity

Where the actionable document is properly alleged, the failure to specifically deny under oath the same results in: 1. The admission of the genuineness and due execution of said document, EXCEPT that an oath is not required: a. When the adverse party was not a party to the instrument; and b. When an order for the inspection of the original document was not complied with. 2. The document need not be formally offered in evidence.

Section 10. Specific Denial

GENUINENESS That the document is not spurious, counterfeit, or of different import on its face from the one executed by the party, or that the party whose signature it bears has signed it and that at the time it was signed it was in words and figures exactly as set out in the pleadings.

A denial must not be general. A general denial is regarded as an admission of the facts stated in the complaint and entitles plaintiff to a judgment on the pleadings.

DUE EXECUTION That the document was signed voluntarily and knowingly by the party whose signature appears thereon. Defenses that the opposing party may set up even after failure to deny under oath: 1. Mistake; 2. fraud; 3. compromise; 4. payment;

THREE WAYS OF MAKING A SPECIFIC DENIAL: 1. By specifically denying each material allegation of the other party and, whenever possible, setting forth the substance of the matters relied upon for such denial; 2. Part admission or part denial; 3. By an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing party’s pleading (must be made in good faith).

NEGATIVE PREGNANT – a form of denial which at the same time involves an affirmative implication favorable to the opposing party; It is in effect, an admission of the averment to which it is directed; It is said to be a denial pregnant with an admission of the substantial facts in the pleading responded to. Section 11. Allegation not specifically denied deemed admitted. GENERAL RULE: Allegations NOT specifically denied deemed admitted (such as allegations of usury in the

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

2005 CENTRALIZED BAR OPERATIONS

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complaint, and the authenticity and due execution of actionable documents). EXCEPTIONS: 1. Allegations as to the amount of unliquidated damages 2. Immaterial allegations; 3. Incorrect conclusions of fact. RULE 9 EFFECT OF FAILURE TO PLEAD Section 1. Defenses and objections not pleaded. GENERAL RULE: Defenses and objections that are not pleaded in a MOTION TO DISMISS or in the answer are deemed waived. EXCEPTIONS (not waived even if not raised): 1. Lack of jurisdiction over the subject matter 2. Litis pendentia 3. Res judicata 4. Prescription of the action These defenses may be raised at any stage of the proceedings even for the first time on appeal EXCEPT that lack of jurisdiction over the subject matter may be barred by laches. (Tijam vs. Sibonghanoy). The presence of these grounds authorizes the court to motu proprio dismiss the claims. These grounds must, however, appear from the pleadings or the evidence on record. Section 3. DEFAULT – the failure of the defendant to answer within the proper period. It is not his failure to appear nor failure to present evidence. ORDER OF DEFAULT

JUDGMENT BY DEFAULT

issued by the court, Rendered by the court on plaintiff’s motion following a default for failure of the order or after it defendant to file his received, ex parte, responsive pleading plaintiff’s evidence. seasonably. Interlocutory - not Final – appealable

appealable

NO default may be declared in the following actions: 1. Annulment of marriage 2. Declaration of nullity of marriage 3. Legal Separation 4. Special civil actions of certiorari, prohibition and mandamus where comment instead of an answer is required to be filed The court cannot motu proprio declare a defendant in default. For defendant to be declared in default, the plaintiff must: 1. File a MOTION to declare defendant in default 2. Prove that summons have been properly served on the defendant 3. Prove that the defendant really failed to answer within the proper period. CAUSES OF DEFAULT 1. Failure to answer within the proper period 2. Non-compliance with the order of the court to file a bill of particulars or in case of insufficient compliance therewith (Rule 12, Section 4) 3. Refusal to comply with the modes of discovery (Rule 29, Section 3, par. c) 4. Failure to furnish plaintiff with a copy of the answer If the defendant was declared in default upon an original complaint, the filing of the amended complaint resulted in the withdrawal of the original complaint, hence, the defendant was entitled to file answer to the amended complaint as to which he was not in default. EFFECT OF ORDER OF DEFAULT: 1. While the party in default cannot take part in the trial, he is nonetheless entitled to notice of subsequent proceedings. 2. He may still be called on as a witness, in behalf of the nondefaulting defendants.

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 28

MEMORY AID

REMEDIAL LAW

2. some of the defending parties answer and the others fail to do so 3. the answer interposes a common defense

DEFAULT After the lapse of time to file an answer, the plaintiff may move to declare the defendant in default

IN

Motion denied: Defendant allowed to file an answer

Defendant answers Motion granted: Court issues order of default and renders judgment, or require plaintiff to submit evidence ex parte.

EFFECT OF PARTIAL DEFAULT: The court will try the case against ALL defendants upon the answer of some EXCEPT where the defense is personal to the one who answered, in which case, it will not benefit those who did not answer. REMEDY FROM JUDGMENT BY DEFAULT (FLOW CHART) Judgment by default

Court maintains Before judgment by default is rendered, defendant may: move to set aside order of default upon showing: FAME He has a meritorious defense Avail of Rule 65 in proper cases

order of default

Motion for new trial or reconsideration at any time after service of judgment by default and within 15 (30) days therefrom

Failure to file motion for new trial/ Denial of said motion

PARTIAL

Perfect appeal from said judgment by default within the balance of said 15 (30) - day period

Failure to appeal without defendant’s faulk

Court sets aside order of default and defendant is allowed to file an answer

Case set for pre-trial

Presentation of plaintiff’s evidence exparte

If plaintiff proves his allegations, judgment by default.

If plaintiff fails to prove his allegations, case is dismissed.

DEFAULT: 1. The pleading asserting a claim states a common cause of action against several defending parties

Petition for relief from judgment within 60 days from notice of the judgment but within 6 months from entry thereof

EXTENT OF RELIEF

TO

BE

Annulment of Judgment under Rule 47

AWARDED IN A JUDGMENT BY DEFAULT: Shall not exceed the amount OR be different in kind from that prayed for NOR award unliquidated damages. RULE 10

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

2005 CENTRALIZED BAR OPERATIONS

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AMENDED AND SUPPLEMENTAL PLEADINGS AMENDMENTS Section 1. Amendments in general. When the complaint is amended, 2 situations may arise: 1. If the complaint merely corrects or modifies the original complaint, then the action is deemed commenced upon the filing of the original complaint; 2. If the amended complaint alleges a new cause of action, then that cause of action is deemed commenced upon the filing of the amended complaint. Section 2. Amendments as a matter of right. Amendment for the first time is a matter of right before a responsive pleading is filed, or in case of a Reply, within 10 days after it was served. Since a motion to dismiss is NOT a responsive pleading, an amendment may be had even if an order of dismissal has been issued as long as the amendment is made before order of dismissal becomes final. Section 3. Amendments by leave of court. Instances when amendment by leave of court may not be allowed: 1. When cause of action, defense or theory of the case is changed; 2. Amendment is intended to confer jurisdiction to the court; 3. Amendment to cure a premature or non-existing cause of action; 4. Amendment for purposes of delay. Section 5. Amendment to conform to or authorize presentation of evidence. 1ST PART: refers to amendment to conform to evidence when issues NOT raised by the pleadings are tried with

the express or implied consent of the parties - but failure to amend does NOT affect the result of the trial of these issues 2ND PART: refers to amendment to authorize 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. SUPPLEMENTAL PLEADINGS A cause of action which accrued after the filing of the original complaint may, in the discretion of the court, be pleaded in a supplemental complaint if there was a valid subsisting cause of action at the time the original complaint was filed.

AMENDED PLEADING

SUPPLEMENTAL PLEADING

Refers to facts Refers to facts arising existing at the time of after the filing of the the commencement original pleading. of the action. Take the place of the Taken together with original pleading. the original pleading. Can be made as a Always with leave of matter of right as court when no responsive pleading has yet been filed

Section 7. Filing of amended pleadings. The amended pleading supersedes the original pleading. An amendment which merely supplements and amplifies facts originally alleged in the complaint relates back to the date of the commencement of the action and is not barred by the statute of limitations which expired after service of the original complaint. EFFECT OF AMENDED PLEADING: 1. Admissions in the superseded pleading can still be received in evidence against the pleader;

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 30

MEMORY AID 2. Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived. The amended or superseded, original pleading is not expunged but remains on the record although the admission of the amended pleading amounts to withdrawal of the original pleading. RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS Answer to the complaint 1. Within 15 days after service of summons, UNLESS a different period is fixed by the Court (Sec. 1) 2. In case the defendant is a foreign private juridical entity: a. if it has a resident agent – within 15 days after service of summons to him b. if it has no resident agent, but it has an agent or officer in the Philippines – within 15 days after service of summons to said agent or officer c. if it has no resident agent nor agent nor officer – in which case service of summons is to be made on the proper government office which will then send a copy by registered mail to the home office of the foreign private corporation – within 30 days after receipt of summons by the home office of the foreign private entity. 3. In case of service of summons by publication – within the time specified in the order granting leave to serve summons by publication, which shall NOT be less than 60 days after notice (Rule 14, Sec.15). 4. In case of a non-resident defendant on whom extraterritorial service of summons is made, the period to answer should be at least 60 days.

IN

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The court may extend the time to file the pleadings BUT may NOT shorten them. The 15-day period begins to run from receipt of summons. Section 3. Answer to amended complaint. 1. If the filing of an amended complaint is a matter of right within 15 days from service of the amended complaint. 2. If the filing of the amended complaint is NOT a matter of right – within 10 days counted from notice of the court order admitting the same. If no new answer is filed by the defendant in case an amendment has been made after he had filed his answer, the original answer of the defendant may serve as the answer to the amended complaint, and hence, cannot be declared in default. Section 5. Answer to third (fourth, etc.)-party complaint. The third-party defendant is served with summons just like the original defendant, hence, he also has 15, 30, 60 days from service of summons, as the case may be, to file his answer. Section 7. Answer to supplemental complaint. Leave of court is required in filing, the court may fix a different period for answering the supplemental complaint in lieu of the reglementary 10-day period. Section 10. Omitted counterclaim or cross-claim. The pleader may set up a counterclaim or cross-claim by amendment before judgment when he fails to set it up by reason of oversight, inadvertence, or excusable neglect ort when justice requires. Leave of court is necessary. RULE 12 BILL OF PARTICULARS

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

2005 CENTRALIZED BAR OPERATIONS

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BILL OF PARTICULARS- a more definite statement of any matter which appears vague or obscure in a pleading.

2. If plaintiff, his compliant will be stricken off and dismissed (Rule 12, sec. 4; Rule 17, sec. 3)

PURPOSE: to aid in the preparation of a responsive pleading.

3. If defendant, his answer will be stricken off and his counterclaim dismissed, and he will be declared in default upon motion of the plaintiff (Rule 12, sec. 4; Rule 17, sec. 4; Rule 9, sec. 3).

Motion for bill of particulars must be filed within the reglementary period for the filing of a responsive pleading. The filing of a motion if sufficient in form and substance, will interrupt the time to plead. The motion for bill of particulars may be granted in whole or in part as not all the allegations questioned by the movant are necessarily ambiguous as to require clarification. A bill of particulars may be filed either in a separate or an amended pleading. A bill of particulars becomes part of the pleading which it supplements. EFFECTS OF MOTION 1. If the motion is granted, the movant can wait until the bill of particulars is served on him by the opposing party and then he will have the balance of the reglementary period within which to file his responsive pleading. 2. If his motion is denied, he will still have such balance of the reglementary period to do so, counted from service of the order denying his motion. In either case, he will have at least 5 days to file his responsive pleading. Effect of non-compliance: 1. If the Order is not obeyed or in case of insufficient compliance therewith, the court: a. may order the striking out of the pleading or the portion thereof to which the order is directed; or b. make such order as it may deem just.

RULE 13 FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS Notice given to a party who is duly represented by counsel is a nullity, unless service thereof on the party himself was ordered by the court or the technical defect was waived. Section 3. Manner of filing. 1. Personally 2. by registered mail Filing by mail should be through the registry service which is made by deposit of the pleading in the post office, and not through other means of transmission. If registry service is not available in the locality of either sender or addressee, service may be done by ordinary mail. If a private carrier is availed of by the party, the date of actual receipt by the court of such pleading and not the date of delivery to the carrier, is deemed to be the date of the filing of that pleading. NOTE: PERSONAL and SUBSTITUTED service as applied to pleadings have a different meaning compared to summons under Rule 14.

MODES OF SERVICE PLEADINGS 1. PERSONAL SERVICE

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 32

MEMORY AID a. Delivering personally a copy to the party or his counsel or; b. Leaving a copy in counsel’s office with his clerk or with a person having charge thereof or; c. Leaving the copy between 8 a.m. and 6 p.m. at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion residing therein--if no person found in his office, or if his office is unknown, or if he has no office. 2. SERVICE BY MAIL If no registry service is available in the locality, of either sender or addressee, service may be done by ordinary mail. 3. SUBSTITUTED SERVICE Delivering the copy to the clerk of court with proof of failure of both personal and service by mail. JUDGMENTS, FINAL ORDERS, RESOLUTIONS (Sec.9) 1. By personal service; or 2. By registered mail; 3. By publication, if party is summoned by publication and has failed to appear in the action. They can be served only under the three modes. They CANNOT be served by substituted service. NOTE: A resort to modes other than by personal service must be accompanied by a written explanation why the service or filing was not done personally (Sec. 11). Section 10. Completeness of service. 1. Personal service a. by handling a copy to defendant; or b. tendering him copy if he refuses; c. complete upon actual delivery 2. Service by ordinary mail:

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REMEDIAL LAW

Complete upon expiration of 10 days after mailing, unless the court provides otherwise. 3. Service by registered mail: a. Complete upon actual receipt by the addressee; or b. After 5 days from the date he received the 1st notice of the postmaster, whichever date is earlier. Section 12. Proof of filing. Filing is proved by its existence in the record of the case. If it is not in the record, and: If filed personally: proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same; or  If filed by registered mail: proved by -the registry receipt and the affidavit of the person who did the mailing. Section 13. Proof of service 1. Proof of personal service: a. Written admission of the party served; or b. Official return of the server; or c. Affidavit of the party serving. 2. Proof of service by ordinary mail: Affidavit of the person mailing; 3. Proof of service by registered mail: a. Affidavit, and b. Registry receipt issued by the mailing office. Section 14. Notice of lis pendens. LIS PENDENS - a notice of a pendency of the action between the parties involving title to or right of possession over real property. It serves as a warning to all persons, prospective purchasers or encumbrancers of the property in litigation to keep their hands off the property in litigation unless they are

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

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2005 CENTRALIZED BAR OPERATIONS

prepared to gamble on the result of the proceedings. The defendant may also record a notice of lis pendens when he claims an affirmative relief in his answer. Notice of lis pendens CANNOT be cancelled on an ex parte motion or upon the mere filing of a bond by the party on whose title the notice is annotated, as section 14 provides that such cancellation may be authorized ONLY upon order of court, after proper showing that: 1. The notice is for the purpose of molesting the adverse party; or 2. It is not necessary to protect the rights of the party who caused it to be recorded. RULE 14 SUMMONS PURPOSE OF SUMMONS: 1. to acquire jurisdiction over the person of the defendant, and; 2. to give notice to the defendant that an action has been commenced against him. EFFECT OF NON-SERVICE: Unless there is waiver, non-service or irregular service renders null and void all subsequent proceedings and issuances in the action from the order of default up to and including the judgment by default and the order of execution. Where the defendant has already been served with summons on the original complaint, no further summons is required on the amended complaint if it does not introduce new causes of action. But where the defendant was declared in default on the original complaint and the plaintiff subsequently filed an amended complaint, new summons must be served on the defendant on the amended complaint, as the original complaint was deemed withdrawn upon such amendment.

2005 CENTRALIZED BAR CHAIRPERSONS

Section 3. By whom served. Summons may be served by: 1. Sheriff 2. Sheriff’s deputy, or 3. Other proper court officers, or 4. For justifiable reasons, by any suitable person authorized by the court issuing the summons. Enumeration is EXCLUSIVE. ALIAS SUMMONS – issued when original has not produced its effect because it is defective in form or manner of service, and when issued, supersedes the first (Section 5). KINDS OF SERVICE OF SUMMONS: 1. personal service 2. substituted service 3. by publication In actions in personam where the defendant cannot be served with summons personally or by substituted service, the case must first be converted into an in rem or quasi in rem action by attaching the property of the defendant found in the Philippines before summons can be served by publication. If no property can be found, the action shall be archived but shall not be dismissed. (Citizens Surety vs. Court Appeals) SERVICE OF SUMMONS ON DIFFERENT ENTITIES Service on entity Upon any or all w/o juridical defendants being sued personality under common name; or person in charge of office Service upon minors and incompetents

In case of minors: by serving upon the minor, regardless of age, AND upon his legal guardian, or also upon either of his parents. In case of incompetents: by serving on him personally AND upon his legal guardian, but not upon his parents, unless when they are his legal guardians IN ANY EVENT, if the minor or incompetent has no legal guardian, the OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 34

MEMORY AID

Serve on officer having management of the jail or prison

Service upon domestic private juridical entity ENTITY

To the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel. NOTE: Service upon a person other than those mentioned is invalid and does not bind the corporation. The enumeration is EXCLUSIVE.

Service upon foreign private juridical entity

Serve on resident agent ; or if none; on gov’t official designated by law; or on any officer or agent of the corporation within the Philippines.

Service upon public corporations

in case defendant is the Republic of the Philippines - by serving upon the Solicitor General in case of a province, city or municipality, or like public corporations – by serving on its executive head, or on such other officer or officers as the law or the court may direct.

Extraterritorial service

Requisites a. defendant does not reside or is not found within the Phil. b. he action either:  affects the personal status of plaintiff;  relates to or the subject of which is property within the Philippines in which defendant has a lien or interest;

REMEDIAL LAW  demands a relief which consists wholly or in part in excluding the defendant from any interest in any property within the Phil; or  property of defendant has been attached in the Phil.

plaintiff must obtain the appointment of a guardian ad litem for him. Service upon prisoner

IN

Mode of service a. with leave of court served outside the Phil. By personal service; or b.with leave of court serve by publication in a newspaper of general circulation, in which case copy of the summons and order of court must also be sent by registered mail to the last known address of defendant; or c. any other manner the court deem sufficient. Service upon a resident temporarily out of the Phil.

Substituted service or with leave of court, personal service out of the Phil. as under extraterritorial service

Service upon an unknown defendant or whose whereabouts are unknown

With leave of court, by publication in a newspaper of general circulatiuon

Section 20. Voluntary appearance. Any form of appearance in court, by the defendant, by his agent authorized to do so, or by attorney, is equivalent to service of summons EXCEPT where such appearance is precisely to object to the jurisdiction of the court over the person of the defendant. Inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

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over the person of the defendant shall NOT be deemed a voluntary appearance. RULE 15 MOTIONS MOTION – is an application for relief other than by a pleading. GENERAL RULE: Motions must be in writing. EXCEPTION: Those made in open court or in the course of hearing or trial. KINDS OF MOTIONS a. motion EX PARTE- made without the presence or a notification to the other party because the question generally presented is not debatable. b. motion OF COURSE – where the movant is entitled to the relief or remedy sought as a matter of discretion on the part of the court. c. LITIGATED motion – one made with notice to the adverse party to give an opportunity to oppose. d. SPECIAL motion- motion addressed to the discretion of the court. GENERAL RULE: A motion cannot pray for judgment. EXCEPTIONS: 1. Motion for judgment on the pleadings 2. Motion for summary judgment 3. Motion for judgment on demurrer to evidence. Section 4. Hearing on motion. 3-DAY NOTICE RULE GENERAL RULE: Service of the copy of motions should be made in such a manner as shall ensure its receipt at least 3 days before the hearing. EXCEPTIONS: 1. Ex parte motions 2. Urgent motions 3. Motions agreed upon by the parties to be heard on shorter

notice or jointly submitted by the parties, and 4. Motions for summary judgment which must be served at least 10 days before its hearing 5. Non-litigated motions. Section 5. Notice of hearing. NOTICE OF HEARING shall: 1. Be addressed to all parties concerned 2. Specify the time and date of the hearing which must not be later than 10 days after the filing of the motion NOTE: Any motion that does not comply with Sections 4, 5 and 6 of this Rule is a mere scrap of paper, should not be accepted for filing and, if filed, is not entitled to judicial cognizance and does not affect any reglementary period involved for the filing of the requisite pleading. Omnibus Motion Rule - All available grounds for objection in attacking a pleading, order, judgment, or proceeding should be invoked at one time, otherwise, they shall be deemed waived. Motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted, otherwise, the latter will be denied. RULE 16 MOTION TO DISMISS A Motion to Dismiss is NOT a responsive pleading. Section 1. Grounds. 1. No jurisdiction over the person of the defending party 2. No jurisdiction over the subject matter of the claim 3. Improper venue 4. No legal capacity to sue 5. Litis pendentia 6. Res judicata 7. Prescription 8. States no cause of action

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 36

MEMORY AID 9. Claim or demand has been paid, waived, abandoned, or otherwise extinguished 10. Claim is unenforceable under the Statute of Frauds 11. Non-compliance with a condition precedent for filing claim

MOTION TO DISMISS MOTION TO DISMISS UNDER RULE 16 UNDER RULE 33 (demurrer to evidence) Grounded on preliminary objections.

based on insufficiency of evidence.

may be filed by any May be filed only by defending party the defendant against against whom a claim the complaint of the is asserted in the plaintiff. action. should be filed within May be filed only after the time for but prior the plaintiff has to the filing of the completed the answer of the presentation of his defending party to the evidence. pleading asserting the claim against him. If denied, defendant If denied, defendant answers, or else he may present evidence may be declared in if granted, plaintiff default appeals and the Order If granted, plaintiff of the dismissal is may appeal or if reversed, the subsequent case is not defendant loses his barred, he may re-file right to present the case evidence.

Effect of motion to dismiss: A motion to dismiss hypothetically admits the truth of the facts alleged in the complaint. However, such admission is limited only to all material and relevant facts which are well pleaded in the complaint. An action cannot be dismissed on a ground not alleged in the motion even if said ground is provided for in Rule 16. EXCEPT:

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1. Those cases where the court may dismiss a case motu proprio (Sec. 1, Rule 9) 2. Such ground appears in the allegations of the complaint or in plaintiff’s evidence REQUISITES OF LITIS PENDENTIA 1. Parties to the action are the same 2. There is substantial identity in the cause of action and relief sought 3. The result of the first action is determinative of the second in any event and regardless of which party is successful Motion to dismiss may be filed in either suit, not necessarily in the one instituted first. REQUISITES OF RES JUDICATA 1. Previous final judgment 2. Jurisdiction over the subject matter and the parties by the court rendering it 3. Judgment upon the merits 4. In a case prosecuted between same parties 5. Involving the same subject matter 6. Same cause of action There could be res judicata without a trial, such as in a judgment on the pleadings (Rule 34); a summary judgment (Rule 35); or an order of dismissal under Section 3 of Rule 17. When the ground for dismissal is that the complaint states no cause of action, such fact can be determined only from the facts alleged in the complaint. Where the plaintiff has not exhausted all administrative remedies, the complaint not having alleged the fact of such exhaustion, the same may be dismissed for failure to state a cause of action. Non-compliance with P.D. 1508 (Katarungang Pambarangay Law) may result to dismissal of the case on the

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

2005 CENTRALIZED BAR OPERATIONS

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ground of non-compliance condition precedent.

with

a

An action cannot be dismissed on the ground that the complaint is vague or indefinite. The remedy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery. GENERAL TYPES OF A MOTION TO DISMISS 1. motion to dismiss before answer under Rule 16 2. motion to dismiss under Rule 17 a. upon notice by plaintiff b. upon motion of plaintiff c. due to fault of plaintiff 3. motion to dismiss on demurrer to evidence after plaintiff has rested his case under Rule 33 4. motion to dismiss the appeal filed either in the lower court (Rule 41,Sec. 13) or in the appellate court (Rule 50, Sec.1 ).

EFFECTS OF ACTION ON MTD

REMEDY

Order granting motion to dismiss is final order Order denying the motion to dismiss is interlocutory

Appeal from the order of dismissal Certiorari and prohibition if there is grave abuse of discretion amounting to lack or excess of jurisdiction under Rule 65

Section 4. Time to plead. Defendant is granted only the balance of the reglementary period to which he was entitled at the time he filed his motion to dismiss, counted from his receipt of the denial order, but not less than 5 days in any event. The same rule of granting only the balance of the period is followed where the court, instead of denying the motion to dismiss, orders the amendment of the pleading challenged by the motion, in which case, the balance of the period to

answer runs from his receipt of the amended pleading.

Section 5. Effect of dismissal GENERAL RULE: The action or claim may be refiled. EXCEPTION: The action cannot be refiled if it was dismissed on any of these grounds: 1. Res judicata; 2. Prescription; 3. Extinguishment of the claim or demand; 4. Unenforceability under the Statute of Frauds. Section 6. Pleading grounds as affirmative defenses. If no motion to dismiss had been filed, any of the grounds for dismissal provided for in Rule 16, INCLUDING IMPROPER VENUE, may be pleaded as affirmative defenses and preliminarily heard in the discretion of the court. Dismissal under this section – WITHOUT prejudice to the prosecution in the same or separate action of a COUNTERCLAIM pleaded in the answer RULE 17 DISMISSAL OF ACTIONS Section 1. Dismissal upon notice by plaintiff. Dismissal is effected not by motion but by mere NOTICE of dismissal which is a matter of right BEFORE the defendant has answered or moved for a summary judgment. But notice of dismissal requires an order of the court confirming the dismissal. Such dismissal is WITHOUT PREJUDICE, EXCEPT: 1. Where the notice of dismissal so provides; 2. Where the plaintiff has previously dismissed the same case in a court of competent jurisdiction (TWO-DISMISSAL RULE); 3. Even where the notice of dismissal does not provide that it is with

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 38

MEMORY AID prejudice but it is premised on the fact of payment by the defendant of the claim involved. Section 2. Dismissal upon motion of plaintiff. Where the plaintiff moves for the dismissal of his complaint to which a counterclaim has been interposed, the dismissal shall be limited to the complaint. Such dismissal shall be without prejudice to the right of the defendant to either: 1. Prosecute his counterclaim in a separate action, In this case, the court should render the corresponding order granting and reserving his right to prosecute his claim in a separate complaint. -OR2. To have the same resolved in the same action. In such case, defendant must manifest such preference to the trial court within 15 days from notice to him of plaintiff’s motion to dismiss. These alternative remedies of the defendant are available to him REGARDLESS OF WHETHER HIS COUNTERCLAIM IS COMPULSORY OR PERMISSIVE. Dismissal under this rule is WITHOUT PREJUDICE, EXCEPT: 1. When otherwise stated in the motion to dismiss; 2. When stated to be with prejudice in the order of the court. The approval of the court is necessary in the dismissal or compromise of a class suit.

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Section 3. Dismissal due to fault of plaintiff. CAUSES FOR DISMISSAL 1. Plaintiff fails to appear for no justifiable cause on the date of the presentation of his evidence in chief on the complaint 2. Plaintiff fails to prosecute his action for an unreasonable length of time (NOLLE PROSEQUI) 3. Plaintiff fails to comply with these Rules or any order of the court. Unjustifiable inaction on the part of plaintiff to have the case set for trial is a ground for dismissal for failure to prosecute. Complaint may be dismissed 1. Upon motion of the defendant, or 2. Upon court’s own motion. Dismissal shall have the effect of an ADJUDICATION UPON THE MERITS (WITH PREJUDICE), unless otherwise declared by the court.

SECTION 2

SECTION 3

Dismissal is at the instance of the plaintiff;

Dismissal is not procured by plaintiff though justified by causes imputable to him;

Dismissal is a matter Dismissal is a matter of procedure, without of evidence, an prejudice unless adjudication on the otherwise stated in merits; the order of the court or on plaintiff’s motion to dismiss his own complaint; Dismissal is without Dismissal is without prejudice to the right prejudice to the right of the defendant to of the defendant to prosecute his prosecute his counterclaim in a counterclaim on the separate action unless same or separate w/in 15 days from action. notice of the motion

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

2005 CENTRALIZED BAR OPERATIONS

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he manifests his intention to have his counterclaim resolved in the same action

RULE 18 PRE-TRIAL PRE-TRIAL- a mandatory conference and personal confrontation before the judge between the parties and their respective counsel. The plaintiff must promptly move ex parte that the case be set for pre-trial , and this he must do upon the service and filing of the last pleading. The pre-trial and trial on the merits of the case must be held on separate dates. When non-appearance of a party may be excused (Sec.4): 1. If a valid cause is shown therefore 2. If a representative shall appear in his behalf fully authorized in writing to: a. Enter into an amicable settlement b. Submit to alternative modes of dispute resolution c. Enter into stipulations or admissions of facts and of documents A special authority for an attorney to compromise is required under Sec. 23, Rule 138. Under Art. 1878 (c) of the Civil Code, a special power of attorney is required.

EFFECT OF NON-APPEARANCE OF PLAINTIFF: Cause for dismissal of the action, with prejudice, unless otherwise ordered by the court. EFFECT OF NON-APPEARANCE OF DEFENDANT: Cause to allow the plaintiff to present evidence ex parte and the court to render judgment on the basis thereof. Pre-trial brief. It is the mandatory duty of the parties to seasonably file their pre-trial briefs under the conditions and with the sanctions provided therein. Failure to file pre-trial brief has the same effect as failure to appear at the pre-trial. Record of pre-trial. The contents of the PRE-TRIAL order shall control the subsequent course of the action, UNLESS modified before trial to prevent manifest injustice. A party is deemed to have waived the delimitations in a pre-trial order if he failed to object to the introduction of evidence on an issue outside of the pretrial order, as well as in cross-examining the witness in regard to said evidence. FOR CHART ON PRE-TRIAL PLS. SEE THE NEXT PAGE.

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 40

MEMORY AID

IN

REMEDIAL LAW

FACTORS TO BE CONSIDERED BY THE COURT 1. Whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties; PRE-TRIAL

No Settlement

Amicable Settlement

Agreements made by parties; Amendments to pleading; Schedule of trial

Failure to Appear

If plaintiff is Absent, when so required to attend, the court may dismiss the case

If defendant is absent, court may hear evidence of plaintiff ex parte

TRIAL

Court renders decision

RULE 19 INTERVENTION WHO may intervene? 1. One who has legal interest in the matter in litigation 2. One who has legal interest in the success of either of the parties, 3. One who has an interest against both parties 4. One who is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof.

If evidence is insufficient to prove plaintiff’s cause of action or defendant’s counterclaim, court rules in favor of either one or dismisses the case

2. 2. Whether or not the intervenor’s rights may be fully protected in a separate proceeding. The interest which entitles a person to intervene in a suit must be on the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.

INTERVENTION

INTERPLEADER

An ancillary action.

An original action.

Proper in any of the four situations

Presupposes that the plaintiff has no

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

2005 CENTRALIZED BAR OPERATIONS

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mentioned in this Rule.

interest in the subject matter of the action or has an interest therein, which in whole or in part, is not disputed by the other parties to the action.

Defendants are Defendants are being already original sued precisely to parties to the pending implead them suit

Section 2. Time to intervene. At any time before rendition judgment by the trial court.

of

JUSTIFICATION: Before judgment is rendered, the court, for good cause shown, may still allow the introduction of additional evidence and that is still within the liberal interpretation of the period for trial. Since no judgment has yet been rendered, the matter subject of the intervention may still be readily resolved and integrated in the judgment disposing of all claims in the case. REMEDIES FOR THE DENIAL OF INTERVENTION: 1. APPEAL 2. MANDAMUS if there is grave abuse of discretion If there is improper granting of intervention, the remedy of the party is certiorari. RULE 21 SUBPOENA

SUBPOENA

SUMMONS

an order to appear and Order to answer testify or to produce complaint books and documents may be served to a Served on the non-party defendant needs tender of does not need tender kilometrage, of kilometrage and attendance fee and other fees reasonable cost of production fee

SUBPOENA AD TESTIFICANDUM – a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. SUBPOENA DUCES TECUM – a process directed to a person requiring him to bring with him books, documents, or other things under his control. Section 2. By whom issued WHO may issue 1. Court before whom the witness is required to attend 2. Court of the place where the deposition is to be taken 3. Officer or body authorized by law to do so in connection with investigations conducted by said officer or body 4. Any Justice of the SC or of the CA in any case or investigation pending within the Philippines. SUBPOENA TO A PRISONER – must be for a valid purpose; if prisoner required to appear in court is sentenced to death, reclusion perpetua or life imprisonment and is confined in prison – must be authorized by the SC. Section 4. QUASHING A SUBPOENA. A. Subpoena DUCES TECUM may be quashed upon proof that: 1. It is unreasonable and oppressive; 2. The articles sought to be produced do not appear prima facie to be relevant to the issues; 3. The person asking for the subpoena does not advance the cost for the production of the articles desired. B. Subpoena AD TESTIFICANDUM may be quashed if the witness is not bound thereby. In EITHER case, the subpoena may be quashed for failure to tender the witness fees and kilometrage allowed by the Rules.

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 42

MEMORY AID GENERAL RULE a. The court which issued the subpoena may issue a warrant for the arrest of the witness and make him pay the cost of such warrant and seizure, if the court should determine that his disobedience was willful and without just cause (Sec. 8); b. The refusal to obey a subpoena without adequate cause shall be deemed a contempt of the court issuing it (Sec.9). Exceptions: Provisions regarding the compelling of attendance (Sec. 8) and contempt (Sec. 9) does not apply where: a. Witness resides more than 100 km from his residence to the place where he is to testify by the ordinary course of travel, generally, by overland transportation (VIATORY RIGHT). b. Permission of the court in which the detention prisoner’s case is pending was not obtained. RULES OF DISCOVERY DISCOVERY - is the procedure by which one party in an action is enabled to obtain before trial knowledge of relevant facts and of material evidence in the possession of the adverse party or of a witness. Rationale of discovery: to enable the parties to obtain the fullest possible knowledge of the issues and evidence long before the trial to prevent such trial from being carried on in the dark. Modes of discovery under the Rules of Court 1. Depositions pending action (Rule 23). 2. Depositions before action or pending appeal (Rule 24). 3. Interrogatories to parties (Rule 25).

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4. Admission by adverse party (Rule 26). 5. Production or inspection of documents, or things (Rule 27). 6. Physical and mental examination of persons (Rule 28). Discovery before answer. It is only in the exceptional or unusual case that the need for discovery arises, or that it should be allowed before service of answer. Modes of Discovery are intended to be CUMULATIVE, and not alternative nor mutually exclusive. Discovery is NOT MANDATORY but failure to avail carries sanctions in Rules 25 and 26.

RULE 23 DEPOSITIONS PENDING ACTION DEPOSITION – is a written testimony of a witness given in the course of a judicial proceeding in advance of the trial or hearing upon oral examination or in response to written interrogatories and where an opportunity is given for crossexamination. Depositions are intended as a means to compel disclosure of facts resting in the knowledge of a party or other person, which are relevant in a suit/proceeding. CLASSIFICATIONS OF DEPOSITIONS 1. Depositions on ORAL EXAMINATION and Depositions upon WRITTEN INTERROGATORIES 2. Depositions DE BENE ESSE those taken for purposes of a pending action (Rule 23) ; and 3. Depositions IN PERPETUAM REI MEMORIAM - those taken to perpetuate evidence for purposes of anticipated action, or in the event of further proceedings in a case on appeal, and to preserve it against danger of loss (Rule 24).

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

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WHEN TAKEN WITH LEAVE OF COURT 1. after jurisdiction has been obtained over any defendant or over the property which is the subject of the action and BEFORE answer. 2. Deposition of a person confined in prison. WITHOUT LEAVE OF COURT AFTER answer AND deponent is not confined in prison. Section 4. Use of depositions. Where the witness is available to testify and the situation is not one of those excepted under Sec. 4, his deposition is inadmissible in evidence and he should be made to testify. It can be used as evidence by a party for any purpose under the specific conditions in Sec. 4. DEPONENT

USE

Any person

By any party for contradicting or impeaching the testimony of deponent as witness

A party or any one By an adverse party for who at the time of any purpose the deposition was an OFFICER, DIRECTOR, or MANAGING AGENT of a public or private corp., partnership, or association which is a party Witness, whether or not a party

By any party for any purpose if the court finds the 5 instances occurring

SCOPE OF INQUIRY IN DEPOSITIONS: 1. Matter which is relevant to the subject of the pending action; 2. Not privileged

3. Not restricted by a protective order Certiorari will not lie against an order admitting or rejecting a deposition in evidence, the remedy being an appeal from the final judgment. Section 7. Effect of taking depositions. A party shall not be deemed to make a person his own witness for any purpose by taking his deposition because depositions are taken for discovery and not for use as evidence. Exception: If a party offers the deposition in evidence, then he is deemed to have made the deponent his witness (Sec.8) Exception to the Exception: Unless the deposition is that of any adverse party, and unless, of course, the deposition is used for impeaching or contradicting the deponent (Sec.8). Section 10 and 11. Persons before whom depositions may be taken. WITHIN THE PHILIPPINES: 1. judge 2. notary public 3. any person authorized to administer oaths, as stipulated by the parties in writing OUTSIDE THE PHILIPPINES: 1. on notice, before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Phil. 2. before such person or officer as may be appointed by commission or letters rogatory 3. any person authorized to administer oaths, as stipulated by the parties in writing Section 12. rogatory.

Commission

or

letters

COMMISSION

LETTERS ROGATORY

Issued to a non-

Issued to the

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 44

MEMORY AID judicial foreign officer appropriate judicial who will directly take officer of the foreign the testimony country who will direct somebody in said foreign country to take down testimony Applicable rules of Applicable rules of procedure are those of procedure are those of the requesting court the foreign court requested to act Resorted to if Resorted to if the permission of the execution of the foreign country is commission is refused in given the foreign country Leave of court is not Leave of court is necessary necessary

Section 18. Motion to terminate or limit examination. MAY BE FILED: 1. any time during the taking of the deposition 2. on motion or petition of any party or of the deponent; or 3. upon showing that the examination is conducted in : a. bad faith b. in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL Depositions under this Rule are also taken conditionally, to be used at the trial only in case the deponent is not available. Depositions under this Rule do not prove the existence of any right and the testimony perpetuated is not in itself conclusive proof, either of the existence of any right nor even of the facts to which they relate, as it can be controverted at the trial in the same manner as though no perpetuation of testimony was ever had. However, in the absence of any objection to its taking, and even if the deponent did not testify at the hearing, the perpetuated testimony constitutes prima facie proof of facts referred to in the deposition.

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Section 6. Use of deposition. If deposition is taken under this Rule, it may be used in any action involving the SAME SUBJECT MATTER subsequently brought. Section 7. Depositions pending appeal. Sec. 7 is the procedure in perpetuating testimony AFTER JUDGMENT IN THE RTC and DURING THE PENDENCY OF AN APPEAL.

RULE 25 INTERROGATORIES TO PARTIES PURPOSE of Written Interrogatories: to elicit facts from any adverse party (answers may also be used as admissions of the adverse party) Written interrogatories and the answers thereto must both be FILED and SERVED.

Interrogatories

Bill of Particulars

A party may properly A party may properly seek disclosure of seek disclosure only of matters of proof matters which define which may later be the issues and become made a part of the a part of the records as evidence. pleadings.

A party may serve written interrogatories: 1. WITHOUT LEAVE OF COURT – after answer has been served, for the first set of interrogatories. 2. WITH LEAVE OF COURT – before answer has been served (REASON: at that time, the issues are not yet joined and the disputed facts are not yet clear, when more than one set of interrogatories is to be served.) A judgment by default may be rendered against a party who fails to answer written interrogatories

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

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Only one set of interrogatories by the same party is allowed. Leave of court is necessary for succeeding sets of interrogatories. Section 6. Effect of failure to serve written interrogatories. Rule 25 and Rule 26 are directed to the party who fails and refuses to RESORT to the discovery procedures, and should not be confused with the provisions of Rule 29 which provides for sanctions or other consequences upon a party who refuses or fails to COMPLY with discovery procedures duly availed of by opponent.

The justification for this provision is that the party in need of relevant facts having foregone the opportunity to inquire into the same from the other party through means available to him, he should not thereafter be permitted to unduly burden the latter with courtroom appearances or other cumbersome processes. Unless a party had been served written interrogatories, he may not be compelled by the adverse party: 1. to give testimony in open court, or 2. give a deposition pending appeal. The only exception is when the court allows it for GOOD CAUSE shown and to prevent a failure of justice. Depositions Upon Interrogatories to Written Parties under Rule Interrogatories to 25 Parties under Rule 23 Sec. 25 As to Deponent Party or ordinary witness

As to Deponent party only

As to Procedure As to Procedure With intervention of no intervention. the officer authorized Written by the Court to take interrogatories are deposition directed to the party himself

As to Scope Direct, cross, redirect, re-cross

As to Scope only one set of interrogatories

Interrogatories no fixed time

Interrogatories 15 days to answer unless extended or reduced by the court

RULE 26 ADMISSION BY ADVERSE PARTY Section 1. Request for admission. PURPOSE OF written request for admission is to expedite trial and relieve the parties of the costs of proving facts which will not be disputed on trial and the truth of which can be ascertained by reasonable inquiry. When request may be made: at any time after the issues have been joined. What request may include 1. Admission of the genuineness of any material and relevant document described in and exhibited with the request. 2. Admission of the truth of any material and relevant matter of fact set forth in the request. 3. Under this rule, a matter of fact not related to any documents may be presented to the other party for admission or denial. Section 2. Implied Admission. The effect of a FAILURE to make a reply to a request for admission is that each of the matters of which an admission is requested is deemed admitted. A sworn statement either denying specifically each matter or setting forth in detail the reasons why he cannot truthfully admit or deny those matters must be filed and served upon the party requesting the admission. Section 3. Effect of admission. USE: An admission under this section is for the purpose of the pending action only and cannot be used in other proceedings.

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 46

MEMORY AID The party who fails or refuses to request the admission of facts in question is prevented from thereafter presenting evidence thereon UNLESS otherwise allowed by the court (Sec.5). RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS Production of documents affords more opportunity for discovery than a subpoena duces tecum because in the latter, the documents are brought to the court for the first time on the date of the scheduled trial wherein such documents are required to be produced. The TEST to be applied in determining the relevancy of the document and the sufficiency of their description is one of reasonableness and practicality. PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

SUBPOENA DUCES TECUM

Essentially a mode of means of compelling discovery production of evidence The Rules is limited to may be directed to a the parties to the person whether a action party or not The order under this may be issued upon an Rule is issued only ex parte application. upon motion with notice to the adverse party

RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS The mental condition of a party is in controversy in proceedings for GUARDIANSHIP over an imbecile or insane person, while the physical condition of the party is generally involved in PHYSICAL INJURIES cases. Since the results of the examination are intended to be made public, the same

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are not covered by the physician-patient privilege. Section 4. Waiver of privilege. Where the party examined requests and obtains a report on the results of the examination the consequences are: 1. he has to furnish the other party a copy of the report of any previous or subsequent examination of the same physical and mental condition, AND 2. he waives any privilege he may have in that action or any other involving the same controversy regarding the testimony of any other person who has so examined him or may thereafter examine him. RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY SANCTIONS 1. Contempt; 2. Payment of reasonable fees; 3. The matters regarding which the questions were asked, character or description of land et al., be taken to be in accordance with the claim of party obtaining the order; 4. Prohibition on the refusing party to produce evidence or support or oppose designated claims or defenses; 5. Striking out pleadings, order the dismissal of the action or stay the action until compliance or to render judgment by default. 6. Order the arrest of the refusing party except in cases of physical or mental examination. RULE 30 TRIAL TRIAL – judicial process of investigating and determining the legal controversies starting with the production of evidence by the plaintiff and ending with his closing arguments.

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

2005 CENTRALIZED BAR OPERATIONS

47

GENERAL RULE: when an issue exists, trial is necessary. Decision should not be made without trial. EXCEPTIONS: when there may be judgment without trial: 1. Judgment on the Pleading (Rule 34) 2. Summary Judgment (Rule 35) 3. Judgment on Compromise 4. Judgment by Confession 5. Dismissal with Prejudice (Rule 17)

render his excusable. Section 5. Order of directed by the court.

non-attendance

trial

unless

Section 3. Requisites of motion to postpone trial for absence of evidence. There must be an affidavit showing: 1. materiality or relevance of such evidence; and 2. due diligence in procuring it. If the adverse party admits the facts for which evidence is to be presented, the trial will not be postponed. Section 4. Requisites of motion to postpone trial for illness of party or counsel. There must be an affidavit or sworn certification showing: 1. presence of party or counsel at the trial is indispensable; and 2. character of his illness is such as to Plaintiff presents evidence

Defendant presents evidence to support his defense/countercla im/crossclaim/ third party complaint

Third party defendant presents eidence, if any

Defendant files demurrer to evidence

If court grants motion: Renders dismisal

If court denies motion: Continues with hearing

Unless the court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pretrial order. Section 6. Agreed statements of facts. This is known as STIPULATION OF FACTS and is among the purposes of a pre-trial. The parties may also stipulate verbally in open court. Such stipulations are binding unless relief therefrom is permitted by the court on good cause shown, such as error or fraud. But counsel cannot stipulate on what their respective EVIDENCE consists of and ask that judgment be rendered on the basis of such stipulation. Stipulations of facts are not permitted in actions for ANNULMENT OF MARRIAGE and for LEGAL SEPARATION. Section 8. Suspension of actions. Art. 2030 of the Civil Code. Every civil action or proceeding shall be suspended 1. If willingness to discuss a possible compromise is expressed by one or both parties; or 2. If it appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Rebuttal Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda EvidenceTolentino(VC-Acads), by After Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEres (VC-Logistics) PartiesEDP), Anna Margarita Presentation of Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), evidence: Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial oral Law),arguments Jackie Lou Bautista (Legal Ethics) submission of DECISION memoranda

San Beda College of Law 48

MEMORY AID possible compromise but the other party refused the offer. Section 9. Judge to receive evidence; delegation to clerk of court. GENERAL RULE: the judge must himself personally receive and resolve the evidence of the parties. However, the reception of such evidence may be delegated under the following conditions: 1. The delegation may be made only in defaults or ex parte hearings, or an agreement in writing by the parties. 2. The reception of evidence shall be made only by the clerk of that court who is a member of the bar. 3. Said clerk shall have no power to rule on objections to any question or to admission of evidence or exhibits; and 4. He shall submit his report and transcripts of the proceedings, together with the objections to be resolved by the court, within 10 days from the termination of the hearing. RULE 31 CONSOLIDATION OR SEVERANCE GENERAL RULE: Consolidation is discretionary upon the court EXCEPTIONS: Consolidation becomes a matter of duty when: 1. if the cases are pending before the same judge OR 2. if filed with different branches of a court and one of such cases has NOT been partially tried. REQUISITES FOR CONSOLIDATION: 1. When actions involving a common question of law or fact, and 2. The actions are pending before the same court if filed with DIFFERENT courts, authorization from the SC is necessary. 3 WAYS OF CONSOLIDATING CASES:

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1. by RECASTING THE CASES ALREADY INSTITUTED, conducting only one hearing and rendering only one decision; 2. by CONSOLIDATING THE EXISTING CASES and holding only one hearing and rendering only one decision; and 3. by HEARING ONLY THE PRINCIPAL CASE and suspending the hearing on the others until judgment has been rendered in the principal case. (TEST-CASE METHOD) Consolidation of cases on appeal and assigned to different divisions of the SC and the CA is also authorized. Generally, the case which was appealed later and bearing the higher docket no. is consolidated with the case having the lower docket no. RULE 32 TRIAL BY COMMISSIONER COMMISSIONER- a person to whom a cause pending in court is referred, for him to take testimony, hear the parties and report thereon to the court, and upon whose report, if confirmed, judgment is rendered. Reference to a commissioner may be had by the written consent of both parties. Situations when reference to a Commissioner may be made on motion (Sec.2): 1. Examination of a long account 2. Taking of an account is necessary 3. Question of fact, other than upon the pleading arises; or 4. Carrying a judgment or order into effect. Disobedience to a subpoena issued by the commissioner is deemed a contempt of the court which appointed the latter. RULE 33 DEMURRER TO EVIDENCE Section 1. Demurrer to evidence.

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

2005 CENTRALIZED BAR OPERATIONS

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DEMURRER TO EVIDENCE

MOTION TO DISMISS

It is presented after the plaintiff has rested his case

presented before a responsive pleading (answer) is made by the defendant The ground is based it may be based on any on insufficiency of of those enumerated evidence in Rule 16

2 Scenarios MOTION DENIED

MOTION GRANTED BUT REVERSED ON APPEAL

Movant shall have the Movant is deemed to right to present his have waived his right evidence to present evidence. The decision of the appellate court will be based only on the evidence of the plaintiff as the defendant loses his right to have the case remanded for reception of his evidence. denial is order of the court is INTERLOCUTORY. Sec. an ADJUDICATION ON 1 , Rule 36 (that THE MERITS, hence, judgment should state the requirement in clearly and distinctly Sec. 1, Rule 36 the facts and the law should be complied on which it is based), with. will not apply. The denial is NOT appealable.

CIVIL CASES

CRIMINAL CASES

Defendant need not ask leave of court is for leave of court; necessary so that the accused could present his evidence if the demurrer is denied if the court finds if the court finds the plaintiff’s evidence prosecution’s insufficient, it will evidence insufficient, grant the demurrer by it will grant the dismissing the demurrer by complaint. The rendering judgment judgment of dismissal is acquitting the appealable by the accused. Judgment of plaintiff. If plaintiff acquittal is not appeals and judgment appeallable; double

is reversed by the jeopardy sets-in appellate court, it will decide the case on the basis of the plaintiff’s evidence with the consequence that the defendant already loses his right to present evidence no res judicata in dismissal due to demurrer if court denies if court denies the demurrer, defendant demurrer: will present his If demurrer was with evidence leave, accused may present his evidence If the demurrer was without leave, accused can no longer present his evidence and submits the case for decision based on the prosecution’s evidence

JUDGMENT ON DEMURRER TO EVIDENCE is a judgment rendered by the court dismissing a case upon motion of the defendant, made after plaintiff has rested his case, on the GROUND that upon the facts presented by the plaintiff and the law on the matter, plaintiff has not shown any right to relief. RULE 34 JUDGMENT ON THE PLEADINGS A judgment on the pleadings must be on motion of the claimant. (NO SUPPORTING PAPERS ARE REQUIRED BECAUSE EVERTHING IS BASED ON THE PLEADINGS.) HOWEVER, if at the pre-trial the court finds that a judgment on the pleadings is proper, it may render such judgment motu proprio. GROUNDS: 1. Answer fails to tender an issue because of: a. general denial of the material allegations of the complaint;

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 50

MEMORY AID b. insufficient denial of the material allegations of the complaint ; or 2. Answer admits material allegations of the adverse party’s pleading •

By moving for judgment on the pleading, plaintiff waives his claim for unliquidated damages. Claim for such damages must be alleged and proved.

NO JUDGMENT ON THE PLEADINGS IN ACTIONS FOR 1. Declaration of nullity of marriage 2. Annulment of marriage 3. Legal Separation

Motion to Dismiss

Motion for judgment on the pleadings

Filed by a defendant Filed by the plaintiff to a complaint, if the answer raises counterclaim, cross- no issue. claim or 3rd-party complaint If the complaint states no cause of action, a motion to dismiss should be filed and not a motion for judgment on the pleading.

RULE 35 SUMMARY JUDGMENTS SUMMARY JUDGMENT One granted by the court for the prompt disposition of civil actions wherein it clearly appears that there exists NO genuine issue or controversy as to any material fact. Who can File 1. Plaintiff: he must wait for the answer to be filed and served, and thus for the issue to be joined, before he can move for summary judgment.

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2. Defendant: he can move for summary judgment at anytime, that is, anytime after filing and service of the complaint even before he answers The motion for summary judgment must be supported by (1) affidavit, (2) depositions of the adverse party or a third party, or (3) admissions of the adverse party, all intended to show that: a. there is no genuine issue as to any material fact, except damages which must always be proved, and b. the movant is entitled to a judgment as a matter of law. The summary judgment may be a judgment on the merits, in which case, an appeal may be taken therefrom.

SUMMARY JUDGMENT

JUDGMENT JUDGMENT ON THE BY DEFAULT PLEADINGS (Rule 9)

Based on the based solely on based on the pleadings, the pleadings. complaint and depositions, evidence, if admissions presentation is and affidavits required. Available to generally Available to both plaintiff available only plaintiff. and defendant to the plaintiff, unless the defendant presents a counterclaim. There is The answer no issues as no no genuine fails to tender answer is filed issue between an issue or by the the parties, there is an defending i.e. there may admission of party. be issues but material these are allegations. irrelevant 10-day notice 3-day notice 3-day notice required required rule applies. May be On the merits On the merits interlocutory or on the merits

RULE 36 JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

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JUDGMENT- final consideration and determination by a court of the rights of the parties, upon matters submitted to it in an action or proceeding. The date of finality of the judgment or final order shall be deemed to be the date of its entry. REQUISITES OF A JUDGMENT: 1. It should be in writing, personally and directly prepared by the judge 2. Must state clearly and distinctly the facts and the law on which it is based 3. It should contain a dispositive part and should be signed by the judge and filed with the clerk of court. PROMULGATION- the process by which a decision is published, officially announced, made known to the public or delivered to the clerk of court for filing, coupled with notice to the parties or their counsel. MEMORANDUM DECISION- a decision of the appellate court which adopts the findings and the conclusion of the trial court. JUDICIAL COMPROMISE • A judgment based on a compromise which has the force of law and is conclusive between parties. • Not appealable. A JUDGMENT is considered RENDERED Upon filing of the signed decision. This includes an amended decision because an amended decision is a distinct and separate judgment and must follow the established procedural rule. The power to amend a judgment is inherent to the court before judgment becomes final and executory. After judgment has become executory, the court cannot amend the same EXCEPT:

1. To make corrections of clerical errors, not substantial amendments, as by an amendment nunc pro tunc. 2. To clarify an ambiguity which is borne out by and justifiable in the context of the decision. 3. In judgments for support, which can always be amended from time to time. MANNER OF ATTACKING JUDGMENTS: 1. Direct attack a. before finality 1. motion for new trial or reconsideration; 2. appeal b. after finality 1. relief from judgment, rule 38 2. annulment of judgment, Rule 47. 2.Collateral attack

PROMULGATION OF JUDGMENT Court Renders Decision

Losing Party

Accepts decision without further contest

Court maintains decision

Filing appeal within 15/30 days from notice of judgment

Within 15/30 days from notice of judgment: Motion for reconsideration; or motion for new trial

Court grants motion: 1.modifies decision; or 2.grants new trial

If no appeal is taken or did not avail of 2005 CENTRALIZED BAR OPERATIONSremedies, EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS judgment Maricel Abarentos (Over-all Chairperson), Ronaldbecomes Jalmanzar Yolanda final (Over-all Vice Chair), Losing party may Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo Masukat (VCand executory(VC-Finance), Elaineappeal within the EDP), Anna Margarita Eres (VC-Logistics) Jonathan remaining period Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 52

MEMORY AID Section 4. Several judgments. Several judgment is proper where the liability of each party is clearly separable and distinct from his coparties such that the claims against each of them could have been the subject of separate suits, and the judgment for or against one of them will not necessarily affect the other. A several judgment is NOT proper in actions against solidary debtors. Section 6. Separate Judgments Proper when more than one claim for relief is presented in an action and a determination as to the issues material to the claim has been made. The action shall proceed as to the remaining claims.

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Two kinds of judgment by confession 1. A judgment by COGNOVIT ACTIONEM – here, the defendant after service instead of entering a plea, acknowledged and confessed that the plaintiff’s cause of action was just and rightful. 2. A judgment by CONFESSION RELICTA VERIFICATIONE – after pleading and before trial, the defendant both confessed the plaintiff’s cause of action and withdrew or abandoned his plea or other allegations, whereupon judgment was entere against him without proceeding to trial.

Judgment upon Compromise Judgment NUNC PRO TUNC (literally means “now for then”) • rendered to enter or record such judgment as has been formerly rendered but has not been entered as thus rendered • its only function is to record some act of the court which was done at a former time, but which was not then recorded, in order to make the record speak the truth, without any changes in substance or any material respect. Judgment upon Agreement or Compromise A compromise agreement between the parties to a case on which the decision of the court was based has upon the parties the effect and authority of res judicata. It is immediately executory. Judgment by Confession Judgment upon confession is one which is rendered against a party upon his petition or consent. It usually happens when the defendant appears in court and confesses the right of the plaintiff to judgment or files a pleading expressly agreeing to the plaintiff’s demand.

REMEDIAL LAW

Judgment by Confession

The provisions and An affirmative and terms are settled and voluntary act of the agreed upon by the defendant himself. parties to the action, The court exercises a and which is entered certain amount of in the record by the supervision over the consent of the court. entry of judgment.

Clarificatory Judgment rendered by the court, upon motion, when a judgment previously rendered is ambiguous and difficult to comply with. AMENDED OR CLARIFIED JUDGMENT

SUPPLEMENTAL DECISION

It is an entirely new decision and supersedes the original judgment

Does not take the place of or extinguish the original judgment

Court makes a thorough study of the original judgment and renders the amended and clarified judgment only after considering all the factual and legal issues

Serves to bolster or add to the original judgment

RULE 37 NEW TRIAL OR RECONSIDERATION

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

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it may amend such judgment or final order accordingly

Order denying motion for new trial

Second motion for new trial based on grounds not existing or available when 1st motion was filed Appeal from the judgment or final order and assign as one of the errors the denial of the motion for new trial

An order denying a motion for new trial is not appealable. NEW TRIAL - the rehearing of a case already decided by the court but before the judgment rendered thereon becomes final and executory, whereby errors of law or irregularities are expunged from the record, or new evidence is introduced, or both steps are taken. Purpose: to set aside the judgment or final order and grant a new trial. WHEN to file: within period for taking appeal. WHERE to file: with the trial court which rendered the questioned judgment. MOTION FOR A NEW TRIAL

MOTION FOR

RECONSIDERATION The grounds are: fraud, The grounds are: the accident, mistake or damages awarded are excusable negligence or excessive, that the newly discovered evidence is insufficient evidence which could to justify the decision not, with reasonable or final order, or that diligence, have the decision or final discovered and produced order is contrary to at the trial, and which if law. presented would probably alter the result Second motion may be Second motion from allowed same party is prohibited If a new trial is granted if the court finds that the trial court will set excessive damages aside the judgment or have been awarded or final order that the judgment or final order is contrary to the evidence or law,

REQUISITES for NEWLY-DISCOVERED EVIDENCE 1. Must have been discovered after trial 2. Could not have been discovered and produced at the trial 3. If presented, would alter the result of the action 4. Otherwise it is called FORGOTTEN EVIDENCE. A motion suspends or tolls the running of the reglementary period for appeal except when the same is pro-forma. PRO-FORMA MOTION - when it does not comply with Rule 15 and Rule 37, e.g. it does not point out specifically the findings or conclusions of the judgment as are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions, and is merely intended to delay the proceedings OR if there is no affidavit of merit. Section 6. Effect of granting of motion for new trial When motion is granted, the original judgment is thereby vacated and the action stands for trial de novo, but the recorded evidence taken upon the former trial so far as the same is material and competent to establish the issues, shall be used at the new trial taking the same. The order denying a motion for new trial is NOT appealable. MOTION FOR NEW MOTION FOR TRIAL REOPENING OF THE TRIAL Specifically mentioned in the Rules

Not mentioned in the Rules but is nevertheless a recognized procedural recourse or device deriving validity and

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 54

MEMORY AID acceptance from long established usage NOTE: It is actually mentioned in the Rules of Criminal Procedure Proper only after May properly be promulgation of presented only after judgment either or both the parties have formally offered and closed their evidence before judgment Based upon specific Controlled by no other grounds set forth rule than the under Rule 37 in civil paramount interests of cases and Rule 121 in justice, resting entirely criminal cases on the sound discretion of a trial court, the exercise of which discretion will not be reviewed on appeal UNLESS a clear abuse thereof is shown

MOTION FOR RECONSIDERATION Purpose: To reconsider or amend judgment or final order WHEN to file: within period for taking an appeal WHERE to file: with the trial court which rendered the judgment or final order sought to be reconsidered RULE 38 RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS REMEDIES AGAINST FINAL AND EXECUTORY JUDGMENTS OR ORDERS 1. Petition for Relief from Judgment (Rule 38) 2. Annulment of judgments or final orders or resolutions (Rule 47) on the ground of: o Extrinsic fraud, to be filed within 4 years from the discovery of the fraud; o Lack of jurisdiction, before it is barred by laches or estoppel 3. Direct or collateral attack against a void or voidable judgment

o

o

IN

REMEDIAL LAW

DIRECT ATTACK – when the validity of the judgment itself is the main issue of the action, a petition for certiorari and action to annul judgment on the ground of extrinsic fraud or lack of jurisdiction COLLATERAL ATTACK – if the judgment can be resisted in any other action in which it is involved.

RULE 37

RULE 38

Available BEFORE judgment becomes final and executory Applies to JUDGMENTS or FINAL ORDERS only

Available AFTER judgment has become final and executory Applies to judgments, final orders and other proceeding: 1.Land Registration 2.Special Proceedings 3. Order of Execution

GROUNDS: i. FAME ii. Newly discovered evidence WHEN AVAILED OF: Within the time to appeal

If denied, the order of denial is NOT appealable, hence remedy is appeal from the judgment Legal remedy Motion need not be verified

GROUNDS: FAME WHEN AVAILED OF: within 60 days from knowledge of the judgment AND within 6 months from entry of judgment If denied, the order denying a petition for relief is NOT appealable; the remedy is appropriate civil action under Rule 65 Equitable remedy Petition must be verified

TWO HEARINGS UNDER RULE 38 1. Hearing to determine whether the judgment should be set aside 2. If yes, a hearing on the merits of the case. The period fixed by Rule 38 is nonextendible and is never interrupted.

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

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particular proceedings or action, leaving nothing to be done by the court but to enforce by execution what has been determined. EXECUTION OF JUDGMENT

RULE 39 EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS EXECUTION – remedy provided by law for the enforcement of a final judgment. AGAINST WHOM ISSUED: execution can only issue against a party and not against one who has not had his day in court. WRIT OF EXECUTION: judicial writ issued to an officer authorizing him to execute the judgment of the court. ESSENTIAL REQUISITE OF A WRIT OF EXECUTION: a writ of execution to be valid, must conform strictly to the decision or judgment which gives it life. It cannot vary the terms of the judgment it seeks to enforce FINAL JUDGMENT OR ORDER- one which disposes of the whole subject matter or Judgment is executed by motion within 5 years from date of its entry

If the winning party does not move for execution w/in 5 years but before 10 years from the date of entry of judgment, the same can only be revived by means of a new action / petition

Execution is a matter of right after expiration of period to appeal and no appeal is perfected

terminates

the

Discretionary execution upon good reasons stated in a special order after due hearing

Sheriff enforces writ of execution

TEST TO DETERMINE WHETHER A JUDGMENT OR ORDER IS FINAL OR INTERLOCUTORY: The test is whether the judgment or order leaves nothing more for the court to do with respect to the merits of the case. SPECIAL JUDGMENT – one that requires the performance of an act OTHER THAN: 1. The payment of money; and 2. The sale of real or personal property Section 1. Execution Upon Judgments and Final Orders. EXECUTION ISSUES AS A MATTER OF RIGHT: 1. on motion 2. upon a judgment or order that disposes of the action or proceeding AND 3. upon expiration of the period to appeal therefrom and NO appeal has been duly perfected. GENERAL RULE: court cannot refuse execution UNLESS: 1. Execution is UNJUST OR IMPOSSIBLE 2. Equitable grounds like a CHANGE IN SITUATION of the parties which makes execution inequitable 3. Judgment NOVATED by parties 4. Execution is enjoined 5. Judgment has become DORMANT

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Maricel

Abarentos

(Over-all Chairperson),

Ronald

Jalmanzar

(Over-all Vice Chair),

Yolanda

Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCLosing party is made to indemnify thru: EDP), Anna Margarita Eres (VC-Logistics) Jonathan payment with interest; Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), levy and sale of personal Charmaine Torres (Taxationproperty; Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Annof Uyreal (Remedial Law), Jackie Lou Bautista (Legal Ethics) levy Jinky and sale property; delivery of personal and real property

San Beda College of Law 56

MEMORY AID QUASHAL OF WRIT PROPER WHEN: 1. Improvidently issued 2. Defective in substance 3. Issued against the wrong party 4. Judgment already satisfied 5. Issued without authority Section 2. Discretionary Execution DISCRETIONARY EXECUTION

EXECUTION AS A MATTER OF RIGHT

May issue before the lapse of period to appeal

Period to appeal has already lapsed and no appeal is perfected

Discretionary upon the court; there is inquiry on whether there is GOOD REASON for execution

Ministerial duty of the court PROVIDED there are no supervening events

GROUNDS FOR EXECUTION PENDING APPEAL: 1. Insolvency of the judgment debtor. 2. Wastage of asset by judgment debtor. Section 3. Stay of Discretionary Execution. The party against whom an execution is directed may file a supersedeas bond to stay discretionary execution. SUPERSEDEAS BOND- one filed by a petitioner and approved by the court before the judgment becomes final and executory and conditioned upon the performance of the judgment appealed from in case it be affirmed wholly or in part. Supersedeas bond guarantees satisfaction of the judgment in case of affirmance on appeal, not other things like damage to property pending the appeal

IN

REMEDIAL LAW

The court may, in its discretion, order an execution before the expiration of the time within which to appeal provided: 1. There is a motion for execution filed by the winning party 2. There is notice of said motion to the adverse party; and 3. There are good reasons stated in a special order after due hearing. GENERAL RULE: an order of execution is NOT appealable otherwise there would be no end to the litigation between the parties. EXCEPTIONS: 1. When the terms of the judgment are not very clear; 2. When the order of execution varies with the tenor of the judgment. Section 4. Judgments NOT Stayed By Appeal 1. INJUNCTION 2. RECEIVERSHIP 3. ACCOUNTING 4. SUPPORT 5. Such other judgments declared to be immediately executory unless otherwise ordered by the trial court. Section 6. Execution By Motion Or Independent Action. MODE OF ENFORCEMENT 1. By motion within 5 years from date of its entry 2. By independent action after 5 years from entry AND before it is barred by statute of limitations Judgment for support does not become dormant, thus it can always be executed by motion. 5-year period may be extended by the conduct of judgment debtor. A revived judgment is a new judgment thus another 5/10-year period to execute and revive is given the party.

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

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2005 CENTRALIZED BAR OPERATIONS

Section 7. Execution In Case Of Death Of Party. If the obligor dies AFTER entry but BEFORE LEVY on his property, execution will be issued for recovery of real or personal property or enforcement of a lien thereon. But for a sum of money, judgment cannot be enforced by writ but as a claim against his estate/probate proceedings. If he dies AFTER a VALID LEVY has been made, execution sale proceeds. Section 8. Issuance, Form and Contents of a Writ of Execution. Remedies in an order granting or denying the issuance of a writ of execution Appeal is the remedy for an order denying the issuance of a writ of execution. Section 10. Execution Of Judgments For Specific Act. If party REFUSES TO VACATE PROPERTY, remedy is NOT contempt. The Sheriff must oust the party. But if demolition is involved, there must be a special order. If party REFUSES TO DELIVER, sheriff will take possession and deliver it to winning party. When the party REFUSES TO COMPLY, court can appoint some other person at the expense of the disobedient party and the act done shall have the same effect as if the required party performed it, the disobedient party incurs no liability for contempt. Section 11. Execution of Special Judgments. When judgment requires the performance of any act other than for money and delivery of property. The writ of execution shall be served upon the party required to obey the same and such party may be punished for contempt if he disobeys. LEVY - act by which an officer sets apart or appropriates a part of the whole of the property of the judgment debtor for

purposes or the execution sale. The levy on execution shall create a lien in favor or the judgment creditor over the right, title and interest of the judgment debtor in such property at the time of the levy. The levy on execution creates a lien in favor of the judgment creditor subject to prior liens and encumbrances. GARNISHMENT - act of appropriation by the court when property of debtor is in the hands of third persons The garnishee or the 3rd person who is in possession of the property of the judgment debtor is deemed a forced intervenor.

ATTACHMENT

GARNISHMENT

Refers to corporeal property in the possession of the judgment debtor.

refers to money, stocks, credits and other incorporeal property which belong to judgment debtor but is in the possession or under the control of a third person

Section 16. Proceedings Where Property Claimed By Third Person. REMEDIES of THIRD PARTY CLAIMANT 1. Summary hearing before the court which authorized the execution; 2. TERCERIA or third party claim filed with the sheriff; 3. Action for damages on the bond posted by judgment creditors; or 4. Independent reinvidicatory action. The remedies are cumulative and may be resorted to by third party claimant independently of or separately from the others. If winning party files a bond, it is only then that the sheriff can take the property in his possession. IF NO BOND, cannot proceed with the sale.

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 58

MEMORY AID SALE ON EXECUTION Notice of sale is required before levied property can be sold at public auction (Sec. 15). Remedy against an irregular sale is MOTION TO VACATE OR SET ASIDE THE SALE to be filed in the court which issued the writ. REDEMPTION (Secs. 27 & 28) Right of Redemption: 1. Personal Property – NONE; sale is absolute 2. Real Property – there is a right of redemption WHO may redeem (Sec. 27) Only the following: a. Judgment obligor, or his successor in interest, in whole or any part of the property; OR b. Redemptioner who is a creditor having a: 1) Lien by attachment on the property sold subsequent to the lien under which the property was sold, 2) Lien by judgment on the property sold subsequent to the lien under which the property was sold; 3) Lien by mortgage on the property sold subsequent to the lien under which the property was sold. WHEN CAN REDEMPTION BE MADE? BY THE JUDGMENT OBLIGOR: Within one (1) year from the date of registration of the certificate of sale. BY THE REDEMPTIONER: 1. Within one year from the date of registration of the certificate of sale; or 2. Within sixty days from the last redemption by another redemptioner If the judgment obligor redeems, no further redemption is allowed (Sec. 29).

IN

REMEDIAL LAW

The period of redemption is NOT suspended by an action to annul the foreclosure sale. CAN REDEMPTION BE PAID IN OTHER FORMS THAN CASH? YES. The rule is liberality in allowing redemption (aid rather than defeat the right) and it has been allowed in the case of a cashier’s check, certified bank checks and even checks. The offer to redeem must be accompanied with a bona fide tender or delivery of the redemption price. However, a formal offer to redeem with a tender is not necessary where the right to redeem is exercised through the filing of a complaint to redeem in the courts, within the period to redeem. RIGHTS OF THE JUDGMENT DEBTOR: 1. Remain in possession of the property 2. Collect rents and profits 3. Cannot be Ejected 4. Use the property in the same manner it was previously used 5. Make necessary repairs Section 33. Deed and possession to be given at expiration of redemption period; by whom executed or given. The PURCHASER is entitled to a CONVEYANCE AND POSSESSION of the property if there is no redemption. He is substituted to and acquires all the rights, title, interest and claims of the judgment obligor to the property at the time of levy. The deed of conveyance is what operates to transfer to the purchaser whatever rights the judgment debtor had in the property. The certificate of sale after execution sale merely is a memorial of the fact of sale and does not operate as a conveyance. The purchaser acquires no better right than what the judgment debtor has in

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

2005 CENTRALIZED BAR OPERATIONS

59

the property levied upon. Thus, if the judgment debtor had already transferred the property executed prior to the levy and no longer has an interest in the property, the execution purchaser acquires no right. WHEN A THIRD PERSON IS IN POSSESSION, The procedure is for the court to order a hearing and determine the nature of such adverse possession.

satisfaction of the judgment (Section 37) 4.

If the court finds the earnings of the judgment debtor are more than sufficient for his family’s needs, it may order payment in installments (Section 40)

5.

The court may appoint a receiver for the property of the judgment debtor not exempt from execution or forbid a transfer or disposition or interference with such property (Section 41)

6.

If the court finds that the judgment debtor has an ascertainable interest in real property either as mortgagor, mortgagee, or otherwise, and his interest can be ascertained without controversy, the court may order the sale of such interest. (Section 42)

7.

If the person alleged to have the property of the judgment debtor or be indebted to him, claims an adverse interest in the property, or denies the debt, the court may authorize the judgment-creditor to institute an action to recover the property, forbid its transfer and may punish disobedience for contempt (Section 43)

Section 34. Recovery of price if sale is not effective; revival of judgment. THE PURCHASER MAY RECOVER THE PURCHASE PRICE WHEN 1. The purchaser or his successorin-interest FAILS TO RECOVER POSSESSION of the property or; 2. Purchaser after having acquired possession is evicted due to: a. Irregularities in the proceedings concerning the sale. b. Reversal or setting aside of judgment. c. The fact that the property was exempt from execution. d. A third person has vindicated his claim to the property. REMEDIES OF THE JUDGMENT CREDITOR IN AID OF EXECUTION 1.

If the execution is returned unsatisfied, he may cause examination of the judgment debtor as to his property and income (Section 36)

2.

He may cause examination of the debtor of the judgment debtor as to any debt owed by him or to any property of the judgment debtor in his possession (Section 37)

3.

If after examination, the court finds that there is property of the judgment debtor either in his own hands or that of any person, the court may order the property applied to the

Section 46. When Principal Bound By Judgment Against Surety. The principal is bound by the same judgment from the time he has notice of the action or proceeding and has been given an opportunity at the surety’s request, to join the defense. Section 47. Effect Of Judgment Or Final Orders. Refers to judgments which are considered as conclusive and may be rebutted directly by means of relief from judgment or annulment of judgment or indirectly by offering them in evidence under the parole evidence rule.

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 60

MEMORY AID Par (A) refers to rule ON RES JUDICATA in judgments IN REM JUDGMENT or FINAL ORDER

EFFECT: CONCLUSIVE AS TO

Against a specific thing

Title to the thing

Probate of a will or administration of the estate of a deceased person In respect to the personal, political, or legal condition or status of a particular person

Will or administration However, ONLY prima facie evidence of the death of the testator or intestate Condition, status or relationship of the person

Par (B) is referred to as “bar by former judgment” or RES JUDICATA in judgments IN PERSONAM RES JUDICATA - final judgments on the merits by a court of competent jurisdiction is conclusive as to the rights of the parties or their privies in all later suits on points determined in the former judgment. REQUISITES: 1. A FINAL judgment or order 2. JURISDICTION over the subject matter and the parties by the court rendering it 3. Judgment UPON THE MERITS 4. Between the two cases: IDENTITY OF PARTIES IDENTITY OF SUBJECT MATTER IDENTITY OF CAUSE OF ACTION THERE IS IDENTITY OF CAUSE OF ACTION when the two actions are based on the same delict or wrong committed by the defendant even if the remedies are different. Under the doctrine of res judicata, no matter how erroneous a judgment may be, once it becomes final, it cannot be

IN

REMEDIAL LAW

corrected. The only grounds are lack of jurisdiction, collusion or fraud. Par. (C) is known as “conclusiveness of judgment” or rule of AUTER ACTION PENDENT CONCLUSIVENESS Appeal decision of MTC by filing notice of OF JUDGMENT appeal and pay appellate court docket • has the effect fee in the same MTC within 15 days from of preclusion receipt of judgment only of issues. • parties in both actions may be the same but the 15 days from perfection of appeal, causes of action MTC clerk transmits record to RTC are different. Notice to partiesOF that an appeal is being BAR BY FORMER CONCLUSIVENESS taken from the decision of MTC JUDGMENT JUDGMENT

There is identity of There is ONLY identity of parties, subject PARTIES AND SUBJECT Within 15 days from notice of appeal: matter and causes MATTER  appellant submits memorandum to of action

the RTC  appellee files his own memorandum The first15judgment days from isreceipt of appellants conclusive only as to memorandum

The first judgment constitutes as an ABSOLUTE BAR TO matters directly adjudged ALL MATTERS and actually litigated in directly adjudged the first action. Second uncontested, and those that actionIf can be prosecuted. Any party may judgment is appeal by filing a might have been entered in the petition for adjudged. book of entries review with the RTC

Section 48. Effect Of Foreign Judgment Or Final Orders: THE EFFECT OF FOREIGN JUDGMENTS Provided that the foreign tribunal had jurisdiction: 1. IN CASE OF JUDGMENT AGAINST A SPECIFIC THING, the judgment is CONCLUSIVE upon the TITLE TO THE THING; 2. IN CASE OF A JUDGMENT AGAINST A PERSON, the judgment is PRESUMPTIVE EVIDENCE of a right as between the parties and their successorsin-interest by a subsequent title.

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

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In both instances, the judgment may be repelled by evidence of want of jurisdiction, notice, collusion, fraud or clear mistake of law or fact. RULE 40 APPEAL FROM MUNICIPAL TRIAL COURTS TO THE REGIONAL TRIAL COURTS APPEAL FROM MTC TO RTC

ORDINARY APPEAL - an appeal by notice of appeal from a judgment or final order of a lower court on questions of fact and law. APPEAL TO THE RTC • Mode of Appeal – Notice of Appeal within fifteen (15) days from receipt of decision. • After an appeal to the RTC has been perfected, the MTC loses its jurisdiction over the case and any motion for the execution of the judgment should be filed with the RTC. • The Summary Rules no longer apply when the cases is on appeal.

2. The notice of appeal must indicate: a. parties b. judgment or final order appealed from c. material date showing timeliness of appeal 3. A copy served on the adverse party. 4. Payment in full of docket fees and other lawful fees

ORDINARY APPEAL

PETITION FOR REVIEW

Matter of right All the records are elevated from the court of origin Notice of record on appeal is filed with the court of origin

Discretionary No records are elevated unless the court decrees it Filed with the CA

By Record on appeal: 1. for special proceedings such as probate; and 2. in such other cases where multiple appeals are allowed as in partition and in expropriation.

Section 2. When to Appeal. 1. Within 15 days after notice of judgment or final order; 2. Where a record on appeal is required, within 30 days from notice of judgment or final order by filing a notice of appeal and a record on appeal; 3. Period to appeal shall be interrupted by a timely motion for new trial or reconsideration. 4. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.

Section 4. Perfection of Appeal; effect thereof.

Section 3. How to Appeal. By Notice of Appeal: 1. File a notice of appeal with the trial court.

Residual power of the court prior to the transmittal of the original record or record on appeal:

Appeal is deemed perfected: 1. by notice of appeal: as to him, upon the filing of the notice of appeal in due time; 2. by record on appeal: as to him, upon the approval of the record on appeal filed in due time. Effect of a perfected appeal: The court loses jurisdiction upon the perfection or approval of appeal and when the period of appeal for other parties expire.

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 62

MEMORY AID 1.

2. 3. 4.

5.

to issue orders for the preservation of the rights of the parties which do not involve matters litigated by appeal; to approve compromise prior to the transmittal of the record; permit appeal by an indigent; order execution pending appeal under Rule 39, Sec.2 ( motion for execution was filed before the expiration of the period to appeal; allow withdrawal of the appeal.

NON APPEALABLE CASES 1. 2. 3.

5. 6.

If lower court dismissed case without trial on the merits: RTC may: 1. Affirm, or 2. Reverse, in which case, it shall remand the case for further proceedings. If dismissal is due to lack of jurisdiction over the subject matter: RTC may: 1. Affirm; if RTC has jurisdiction, shall try the case on the merits as if the case was originally filed with it, or 2. Reverse, in which case, it remand the case for further proceedings. If the case was tried on the merits by the lower court without jurisdiction over the subject matter: RTC shall not dismiss the case if it has original jurisdiction, but shall decide the case, and shall admit amended pleadings or additional evidence. RULE 41 APPEAL FROM REGIONAL TRIAL COURTS

REMEDIAL LAW

APPEALABLE CASES 1. Judgments or final orders that completely disposes of the case. 2. A particular matter in a judgment declared by the Rules to be appealable.

4.

Section 8. Appeal from orders dismissing case without trial; lack of jurisdiction

IN

Order dismissing an action without prejudice Order of Execution Judgments or final orders for or against one or more of several parties or in separate claims while the main case is pending Orders disallowing or dismissing an Appeal Interlocutory orders Orders denying: a. Petition for relief; b. Motion for new trial or reconsideration; and c. Motion to Set aside a judgment, by consent, confession or compromise on the ground of fraud, mistake, duress or any ground vitiating consent.

Remedy in cases where appeal is not allowed Special civil action of certiorari or prohibition if there is lack or excess of jurisdiction or grave abuse of discretion or mandamus if there is no performance of duty. INTERLOCUTORY ORDER – An order which does not dispose of the case but leave something else to be done by the trial court on the merits of the case. A judgment based on compromise is not appealable and is immediately executory. Section 2. Modes of appeal. Ordinary Petition for appeal review (appeal by writ [Rule 42] of error)

Petition for review on certiorari [Rule 45]

Case is decided Case is by the RTC in decided by its original the MTC. jurisdiction Appealed to Appealed to the the RTC.

The case raises only a question of law

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

2005 CENTRALIZED BAR OPERATIONS

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CA

5. submit the record for approval with notice on the adverse party

Petition for review with the CA

File a notice of File a verified appeal or a petition for record on review with appeal with the the CA. Pay court of origin the docket (RTC) and give and lawful a copy to the fees, and P adverse party. 500 as deposit for costs with the CA. Furnish RTC and adverse party copy of such (R 42).

File a verified petition for review on certiorari with the SC (R 45) Pay docket and lawful fees and P 500 for costs. Submit proof of service of a copy to the lower court and adverse party.

Within 15 days Within 15 days Within 15 from the notice from notice of days from of the judgment the decision notice of the for notice of to be judgment or appeal and reviewed or order or within 30 days from the denial of the for records on denial of a MR MR or new appeal. The or new trial. trial. period for filing is interrupted by a timely motion for reconsideration or new trial.

Section 7. Approval of record on appeal. Procedure if the appeal is through a record on appeal 1. file record on appeal 2. appellee may file an objection within 5 days from his receipt thereof 3. if there is no objection the court may: • approve it as presented; OR • direct its amendment on its own or upon the motion of the adverse party 4. if an amendment is ordered the appellant must redraft the record within the time ordered or if there is no time, within 10 days from receipt

The period to appeal is MANDATORY and JURISDICTIONAL. Failure to appeal on time makes the decision final and executory and deprives the appellate court of jurisdiction. However in few instances the court has allowed due course to such appeals on strong and compelling reasons of justice.

RULE 42 PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS Petition for review is not a matter of right but discretionary on the CA. It may only give due course to the petition if it shows on its face that the lower court has committed an error of fact and/or law that will warrant a reversal or modification of the decision or judgment sought to be reviewed; OR dismiss the petition if it finds that it is patently without merit, or prosecuted manifestly for delay, or the questions raised therein are too unsubstantial to require consideration. It is merely discretionary on the CA to order the elevation of the records. This is because until the petition is given due course, the trial court may still issue a warrant of execution pending appeal and in some cases such as ejectment and those of Summary Procedure, the judgments are immediately executory. It is only when the CA deems it necessary that the Clerk of the RTC will be ordered to elevate the records of the case. RULE 43 APPEALS FROM THE COURT OF TAX APPEALS AND THE QUASI-JUDICIAL AGENCIES TO THE CA

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 64

MEMORY AID Judgments and final orders or resolutions of the NLRC are reviewable by the COURT OF APPEALS in an original action for certiorari under Rule 65 (St. Martin Funeral Home vs. NLRC, Sept. 16, 1998). A party adversely affected by a decision or ruling of the CTA en banc may file with the Supreme Court a verified petition for review on certiorari pursuant to Rule 45 (Sec. 12, RA 9282).

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Ordinary appeals

Certiorari, Prohibition, Mandamus, Quo Warranto and Habeas Corpus cases

Filed within 45 days

within 30 days

Contents specified by Rules

Shorter, briefer, only one issue involved - no subject index or assignment of errors just facts and law applicable

RULE 44 ORDINARY APPEALED CASES Section 9. Appellant’s reply brief. Failure to file appellant's brief on time is a ground for dismissal of the appeal. If a motion to dismiss an appeal has been filed, it suspends the running of the period for filing the appellant brief, as the same would be unnecessary should the motion be granted. The failure of the appellant to make specific assignment of errors in his brief or page references to the record as required in this section is a ground for dismissal of his appeal.

RULE 45 APPEAL BY CERTIORARI TO THE SUPREME COURT

RTC, Sandiganbayan or CA renders decision

Any party files a petition for review on certiorari w/in 15 days from notice of final judgment or order of lower court or notice of denial of motion for reconsideration or new trial

Section 15. Questions that may be raised on appeal.

Appellant serves copies of petition on adverse parties and to the lower court, and pay the corresponding docket fees

The appeal can raise only questions of law or fact that 1. were raised in the court below; and 2. are within the issues framed by the parties thereon.

SC may dismiss the petition or require the appellee to comment

BRIEF vs. MEMORANDUM

BRIEF

MEMORANDUM

Section 1. with Supreme

Filing of petition Court

If given due course, parties may submit memoranda

SC may affirm, reverse, or modify judgment of the lower court

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

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Appeals to the SC can be taken from a judgment or final order or resolution of the CA, the Sandiganbayan, the RTC or such other courts as maybe authorized by law and only by verified petition for review on certiorari on questions of law except only in appeals from judgments of the RTC in criminal cases wherein the penalty imposed is life imprisonment or reclusion perpetua which shall be elevated by ordinary appeal, or wherein the death penalty is imposed which is subject to automatic review.

GENERAL RULE: the findings of fact of the CA are final and conclusive and cannot be reviewed on appeal to the SC. EXCEPTIONS to CONCLUSIVENESS OF FACTS: 1. When the finding is grounded entirely on speculations, surmise or conjecture; 2. When inference made is manifestly absurd, mistaken or impossible; 3. When the judgment is premised on a misrepresentation of facts; 4. When there is grave abuse of discretion in the appreciation of facts; 5. When the findings of fact are conflicting; 6. When the CA in making its findings went beyond the issues of the case and the same is contrary to both the admissions of appellants and appellees; 7. When the findings of fact of the CA are at variance with those of the trial court, the SC has to review the evidence in order to arrive at the correct findings based on the record; 8. When the findings of fact are conclusions without citation of specific evidence on which they are based; 9. When the facts set forth in the petition as well as in the

petitioner’s main and reply briefs are not disputed by the respondents; 10. The findings of fact of the CA is premised on the supposed evidence and is contradicted by the evidence on record; 11. When certain material facts and circumstances have been overlooked by the trial court which, if taken into account, would alter the result of the case in that they would entitle the accused to acquittal.

QUESTIONS OF LAW

QUESTIONS OF FACT

doubt or controversy as to what the law is on certain facts

doubt or difference arises as to the truth or falsehood of facts, or as to probative value of the evidence presented

if the appellate court the determination can determine the involves evaluation or issue raised without review of evidence reviewing or evaluating the evidence Can involve questions query invites the of interpretation of calibration of the the law with respect whole evidence to certain set of facts considering mainly the credibility of witnesses, existence and relevancy of specific surrounding circumstances and relation to each other and the whole probabilities of the situation

Certiorari under Rule 45 vs. certiorari under Rule 64/65 ( special civil action)

CERTIORARI UNDER CERTIORARI UNDER RULE 45 RULE 64/65

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 66

MEMORY AID petition is based on questions of law

It is a mode of appeal

petition raises the issue as to whether the lower court acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion Special civil action

Involves the review of Directed against an the judgment award interlocutory order of or final order on the the court or where merits there is no appeal or any other plain, speedy or adequate remedy Must be made within filed not later than 60 the reglementary days from notice of period judgment, order or resolution appealed from Stays the judgment or Unless a writ of order appealed from preliminary injunction or temporary restraining order is issued does not stay the challenged proceeding The petitioner and the The parties are the respondent are the aggrieved party original parties to the against the lower action, and the lower court or quasi-judicial court or quasi-judicial agency and the agency is not prevailing parties impleaded Motion for Motion for reconsideration is not reconsideration or for required new trial is required If a motion for reconsideration or new trial is filed, the period shall not only be interrupted but another 60 days shall be given to the petitioner ( SC Admin. Matter 002-03 ) The court is in the exercise of its appellate jurisdiction and power of review

Court exercises original jurisdiction

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RULE 46 ORIGINAL CASES Section 2. To what actions applicable. Under B.P. Blg. 129, the CA has original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus and quo warranto, and auxiliary writs or processes, whether or not they are in aid of its appellate jurisdiction, and it has exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts.

Section 4. Jurisdiction over person, how acquired. JURISDICTION IS ACQUIRED: 1. Over the PETITIONER - by filing of the petition. 2. Over the RESPONDENT - by the service on the latter of the order or resolution indicating the courts initial action on the petition and NOT by the service on him of the petition or by his voluntary submission. Section 5. Action by the court. PROCEDURAL OUTLINE (original cases in the Court of Appeals) 1. Filing of the petition 2. Order to acquire jurisdiction over respondents OR Outright dismissal for failure to comply to requirements also form and payment of docket and other legal fees. 3. Require respondents to file COMMENT within 10 days from NOTICE 4. Court may require the filing of a REPLY or such other pleadings as it may deem necessary 5. Determination of FACTUAL ISSUES, the court may delegate the reception of evidence on such issues to any of its members.

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

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RULE 47 ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS Annulment of judgment is a remedy in law independent of the case where the judgment sought to be annulled was rendered and may be availed of though the judgment has been executed. One important condition for the availment of this remedy - the petitioner failed to move for new trial in, or appeal from, or file a petition for relief against, or take other appropriate remedies assailing the questioned judgment or final order or resolution through no fault attributable to him. If he failed to avail of those other remedies without sufficient justification, he cannot resort to annulment provided in this Rule, otherwise he would benefit from his own inaction or negligence. Grounds for ANNULMENT OF JUDGMENT 1. extrinsic fraud or collateral fraud; 2. lack of jurisdiction; Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for relief. EXTRINSIC OR COLLATERAL FRAUD is any fraudulent act of the prevailing party in the litigation which is committed outside of the trial of the case, whereby the defeated party has been prevented from exhibiting fully and fairly presenting his side of the case.

EXTRINSIC FRAUD Period of Filing action Effect of judgment

LACK OF JURISDICTION

4 years from Before it is barred discovery by laches or estoppel Trial court will try the case

Original action may be refiled

Section. 5. Action by the court. Two stages: 1. A preliminary evaluation of the petition for prima facie merit therein, and 2. The issuance of summons as in ordinary civil cases and such appropriate proceedings thereafter as contemplated in Sec. 6. The rule allows the CA to dismiss the petition outright as in special civil actions. For the court to acquire jurisdiction over the respondent, the rule requires the issuance of summons should prima facie merit be found in the petition and the same is given due course. RULE 48 PRELIMINARY CONFERENCE Section 3. Binding effect of the results of the conference In the CA, this procedural device may be availed of not only in original actions but also in cases on appeal wherein a new trial was granted on the ground of newly discovered evidence. The CA can act as a trier of facts, hence the preliminary conference authorized is a convenient adjunct to such power and function. RULE 49 ORAL ARGUMENT Section 3. No hearing or oral argument for motions Motions in the SC and the CA do not contain notices of hearing as no oral arguments will be heard in support thereof; and if the appellate court desires to hold a hearing thereon, it will itself set the date with notice to the parties. RULE 50 DISMISSAL OF APPEAL Section 1. Grounds for dismissal of appeal

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 68

MEMORY AID With the exception of Section 1 (b) dismissal of an appeal is directory and not mandatory. Other grounds for the dismissal of an appeal are: 1. by agreement of the parties, as where the case was amicably settled by them. 2. where the appealed case has become moot or academic. 3. where the appeal is frivolous or dilatory. Section 2. Dismissal of improper appeal to the Court of Appeals No transfer of appeals, erroneously taken to it or to the Court of Appeals, whichever of these tribunals has appropriate appellate jurisdiction, will be allowed. Also, elevating such appeal by the wrong mode of appeal shall be a ground for dismissal. A resolution of the Court of Appeals dismissing the appeal and remanding the case to the trial court for further proceedings is merely interlocutory, hence a motion for its reconsideration filed year later may be entertained and granted Section 3. Withdrawal of Appeal Court of Appeals may dismiss the appeal outright even without motion. The remedy if dismissed for improper appeal is to refile it in the proper forum but has to be within the prescribed period. RULE 51 JUDGMENT Law of the Case – the opinion delivered on a former appeal. It means that whatever is once irrevocably established, as the controlling legal rule or decision between the same parties in the same case, continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts before the court.

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But this rule does not apply to resolutions rendered in connection with the case wherein no rationale has been expounded on the merits of that action. Section 5. Form of Decision The requirement for the statement of facts and the law refers to a decision or for that matter a final resolution. The same are not required on minute resolutions since these usually dispose of the case not on its merits but on procedural or technical considerations. Although the court may, if it feels necessary, briefly discuss the matter on the merits in an extended resolution.

With respect to petitions for review and motions for reconsideration, the Constitution merely requires a statement of the legal basis for the denial thereof or refusal of due course thereto. The court may opt, but it is not required to issue an extended resolution thereon. Section 6. HARMLESS ERROR The court, at every stage of the proceeding, must disregard any error or defect which does not affect the substantial rights of the parties such as error in admission or exclusion of evidence or error or defect in the ruling or order. Section 8. Questions that may be decided Only errors claimed and assigned by a party will be considered by the court, except errors affecting its jurisdiction over the subject matter. To this exception has now been added errors affecting the validity of the judgment appealed from or the proceedings therein. Even if the error complained of by a party is not expressly stated in his assignment of errors but the same is closely related to or dependent on an assigned error and properly argued in his

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

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brief such error may now be considered by the court. RULE 52 MOTION FOR RECONSIDERATION The rules now prohibit a second motion for reconsideration. Sec. 3 provides a time limit of 90 days for the resolution of a motion for reconsideration filed with the Court of Appeals from the date the same was submitted for resolution, which is normally the filing of the last pleading required by the rules of court or the expiration of such period. Rules now requires the service of the motion to the adverse party RULE 53 NEW TRIAL Filing of a motion for new trial is at any time after the perfection of the appeal from the decision of the lower court and before the Court of Appeals loses jurisdiction over the case The ground is newly discovered evidence which could not have been discovered prior to the trial in the court below by the exercise of due diligence and of such character as would probably alter the result. RULE 56 PROCEDURE IN THE SUPREME COURT A. ORIGINAL CASES Rule specifically states what cases may be originally filed with the Supreme Court 1. petition for certiorari, prohibition, mandamus, quo warranto, habeas corpus; 2. disciplinary proceedings against members of the judiciary and attorneys 3. cases affecting ambassadors, other public ministers and consuls B. APPEALED CASES Mode of Appeal

In criminal cases where the penalty imposed is death or reclusion perpetua, an appeal made to the Supreme Court is through a notice of appeal filed with the RTC in all other cases, an appeal made to the supreme court is through a petition for review on certiorari. PROVISIONAL REMEDIES Also known as ancillary or auxiliary remedies, are writs and processes available during the pendency of the action which may be resorted to by a litigant to preserve and protect certain rights and interests therein pending rendition, and for purposes of the ultimate effects, of a final judgment in the case.

The following are the provisional remedies provided for in the Rules of Court 1. Preliminary Attachment (Rule 57) 2. Preliminary Injunction (Rule 58) 3. Receivership (Rule 59) 4. Replevin (Rule 60) 5. Support Pendente Lite (Rule 61) PD 1818 prohibits the issuance of injunctive writs not only against government entities but also against any person or entity involved in the execution, implementation, and operation of government infrastructure projects. RULE 57 PRELIMINARY ATTACHMENT The proper party may have the property of the adverse party attached at the commencement of the action or at any time before entry of judgment. WHEN issued 1. In actions for recovery of a specified sum of money or damages, except moral and exemplary, on a cause of action arising from law, contract,

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 70

MEMORY AID quasi-contract, delict or quasidelict against a party about to depart from the Phils. with intent to defraud his creditors; 2. In actions for recovery of money or property embezzled or fraudulently converted to his own use by a public officer, or an officer of a corp., or an attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any person in a fiduciary capacity; 3. In actions to recover property unjustly taken or concealed, when the property or any of its part, has been concealed or disposed of to prevent its being found by the applicant or any authorized person; 4. In actions against a person guilty of fraud in incurring or performing an obligation upon which the action is based; 5. In actions against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; 6. In actions against non-residents not found in the Phils., or on whom summons is served by publication. RULE 58 PRELIMINARY INJUNCTION Preliminary Injunction – an order granted at any stage of an action or proceeding prior to the judgment requiring a party or a court, agency or a person to refrain from a particular act or acts. PRELIMINARY MANDATORY Injunction – an order requiring the performance of a particular act or acts. Grounds

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1. applicant is entitled to the relief demanded; or 2. commission, continuance or nonperformance of the act complained of would work injustice to the applicant if not enjoined; or 3. the acts sought to be enjoined probably violates the rights of the applicant respecting the subject of the action and tending to render the judgment ineffectual. Section 5. There must be prior notice to the person sought to be enjoined and a hearing before preliminary injunction may be granted. If great or irreparable injury would result to the applicant, the court may issue ex parte a temporary restraining order, effective only for 20 days from service on the party sought to be enjoined. If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the judge may issue a TRO effective only for 72 hours from issuance. Its effectivity may be extended after conducting a summary hearing w/in the 72-hrs period until the application for preliminary injunction can be heard. The total period of effectivity of the TRO shall not exceed 20 days, including the 72 hours. If application is denied or not resolved within said period, the TRO is deemed automatically vacated. Effectivity of TRO is not extendible. There is no need of a judicial declaration to that effect. A TRO issued by the CA or any of its members is effective for 60 days from service on the party sought to be enjoined.

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

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A TRO issued by the SC or a member therof is effective until further orders. GROUNDS FOR OBJECTION 1. insufficiency; 2. if injunction would cause irreparable damage to the person enjoined while the applicant can be fully compensated for such damages, PROVIDED the former files a BOND. Distinctions INJUNCTION

PROHIBITION

directed against a party in the action

Directed against a court, tribunal or a person exercising judicial powers Based on the ground that the court against whom the writ is sought had acted without or in excess of jurisdiction

does not involve jurisdiction of the court

it may be the main action itself or just a provisional remedy

Always the main action

RULE 59 RECEIVERSHIP WHEN MAY BE GRANTED 1. applicant has an interest in the property or fund subject of the proceeding and such property is in danger of being lost or materially injured unless a receiver is appointed; 2. in foreclosure of mortgage, when the property is in danger of being wasted or dissipated and that its value is probably insufficient to discharge the mortgage debt or that it has been agreed upon by the parties; 3. after judgment, to preserve the property during the pendency of an appeal or to dispose of it accdg. to the judgment or to aid execution;

4. when appointment of receiver is the most convenient and feasible means of preserving, administering or disposing of the property in litigation. A person who refuses or neglects to deliver property within his control and which is the subject of the action to the receiver may be punished for contempt and liable to the receiver for the money or the value of the property PLUS damages. The receiver shall also file a bond before entering upon his duties separate from the bond filed by the applicant. RULE 60 REPLEVIN The sheriff shall retain the property for 5 days. Within such period, the adverse party may object to the sufficiency of the applicant’s bond or surety or he may file a counter-bond. After 5 days and the adverse party failed to object or his counter-bond is insufficient, the sheriff shall deliver the property to the applicant. Distinctions REPLEVIN

ATTACHMENT

May be sought only when the principal action is recovery of personal property.

Available even if recovery of property is only incidental to the relief sought.

Can be sought only when May be resorted to even defendant is in actual if the property is in possession of the possession of a third property. person. CANNOT be availed of Can be AVAILED of even when property is in if property is in custodia legis CUSTODIA LEGIS. Available before defendant answers

Available from commencement but before entry of judgment

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 72

MEMORY AID Bond is DOUBLE the value of the property

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Bond is FIXED by the court

RULE 61 SUPPORT ‘PENDENTE LITE’ When may be applied for: at the commencement of the action or at any time before judgment or final order. Failure to comply with an order granting support pendente lite may warrant the issuance of an order of execution against the non-complying party. He may likewise be liable for contempt. See matrix on provisional remedies more detailed information.

REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)