[2016] Civil Procedure - Jara Notes (Updated)

2013 LECTURE BY DEAN JARA ABRIDGEMENT

JURISDICTION IN GENERAL

The rules of Civil Procedure does not apply in the civil aspect in a criminal case. Although the criminal action carries the civil aspect of the case, with regard to the civil aspect of the case, we usually do not apply the rules for civil procedure. Example; The accused in a criminal case do not need to enter another plea of not guilty with regards to the civil aspect of the case. It is enough that he pleads not guilty. In a criminal case, the plea of [not] guilty is not considered a specific denial if we apply the rules on civil cases because the court cannot compel the accused to explain why he is entering such plea. That criminal case which carries with it the civil aspect will always be governed by criminal procedure, not by civil procedure. Quantum of Evidence You learned in criminal procedure that the guilt of the accused shall be demonstrated by proof beyond reasonable doubt. But in so far as the civil aspect of the case is concerned, the quantum should only be preponderance of evidence. The accused may be acquitted of the crime but he can be held civilly liable because the quantum of evidence used, in so far as the civil aspect, is not proof beyond reasonable doubt but only preponderance of evidence. Laws Governing Jurisdiction of Courts 1. Constitution; 2. Judiciary Act of 1948 – that is R.A. 296; 3. B.P. 129 – the Judiciary Reorganization Act and its amendments; 4. R.A. 8369 (1997)– An Act establishing the Family Courts; 5. P.D. 1606 (1978) – The law creating Sandiganbayan; The general law on jurisdiction in our country is B.P. 129. All other laws are special laws governing jurisdiction. So that if you find the conflict between B.P. 129 and the special law on jurisdiction, we just apply the rule on statutory construction: the special law prevails over the general law. Example; Sec. 19 (7) of B.P. 129[1] states that a Regional Trial Court exercises exclusive original jurisdiction over the Juvenile and Domestic Relations Court. However, the Family Court law, which is a special law, provides that a Family Court has exclusive original jurisdiction over cases involving marriage, adoption, guardianship of minors[2] and criminal cases and civil cases that involve a minor. [3] However, since the law creating the Family Court is a special law, its provisions will prevail over that of B.P. 129. 1 (7) In all civil actions and special proceedings falling within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Courts of Agrarian Relations as now provided by law; and 2 R.A. 8369 Sec. 5 (b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter; 3 R.A. 8369 Sec. 5 (a) R.A. 8369 Sec. 5 (b) Criminal cases where one or more of the accused is below eighteen (18) years of age but not less than nine (9) years of age but not less than nine (9) years of age or where one or more of the victims is a minor

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Q: Did B.P. 129 repeal the Judiciary Act of 1948? A: NO. What is repealed by B.P. 129, in so far as the old Judiciary Act is concerned, are provisions of the Judiciary Act of 1948 which are inconsistent with B.P. 129. If you read the last part of Sec. 9(3)[1] of B.P. 129, it says that the Court of Appeals exercises appellate jurisdiction over cases decided by the Regional Trial Court or quasi-judicial bodies in said laws that are assigned to the Supreme Court under the provisions of the Judiciary Act of 1948. That’s the best proof that the Judiciary Act of 1948 is still in force. It is expressly recognized as existing up to the present by the provisions of B.P. 129. Kinds of Jurisdiction The following are the aspects of Jurisdiction; 1. Subject Matter; 2. The person of the litigants; 3. The property involved; 4. Issue of the case; Jurisdiction NOT Necessarily Substantial Law. What is governed by substantive law, in so far as jurisdiction is concerned, is jurisdiction over the subject matter and over the nature of the case. This is the aspect of jurisdiction that is governed by B.P. 129 and the other substantive laws on jurisdiction. On the other hand, Jurisdiction over the (1) person of the litigants, (2) the property involved, (3) Issue of the case, is not governed by B.P. 129 but by the Rules of Court. JURISDICTION OF THE SUPREME COURT Jurisdiction of the Supreme Court is vested by the Constitution itself and not by any other law such as B.P. 129. 2 kinds of Jurisdiction of Supreme Court according to the Constitution. The Constitution classifies the jurisdiction of the Supreme Court only into 2 kinds; 1. Original jurisdiction; 2. Appellate jurisdiction; N.B. But the Constitution does not say that the original jurisdiction of the Supreme Court is exclusive – it’s just plain original. The Constitution does not also tell us that the appellate jurisdiction of the Supreme Court is exclusive appellate – just appellate. Jurisdiction of the Supreme Court The Supreme Court shall exercise original jurisdiction over cases affecting (1)ambassadors, other public ministers and consuls, and (2) over petitions for certiorari, prohibition, mandamus, quo warranto, and (3) habeas corpus.[2]

at the time of the commission of the offense: Provided, That if the minor is found guilty, the court shall promulgate sentence and ascertain any civil liability which the accused may have incurred. 1 Exclusive appellate jurisdiction over all final judgments, resolutions, orders or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commission, including the Securities and Exchange Commission, the Social Security Commission, the Employees Compensation Commission and the Civil Service Commission, Except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the Labor Code of the Philippines under Presidential Decree No. 442, as amended, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph 4 of the fourth paragraph of Section 17 of the Judiciary Act of 1948. 2 Sec. 5(1), Article VIII, 1987 Constitution. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT The same authority is given by B.P. 129 to other courts like the Court of Appeals [1],the Regional Trial Court [2]. Q: Considering that 3 courts may exercise original jurisdiction over these petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus, can a person whose right is violated file a petition for certiorari or prohibition or mandamus against any of these court according to his discretion? A: NO. The principle of Hierarchy of Courts limits the right of the petitioner to file a petition directly to the Supreme Court under Rule 65. Example: If an inferior court (a Municipal Trial Court or a Municipal Circuit Trial Court) gravely abuses its discretion amounting to lack of jurisdiction, and the aggrieved litigant decides to file a petition for certiorari or prohibition or mandamus, it must first file a petition for certiorari to the Regional Trial Court pursuant to Rule 65 Sec. 4.[3] Limited Jurisdiction The Supreme Court, although it is the Supreme Court, is not a court of general jurisdiction. It is still a court of limited jurisdiction as provided in the Constitution. JURISDICTION OF THE COURT OF APPEALS B.P. 129 classifies the jurisdiction of the Court of Appeals into; 1. Original and exclusive jurisdiction; 2. Original jurisdiction; 3. Exclusive appellate jurisdiction. There is only 1 case over which the Court of Appeal can exercise exclusive original jurisdiction and that is annulment of judgment of a Regional Trial Court. [4] Limited Jurisdiction The Jurisdiction of the Court of Appeals is limited to Sec. 9 of B.P. 129, in so far as exclusive original jurisdiction is concerned. Q: If the Court of Appeals is given the authority to annul the judgment of a Regional Trial Court, does it mean that the Court of Appeals can annul the judgment of an inferior court lower in rank than a Regional Trail Court? A: NO. Since the Court of Appeals since a court of limited jurisdiction, it can only annul the judgment of a Regional Trial Court and not the judgment of an inferior court. Annulment of Judgment of RTC Q: Who has the jurisdiction to annul the decision of an inferior court?

1 Sec. 9(1) of B.P. 129 Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction; 2 B.P. 129. Section 21. Original jurisdiction in other cases. – Regional Trial Courts shall exercise original jurisdiction: (1) In the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any part of their respective regions; and (2) In actions affecting ambassadors and other public ministers and consuls. 3 Rule 65 Section 4 (2). The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, unless otherwise provided by law or these Rules, the petition shall be filed in and cognizable only by the Court of Appeals. 4 Bp. 129, Sec. 9(2) Exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts;

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2013 LECTURE BY DEAN JARA ABRIDGEMENT A: Although B.P. 129 does not expressly mention it, the Regional Trial Court has the jurisdiction to annul judgments of the inferior courts. [1] Q: How can the RTC annul the judgment of the inferior courts if it was not expressly given the jurisdiction to do so under B.P. 129? A: Under B.P. 129, the Regional Trial Court was given a general jurisdiction to entertain and decide all kinds of actions which are not especially given to other courts. [2] Q: Can a Regional Trial court annul another decision by a regional trial court prior to B.P. 129? A:YES. Prior to B.P. 129, the Supreme Court held that the decision of a Regional trial Court may be annulled by another Regional Trial Court because they are a court of general jurisdiction. [3] In order to do away with the anomalous situation where an RTC is able to annul judgments rendered by another RTC, the Congress deemed it necessary to incorporate a provision in B.P. 129 giving exclusive authority to the CA to annul a judgment rendered by the RTC. Q: Can the Supreme Court annul a judgment of the Court of Appeals, given that the Supreme Court is the highest court of the land? A: NO. There is nothing provided in the Constitution which gives to the Supreme Court authority to annul a judgment of the Court of Appeals. However, it does not mean to say that the judgment of the Court of Appeals is immune from annulment. There could still be an annulment if the Supreme Court will exercise what we call its equity jurisdiction. Rule 65, most likely, could be a remedy in order to annul the judgment of the Court of Appeals based on the same grounds that are given in Rule 47. Q: can we not also seek the annulment of a judgment rendered by a quasi-judicial body or an administrative agency? A: NO. Annulment of judgment under B.P. 129, as procedurally explained by Rule 47, does extend to annulment of judgment of quasi-judicial bodies. There is no such thing as annulment of a judgment of a quasi-judicial body or an administrative body unless the law creating the quasi-judicial body or a chapter of that administrative body allows the petition to be filed for the annulment of these decisions of quasi-judicial bodies. Q: Can the judgment of a Regional Trial Court acting as a criminal court cannot be the subject of annulment under Rule 47? A: NO. Rule 47. Rule 47 is not a remedy to annul a judgment rendered by the RTC in the exercise of its jurisdiction as a criminal court. The decision of the Regional Trial Court must be in a civil case so that it can be the subject of annulment under B.P. 129, in relation to Rule 47. Q: How do you annul a decision of a Regional Trial Court in a criminal case? A: A decision of a Regional Trial Court in a criminal case can be annulled by filing a petition for habeas corpus which is the equivalent of annulment of judgment rendered by the RTC in a civil case.

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Rule 47, Sec. Section 10. Annulment of judgments or final orders of Municipal Trial Courts. — An action to annul a judgment or final order of a Municipal Trial Court shall be filed in the Regional Trial Court having jurisdiction over the former. It shall be treated as an ordinary civil action and sections 2, 3, 4, 7, 8 and 9 of this Rule shall be applicable thereto. (n) 2 B.P. 129, Sec. 19 (6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction or any court, tribunal, person or body exercising judicial or quasi-judicial functions; 3 Islamic D’wah v. CA (1989) Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Annulment under Rule 47 a direct attack on a final and executor judgment;

Principal relief is to have the decision declared null and void; Attacks the validity of judgment;

Petition for Habeas Corpus An indirect attack on the judgment of a Regional Trial Court in this criminal case; principal relief which the petitioner in habeas corpus seeks is to declare that the petitioner has been deprived of his liberty unlawfully; Attacks the validity of the deprivation of his liberty;

Q: Can the Trial Court deny a motion for execution of a final and executory judgment sought to be annulled under Rule 47? A: NO. Even if there is a petition to annul a judgment rendered by the Regional Trial Court, if that decision has become final and executory and it is not the subject of annulment of judgment, Rule 47 is not a justification for the trial court not to execute its final and executor judgment. The only remedy available to a petitioner in annulment of judgment before the Court of Appeals to stop execution is to apply for a provisional remedy of preliminary injunction or temporary restraining order. Q: Is it correct to say that only the litigants before the Regional Trial Court can make us of annulment of judgment? A: NO. As contemplated in B.P. 129 and also as envisioned in Rule 47, a stranger is not prohibited from filing a petition to annul a judgment rendered by a Regional Trial Court although the petitioner may not have been a litigant in that particular case provided that he will be prejudiced by the execution of the decision sought to be annulled. Requirements for Annulment of judgment You will also notice that the requirements in Rule 47 before annulment of judgment can be properly commenced are very strict. The remedies for motion for new trial, that is, petition for relief and appeal, are no longer available through no fault of his own.[1] Q: If he has filed a motion for new trial and that motion is denied and he neglects to appeal, so the judgment becomes final and executory, can he now properly file a petition to annul the judgment? A: NO because his failure to appeal was through his own fault. He could just have appealed the judgment of the court. Let us say that the aggrieved party has failed to appeal, has failed to file a motion for new trial… and his failure to do so cannot be traced to his negligence or inexcusable conduct, can he now file a petition to annul the judgment in the Court of Appeals? A: Still NO because there is still an available remedy to challenge a final and executor judgment. And that is a petition for relief from judgment.

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Rule 47, Sec. 1 Section 1.Coverage. — This Rule shall govern the annulment by the Court of Appeals of judgments or final orders and resolutions in civil actions of Regional Trial Courts for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner. (n) Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Effects of Annulment of Judgment In Rule 47, if the judgment is annulled, then it is declared void by the court. So it can no longer be enforced or, if that judgment has already been executed, the Court of Appeals or the Regional Trial Court can order restitution of properties if that is still possible. Annulment of Judgment of MTC While the Court of Appeals has the authority to outrightly (motu proprio) dismiss a petition to annul judgment,[1] a Regional Trial Court cannot with regard to the judgment rendered by the MTC. In so far as the Regional Trial Court is concerned in a petition to annul a judgment rendered by an inferior court, that petition to annul should be treated just like any other case. So after of the filing of petition to annul, the Regional Trial Court will issue a summons and then, having served upon the respondents, let the respondents file the answer, and then file the case, and then render the decision. JURISDICTION OF THE REGIONAL TRIAL COURT The jurisdiction of a Regional Trial Court is founded on 3 factors; 1. Whether or not an action is incapable of pecuniary estimation;[2] 2. If the action is a real action – it involves title to or possession of real property; 3. If the amount is known, whether the amount is within the ambit of the jurisdictional amount; Incapable of Pecuniary Estimation. So if you come across of an action that is incapable of pecuniary estimation, then that action is cognizable by a Regional Trial Court. Q: Is it correct to say then that all actions incapable of pecuniary estimation are cognizable by a Regional Trial Court always? A: NO. There are several actions incapable of pecuniary estimation which are not exclusively cognizable by a Regional Trial Court such as; 1. Annulment of judgment - because B.P. 129 says that annulment of judgment rendered by a Regional Trial Court is cognizable only by the Court of Appeals;[3] 2. Annulment of an Arbitral award by a Barangay Court acting as an arbitral body is cognizable only by an inferior court;[4] 3. Certiorari, prohibition, and mandamus; Real Actions These are the actions involving title to or possession of real property such as; 1. Accion reinvindicatoria;[5] 2. Accion publiciana;[6] 1

Rule 47, Section 5. Action by the court. — Should the court find no substantial merit in the petition, the same may be dismissed outright with specific reasons for such dismissal. 2 B.P. 129, Chapter II, Section 19(1), In all civil actions in which the subject of the litigation is incapable of pecuniary estimation; 3 B.P. 129, Chapter I, Section 9(2), Exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts; and 4 R.A. 7160,Book III, Title I, Chapter VII, Section 416. Effect of Amicable Settlement and Arbitration Award. - The amicable settlement and arbitration award shall have the force and effect of a final judgment of a court upon the expiration of ten (10) days from the date thereof, unless repudiation of the settlement has been made or a petition to nullify the award has been filed before the proper city or municipal court. 5 Accion reivindicatoria or accion de reivindicacion is thus an action whereby plaintiff alleges ownership over a parcel of land and seeks recovery of its full possession. 6 Accion publiciana is a plenary action for recovery of possession in an ordinary civil proceeding, in order to determine the better and legal right to possess, independently of title. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT They are cognizable by a Regional Trial Court as long as the assessed value of the property is more than P20,000 outside Metro Manila or P50,000, within Metro Manila as the case may be. With respect to unlawful detainer and forcible entry – they are also actions involving possession of real property – then they are always cognizable exclusively by an inferior court, regardless of the assessed value of the property. Q: Is it possible that an action is a real action and at the same time one that is not capable of pecuniary estimation? A: YES. A good example is foreclosure of real estate mortgage. The foreclosure of a mortgage is constituted over real property is a real action. However, it is not capable of pecuniary estimation because the issue to be resolved is the right of the mortgagee to foreclose which is not capable of pecuniary estimation. Q: So What factor will be determinative in determining jurisdiction if an action is both a real action and one that is incapable of pecuniary estimation? A: The Supreme Court said that if an action carries the feature both of incapable of pecuniary estimation and a real action, the determinative factor is the feature of incapable of pecuniary estimation. Example; In Foreclosure of Real Estate Mortgage, even if the assessed value of the property sought to be foreclosed is only P1,000, the Jurisdiction will be with the Regional Trial Court. According to the Court, expropriation, although it could be a real action, is also an action that is not capable of pecuniary estimation.[1] Personal Actions When it comes to personal action under B.P. 129, the determining factor will be the amount sought to be recovered in cases of purely money claim and recovery of personal property according to the complaint. The determining factor in jurisdiction in a complaint for the recovery of money will only be the principal sought to be recovered excluding the following;[2] 1. Charges; 2. Interests; 3. Attorney’s fees; and 4. Damages; Example; If the total amount sought to be recovered by the plaintiff in his complaint against the defendant is P1,000,000 it could still be cognizable exclusively by an inferior court if the principal is only P200,000 but P800,000 represent interest, damages, costs, and other excluded items, that will be cognizable by an inferior court. That is now settled.

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Bgy. San Roque v. Heirs of Pastor (2000) B.P. 129, Chapter III, Sec. 33(3) Exclusive original jurisdiction in all civil actions which involve title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs: Provided, That in cases of land not declared for taxation purposes, the value of such property shall be determined by the assessed value of the adjacent lots. 2

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Supposing that the complaint is for the recovery of damages under the amendment to B.P. 129, we should exclude the item of damages. [1] Q: Supposing the complaint is purely for damages, and the plaintiff seeks to recover actual damages, moral damages, temperate damages, exemplary damages, etc., how will we now ascertain the jurisdiction of the court? A: When it comes to complaints purely for damages, the determining factor, in so far as jurisdiction of courts is concerned, is the aggregate amount of damages – the totality of the damages. [2] Example; Let us say that the plaintiff seeks to recover P100,000 actual damages, P500,000 moral damages, and then another P500,000 exemplary damages. The aggregate will be P1.1M but the complaint says that, principally, the plaintiff seeks to recover actual damages of P100,000. In this case the Regional Trial Court will have jurisdiction because it has authority to rule on the aggregate totality of all the damages claimed by the plaintiff. Q: With respect to recovery of personal property, for instance, the recovery of a car. Do we take into account the assessed value of the car in order to ascertain the jurisdiction of the court? A: NO. With respect to personal properties, the determining factor will be the value of the personal property according to the complaint and not the assessed value of that personal property. Example; In a complaint for the recovery of a car replevin for instance, If the plaintiff wants the case to be tried by the Regional Trial Court, all that he needs to do is state in his complaint is that the value of the car is P800,000 although it may not be true. Although it may be a false figure. Q: Supposing the defendant challenges the valuation given by the plaintiff in his complaint by telling the court that the car could not be worth P800,000 and the true value of the car is only P100,000 and the plaintiffs submit, does the RTC still have jurisdiction to decide the case? A: YES. By the Principle of Adherence to Jurisdiction, If a Regional Trial Court acquires jurisdiction over a complaint, it will continues to exercise jurisdiction over the case until it is finally decided, regardless of the finding of the court that the value of the car is only P100,000. The only means by which we can oust the court – the Regional Trial Court – of jurisdiction over the case is if Congress enacts a law saying that the jurisdiction of the court will not be based solely in the allegations in that complaint. Q: There is a complaint for a sum of money amounting to P150,000. The case was filed with the MTC. During the trial, the plaintiff presents evidence that he is entitled to P700,000. May MTC award the P700,000? A: NO. The award is more than the jurisdictional amount granted by law to inferior courts. The court cannot award the entire P700,000. Q: What should the plaintiff do in this case? A: He may waive the excess, but if he insists he should be awarded the entire P700,000, the decision of the MTC is null and void.

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B.P. 129 as amended by R.A. 7691. Chapter III, Sec. 33(3) Sante v. Claravall (2010)

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Courts of General Jurisdiction The Regional Trial Court shall exercise exclusive original jurisdiction over all action that are not especially assigned to any other court. [1] JURISDICTION OF THE METROPOLITAN TRIAL COURT With respect to MTCs, notwithstanding the expanded jurisdiction thereof, practically all cases decided by the RTC pertaining to personal property can also be decided by the MTC, depending only on the value of the property involved. However, the provision in BP 129 making the RTCs courts of general jurisdiction is not given to MTCs. Totality Test The totality test refers to all claims of causes of action that are embodied in 1 complaint, whether they pertain to the same or different parties or they arise out of the same or different transaction. [2] Q: What is the difference between the totality test in BP 129 and the totality test in the Rules of Court? A: The totality test in Rule 2, Section 5(d)[3] concerns causes of action for money as to the amount. The totality of the money claims shall be determinative of jurisdiction of courts. Delegated Jurisdiction In delegated jurisdiction, the inferior court acts as if it is a Regional Trial Court in deciding land registration and cadastral cases which are contested or which will not be contested; 1. Contested - the limitation is the value of the contested property which is P100,000.00; 2. Uncontested - the inferior court can act as a land registration court or cadastral court without any limitation; The decisions of the inferior courts acting as a land registration or cadastral court is appealable to the Court of Appeal, not to a Regional Trial Court.[4] Special Jurisdiction The authority of an inferior court to entertain a petition for habeas corpus refers to a situation where a petition for habeas corpus is filed with the proper court – usually a Regional Trial Court but there are no judges available to act on the petition. [5]

1 B.P. 129, Chapter II, Section 19(6)m In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction or any court, tribunal, person or body exercising judicial or quasi-judicial functions; 2 B.P. 129, Chapter III, Sec. 33 (1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not exceed One hundred thousand pesos (P100,000.00) or, in Metro Manila where such personal property, estate, or amount of the demand does not exceed Two hundred thousand pesos (P200,000.00) exclusive of interest damages of whatever kind, attorney's fees, litigation expenses, and costs, the amount of which must be specifically alleged: Provided, That where there are several claims or causes of action between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions; 3 (d)Where the claims in all the causes action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. (5a) 4 B.P. 129 as amended by R.A. 7691, Chapter III, Sec. 34, Delegated jurisdiction in cadastral and land registration cases. – Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts may be assigned by the Supreme Court to hear and determine cadastral or land registration cases covering lots where there is no controversy or opposition, or contested lots the where the value of which does not exceed One hundred thousand pesos (P100,000.00), such value to be ascertained by the affidavit of the claimant or by agreement of the respective claimants if there are more than one, or from the corresponding tax declaration of the real property. Their decisions in these cases shall be appealable in the same manner as decisions of the Regional Trial Courts. 5 B.P. 129, Chapter III, Sec. 35. Special jurisdiction in certain cases. – In the absence of all the Regional Trial Judges in a province or city, any Metropolitan Trial Judge, Municipal Trial Judge, Municipal Circuit Trial Judge may hear and decide petitions

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2013 LECTURE BY DEAN JARA ABRIDGEMENT That provision in B.P. 129 does not authorize the filing of a petition for habeas corpus directly with an inferior court. The petition for habeas corpus is still filed with the Regional Trial Court. A petition for habeas corpus filed directly with an inferior court can be challenged on jurisdictional grounds because B.P. 120 does not vest unto an inferior court an authority to entertain a petition for habeas corpus. RESIDUAL JURISDICTION Residual Jursidiction is the jurisdiction enjoyed by the trial court to act on certain matters even if the case is already on appeal. In Residual Jursidiction, the trial court continues to exercise jurisdiction over ceratin matters for a very limited period of time. And after the expiration of that period, absolute jursidiction over the case will now be assumed by the appellate court. PRIMARY JURISDICTION What happens in Primary Jurisdiction is that congress enacts a law which vests jurisdiction under the quasi judicial body to try and decided cases which are cognizable by regular courts under the provisions of BP 129. The reason why congress usually enacts these laws is that congress feels that the quasi judicial body is better equipped in order to decide disputes between the litigants. Example; The Housing and Land Use Regulatory Board (HLURB) is a quasi judicial body given original jurisdiction, in some cases exclusive original jurisdiction, to adjudicate cases of disputes between a subdivision buyer and a subdivision developer. --xXx--

for a writ of habeas corpus or applications for bail in criminal cases in the province or city where the absent Regional Trial Judges sit. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT GENERAL PROVISIONS ON RULES OF COURT RULE-MAKING POWER OF THE SUPREME COURT In analyzing the provisions of the 1997 Rules of Court you should always bear in mind the constitutional limits to the rule-making power of the SC; 1. The rules should be uniform in all courts of the same grade; 2. Provides for a speedy and inexpensive determination of the case; 3. Should not increase, decrease or modify substantive rights; The Rights of the Accused (Rule 115) There was one litigant who challenged the validity of Criminal Procedure alleging that it really speaks not about procedure but more of the rights of the accused. It modifies, increases or decreases the rights of the person given by substantive law. The SC denied the petition, saying that it is practically impossible for rules of procedure to be devised without incorporating certain provisions that are concerned with substantive law. The other justification given by the SC is the Civil Code likewise contains provisions which are not substantive in character. They are also procedural but that does not make Civil Code a procedural law, it’s still a substantive law. Example; In special proceedings like the settlement of estate of a deceased person there is a provision which states that when a person dies and then there is a settlement proceeding, the creditors for money arising from a contract should file their claims against the estate within a fixed period otherwise, under the rules, the claim of these creditors will be barred. If the deceased is a solidary debtor together with another one who is still alive, it is the duty of the creditor to file a claim against the estate for the recovery of the whole indebtedness. This violates the principle under the Civil Code which says that when there is solidary relationship between two debtors, the creditor is given by the Civil Code the authority to file a complaint against any one of the solidary debtors for the recovery of the whole indebtedness. In several cases which raised this issue, the Supreme Court said that the Civil Code provision saying that a creditor can file a complaint against any one of the solidary debtors will not be affected by the provision of the Rules of Court concerning the filing of claims. LIBERAL INTERPRETATION The purpose of a liberal interpretation[1] is to promote justice, to carry out the duty of the SC under the limitations given under the Constitution. These 1997 Rules of Court should be interpreted liberally according to the Rules, but the interpretation is not a liberal interpretation in favor of the plaintiff or in favor of the defendant. COMPLAINT The General Rule is that Civil Actions are always commenced by the filing of a complaint. However, certain civil actions such as Special Civil Actions are commenced by a Petition instead of a complaint.

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Rule 1, Section 6. Construction. — These Rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. (2a) Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Filing of a complaint by the plaintiff does not automatically will not necessarily vest the court jurisdiction over the person of the plaintiff. The court can examine whether or not the filing of the complaint is authorized by the plaintiff. If it is not authorized by the plaintiff, the court will not acquire jurisdiction over the plaintiff. The remedy of the plaintiff is to amend the complaint as a matter of right under Sec. 2, Rule 10 [1] provided that an answer has not yet been filed by the defendant. In so far as that new defendant is concerned, the date of the filing of the complaint will relate back to the date when the original complaint was filed unless a new cause of action is introduced in that complaint. --xXx--

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Rule 10, Section 2. Amendments as a matter of right. — A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served. (2a) Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT CIVIL ACTIONS (RULE 2) The classification of actions under the rules is very simple as; 1. Civil action; 2. Special civil action; 3. Criminal action; and 4. Special proceedings;[1] CAUSE OF ACTION (Sec. 2) A cause of action is defined as a violation by the defendant of a right belonging to the plaintiff.

[2]

However, for a cause of action to accrue, there is no need for the plaintiff to allege that the defendant violated a right. It is enough that a person sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. [3] SPLITTING A CAUSE OF ACTION (Sec.4) If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others. [4] Q: If there is just one wrongful act and there are several rights that are violated, how many causes of action will accrue? A: We must first determine whether these rights belong to the same person or to different persons. Example; “A” is driving his car negligently. As a result thereof, he causes damage and wrecks three cars, how many causes of action will accrue against the negligent driver? If the 3 cars belong to only one person, only one cause of action will accrue. In other words, the person owning the three cars cannot file an action in one complaint for damages involving the first car and another complaint for damages involving the second car and another for the third car. However, if these three cars belong to three different owners, the owner of the first car has his own cause the owner of the second has another cause and the owner of the third has his own cause of action. Q: Can the single owner of the three damage cars properly and rightfully go to court right away because his right has been violated by the wrongful act? A: NO. Procedural rules dictates that the complaint will be premature unless there is the fulfillment several condition precedents such as; 1. Prior Barangay Conciliation – if the case is covered by Circular on Barangay Conciliation; 2. An Arbitration Clause - the arbitration clause in contracts invariably provide that there is a breach of contract, the dispute should first undergo arbitration proceedings; 3. Non-forum shopping; [5] 1

Rule 1, Sec. 3 Rule 2, Section 2. Cause of action, defined. — A cause of action is the act or omission by which a party violates a right of another. (n) 3 Rule 1, Sec. 3(a) A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong 4 Rule 2, Sec. 4. 5 Rule 7 Section 5. Certification against forum shopping. — The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and 2

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2013 LECTURE BY DEAN JARA ABRIDGEMENT 4. Exhaustion of administrative remedies – provided for under Political Law; 5. Earnest efforts toward a compromise - for members of the same family, It must be shown earnest efforts toward a compromise must have been resorted to before going to court; If there is already a cause of action and these conditions are applicable, the general rule is for every cause of action the holder of the right can file one complaint. Example; Creditor is entitled to receive from the debtor 2 million pesos plus P200,000.00 for interest. The obligation has matured, but not yet paid. The creditor cannot file one complaint for the recovery of 2 million pesos before the RTC and one complaint for the recovery of 200,000.00 pesos in the MTC. The creditor should file the claim for the principal and interest in one complaint before the RTC. Sanctions for Splitting a Cause of Action In splitting a cause of action, the filing of one complaint could be used in order to dismiss the other by reason of; 1. Litis penencia; 2. Res judicata; 3. Forum shopping; It is now settled that if a party is guilty of splitting of causes of action, he is also guilty of forum shopping. Q: Why does the rule in the first place prohibit splitting? A: There is a likelihood that the different courts will be rendering conflicting decisions involving the same issue and parties and that will destroy the integrity of our judiciary. Q: Supposing that the plaintiff indeed splits his cause of action against the same defendant, but the defendant failed to ask for the dismissal of any one of the cases, can the court on its own order the dismissal of the existing cases? A: YES. Litis pendencia and res judicata are both not waivable defenses and the court, on their own (motu proprio), can order the cases pending before them. Dismissal is by reason of litis pendencia gives ground for the dismissal of only one case. Dismissal by reason of res judicata gives ground the dismissal of the remaining case. Example; Creditor filed a complaint for the recovery of 2 million pesos before the RTC and one complaint for the recovery of 200,000.00 pesos in the MTC. If a motion to dismiss is filed before the RTC in relation to the principal debt of 2 million, the P200,000.00 interest in the MTC is granted, the creditor may no longer file a claim for 2 million based on res judicata. The creditor should the claim for the principal and interest in one complaint filed before the RTC.

simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. (n) Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Q: Is there a remedy for the defendant to have the 2 pending cases dismissed? A: YES. Under Rule 7, if a plaintiff is guilty of forum shopping, the court can order the dismissal of all pending cases but the qualification is that the dismissal is without prejudice. It is well-settled that when a person violates the rule on splitting of cause of action he violates the rule on forum shopping. Collection of payments payable in installments If the obligation of the debtor is payable on installments, it is a rule that for each installment that becomes due and unpaid, one cause of action arises for that installment.[1] Example; If there are four installments of 500,000 each and the maturity differ, the creditor will have one cause of action upon the maturity of the first installment. However, the cause of action is for the recovery of the first installment in the amount of 500,000 only. The creditor cannot file a complaint for the 2 million because the other installments are not yet due. Acceleration Clause An acceleration clause in a contract provides that the non-payment of the first installment will cause the whole obligation to be due. If the first installment in a contract with an acceleration clause has become due and demandable, it produces a single cause of action and must be subject of a single complaint. Example; If the first installment worth 500,000.00 has become due and there is an acceleration clause, the creditor shall file only one complaint to recover 500,000. If the case is decided in his favor and judgment is entered, the creditor can no longer file another complaint for the recovery of the second installment. Rule on Anticipatory Breach In Anticipatory Breach of Contract, the creditor can file a case against the debtor to collect the entire obligation if the debtor manifests his intent not to fulfill his obligation. Blossoms v. Manila Gas (1930) Facts: Blossom & Co and Manila Gas Corporations entered into a contract obligating Manila Gas to deliver to Blossoms specified amounts of water gas tar from month to month for ten (10) years. The price would prevail only so long as the raw materials (coal and crude oil) used by the defendants should cost the same price as that prevailing at the time of the contract. Around 4 years from the execution of the contract, Manila Gas manifested to Blossoms that it no longer wants to comply with the contract. The CFI ruled in favor of Blossoms. Later, plaintiff filed another action for damages on the ground that the defendant breached the contract once more after refusal to perform its obligation under the same contract. Issue: Whether or not the plaintiff is barred from filing the second action for damages Ruling: YES. Even if the obligations are not yet due according to the contract, but the debtor has expressed formally his desire not to pay, then that is an anticipatory breach of contract from which creditor can file a case against the debtor to collect the entire obligation. This anticipatory breach should be formally pleaded in the complaint.

1

Larena v. Villanueva (1928)

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2013 LECTURE BY DEAN JARA ABRIDGEMENT No Cause of Action cannot be cured by Amendment A complaint whose cause of action has not yet accrued cannot be cured or remedied by an amended or supplemental pleading alleging the existence or accrual of a cause of action while the case is pending. Swagman Hotel v. CA (2005) Facts: Swagman Hotel obtained from Neal a loan payable after 3 years and with interest per annum payable every 3 months. Barely 2 years after, Neal sent a letter informing Swagman Hotel that he is terminating the loans and demanding that the total amount of the loan and unpaid interests be paid. Subsequently, Neal filed a complaint for sum of money and damages. Swagman answered that the complaint is dismissible for lack of cause of action since the loan is not yet due and demandable and that there was novation in the contract. But the RTC held in favor of Neal, holding that although there was no cause of action at the filing of the complaint, the debt has already matured during the days the hearings were held, thus amending the complaint in order to conform with the evidence in accordance with Rule 10 Sec. 5 cures the defect. Issue: W/N a complaint that lacks a cause of action at the time it was filed be cured by the accrual of a cause of action during the pendency of the case. Ruling: No. We do not apply amendment to conform to evidence if in the first place the plaintiff does not have a cause of action at the time of the filing of the complaint. So it is essential that a complaint must be filed after the cause of action has accrued. If there is no cause of action that has yet accrued and a complaint is filed, the court will have no authority to decide even if it matures and becomes defaulted during the trial of the case. JOINDER OF CAUSES OF ACTION (Sec.5) The Rules on Joinder[1] encourages a plaintiff to incorporate as many causes of action he may have against the same defendant, although his causes of action are totally unrelated to one another. This is allowed so long as the parties remain the same. Example; So a plaintiff can file a complaint against a defendant for accion reinvidicatoria, recovery of money arising from loan, and recovery of damages from quasi delict. Non-joinder of causes is always permissive. It is always at the option of the plaintiff. Limitations The limitations of joinder of causes can be summarized in three issues; 1. Issue of jurisdiction;[2] 2. Issue of venue;[3] and 3. Issue of joinder of parties;[4] Ada v. Baylon (2012) Facts: Plaintiff ADA filed a complaint against the defendant. The first cause of action of the complaint was for partition and the second cause of action was for recession of a donation. Both causes of action are cognizable by the RTC.

1 A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, 2 Rule 2, Section 5(b) The joinder shall not include special civil actions or actions governed by special rules; (d)Where the claims in all the causes action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. 3 Rule 2, Section 5 (c)Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein; and 4 (a)The party joining the causes of action shall comply with the rules on joinder of parties;

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Issue: Whether or not there is a misjoinder of cause of action. Ruling: Yes. The complaint for partition is a special civil action while rescission of donation is an ordinary civil action. They are governed by different procedure. So, here is indeed in this case misjoinder of causes of action. The defendant did not raise this assigned issue and the judge did not know any better. The rule of joinder of causes could be a ground for severance of one of the causes but if it is not raised timely and the trial court eventually decides the case, the decision of the trial court is binding as long as the trial court has jurisdiction over the misjoined causes. Q: Whether or not the court motu proprio apply the rule on misjoinder of causes by ordering the severance of one of the cases that is misjoinded? RULING: YES. On its own, if the court finds out that there is a misjoinder, the court is given the prerogative motu proprio to order the severance of cases. This is for the benefit of the court because of if the court will wait for the move from the defendant to raise misjoinder of causes, the court will find itself confused with the procedure that will follow. --xXx—

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2013 LECTURE BY DEAN JARA ABRIDGEMENT PARTIES TO CIVIL ACTIONS (RULE 3) PERMISSIVE JOINDER OF PARTIES (Sec.6) In permissive joinder of parties,[1] it envisions a situation where there are two or more plaintiffs, or two or more defendants or both, and the right to relief arises from the same transaction or a series of transactions and there is a common question of law or fact in so far as the defendants and the plaintiffs are concerned. Example; Facts: The owner of a tract of land discovered one morning that his property has been occupied forcibly or through intimidation or any other means and that they retained physical possession of this property about 10 or 11 informal settlers or squatters constructed their houses on that property. The owner of the land of course wanted to recover physical possession of the property. Issue: Should he file 11 complaints of forcible entry against each one of the informal settlers or squatters or can he file just one complaint against eleven defendants, eleven informal settlers, but in that complaint, he will allege eleven causes of action, each one cause of action against each one of the informal settlers? Ruling: The SC said the owner of the land has the option of choosing any one of these remedies. The owner of the land can file eleven complaints for forcible entry but each complaint must implead only one informal settler. He can also file just one complaint against eleven squatters but in that complaint, she should allege eleven causes of action. The last recourse will involve joinder of parties. There is just one complaint, against eleven squatters but in effect, in filing effectively, he can be filing eleven separate complaints, but there is only one complaint. COMPULSORY JOINDER OF INDISPENSIBLE PARTY (Sec. 7) In compulsory joinder of indispensable party, the definition of an indispensable party in the Rule is that it is a party without whom no final determination of a case can be had. [2] Without an indispensible party having been impleaded, the decision of the court is void, the proceedings of the court are void. Q: If an indispensable party is not impleaded, either as plaintiff or as a defendant, and the defendant files a motion to dismiss on that ground, will the court grant the motion to dismiss? A: NO. Sec. 11 in Rule 3 is very clear; non joinder or misjoinder of a party is not a ground for dismissal.[3] Q: Is it proper for a court to order the amendment of a complaint if the motion before the court is a motion to dismiss? Should not the court either grant or deny the motion to dismiss?

1 Rule 3, Section 6. Permissive joinder of parties. — All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest. 2 Rule 3, Section 7. Compulsory joinder of indispensable parties. — Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants. 3 Rule 3, Section 11. Misjoinder and non-joinder of parties. — Neither misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage the action and on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately. (11a)

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2013 LECTURE BY DEAN JARA ABRIDGEMENT A: There are three options given by Rule 16 to a court which is going to rule on a motion to dismiss; (1) deny the motion, (2) second is to grant the motion, and (3) order an amendment to the pleading.[1] The fourth alternative is Prior Barangay conciliation introduced by a circular.[2] So the motion to dismiss will not be granted instead, the court will tell the plaintiff: you amend your complaint by impleading the indispensable party. Q: If the plaintiff disobeys the order of the court directing him to implead an indispensable party, can the court do something about the disobedience of the plaintiff? A: The court can now order the dismissal of the case but the dismissal of the case under rule 17 on dismissal with prejudice which will be an adjudication upon the merits.[3] If that order of dismissal is finally entered, then there will be res judicata and the plaintiff will be barred from further pursuing his claim in another complaint. Q: Is there a difference between a dismissal under Rule 16 on that ground failure to state a cause of action and a dismissal under Rule 17 failure to obey the rules of court or a lawful order of the court? A: YES. Dismissal under Rule 16 due to failure to state a cause of action founded on failure to implead an indispensable party is a dismissal without prejudice. The plaintiff can file another complaint. Under Rule 17, Section 3, dismissal for failure of the party to obey a lawful of the court or failure of a party to obey the Rules of Court is a dismissal with prejudice, unless the court otherwise provides. NECESSARY PARTY (Sec. 8) A necessary party is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action.[4] The law does not require the plaintiff to implead a necessary party unlike in the case of indispensable party. NECESSARY PARTY V. INDISPENSIBLE PARTY The following distinguish whether a party is an indispensable party or necessary party. Example; Let’s say that the creditor lends 1M pesos to two debtors: Debtor 1 and Debtor 2. And then the obligation is defaulted. If the creditor files a complaint, should he implead debtor 1 and debtor 2? Or can he just file a complaint against debtor 1, leaving out in a complaint debtor 2. In other words, who between debtor 1 and debtor 2 is an indispensable party and who between debtor 1 and debtor 2 is a necessary party? In several cases decided by the court, the plaintiff should first evaluate whether the debtors are solidary debtors or they are only joint debtors. In the Civil Code, in the absence of any stipulation or some other factors given in the Code itself, when there are two or more debtors of the same indebtedness, the presumption is that they are only joint debtors.

1 Rule 16, Section 3. Resolution of Motion. — After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading 2 Administrative Circular 14-93. 3 Rule 17, Section 3. Dismissal due to fault of plaintiff. — If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court 4 Rule 3, Sec. 8

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Q: If we apply the presumption in the Civil Code that debtors 1 and 2 are joint debtors, and the creditor files a complaint for the recovery of the whole indebtedness of 1M pesos, do we consider debtor 1 and debtor 2 as indispensable parties? A: YES. If the purpose of the creditor is to recover the entirety of his claim that is 1M pesos, he can recover his credit from both joint debtors. Q: if the plaintiff, if the creditor decides to run after Debtor 1 only, can the complaint be prosecuted successfully? A: YES. The creditor has a cause of action against D1. The creditor has a right to compel Debtor 1 to pay. Q: how much can the creditor recover from Debtor 1? A: Debtor 1 is liable to pay only 500K pesos only. If the debtors are jointly liable it is not possible for the creditor to recover from only one of the joint debtors 1M pesos. He can recover only the portion of the obligation which has been shared by debtor 1. Q: Why do we say that in our example, the creditor can recover from d1 500K pesos? Why not 400? why not 800K pesos? A: The Civil Code provides that if there is no express stipulation between the parties, the debtors should share equally in the liability. In this example, debtor 1 is an indispensable party because without d1, it is then unlikely for the court to render a judgment in favor of the creditor. Q: Is debtor 2 considered as a necessary party in this complaint? A: YES. The presence of a necessary party is not indispensable and the case can proceed. However, the presence of a necessary party could be required by the court in order to give complete accord of relief to the parties in so far as the complaint is concerned. Q: What is the duty of the creditor or the plaintiff if he has not impleaded a necessary party? A: The duty of the plaintiff is only to tell the court that he has left out in his complaint a necessary party. That is enough. If the court orders the plaintiff-creditor to amend his complaint by including by impleading debtor 2 and the plaintiff-creditor ignores the order of the court, can the court order the dismissal of the complaint under Rule 17 because of the refusal of the plaintiff to obey a lawful order of the court? A: NO. If the plaintiff refuses to implead a necessary party, the sanction given will be under rule 3 which states that the plaintiff is deemed to have waived his right to recover from the necessary party. [1] Thus, if later on the plaintiff creditor decides to file a complaint against debtor 2, that complaint will no longer prosper. Debtor 2 can now make use of Rule 16, file a motion to dismiss on the ground that the claim has been paid, waived, abandoned or otherwise extinguished. [2] 1 Rule 3, Section 9.Non-joinder of necessary parties to be pleaded. — Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party. The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party. 2 Rule 16, Section 1. Grounds. — Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds: (h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished;

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2013 LECTURE BY DEAN JARA ABRIDGEMENT TRANSFER OF INTEREST DURING THE LITIGATION. (Sec. 19) Transfer of interest pendente lite and transfer of interest before the complaint is filed. Example; There is a creditor who has lent out 1M pesos to the debtor. The debtor defaults in the payment of the obligation. But before the creditor files a complaint against him, the creditor feels that he needs money right away. So he decides to sell his claim for only 700k pesos and assign his credit to an assignee. Can the creditor do that? A: YES. That is covered by the civil code.[1] That is what we call in civil law assignment of credit. Q: Suppose that in the example mentioned above, the indebtedness is already in default. Can the assignor, the original creditor file a complaint against the debtor for the recovery of 1M pesos? A: NO. By selling his right, the original creditor is no longer a real party in interest. If the original creditor files a complaint against the debtor, the court will dismiss the case. In the same proportion, if the assignee files a complaint against the debtor, the filing of the complaint will be proper because the assignee is now a real party in interest and he can recover the full amount of P1M form the debtor. Q: A Creditor lent P1M to the debtor. Upon default, the creditor files a complaint against the debtor for the recovery of 1M pesos. While the case is pending before the RTC, can the plaintiff-creditor assign his claim? If yes, does he need the permission of the court? A: The Creditor can assign his claim while the case is pending and he does not need permission from the court. Q: Will the assignee be considered as an indispensable party or a necessary party? A: NEITHER. The court has the option not to order the amendment of the complaint. The court can go ahead with the original parties to the case.[2] Q: Suppose that after the assignment, the assignee submitted a manifestation to the court and tells the court that during the pendency of the case, he acquired the rights of the plaintiff to recover 1M pesos for only 700K pesos. Can the defendant now tell the court: I am willing to pay 700K right away to the assignee but the complaint will have to be dismissed? A: YES. Under the civil code, you will read that is Art. 1634[3] of the civil code, the debtor in assignment pendente lite can compel the assignee to accept an amount, the amount paid for the consideration for the assignment for the full payment of the credit. That is the difference between assignment of a credit before a complaint is filed and assignment of credit while the case is pending before the court.

1 New

Civil Code, Article 1624. An assignment of creditors and other incorporeal rights shall be perfected in accordance with the provisions of article 1475. 2 Rule 3, Section 19.Transfer of interest. — In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. 3 New Civil Code, Article 1634. When a credit or other incorporeal right in litigation is sold, the debtor shall have a right to extinguish it by reimbursing the assignee for the price the latter paid therefor, the judicial costs incurred by him, and the interest on the price from the day on which the same was paid. A credit or other incorporeal right shall be considered in litigation from the time the complaint concerning the same is answered. The debtor may exercise his right within thirty days from the date the assignee demands payment from him. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT SPOUSES AS PARTIES (Sec. 4) Rule 3 is very clear in saying that in all actions, the husband and the wife must be joined together [1] except as provided by law. Exceptions Seeing as the rule itself does not provide for the exceptions. So the rule compels us to look for an exception, either from procedural law or from substantive law; In the family code, the property relationship between the husband and wife is covered by conjugal partnership of gains or absolute community of partnership and the husband and wife are treated as coowners. Example; The husband is in the retail business, and then a customer of the husband’s business defaults in the payment of an obligation, the husband can file the case without including his wife as a co-plaintiff. Supreme Court said it’s not necessary to include the wife because the law on co-ownership, the law on partnership allows a co-owner a sole co-owner to file a case in order to protect the interest of the coownership without impleading the other co-owners. However, the husband should see to it that in that complaint, he is admitting that he is simply acting as a co-owner of the property. Otherwise, the husband should implead the wife. Q: So if we allow the husband alone to file a complaint, do we consider the wife as an indispensable party? A: NO. The wife will not be considered an indispensable party because the law authorizes the husband alone or the wife alone to file the complaint. Q: Is the spouse who was left out considered a necessary party? A: NO. The spouse who has been left behind not even considered a necessary party because there could be a complete determination of the case even without joining the absent spouse. CLASS SUIT (Sec. 12) In a class suit,[2] the requirement is that there is a community of interest. In a class suit, the law does not require that all the members of the class should be impleaded as plaintiff or as defendants as the case may be. What the rule requires is only a number enough to represent the members of a class should act as plaintiff or should act as defendant as the case may be. But the most important feature in a class suit is of course community of interest. The interest of one member will also be the interest of the rest of the members. If you’ve read the case of Oposa vs. Factoran, that is an example of a class suit. Under the circular on Kalikasan, there is the section called citizen suit, which allows the propriety of a person filing a case, a Kalikasan case on behalf of persons who are yet unborn. Oposa v. Factoran (1993) A person files a complaint on behalf of children who are yet unborn. The reason given by the court in oposa is that this is allowed because of the principle of intergenerational ethic responsibility. 1

Rule 3, Section 4. Spouses as parties. — Husband and wife shall sue or be sued jointly, except as provided by law. Rule 3, Section 12. Class suit. — When the subject matter of the controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest. 2

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2013 LECTURE BY DEAN JARA ABRIDGEMENT From a procedural point of view, that will be a class suit although the writ of kalikasan conceived a citizen suit that is effectively a class suit. Q: In a class suit, do we consider the members of the class as indispensable or necessary parties? A: According to the court, in a class suit all the members of the class are indispensable parties. Q: If the members of the class are all considered as indispensable parties, should we not identify them individually in the pleadings, in the complaint or in the answer? A: NO. in a class suit the class may be represented by a sufficient number of the class but although the members of the class are all indispensable parties, they need not be identified individually in the pleadings submitted to the court. General Rule; The general rule as we said a while ago is that an indispensable party must always be joined and impleaded because without him, no final determination of the case can be had. Exception; But because of this decision of the Supreme Court saying that although the members of a class in a class suit are indispensable parties, they should serve as an exception to our rule that indispensable parties must be impleaded in an existing action. Q: Why did the court conclude that in a class suit the members of the class are all indispensable parties? A: The reason given by the SC is the last sentence in the definition of a class suit in rule 3 which says that a member of a class in a class suit shall have the right to intervene. Example; There are 1000 members of the class and only 20 members of the class have been identified as plaintiff or defendant in the class suit. These 20 plaintiffs or 20 defendants as the case may be, represent 1000 members of the class. The 1000 members of the class are all indispensable parties according to the court itself. If anyone of the members of this class decides to intervene in the case, the trial court does not have any discretion to deny the motion for intervention of a member of a class despite it being usually discretionary. DEATH OF PARTY; DUTY OF COUNSEL (Sec. 16) When a party dies, whether he is a plaintiff or defendant, the law requires the lawyer of the deceased litigant to give information to the court about the death of his client. [1] There will be substitution if the death of the plaintiff or the defendant does not result to the dismissal of the case. Basis This requirement stems from a provision also in civil code, the provision of the civil code on agency. The civil code looks at the relationship between a lawyer and his client as a contract of agency. The client is the principal and the lawyer is the agent. In the civil code, if either the principal or the agent dies, the contract of agency is extinguished. [2] 1 Rule 3, Section 16(1). Death of party; duty of counsel. — Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with his duty shall be a ground for disciplinary action. 2 New Civil Code, Article 1919. Agency is extinguished:

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Substitution If the lawyer informs the court about the death of his client either the plaintiff or the defendant, it is now the duty of the court to order substitution if substitution will be proper.[1] Q: If the court is duly informed about the death of a plaintiff or a defendant, but the court does not observe the process given in the rules concerning substitution, and the court goes ahead with the trial of the case and then the court eventually decides the case, the judgment of the court be valid? A: NO. After having been notified of a death of a litigant and there is no substitution made by the court, the proceedings taken by the court as well as the judgment rendered by the court are void. Instances where the death will automatically lead to the dismissal of the case. 1. Legal separation; 2. Annulment of marriage; 3. An action to declare the marriage void; If the death of the husband or the wife takes place after the judgment has been entered, the death of the husband or the wife will not affect the judgment. Procedure If it is the plaintiff who dies and we and his lawyer informed the court about the death of his client, the court will now require the lawyer to submit to him a list of heirs of the plaintiff. It is up to the court now to issue an order directing these heirs of the plaintiff to appear before the court to act as substitute plaintiff. Q: If the heirs refuse to act as substitute plaintiff, can the court compel the heirs or anyone of them to act as substitute plaintiff? A: NO. The court has no authority to compel an heir of a deceased litigant to act as a substitute party in the case. If the heirs refuse to act as substitute parties, then the court will have to require the other party, the defendant in the case to seek the appointment of an administrator or executor of the estate. The appointment of an executor or administrator of estate can only be done in a settlement court in a petition for probate of a will or intestacy as the case may be. Only in this proceeding where a court can appoint an administrator or executor of the estate. Even if the first case is pending before a RTC, the appointment of an executor or administrator could be secured either from the RTC or from an inferior court acting as a settlement court depending on the gross value of the estate.

agent; (3) By the death, civil interdiction, insanity or insolvency of the principal or of the agent; 1Rule 3, Sec. 16 (2), (3)(4) The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice. If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT If an executor or administrator has already been appointed and he has taken his oath of office, then the trial court, the RTC can now order the executor or administrator to act as a substitute plaintiff or to act as a substitute defendant. The executor or administrator does not have any option to deny, to refuse to act as a substitute party because one of the duties of an executor or administrator is to represent the estate of the deceased litigant in pending litigations until the judgment is finally entered. Q: What if the complaint is for the recovery of a defaulted loan in the amount of 2M pesos, and during the pendency of the case, the defendant dies. Will the case be dismissed? A: NO. The death of a debtor does not extinguish an obligation. Q: If the decision is in favor of the plaintiff has become final and executory directing the substitute defendant, the executor or administrator, to pay 2M pesos, can the plaintiffcreditor, file a motion for execution of that judgment? A: NO. Motion for Execution of Judgment under rule 39 is not allowed. What the judgment creditor should do is submit his claim supported by a final and executory judgment before the settlement court. In that settlement court, although the judgment is already final and executory, there is no assurance at all that the judgment-creditor will be able to obtain satisfaction of judgment. --xXx--

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2013 LECTURE BY DEAN JARA ABRIDGEMENT VENUE OF ACTIONS (RULE 4) GENERAL RULE Generally, our rules of procedure cannot be changed by an agreement between the parties. The SC is the only court that can disregard the rules of court if an application of a procedural principle is inequitable or it will lead to injustice because it is the author of the rules of court such as res judicata, Q: So if the court of appeals or the trial courts come to the conclusion that the application of the rules of court may lead to an injustice but they cannot disregard the rules of court, what is the duty of the court of appeals or the trial courts? A: The trial courts can incorporate in their decision an advisory to the defeated party to appeal the matter to the SC. The rule on venue applies only to trial courts. They don’t apply to SC because there is only one SC unlike RTC or an inferior court where there are several regional districts throughout the country so this is limited only to trial courts, RTC or inferior courts. Exception Venue is one procedural principle which the SC allows to be changed by the parties.

[1]

If there is a stipulation between contracting parties concerning venue, which is in conflict with rule 4, it is the stipulation between the parties that will prevail. So that, if you are confronted with a question on venue of actions, you always first determine whether there is a written agreement between the parties concerning venue and that written agreement has the feature of; 1. Exclusivity; 2. Reduced in writing; 3. The agreement is entered into before the action is commenced; Rule 4 on venue is the rule which recognizes the classification of actions into real action and personal actions. REAL ACTIONS (Sec. 1) So in a real action usually, the venue in the absence of an agreement is the place where the property is situated or any portion thereof is situated. [2] Example; So if the land subject of the controversy is located here in Manila, the venue should be Manila. But there is nothing wrong if the parties to a contract of sale involving a parcel of land will agree that the venue of an action that will arise out of the breach of contract of sale shall be Quezon City or Makati or even Cebu City.

1

Rule 4, Section 4.When Rule not applicable. — This Rule shall not apply. (b) Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. (3a, 5a) 2

Rule 4, Section 1. Venue of real actions. — Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT PERSONAL ACTIONS (Sec. 2) In personal actions which do not involve real rights or real property, the venue in the absence of stipulation is the residence of the plaintiff or the residence of the defendant, the principal plaintiff or the principal defendant at the option of the plaintiff.[1] MIXED ACTIONS An action is a mixed action, wherein the action is both real and personal. Q: What will be the venue of the action in the absence of stipulation? A: The venue will follow the rule on real actions. Q: Do we have a rule on venue under rule 4 if the action is in rem or quasi in rem or in personam? A: NO. If you read rule 4, the only classifications that are relevant or material to venue is the classification of real and personal. Q: How do we determine the venue if the action is in rem or in personam or quasi in rem in the absence of stipulation? A: If the action is in rem or quasi in rem or in personam, all you have to do is to further analyze whether that in rem or quasi in rem or in personam action is real or personal. If an action is classified into in rem, quasi in rem or in personam, it does not mean to say that that classification of in rem or in personam or quasi in rem prohibits further classification of the same action into real or personal action. So we can have an in rem action that is a real action at the same time; we can have an in personam action that is a real action at the same time. If the action in personam is a real action, then we follow its feature as a real action for purposes of venue. Example; For instance, action reinvindicatoria, that is, to recover title to or ownership or possession of a piece of land is of course a real action. The venue therefore is the place the property or any portion thereof is situated. Action reinvindicatoria is a real action and at the same time in personam action. A good example of an in rem action which is personal will be settlement of an estate of a deceased person when the only properties of the estate are personal properties. Sweetlines v. Teves [2] Facts: In that case of Sweetlines, the injured parties, the plaintiffs were heirs or representatives of a person who died as a result of an accident involving a vessel. In the passenger ticket issued by the shipping company which transportation company usually adhere there is embodied a stipulation saying that the venue of the action shall be the principal office, the place where the principal office of the shipping company is located. That is a valid agreement. But when the victims of this accident tried to file cases in their respective provinces or cities where they were residents, the courts before these complaints were filed told them that you have to follow the rule on venue. You have to file your cases, your claims for damages according to the contract at the place where the principal office of the shipping company is located. And the place where the principal office of the shipping company I think was Cebu

1 Rule 4, Section 2.Venue of personal actions. — All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a nonresident defendant where he may be found, at the election of the plaintiff. 2 G.R. No. L-37750, May 19, 1978

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2013 LECTURE BY DEAN JARA ABRIDGEMENT City and the victims were all residents of Southern Luzon, of Northern Luzon, so it was practically impossible for the victims to file their complaints in Cebu and attend trial in Cebu. Issue: Whether or not the stipulation on venue is valid Held: So the court said, exercising its authority on liberal construction, that agreement is void. It is not valid although it is part of the ticket issued by the shipping company adhered to by the victims. The rule on venue in rule 4 is designed for the convenience of the plaintiff, to the injured party. It is not designed to serve the interest of a defended party. That’s why in personal actions, the plaintiff is always given the choice, the option whether to file the complaint in his place of residence or in the residence of the defendant at the choice of the plaintiff. --xXx--

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2013 LECTURE BY DEAN JARA ABRIDGEMENT BARANGAY COURT BARANGAY CONCILIATION We said that prior Barangay conciliation is a condition precedent to the accrual of the cause of action. The Right holder cannot simply commence an action in court without first undergoing prior Barangay conciliation. [1] Nature of a Barangay Court The Barangay court is not really a court. It is part of Executive Department. In adjudicating disputes it may be considered as quasi-judicial body. Barangay courts are not allowed to adjudicate cases. Their only role is to; 1. Conciliate; 2. Mediate; and 3. Encourage parties to amicably settle and submit compromise agreement if the parties agreed freely; Requisites There are two requisites under the LGC; 1. The parties must be natural persons; and 2. They reside in the same city or municipality; As long as these requisites are present, prior Barangay conciliation is a must regardless of nature of action, i.e. real or personal. Or if it is a claim for money, regardless of the amount involved. Example; If the party is a creditor and the amount sought is 1 Million pesos, prior Barangay conciliation is necessary. Application This applies to all civil actions and special civil actions such as; 1. Unlawful detainer; 2. Forcible entry; and 3. interpleader. Exception; But we do not apply Barangay conciliation in the following; 1. Declaratory relief because there is really a dispute in such case; 2. Cases that involve public officers or LGUs. 3. In certiorari, prohibition and mandamus, because you expect the respondent is always a judge performing judicial or quasi-judicial functions. 4. In expropriation or quo warranto.

1 Book III, Title I, Chapter VII, Sec. 412 (a) Pre-condition to Filing of Complaint in Court. - 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 there has been a confrontation between the parties before the lupon chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the lupon secretary or pangkat secretary as attested to by the lupon or pangkat chairman or unless the settlement has been repudiated by the parties thereto.

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Venue The venue before the Barangay court is the residence of the respondent if the complainant and respondent reside in different Barangays of same cities or municipalities. [1] Procedure The barangay courts follow procedurally the same rules as that of court cases. The pleadings could be verbal, although the barangay court usually asks for pleadings to be written. In Manila, they also require payment of minimal docket fees, regardless of the amount of claim.[2] The barangay court may issue summons and subpoena. If the complainant fails to appear repeatedly during the conferences called by the Barangay Court, the Barangay Court can order the dismissal of the complaint, and that dismissal is with prejudice. The complainant loses his right to recover against the respondent. If it is the defendant who fails to appear, the barangay court will just issue the certificate that there is failure to compromise. The plaintiff may then proceed to court. Compromise Agreement The compromise agreement received by the Barangay Court shall serve as the law between the parties provided that there is no repudiation by any of the parties within ten days from its execution. [3] If the terms of the compromise agreement are not complied with by one of the parties, the Barangay court may execute the judgment within 6 months from entry of judgment.[4] Failure to Arrive at a settlement If the parties does not arrive with an amicable settlement, the Barangay court must issue a certification stating that no compromise occurred in matter or case under conciliation.[5] And this enables parties to file a case in court. Repudiation If there is repudiation made by anyone of the parties, they may avail the execution of the same. The grounds for repudiation are the same grounds given in the Civil Code and treated as vices of consent (fraud, intimidation etc). [6]

1

Book III, Title I, Chapter VII, Sec. 409 (b) Those involving actual residents of different barangays within the same city or municipality shall be brought in the barangay where the respondent or any of the respondents actually resides, at the election of the complaint. 2 Book III, Title I, Chapter VII, Sec. 410 (a) Who may initiate proceeding - Upon payment of the appropriate filing fee, any individual who has a cause of action against another individual involving any matter within the authority of the lupon may complain, orally or in writing, to the lupon chairman of the barangay. 3 Book III, Title I, Chapter VII, Sec. 416 Section 416. Effect of Amicable Settlement and Arbitration Award. - The amicable settlement and arbitration award shall have the force and effect of a final judgment of a court upon the expiration of ten (10) days from the date thereof, unless repudiation of the settlement has been made or a petition to nullify the award has been filed before the proper city or municipal court. 4 Book III, Title I, Chapter VII, Sec. Section 417. Execution. - The amicable settlement or arbitration award may be enforced by execution by the lupon within six (6) months from the date of the settlement. After the lapse of such time, the settlement may be enforced by action in the appropriate city or municipal court. 5 Book III, Title I, Chapter VII, Sec. 412 (a) Pre-condition to Filing of Complaint in Court. Supra 6 Book III, Title I, Chapter VII, Sec. 418, Section 418. Repudiation. - Any party to the dispute may, within ten (10) days from the date of the settlement, repudiate the same by filing with the lupon chairman a statement to that effect sworn to before him, where the consent is vitiated by fraud, violence, or intimidation. Such repudiation shall be sufficient basis for the issuance of the certification for filing a complaint as hereinabove provided. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT If there is repudiation, the Barangay court will issue a certification that the plaintiff is free to file a complaint in court.[1] Barangay Court as an Arbitral Tribunal In converting a Barangay court in an arbitral tribunal, the parties must sign in writing constituting the Barangay court as such.[2] That agreement may also be repudiated within 5 days from submission. If not repudiated, the Barangay court will act as quasi-judicial body and has the power to; 1. Receive evidence; and 2. Render a decision; Annulment of Decision That decision may also be contested, not by repudiating but a petition to annul before an inferior court. Unlike the annulment in Rule 47, the annulment in Barangay conciliation is founded on vices of consent, i.e. fraud, intimidation, or violence shown by the aggrieved party. Execution In the matter of execution in Barangay court, while the Barangay court may make a levy on execution, the same is limited to personal property. The Barangay court is authorized to do so, it means to say that the Barangay court may sell these in a public auction to satisfy the claim. If there is no satisfaction of the terms of compromise agreement after selling the properties, the remedy of creditor is to file a petition before inferior court for the enforcement of judgment. Miguel v. Montanez FACTS: In the case, the claim of the creditor is for example 500,000 and the creditor and debtor reside in same city or municipalities. There Is a compromise agreement submitted. And the claim of 500,00 was reduced to 200,000. substantially and the creditor admitted that the claim may be paid in installments. The debtor did not comply but the creditor did not repudiate the agreement. So, what the creditor did is not to ask for execution by Barangay court but filed a complaint for recovery of the original amount. The trial court said that the only recourse is to enforce the compromise agreement and cannot file an action for recovery. HELD: The Supreme Court said that when compromise agreement becomes final and executory and the debtor fails to comply with the terms of the agreement, the Court said that such failure is a repudiation of the agreement. The SC cited Article 2041 of the Civil Code and in this article, it is provided that when a party to compromise agreement does not comply with his obligation, the agreement is deemed rescinded. It is rescission by operation of law. Thus the creditor is entitled to recover the claim before the courts of justice. Rescission by Operation of Law In our study of rescission, there must always be a complaint filed. But in the article cited by SC, there is rescission by operation of law and thus judicial decision is not necessary.

1

Ibid. Book III, Title I, Chapter VII, Sec. 413, (a) The parties may, at any stage of the proceedings, agree in writing that they shall abide by the arbitration award of the lupon chairman or the pangkat. Such agreement to arbitrate may be repudiated within five (5) days from the date thereof for the same grounds and in accordance with the procedure hereinafter prescribed. The arbitration award shall be made after the lapse of the period for repudiation and within ten (10) days thereafter. 2

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2013 LECTURE BY DEAN JARA ABRIDGEMENT The creditor then will be reverted to his original position insofar as the original amount is concerned even if he agreed to the reduction of the amount of credit in the compromise agreement. --xXx--

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2013 LECTURE BY DEAN JARA ABRIDGEMENT SUMMARY PROCEDURE SUMMARY PROCEDURE Summary Procedure refers to Summary Procedure followed by inferior courts in Unlawful Detainer, Forcible Entry and claims for money not exceeding 200,000.[1][2] It also involves Small Claims for money that do not go beyond 100,000.[3] Pleadings Allowed The only pleadings allowed in Summary Procedure are; 1. Complaint; 2. Answer; 3. Compulsory counterclaim; and 4. Crossclaim;[4] Permissive counterclaim is not allowed. A defendant that has permissive counterclaim must file his own complaint for the enforcement of his claim. Prohibited Motions There are also motions which are prohibited like Motion to Dismiss under Rule 16 unless the ground is absence of jurisdiction over subject matter or absence of prior Barangay conciliation.[5] Q: Since the motion to dismiss is prohibited, does it mean to say that the case may not be dismissed on any of the grounds mentioned in Rule 16? A: NO. What is prohibited is a Motion to Dismiss filed by a defendant, but Summary Procedure allows dismissal based on Rule 16 as long as the order of dismissal comes from court itself (motu proprio), without motion filed by defendant. The defendant is allowed to file responsive pleading. And the period to answer is non extendible. Q: What would happen if the defendant ignores the period, and files a motion for extension of 5 days? A: The court will consider the motion as not having been filed and the defendant cannot expect the court to issue an order denying the motion for extension because that is a prohibited pleading.

1

Revised Rules on Summary Procedure, Sec. 1 (1) All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered. Where attorney's fees are awarded, the same shall not exceed twenty thousand pesos (P20,000.00). 2 Revised Rules on Summary Procedure, Sec. 2 All other cases, except probate proceedings, where the total amount of the plaintiff's claim does not exceed one hundred thousand pesos (P100,000.00) or two hundred thousand pesos (P200,000.00) in Metropolitan Manila, exclusive of interest and costs. As amended by A.M. No. 02-11-09-SC. 3 A.M. No. 08-8-7-SC, Rule of Procedure for Small Claims, Section 2. Scope. - This Rule shall govern the procedure in actions before the Metropolitan trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts for payment of money where the value of the claim does not exceed One Hundred Thousand Pesos (P100,000.00) exclusive of interest and costs. 4 Revised Rules on Summary Procedure, Sec. 3 A. Pleadings allowed. — The only pleadings allowed to be filed are the complaints, compulsory counterclaims and cross-claims' pleaded in the answer, and the answers thereto. 5 Revised Rules on Summary Procedure, Sec. 19 Prohibited pleadings and motions. — The following pleadings, motions or petitions shall not be allowed in the cases covered by this Rule: (a) 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 the preceding section; Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT If there is such a motion filed and the defendant does not file an answer within the non extendible period of 10 days, the plaintiff may ask the court to render judgment based on the complaint and the evidence attached in the complaint. [1] Even if the defendant is prohibited from filing motion to dismiss except on grounds mentioned earlier, he may file an answer alleging the grounds under Rule 16 as an affirmative defense in an answer. Order of Default is Prohibited An order of default is also prohibited. What follows now is judgment rendered by the court in favor of the plaintiff based solely on the complaint and attachments. The reason why Summary Procedure does not allow the court to issue an order of default is to prevent the defendant from making use the remedy to file a motion to lift the order of default, thus delaying the proceedings. Appeal In Summary Procedure, some of prohibited motions are; 1. Motion for new trial; 2. Motion for reconsideration; [2] and 3. Petition from relief from judgment; [3] If there is judgment rendered, the only remedy of the defendant is to appeal from the judgment. Availability of appeal forecloses availability of Rule 65. Annulment of Judgment Another remedy given, that is, by annulment of judgment under Rule 47 since it is not prohibited. [4] But again, before he can make use of Rule 47, the Rules are very strict insofar as annulment of judgment is concerned. Preliminary Conference In Summary Procedure, we have preliminary conference similar to pretrial conference. [5] There is no actual trial. If there are triable issues, the parties will submit testimony of witness in a form of affidavit and position papers. These are the papers to be evaluated by the court in deciding.

1 Revised Rules on Summary Procedure, Sec. 6. Effect of failure to answer. — Should the defendant fail to answer the complaint within the period above provided, the court, motu proprio, or on motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein: Provided, however, that the court may in its discretion reduce the amount of damages and attorney's fees claimed for being excessive or otherwise unconscionable. This is without prejudice to the applicability of Section 4, Rule 15 of the Rules of Court, if there are two or more defendants. 2 Revised Rules on Summary Procedure, Sec. 19 Sec. 19 Prohibited pleadings and motions. — The following pleadings, motions or petitions shall not be allowed in the cases covered by this Rule: (c) Motion for new trial, or for reconsideration of a judgment, or for opening of trial; 3 Revised Rules on Summary Procedure, Sec. 19 Sec. 19 Prohibited pleadings and motions. — The following pleadings, motions or petitions shall not be allowed in the cases covered by this Rule: (d) Petition for relief from judgment 4 Rule 47, Section 10. Annulment of judgments or final orders of Municipal Trial Courts. — An action to annul a judgment or final order of a Municipal Trial Court shall be filed in the Regional Trial Court having jurisdiction over the former. It shall be treated as an ordinary civil action and sections 2, 3, 4, 7, 8 and 9 of this Rule shall be applicable thereto. (n) 5 Revised Rules on Summary Procedure, Sec. 7. Preliminary conference; appearance of parties. — Not later than thirty (30) days after the last answer is filed, a preliminary conference shall be held. The rules on pre-trial in ordinary cases shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule.

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Criminal Case If the case is a criminal case, the court cannot do away with a trial because the court cannot deprive the defendant of the right to cross examine the witnesses. Such right is not given to a defendant in a civil case. What happens then is that the prosecutor will submit affidavit of prosecution witnesses but they may be subject to cross examination. If they don’t go to court for that purpose, the court may strike out the affidavits insofar as such witness is concerned. [1] SMALL CLAIMS In Small Claims, lawyers are prohibited from appearing.

[2]

The parties may still protect their interest because they are not required to make their own pleadings. There are forms prepared by the courts to be filled out by the parties, but payment of docket fees is also necessary. Joinder of Causes Joinder of causes of action is allowed as long as the causes of action joined will not go beyond 100,000, exclusive of interest, damages, attorney’s fees, litigation expenses, costs.[3] Difference with Summary Procedure The following are the differences between Small Claims and Summary Procedure; 1. There are no criminal cases involved in Small Claims; 2. In Small Claims, the judgment of the court is immediately final and executory; 3. There is no appeal available;[4] Rules on Small Claims also prohibits; 1. Motion for New Trial; 2. Motion for Reconsideration; and 3. Petition for Relief from Judgment; [5] No Appeal available The decision being final and executory, appeal of judgment is not available. The only relief available is Rule 65[6]. However, petition filed under Rule 65 does not stop the court from rendering a decision. Unlike in appeal, execution of judgment is not allowed except in Unlawful Detainer and Forcible Entry because there is a provision that says that in these cases, the judgment rendered in favor the plaintiff is immediately executory without prejudice to the filing of appeal.

1 Revised Rules on Summary Procedure, Sec. 15. Procedure of trial. — At the trial, the affidavits submitted by the parties shall constitute the direct testimonies of the witnesses who executed the same. Witnesses who testified may be subjected to cross-examination, redirect or re-cross examination. Should the affiant fail to testify, his affidavit shall not be considered as competent evidence for the party presenting the affidavit, but the adverse party may utilize the same for any admissible purpose. 2 A.M. No. 08-8-7-SC, Section 17. Appearance of Attorneys Not Allowed. - No attorney shall appear in behalf of or represent a party at the hearing, unless the attorney is the plaintiff or defendant. 3 A.M. No. 08-8-7-SC, Section 6. Joinder of Claims - Plaintiff may join in a single statement of claim one or more separate small claims against a defendant provided that the total amount claimed, exclusive of interest and costs, does not exceed P100,00.00. 4 A.M. No. 08-8-7-SC, Section 23 (2) The decision shall be final and unappealable. 5 A.M. No. 08-8-7-SC, Section 14 (c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; 6 RULE 65, Certiorari, Prohibition and Mandamus

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2013 LECTURE BY DEAN JARA ABRIDGEMENT In unlawful detainer, the execution of judgment can easily be corrected by posting a supersedeas bond if necessary. The only way by which Rule 65 can stop immediate execution of judgment is if the court taking cognizance of Rule 65 will issue TRO or writ of preliminary injunction which may not be complied with by defendant because in preliminary injunction or TRO since the applicant here must post a bond. --xXx—

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2013 LECTURE BY DEAN JARA ABRIDGEMENT KINDS OF PLEADINGS RULE 6 PLEADINGS DEFINED (Sec. 1) In ordinary procedure, pleadings[1] are always in writing even if the court is an inferior court. CLASSIFICATIONS OF PLEADINGS The Rules classify pleadings into; 1. Claim pleadings; and 2. Responsive pleadings; a. Reply; and b. Answer; Even if there is a classification of these pleadings, there is no prohibition on the part of the defendant to make use of other pleadings[2] such as; 1. Cross-claim; 2. Counter-claim; 3. Third party complaint; 4. Complaint-in-intervention; In Rule 7, the classifications of pleadings are; 1. Initiatory; and 2. Non-initiatory; The classification in Rule 7 necessary for the purposes of determining whether or not the party must accompany his pleading with certification of non-forum shopping.[3] INITIATORY PLEADINGS In initiatory pleadings, it is necessary that there is such certification. Without which, the complaint may be dismissed, with prejudice or without prejudice. Also, the classification is necessary to enable the court and the parties to know whether there is a need to pay for docket fees since in initiatory pleadings, payment of docket fees is necessary. If an initiatory pleading is filed without payment of docket fees, the court does not acquire jurisdiction over these pleadings. With respect to a compulsory counterclaim, it is not considered by the court as an initiatory pleading for the purposes of payment of docket fees. If defendant files answer with permissive counterclaim, and there is a failure to collect the payment and has tried the case, the decision in that counterclaim is void for lack of jurisdiction over that counterclaim. As such it can be subject of collateral attack. 1

Rule 6, Section 1. Pleadings defined. — Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. (1a) 2 Rule 6, Section 2 (1) Pleadings allowed. — The claims of a party are asserted in a complaint, counterclaim, cross-claim, third (fourth, etc.)-party complaint, or complaint-in-intervention. 3 Rule 7, Section 5. Certification against forum shopping. — The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT COMPLAINT (Sec. 3) With respect to a complaint, what the Rules require to be alleged are only ultimate facts.[1] Ultimate facts are facts which constitute cause of action and includes the following allegations; 1. The plaintiff has a right; 2. The right is violated by defendant; 3. There is compliance of conditions precedent; Also the circular on Kalikasan, the complaint must be accompanied by evidentiary facts (testimony, documentary). Note that Rule 6 does not prohibit the plaintiff or defendant from alleging evidentiary facts. Example; An allegation that plaintiff has undergone prior Barangay conciliation is an ultimate fact if the case is governed by prior Barangay conciliation. ANSWER (Sec. 4) Insofar as the answer is concerned, it is a pleading that responds to a complaint.[2] The answer may contain the following defenses; 1. Negative defense;[3] 2. Affirmative defense; [4] 3. Both affirmative or Negative Defense; Negative Defense A negative defense is an important part of pleading, and when we talk about negative defense, it involves specific denial. Specific Denial There are three modes by which specific denial may be had; 1. The first mode is the denial of allegations with accompanying grounds relied upon to support his denial; [5] 2. The Second is part denial and part admission; [6] 3. Third is just a statement that he has no knowledge concerning truth of allegations in the complaint; [7] If you analyze Rule 8 on specific denial, the law does not require the defendant to file an order of reference. Example of the Third Mode; 1

Rule 6, Section 3. Complaint. — The complaint is the pleading alleging the plaintiff's cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint. (3a) 2 Rule 6, Section 4. Answer. — An answer is a pleading in which a defending party sets forth his defenses. (4a) 3 Rule 6, Sec. 5 (a) A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action. 4 Rule 6, Sec. 5 (b) An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance. (5a) 5 A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. 6 here a defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. (Rule 10, Sec. 10) 7 Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made to the complaint, he shall so state, and this shall have the effect of a denial. (Rule 10, Sec. 10) Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Theoretically, the defendant may file answer that he has no knowledge and information of the truth of allegations in paragraph 1, 2, 3 etc, I specifically deny paragraphs 1, 2, 3 etc. Third Mode is Disfavored But the SC discourages the defendant in using the third mode since it imposes some sanctions if defendant insists in using third mode as the only mode in his answer. If defendant make use of the third mode, the SC says the defendant has to explain why he has no knowledge with respect to such allegations. If he fails to do so, it will be considered as general denial and will be treated as judicial admission as to the truth of the allegations contained in the complaint. The effect of judicial admission is that it is considered as conclusive. It cannot be rebutted. The court then may immediately enter judgment on the pleadings upon motion of the plaintiff. Negative Pregnant A negative pregnant is a denial in form since it uses the words specific denial but when you look at the denial, there is no ground to support the denial. That is in violation of the first mode. Thus it may be treated as judicial admission. Example; If defendant files an answer with a general denial, and he uses the words “I specifically deny” but he does not inform the court of the grounds relied upon to support his denial. It is a specific denial in form and insofar as the court is concerned that is a general denial. Q:Does the defendant have any remedy at all to convert the general denial into a specific denial? A: Yes. If the pleader feels that he commits an error, he may amend the pleading as a matter of right before a responsive pleading is filed.[1] COUNTERCLAIM (Sec. 6) A counterclaim is a pleading filed by defendant against the plaintiff. There are two (2) kinds of counterclaim; 1. permissive and compulsory; 2. Compulsory counterclaim; [2] A counterclaim may be a compulsory counterclaim if filed with RTC but not a compulsory counterclaim anymore if filed with inferior courts simply because there is an amount alleged in that counterclaim. Example; A compulsory counterclaim usually alleged in the answer is that the filing of the complaint is unjust and without basis and therefore the defendant has been compelled to avail the services of a lawyer and

1 Rule 10, Section 2. Amendments as a matter of right. — A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served. 2 Rule 6, Section 7. Compulsory counterclaim. — A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the Regional Trial Court, the counter-claim may be considered compulsory regardless of the amount. (n)

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2013 LECTURE BY DEAN JARA ABRIDGEMENT forced to pay attorney’s fees and because of the unjust filing of the complaint, he suffered damages in the amount of example, 200,000. Jurisdiction on Counterclaims It is still treated as compulsory counterclaim by RTC even if the amount is only 200,000 which is below the jurisdictional amount. If the amount is beyond the authority of inferior court, the compulsory counterclaim will be treated as permissive counterclaim. REPLY (Sec. 10) A reply is the disgusto of all the pleadings. It is practically useless. The definition of a reply provides that even if the reply is not filed by the plaintiff the new matters alleged in the answer are deemed controverted.[1] They are not deemed admitted. Example; The creditor files a complaint against a debtor for the recovery of an unpaid loan. The defendant files an answer properly crafted and he introduces a new matter in that answer - the new matter introduced is the assertion that the defendant has paid the debt. The plaintiff does not file a reply. The new matter alleged in the answer is deemed controverted even without a reply. Q: Is there an instance where a party should file a reply not because it is mandated by the rule but in order to protect his interest in the pending case? A: YES. Under our present rules, an allegation of usury contained in acomplaint or similar pleading is deemed admitted if not specifically denied under oath.[2] A responsive pleading is not a reply. The responsive pleading to that complaint or counterclaim or cross claim will be an answer. A reply is a responsive pleading only to an answer. Example; So if the allegation of usury is contained in a complaint, a counterclaim, or a cross claim, the denial under oath contained in a responsive pleading is an answer. If the allegation of usury is contained in the answer then the law will apply the rule which requires specific denial under oath. There’s no such provision now in the rules. ACTIONABLE DOCUMENTS (Rule 8) Whenever an actionable offense is founded on an actionable document, the adverse party should, if he wants to make a denial of the actionable document, do so specifically and under oath. [3] Example; If the defendant’s defense is payment and he alleges in his answer that the fact of payment is supported by receipt issued by the plaintiff himself acknowledging full liquidation of the indebtedness, under law if 1

Rule 6, Section 10. Reply. — A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. If a party does not file such reply, all the new matters alleged in the answer are deemed controverted. 2 Rule 8, Section 11. Allegations not specifically denied deemed admitted. — Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath. 3 Rule 8, Section 8. How to contest such documents. — When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath specifically denies them, and sets forth what he claims to be the facts, but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. (8a) Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT a claim or demand is founded on an actionable document, it is imperative upon the pleader to allege in the compliant the actionable document. There are two (2) ways of alleging an actionable document in the pleading; 1. The substance of the actionable document should be stated and then a copy of the actionable document should be appended or attached to the pleading, to the complaint or the answer;[1] 2. The pleader can simply copy word for word the actionable document; [2] Whether it is plaintiff or defendant who is confronted with an actionable document, the law requires this party to make a specific denial under oath. Otherwise, the genuineness and due execution of the actionable document will be deemed admitted as judicial admission. Q: If it is the plaintiff who should make a specific denial under oath, so that he is not deemed to have admitted the genuineness and due execution of that receipt, can he not simply file an affidavit? A: The only pleading that responds to an answer is a reply. If the plaintiff sets up a specific denial in a reply, it must likewise be under oath. Otherwise, the genuineness and due execution of the receipt will be deemed admitted. Exceptions to Judicial Admissions There are two exceptions to the principle of judicial admission of the genuineness and due execution of a document if there is no specific denial under oath contained in the answer; 1. When the adverse party is not a party to that particular document; or even if he is party to that document, 2. An order for an inspection of the original issued by the court is not obeyed by the defendant; If the plaintiff does not follow any of the modes in the rules for pleading an actionable document, he will not be allowed to present proof of his cause of action. If it is the defendant who fails to do so, He will not be allowed to present proof of his defense. PARTY COMPLAINT (Sec. 11) There is no end to the number of complaint that can be impleaded in a party complaint.[3] Among all these claim pleadings, it is only a third party complaint where their filing requires prior leave of court. Q: Why do we need permission from the court before the defendant can file a 3rd party complaint? A: Because the 3rd party complaint will forcibly bring into the action a stranger to the case. The court should be given discretion whether or not to allow a 3rd party complaint because there may be no need at all in bringing a stranger to the case or his claim against the stranger is unrelated or unconnected to the subject matter of the complaint.

1 Rule 8, Section 7. Action or defense based on document. — Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading. (7) 2 Ibid. 3 Rule 8, Section 11. Third, (fourth, etc.)—party complaint. — A third (fourth, etc.) — party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.) — party defendant for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim.

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2013 LECTURE BY DEAN JARA ABRIDGEMENT The 3rd party complaint must allege that the 3rd party defendant is liable to the 3rd party plaintiff. The 3rd party plaintiff is always a defendant. The 3rd party complaint is always connected with the subject matter of the complaint. Example; If the complaint, for instance, is for the recovery of an unpaid loan, the 3rd party complaint cannot pertain to a recovery of the ownership of a piece of land. Ancillary Jurisdiction of Trial Courts It is in a 3rd party complaint were we can best illustrate the meaning of ancillary jurisdiction of trial courts. Example; Let us say the subject of the complaint is still the recovery of loan, 1M. So the competent court is the RTC. The defendant asks the court permission to file an answer with a 3rd party complaint asserting that Juan Dela Cruz, is bound to pay him in relation to the 1M loan the sum of 250K. Considering that the amount that the defendant seeks to recover is only 250k which is not w/in the jurisdiction of the RTC, can the court upon motion of the 3rd party defendant order the dismissal of the 3rd party complaint on the ground of lack of jurisdiction? Remember the figure is only 250k. A: NO. Applying the rule on ancillary jurisdiction, if a trial court has jurisdiction over the principal case, the same court will also exercise ancillary jurisdiction over all collateral pleadings, incidental pleading that are related to the complaint. Q: Is it correct to say that a 3rd party complaint, 4th party complaint are the only pleadings which will enable a litigant before the court to bring in by compulsion a stranger in a case? A: NO. The law authorizes the defendant to bring in a stranger by way of counterclaim, either permissive or compulsory counterclaim, and a cross claim. [1] If there is a compulsory counterclaim or cross claim that is not set up in an answer, that compulsory counterclaim or cross claim are barred.[2] Example; “A” files a claim against “B” and “C”. If defendant “B” has a claim related to the subject matter of the complaint against “C”, “B” should file an answer with a cross claim. However, in that cross claim against “C” there is a necessity to bring “X” or “Y” or “Z”. If “B” fails to set up a cross claim in this case, he is barred from recovering a cross claim. --xXx--

1 Rule 6, Section 12.Bringing new parties. — When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained.. 2 Rule 9, Section 2. Compulsory counterclaim, or cross-claim, not set up barred. — A compulsory counterclaim, or a cross-claim, not set up shall be barred.

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2013 LECTURE BY DEAN JARA ABRIDGEMENT PARTS OF A PLEADING RULE 7 A pleading must always be signed because a pleading that is not signed according to rule 7 will be treated as a sham pleading[1] and the court, motu proprio, can order the striking out of the pleading. Who will Sign the Pleading The following can sign the pleading; 1. The litigant; 2. His counsel; 3. Both counsel and the client; Q: Are there pleadings which will not be admitted by the court if the only signature is that of the lawyer? A: YES. In Marriage related cases annulment of marriage or to declare the marriage void, the Sc circular says that the complaint and answer must be signed by the party himself otherwise the court will not accept this pleading for filing.[2] VERIFICATION OF PLEADING (Sec. 4) With respect to verification, it is only in instances that the law requires verification that the lawyer should have his pleading verified. [3] Procedure on Verification The pleading is verified by the verified statement of the affiant that he has read the contents of the pleading and that these allegations are true of his own personal knowledge or it is an authentic document. [4] Absence of Verification Under rule 7 the absence or inadequacy of verification carries with it the effect of an unsigned pleading.[5] Although it would appear in rule 7 that absence of verification or inadequacy of verification would be a fatal defect of a pleading, the Supreme Court keeps on ruling that absence or inadequacy of verification is only a formal defect. CERTIFICATE OF NON-FORUM SHOPPING (Sec. 5) The general rule in Rule 7 is that all initiatory pleadings must carry with them a certification of non forum shopping. [6] This includes; 1. Complaint; 2. Permissive Counterclaim; 3. Cross Claim; 4. Part Complaint;

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An unsigned pleading produces no legal effect. (Sec. 3, Rule 7). A.M. No. 02-11-10-SC, Se. 5, (3) it must be verified and accompanied by a certification against forum shopping. The verification and certification must be signed personally by me petitioner. No petition may be filed solely by counsel or through an attorney-in-fact. 3 Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit . (Sec. 4, Rule7) 4 A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his knowledge and belief. (Sec. 4, Rule7) 5 A pleading required to be verified which contains a verification based on "information and belief", or upon "knowledge, information and belief", or lacks a proper verification, shall be treated as an unsigned pleading. (Sec. 4, Rule7) 6 The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith.. (Sec.5, Rule 7) 2

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Q: If the rule requires a complaint or other initiatory pleadings to carry with them a certification on non forum shopping, does it not mean to say that these pleadings must also be verified under rule 7? A: NO. Certification on Non Forum Shopping is different from Verification of a pleading. We can have a pleading that is not verified but it must contain a certification on non forum shopping. Verification v. Certificate of Non-Forum Shopping CERTIFICATE OF NONVERIFICATION FORUM SHOPPING Certifies under oath that Verifies the truthfulness no same action has been and correctness of the filed Before another contents of the pleading; tribunal, agency or court; Non-compliance is Non-compliance does not generally not curable by render the pleading fatally its subsequent submission defective; [1] or correction thereof; [2] Substantial Compliance With respect on this rule on non forum shopping, the court appears to have adopted the rule on substantial compliance with the requirements of certification on non forum shopping. Example; In a case decided, there was a complaint where there were 5 principal plaintiffs. In this case, only 2 of the plaintiffs signed the certification of non-forum shopping. The defendant challenged the authority of the court to go ahead to entertain the petition because the rule on non-forum shopping has been violated. the court refused to dismiss the case. The court says that we will go ahead with the case but we will just drop the claim of the non-signing plaintiffs. The Supreme Court said that the signature of the two plaintiffs will be substantial compliance with the requirement. Who Will Sign The general rule is that the party himself, not his lawyer, must sign the certification on non forum shopping. If a lawyer signs the certification on non forum shopping, he must be able to show a special power of attorney authorizing him to sign the certification on non forum shopping. [3] --xXx--

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Oldarico S. Traveno v. Bobongon Banana Growers Multi-Purpose Cooperative (2009). Ibid. 3 Jacinto v. Gumaru (2014) 2

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2013 LECTURE BY DEAN JARA ABRIDGEMENT EFFECT OF FAILURE TO PLEAD RULE 9 PRINCIPLES The first basic principle of rule 9 is the consequence of the Omnibus Motion Rule; The defense/ objection is deemed waived if it is not set up in pleading or in a motion to dismiss. [1] There could be several defenses also set up in an answer either jointly or in the alternative so that there could be a complaint with joint causes of action. ALTERNATIVE CAUSES OF ACTION OR DEFENSE (sec. 2) The following are specific kinds of alternatives filed in the complaint; 1. There could be a complaint with alternative causes of actions; [2] 2. There could also be defense with alternative defenses; [3] 3. Alternative defendant;[4] i.e. plaintiff v. defendant 1 or defendant 2; 4. Judgment in the Alternative in Replevin; [5] What is not present in our rules is the propriety of a complaint where the plaintiffs are made in the alternative. In Federal Rules in Civil Procedure there’s an express provision saying that plaintiffs could be named in the alternative. Unfortunately, that provision was not incorporated in our rules with respect to plaintiffs being named in the alternative. NON-WAIVABLE DEFENSES (Sec. 1) In rule 9, the following are non-waivable defenses; 1. Lack of jurisdiction over the subject matter; 2. Litis Pendentia; 3. Prescription; and 4. Res Judicata; Compared to a Criminal Case The following defenses are likewise non-waivable in a criminal case; 1. Res Judicata known as double jeopardy in criminal cases; 2. Prescription; 3. Absence of jurisdiction over the subject matter; With respect to litis pendentia, it is a non-waivable defense in a civil case, but there is no such thing in a criminal case. 1

Rule 9, Section 1. Defenses and objections not pleaded. — Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (2a) 2 Rule 2, Section 5. 3 Rule 8, Section 2. Alternative causes of action or defenses. — A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements 4 Rule 3, Section 13. Alternative defendants. — Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other. 5 Rule 60, Section 9. Judgment. — After trial of the issues the court shall determine who has the right of possession to and the value of the property and shall render judgment in the alternative for the delivery thereof to the party entitled to the same, or for its value in case delivery cannot be made, and also for such damages as either party may prove, with costs. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT With respect to a criminal action, the non-waivable defense is when the information does not charge an offense which is equivalent to the failure to state a cause of action in a civil case in accordance with Rule 16. [1] Q: If the complaint fails to state a cause of action in the complaint, can it be remedied even without expressly or formally amending the complaint? A: YES. If the complaint does not properly allege a cause of action, that defect must be remedied under rule 10 amendment of pleading to conform with the evidence.[2] Otherwise, the complaint is deemed amended by operation of law. Q: If the information or complaint does not charge an offense in the criminal action, can we not simply amend the complaint or information similar to the remedy provided in Rule 10, Sec. 5? A: NO. It will violate constitutional right of the accused to be informed of the charges against him. Amendment by Operation of Law If the civil action does not state a cause of action but the defendant has not filed motion to dismiss. it participates in the trial and during the plaintiff presents evidence that the he has cause of action. that complaint is deemed amended by operation of law. RULE ON DEFAULT (Sec. 3) The general rule is that if a complaint is filed, summons are served upon the defendant. If the defendant does not file an answer during the reglementary period, there may be an order of default upon motion by the plaintiff. Exceptions The following are cases where default is prohibited; 1. Summary procedure; 2. Small claims; 3. Writ of Amparo; 4. Habeas Data; In addition to the aforementioned, Rule 9 prohibits default in marriage related cases and directs the trial court to assign somebody to make an investigation as to whether or not there is collusion.[3] Q: Can the court now on its own declare the defendant in default? A: NO. Without the correlative motion, the court has no authority to motu proprio declare the non answering defendant in default.

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Rule 16, Section 1. Grounds. — Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds: (g)That the pleading asserting the claim states no cause of action; 2 Rule 10, Section 5.Amendment to conform to or authorize presentation of evidence. — When issues not raised by the pleadings are tried with the express or implied consent of the parties they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not effect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. 3 Rule 9, Sec. 3 (e) Where no defaults allowed. — If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Q: If the court is prohibited from declaring the non-answering defendant in default motu proprio what can the court do now? A: If the complainant does not file a motion, he’ll end up receiving an order from the court dismissing the case with prejudice for failure to prosecute under rule 17. [1] Q: Can the plaintiff file an ex parte motion to declare the defendant in default due to the fact that the defendant does not even bother to answer? A: NO. Rule 9 is very clear. A motion to declare a defendant in default will be served upon the defendant, [2] otherwise that motion is a useless piece of paper. Q: If the defendant receives a copy of the motion to declare him in default and files an answer, can the court still declare him in default? A: YES, if the court follow strictly the rules of court. Q: As a matter of policy, if the answer is already been filed although it is filed out of time and becomes part of the records of the case. Will the trial court still declare him in default? A: NO. By virtue of liberal interpretation, the Court should still admit the answer even if the period to answer has already expired but was nevertheless filed out of time. Effect of Default In Rule 9 if defendant is declared in default rule 9 gives the trial court 2 choices; 1. Render judgment right away based on the allegations contained in the complaint; or 2. Require the plaintiff to present evidence ex parte in support of his allegations; [3] Relief from Order of Default If there is trial ex parte where the defendant is in default, the defendant will not be allowed to participate in the trial unless he is able to secure an order from the court to lift the order of default. [4] Extent of Relief Awarded Rule 9 is also very explicit in saying that when the defendant is declared in default although the judgment in default is favorable to the plaintiff the trial court should see to it that the award should not be more or different than that prayed for in the complaint. [5] Example; The complainant filed a complaint to recover an unpaid loan in the amount of 1M. The defendant is in default and the court orders the presentation of evidence ex parte. The plaintiff presents evidence that the indebtedness of the defendant is not only 1M but 3M. Can the court render judgment awarding 1M? 1

Rule 17, Section 3. Dismissal due to fault of plaintiff. — If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. 2 Rule 9, Sec. 3, (a) Effect of order of default. — A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. 3 Rule 9, Section 3. Default; declaration of. — If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. 4 Rule 9, Sec. 3 (b) Relief from order of default. — A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense. In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice. 5 Rule 9, Sec. 3, (d) Extent of relief to be awarded. — A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT A: NO. The award in default judgment by the court cannot be more than what is prayed for in the complaint. It could be less than what is prayed for in the complaint, it could be equal but it could not be more than what is prayed for in the complaint. Ex-Parte Presentation of Evidence in Rule 18 Under Rule 18 on the rule on pre trial, the parties should present a pre trial brief. And they should also be present during the pre trial conference. If the plaintiff does not appear during the pre trial or does not submit a pre trial brief, the court can order the dismissal of the case with prejudice.[1] If the defendant does not appear during a pre trial or he does not submit a pre trail brief the court can authorize the presentation of evidence ex-parte by the plaintiff.[2] Q: The complaint is for the recovery of 1M. There is an ex parte trial allow by the court under rule 18. The plaintiff presented evidence ex parte convincing the court that the entitlement of the plaintiff is not 1M but 2M. Can the court later on award to the plaintiff 2M although his complaint prays only for the payment of 1M? A: YES. The court can award 2M because in rule 18, the court can grant a relief according to the evidence submitted by the plaintiff, [3] unlike in rule 9 w/c says that the extent of the relief cannot be more than what has been prayed for. Q: Why do we treat the default defendant in rule 9 with more flexibility and compassion compared to the defendant in rule 18? A: The violation by the defendant in rule 18 is not his failure to answer but his failure to comply with the requirements of rule 18. In rule 9 the defendant has not filed an answer the court will take pity on the defendant who can be considered as having surrendered the case. Partial Default. In partial default, there are at least 2 defendant sued under a common cause of action and then one defendant answer and the other does not answer.[4] Q: Can the non-answering defendant be declared in default upon motion of the plaintiff? A: YES, because default is founded on the premise that the defendant has been served with summons but does not file an answer w/in the reglementary period. Q: Can the court also render judgment by default against a non-answering defendant? A: NO. If there is an answer filed by one of the defendant, the court will be forced to follow the ordinary course of the proceeding and the court will have to call a pre-trial and have a trail if necessary. Q: During the trial, can the answering defendant call the defaulting defendant to be a witness? A: YES. There is nothing in the rules according to the court which prohibits a defaulting defendant to testify in the case, although he will not be allowed to participate as a litigant during the trial.

1 The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless other-wise ordered by the court. (Rule 18, Sec. 5) 2 A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof. (Rule 18, Sec. 5) 3 Ibid 4 Rule 9, (c) Effect of partial default. — When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented.

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Q: After trial the court finds in favor of the answer defendant. Will that decision be also in favor of the defaulting defendant? A: YES. Likewise, if the answer defendant loses, the defaulting defendant also loses, because these 2 defendant are sued under a common cause of action. Q: Can the plaintiff move for the dismissal of the case so far as the answer defendant is concerned so he is left fighting a defendant who is already in default, who cannot participate in the trial? A: NO. Even if the answer defendant has been dropped from the case, the trial court should examine whether he is an indispensable party to the case and should be impleaded; otherwise the proceedings could be void. If the plaintiff does not amend the complaint and ignores the order of the court, the court may make use of rule 17 order the dismissal of the case because of the refusal of the plaintiff to obey an order of the court. [1] Q: Since a defaulting defendant is disallowed from participating in the trial of the case, what are his remedies for the defaulting defendant? A: The following remedies are available to the defaulting defendant; 1. After notice of order but before judgment – The defendant must file a motion to set aside the order of default due to the following grounds; a. Fraud, Accident, Mistake or Excusable negligence; (FAMEn) b. Defendant must submit a proposed answer to convince the court that he has a meritorious defense; [2] • If the motion of the defaulting defendant to lift the order is denied, he cannot appeal because the denial is only an interlocutory order. 2. After the judgment and before such judgment becomes final and executory - The defendant in default may file a motion for new trial under Rule 37; [3] 3. After the judgment has become final and executory – he may file a petition for relief of judgment under Rule 38; [4] 4. If the defendant was wrongly declared in default - the defendant may file a special civil action for certiorari under Rule 65; [5] 1

Rule 17, Section 3. Dismissal due to fault of plaintiff. — If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. 2 Rule 9, Sec. 3 (b) Relief from order of default. — A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense. In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice. (3a, R18) 3 Rule 37, Section 1. Grounds of and period for filing motion for new trial or reconsideration. — Within the period for taking an appeal, the aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party: (a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or xxx 4 Rule 38, Section 1. Petition for relief from judgment, order, or other proceedings. — When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside 5 Section 1. Petition for certiorari. — When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Q: Supposing that the court has already rendered a judgment of default can he appeal the judgment by default? A: YES because the judgment by default is an adjudication of the merits of the case. Q: Can he also file a petition for cert under 65 to challenge the judgment by default? A: NO. If appeal is available then rule 65 is automatically not available, unless what is challenged is only the denial of his motion to lift an order of default because the law does not allow the defendant to appeal he can make use of rule 65 On the ground that the trial court has acted w/o jurisdiction in excess of jurisdiction amounting to lack of jurisdiction. --xXx--

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2013 LECTURE BY DEAN JARA ABRIDGEMENT AMENDED AND SUPPLEMENTAL PLEADINGS RULE 10 Q: Let’s say that the plaintiff files an action reinvindicatoria against the defendant before the RTC but there is no allegation concerning the assessed value of the property. Can the court order the dismissal of the complaint for lack of jurisdiction? A: YES because by merely reading the complaint the court will be convinced that it has no jurisdiction unless the assessed value of the property is alleged. Q: If the plaintiff discovers the error that he has committed, can he amend his complaint so that he can alleged the assessed value of the property and confer upon the RTC jurisdiction over the case? A: YES. Although the old doctrines do not allow the absence of jurisdiction to be cured by an amendment, under the liberal interpretation of Rule 1[1] the complainant should be allowed to amend the complaint as a matter of right. AMENDMENTS IN GENERAL (Sec. 1) In amendment under rule 10 all pleadings can be amended as a matter of right; 1. Complaint can be amended as matter of right; 2. Answer can be amended as a matter of right; 3. Counterclaim, cross claim, 3rd party complaint can be amended as a matter of right; The only limitation is that amendment should only be once and before a responsive pleading is filed. [2] AMENDMENT AS A MATTER OF RIGHT (Sec. 2) Q: Can the plaintiff amend his pleading as a matter of right or even w/ prior permission from the court if he changes his cause of action? A: YES. Under the present rules, and as authorize by the Supreme Court a cause of action can be changed in a complaint as a matter of right as long as the responsive pleading has not been filed. PPA v. Gothong (2008) In this case of ports PPA v. Gothong, the plaintiff filed a complaint for specific performance after it was answered he filed a motion before the court to change his complaint to a complaint for injunction. There was really a substantial change to the action from specific performance to an action for injunction. The trial court allowed the amendment citing provisions of rule 10, and the court affirmed the ruling of the trial court. So the rule that we follow at present is if it is a matter of right the plaintiff can amend his pleading by changing his cause of action if it is no longer a matter of right but a matter of discretion upon the court the court can still allow the amendment of a pleading by changing the cause of action. It does not matter if an answer has been filed or not. As long as it does not involve prejudice to substantial justice there is nothing wrong if the trial court allows an amendment to the complaint where the plaintiff will change the cause of action. Amendment of an Answer as a matter of right If no reply has been filed, the defendant may amend his answer as matter of right. What is important to amendment as a matter of right is that it should be exercised only once before the responsive pleading has been filed. [3] 1 Rule 1, Section 6. Construction. — These Rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. (2a) 2 Rule 10, Section 2. Amendments as a matter of right. — A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served. 3 Ibid

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2013 LECTURE BY DEAN JARA ABRIDGEMENT If no responsive pleading is yet filed, but the amendment is already the 2nd amendment, we need permission from the court. Q: Can we also amend pleadings if the case is already on appeal to the Court of Appeals or to the Supreme Court? A: YES but only if amendment is formal in nature. [1] Substantial amendments on appeal will injure the rights of the party who has not appealed. AMENDMENT TO CONFORM TO EVIDENCE (Sec. 4) There is a particular rule of evidence, in rule 10 which is amendment to conform to evidence. In amendment to conform to evidence, if the evidence presented by the plaintiff is not material to the allegations in his complaint, then an objection by the defendant must be sustained. The court cannot motu proprio object to the plaintiff’s presentation of the evidence. Example; In a trial for accion reinvindicatoria, the plaintiff does not present evidence which shows that he is entitled to the possession of the property subject matter of the proceeding. Instead the plaintiff presents evidence which demonstrates that the defendant owes him 3M. If you are the lawyer for the defendant, you should object to the evidence concerning defendant’s liability for 3M because it is not material to the case. The court will sustain the objection. If the defendant did not object, the court cannot refuse to admit the evidence although such evidence is irrelevant or immaterial. Q: In the example above, if there is no objection by the defendant, can the court simply award to the plaintiff the 3M, although the plaintiff has not amended his complaint? A: YES. Rule 10 states that this is no need for the plaintiff to formally amend his complaint because the amendment will take place by operation of law in order to conform on the evidence submitted by the plaintiff. [2] SUPPLEMENTAL PLEADINGS (Sec. 5) Supplemental pleading are pleadings which set forth the transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. [3] Supplemental Pleadings v. Amended Pleadings SUPPLEMENTAL AMENDED PLEADINGS PLEADINGS 1. May not need Supplementing pleading permission of the court if we always need amendment is a matter of permission of the court; right; The pleader may change The pleader will not be his cause of action; allowed his cause of action; Supersede the original The supplemental pleading; [4] pleading does not

1

Rule 10, Section 4. Formal amendments. — A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party. 2 When issues not raised by the pleadings are tried with the express or implied consent of the parties they shall be treated in all respects as if they had been raised in the pleadings. Rule 10, Sec. 4. 3 Rule 10, Sec. 6 4 An amended pleading supersedes the pleading that it amends. Rule 10, Section 8. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT supersede the original pleading; Q: Will the court necessarily discard the original pleading? A: NO. The original pleading remain as part of the records of the case for evidentiary purposes. Q: Will the admissions made in the original pleading if amended, remain to be admissions? A: YES, however they are no longer judicial admissions. They are now treated as extrajudicial admissions. On the other hand, admissions made in the superseding pleading shall be treated as judicial admissions and shall be conclusive to the courts. [1] Example; If an original answer contains a general denial admitted as a judicial admission of the allegations in a complaint, and thereafter amended to convert a general denial into a specific denial, the general denial admitted as a judicial admission will now be converted into an extrajudicial admission by the defendant. Q: Will the conversion of the judicial admission into an extrajudicial admission be beneficial to the defendant? A: YES, because it will not be considered as evidence against him by the court. Where as if the admission remains to be a judicial admission it is always conclusive upon the pleader and cannot be the subject of rebuttal evidence. --xXx--

1 However, admissions in superseded pleadings may be received in evidence against the pleader, and claims or defenses

alleged therein not incorporated in the amended pleading shall be deemed waived. Rule 10, Section 8 Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT WHEN TO FILE RESPONSIVE PLEADINGS RULE 11 WHEN TO FILE A COMPLAINT There is nothing mentioned about the period as to when a complaint may be filed. The filing of a complaint is solely dependent upon the claim of the plaintiff. If there is ever a period fixed as to when that complaint should be filed it should be determined by substantive law. Prescription is a matter of substantive law. ANSWER TO THE COMPLAINT (Sec. 1) The defendant shall file his answer to the complaint within fifteen (15) days after service of summons, unless a different period is fixed by the court. Where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same, the answer shall be filed within thirty (30) days after receipt of summons by such entity. [1] EXISTING COUNTERCLAIM OR CROSS-CLAIM (Sec. 8) With respect to a cross claim and a compulsory counterclaim or third party complaint, they must be filed within the period fixed for the filing of an answer. [2] These 3 pleadings must always be added or incorporated in the answer. With respect to a third party complaint you have to file a motion with the court asking for permission to admit this third party. [3] --xXx—

1

Rule 11, Section 2. Answer of a defendant foreign private juridical entity. Rule 11, Section 8. Existing counterclaim or cross-claim. — A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein. 3 Rule 6, Section 11. Third, (fourth, etc.)—party complaint. — A third (fourth, etc.) — party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.) — party defendant for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. 2

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2013 LECTURE BY DEAN JARA ABRIDGEMENT BILL OF PARTICULARS RULE 12 BILL OF PARTICULARS If the defendant feels that there is a need for the plaintiff to be more definite in crafting the allegations contained in the complaint the remedy of the defendant is to file a motion for bill of particulars. [1] Q: If the defendant cannot fully comprehend the subject matter of the complaint, can the defendant file a motion to dismiss instead on this ground? A: NO. Rule 16 does not include as a ground for dismissal the inadequacy of the allegations contained in the complaint. Q: Is there an instance where a defendant can rightfully file a motion to dismiss because of the vagueness or inadequacy of the allegations contained in the complaint instead of filing the motion for bill of particulars? A: YES. By way of exception, when the RTC, acting as a commercial court and there is indefiniteness or vagueness in the allegations contained in the complaint, the remedy of the defendant is to file a motion to dismiss on this ground. The reason given by the court is that in commercial courts applying the procedure outlined by the SC for RTC acting as a commercial court, a motion for bill of particulars is prohibited. [2] So if there is vagueness in the complaint, the remedy left for the defendant is to move for the dismissal of the case on this particular ground. [3] In ordinary civil cases where we allow a motion for bill of particulars, the motion is available to both sides the plaintiff and the defendant. ACTION BY THE COURT (Sec. 2) While a motion for bill of particulars require notice to be served upon the adverse party the court can act upon the motion right away without waiting for the hearing set for that motion. [4] Example; If we set a motion for hearing during a motion day which is usually a Friday, we usually wait until that motion day to submit a resolution for this motion to the court. But in the case of a motion for bill of particulars if we set the motion day for bill of particulars on a Friday and it is received by the court on Tuesday, the court can right away resolve the motion. When to File And a motion for bill of particulars should be filed by the defendant before he submits an answer. Likewise, it should be filed by the plaintiff before he responds to the answer or before he submits his reply.

1

Rule 12. Section 1. When applied for; purpose. — Before responding to a pleading, a party may move for a definite statement or for a bill of particulars of any matter which is not averted with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading. If the pleading is a reply, the motion must be filed within ten (10) days from service thereof. Such motion shall point out the defects complained of, the paragraphs wherein they are contained, and the details desired. 2 A.M. NO. 01-2-04-SC, Re: proposed Interim Rules of Procedure Governing Intra-Corporate Controversies under R.A. No. 8799. Rule 1, Sec. 8. Prohibited pleadings. - The following pleadings are prohibited: xxx (2) Motion for a bill of particulars; 3 Reyes v. RTC of Makati G.R. No. 165744 (2008) 4 Rule 12, Section 2. Action by the court. — Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court which may either deny or grant it outright, or allow the parties the opportunity to be heard. (n) Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT The filing of the answer means that the defendant has understood has comprehended fully the allegations contained in the complaint. STAY OF PERIOD TO FILE RESPONSIVE PLEADING (Sec. 5) Iif the defendant files a motion for bill of particulars and that is denied then the denial is still an interlocutory order what the defendant should do is to file an answer on time within the remaining period which should not be less than 5 days. [1] COMPLIANCE WITH ORDER (Sec. 3) If the motion is granted, the order of the court will be directed to the plaintiff ordering him to submit an amended complaint or simply a bill of particulars which will form part of the allegations contained in the complaint. [2] EFFECT OF NON-COMPLIANCE (Sec. 4) If the plaintiff does not obey the order of the court directing him to submit a bill of particulars, the defendant may either; 1. Move for the striking out of the allegations in the complaint which are vague or indefinite; or 2. Move that the whole complaint be stricken out; [3] If that complaint in its entirety is stricken out the case will be dismissed. If it is the plaintiff who is the movant for bill of particulars and the court directs the defendant to amend his answer but the defendant disobeys, the plaintiff may either; 1. Move for the striking out of the allegations in the complaint which are vague or indefinite; or 2. Move that the whole complaint be stricken out; [4] If the court authorizes or directs that the answer be stricken out, it will be as if the defendant has not filed an answer. The plaintiff may file a motion to declare the defendant in default. There are two instances where defendant may be declared in default although he may have filed an answer on time; 1. Where the defendant refused to amend the answer despite the order of the court; and 2. When the defendant disobeys an order by the court relating to the use and availment of the modes of discovery; [5] --xXx--

1 Rule 12, Section 5. Stay of period to file responsive pleading. — After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than five (5) days in any event. 2 Rule 12, Section 3. Compliance with order. — If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten (10) days from notice of the order, unless a different period is fixed by the court. The bill of particulars or a more definite statement ordered by the court may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party. 3 Rule 12, Section 4. Effect of non-compliance. — If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just. 4 Ibid. 5 Rule 29, Section 5. Failure of party to attend or serve answers. — If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories, the court on motion and notice, may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, and in its discretion, order him to pay reasonable expenses incurred by the other, including attorney's fees.

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2013 LECTURE BY DEAN JARA ABRIDGEMENT FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS RULE 13 DEFINITION (Sec. 1) Filing is the act of presenting the pleading or other paper to the clerk of court. [1] SUBSTITUTE SERVICE OF PLEADINGS AND MOTIONS The substitute service of motions pleadings and other papers refers to a situation where the motion or pleading cannot be served in person or by registered mail or ordinary mail. In substitute service of these papers motions and pleadings the movant should submit these motions or pleading with the clerk of court with proof that personal service and service by mail has failed. Upon receipt by the court of such proof, the substituted service of motions and pleadings and other papers is now completed. [2] Substituted Service of Summons Substituted service of summons happens when there is failure on the part of the sheriff to serve in person upon the defendant the summons. In Substituted Service of Summons, the sheriff will either; 1. Serve the summons at the residence of the defendant to a person of sufficient intelligence and discretion; or 2. Leaving copies to the defendant’s office or regular place of business upon a person who is competent and in charge of that office; [3] PERSONAL SERVICE (Sec. 6) With respect to service of pleadings there is always a preference given by the court to personal service compared with the other modes of service. [4] If a movant or a pleader chooses a mode of service different from service in person the law requires that you should submit to the court an explanation. [5] --xXx--

1

Rule 13, Sec. 1

2 Rule 13, Section 8. Substituted service. — If service of pleadings, motions, notices, resolutions, orders and other papers

cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery 3 Rue 14, Section 7. Substituted service. — If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. 4 Whenever practicable, the service and filing of pleadings and other papers shall be done personally. (Rule 13, Sec. 11) 5 Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. (Rule 13, Sec. 11) Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT SUMMONS RULE 14 SUMMONS Summons is the writ available to the trial court in order to enable the court to acquire jurisdiction over the person of the defendant. Q: Is it the only writ or process which will enable the court to acquire jurisdiction over the person of the defendant? A: NO. The court can still acquire jurisdiction over the person of the defendant by compulsion even if the court does not issue the summons. Example; Rule 65, certiorari, prohibition, and mandamus, does not allow the certiorari court or prohibition court to issue a summons addressed to the defendant. Instead, the court issues a notice addressed to the defendant requiring them to submit their comment before the court. That order to comment, if served upon the respondents, will enable the court to acquire jurisdiction. SERVICE UPON PRIVATE FOREIGHN JURIDICAL ENTITIES (Sec. 12) Summons may served upon this foreign private corporation may be done in four ways but always with the approval of the trial court; 1. First is personal service of summons upon the foreign private corporation not doing business in the Philippines but with the assistance of the department of foreign affairs and also the court of the country where this foreign corporation has its office; [1] 2. The second mode is which can also be authorized by a domestic trial court is the publication of the summons in the place in the country where this foreign corporation has its office; [2] 3. The third mode given by this 2011 circular is by fax message or any electronic device authorized by the trial court for the service of summons upon this foreign private corporation or entity; [3] or 4. The fourth mode is a combination of any of the three as authorized by the court; [4] SERVICE UPON PRIVATE DOMESTIC JURIDICAL ENTITIES (Sec. 12) If you are going to sue a domestic corporation you should see to it that summons is served upon the officers enumerated in the rules of court. [5] Villarosa v. Benito[6] FACTS: Remember that in the case of Villarosa v. Benito the summons was served upon a branch manager of the defendant and the rules do not include a branch manager as one of the officer upon whom summons can be served and the court ruled that the trial court did not acquire jurisdiction over the person of this corporation because the summons was served not upon anyone of the officers mentioned in the rules of court.

1 Rule 14, Sec. 12 (a) By personal service coursed through the appropriate court in the foreign country with the assistance of the Department of Foreign Affairs. (As amended by A.M. No. 1-3-6-SC) 2 Rule 14, Sec. 12 (b) By publication once in a newspaper of general circulation in the country where the defendant may be found and by serving a copy of the summons and the court order by-registered mail at the last known address of the defendant. (As amended by A.M. No. 1-3-6-SC) 3 Rule 14, Sec. 12 (c) By facsimile or any recognized electronic means that could generate proof of service. (As amended by A.M. No. 1-3-6-SC) 4 Rule 14, Sec. 12 (d) By such other means as the court may in its discretion direct (As amended by A.M. No. 1-3-6-SC) 5 Rule 14, Section 11. Service upon domestic private juridical entity. — When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel. 6 G.R. No. 136426 (August 6, 1999).

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Summons served upon a partnership In the case of a partnership, the rules require that summons must be served upon the managing partner or a general manager as the case may be. Example If the defendant is a partnership duly registered with the Securities and Exchange Commission, service upon anyone of the partners will be a valid service of summons. Under the Civil Code in a partnership, the presumption is that all the partners are managing partners so we apply certain provisions of the civil code. SUBSTITUTED SERVICE (Sec. 7) There is a conflict of decisions rendered by the court insofar as the decision of jurisdiction over this natural person is concerned. Robinson v. Miralles [1] FACTS: In one case decided in 2006 a defendant was sued a natural person for the recovery of money. The defendant stayed in a gated subdivision according to the court it means that not anybody can enter the subdivision without obtaining the permission of the guards on the gate or the owner of the house living within the subdivision. This defendant resided in this gated subdivision so every time that the sheriff would go to the residence of this defendant to serve summons the guards would not let the sheriff enter the property. The guards always told the sheriff that that person is not around he cannot be served with summons personally. So we will not allow you to enter the subdivision. After so many attempts the sheriff got fed up and what the sheriff did is to leave a copy of the summons together with a copy of the complaint with the guards of the subdivision. ISSUE: Is that a valid substitute service of summons? HELD: Literally that is not a valid service of summons if you will read rule 14 on substitute service of summons. It means that the summons should be served at the residence of the defendant upon a person of sufficient age and discretion then living therein. If the summons and the complaint were left only with the security guards at the gate of the subdivision this will not comply with the rules on substitute service because the guards do not reside at the place of residence of the defendant. Sufficient Age and Discretion The court said that this person of sufficient age and discretion means that this person is at least 18 years he is no longer a minor and that a provision there is a relationship of confidence between this person and the defendant himself. [2] SUMMONS BY PUBLICATION Before 1997, it was firmly established that if an action is filed against the defendant that is purely in personam and also personal at the same time such as recovery of an unpaid loan, and the defendant cannot be served by summons either in person or by substitute service, the court cannot simply authorize publication of the summons to acquire jurisdiction to try the case. Citizen Surety v. Herrera [3] FACTS: This case a case was filed for the recovery of a deficiency arising from a foreclosure of real estate mortgage. So that action was in personam it was also personal in character. Although previously the mortgagor, who is now the defendant in this complaint, have a known address when this complaint for deficiency was filed, the court can no longer locate the defendant in the residence or in any other address given to him by the plaintiff. Thus, service in person of the summons or substitute service could not be had. What the plaintiff did was to file a motion to court where he sought authority from the court 1

G.R. No. 163584 ( December 12, 2006). G.R. No. 130974 (August 16, 2006). 3 G.R. No. L-32170 (March 31, 1971) 2

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2013 LECTURE BY DEAN JARA ABRIDGEMENT to publish these summons which the court readily granted. There was no opposition. The plaintiff caused the summons to be published. After 60 days from the publication of the summons the court has not received any responsive pleading any answer coming from the defendant. So what the plaintiff did was to file a motion to declare the defendant in default. During the hearing of the motion the plaintiff presented to the court a copy of the order authorizing publication, the proof that the summons was indeed published and the affidavit of the publisher of the newspaper saying that there was indeed publication of the summons. The court which was presided by judge Sereno who became chief justice of the Supreme Court required the plaintiff to explain to me why your complaint should not be dismissed. HELD: The judge told the plaintiff “even if you publish the summons that publication did not enable the court to acquire jurisdiction over the person. You should have complied with the requirements of the rules of court”. The requirement which appears not therein satisfied was the constitutional requirement of due process. The action should have been converted into one that is in personam into in rem or quasi in rem by applying to the court preliminary attachment of the properties belonging to the defendant under Section 1 of rule 57 on preliminary attachment.[1] In other words if we are not able to convert the action in personam to one that is in rem or quasi in rem the court will not be able to acquire jurisdiction over the person of the defendant and therefore the court will have no authority at all to entertain that case. If no preliminary attachment of properties belonging to the defendant could be had, it is not right also to order the dismissal of the case. The court said instead of ordering the dismissal of the case what the trial court should do is to order the archiving of the case so the law on prescription will not start to run and therefore it is not possible for the defendant later on to setup the defense of prescription which is one of the non-waivable defenses. PNOC v. SANTOS (2008)[2] FACTS: PNOC vs Santos a 2008 case involved practically the same claim it was a claim for money arising in fact from a sale. The defendant could not be located anymore. And therefore summons cannot be served in person or by substitute service. What the lawyer filed was a motion to allow him to present evidence ex parte because no answer has been filed by the defendant and the trial court allowed it. Later on the judge rendered a decision in favor of the plaintiff directing the defendant to pay. When the defendant learned of the decision he presented himself before the court and he asked the court for reconsideration of the decision. HELD: The court said that when he filed a motion for reconsideration he admitted the jurisdiction of the court over his person by virtue of voluntary appearance on the part of the defendant. From that time on since 2008 lawyers have made use of PNOC vs Santos as the authority to convince a court the trial court that there is no more need for publication and for the issuance of a writ of preliminary attachment before the court could acquire jurisdiction over the person of the defendant. Palma v Galvez [3] FACTS: This case practically reiterates the ruling in PNOC vs Santos. There is no need for the conversion of an action in personam to in rem or quasi in rem before the court could acquire jurisdiction over the person of the defendant. HELD: In this case of Padua the court explained that we should apply literally what the rules provide. In Rule 14 Section 16, if the defendant is a resident of the Philippines but is temporarily out of the 1

Section 1. Grounds upon which attachment may issue. — At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases:xxx (f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication 2 G.R. No. 170943 (September 23, 2008) 3 G.R. No. 165273 (March 10, 2010) Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Philippines and in relation to Rule 14 Section 15, if the whereabouts of the defendant are unknown there could be publication of summons and that will enable the court to acquire jurisdiction over the person of the defendant. Preliminary Attachment not Necessary So it would seem that the principles which were adhered before as enunciated in Citizens Surety v. Herrera are no longer binding upon plaintiffs. They can ignore the requirement of prior preliminary attachment of properties of the defendant before there could be publication of summons to enable the court to acquire jurisdiction over the person of the defendant. Advantage of Citizens Surety v. Herrera The advantage in the mechanism given in Citizens Surety v Herrera is that there is a security that is enjoyed by the plaintiff when the property of the defendant is attached through a writ of preliminary attachment. But again the present stand of the court is not to apply anymore that principle in Citizens Surety v Herrera insofar as publication of summons is concerned. There is no more need for converting an action in personam into one that is in rem or quasi in rem. --xXx--

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2013 LECTURE BY DEAN JARA ABRIDGEMENT MOTIONS RULE 15 GENERAL RULE In motions[1] the general rule is that if a motion is not made in open court it must be reduced into writing[2] and it must satisfy all the requirements given in the rules for the motion. There must be a service upon the adverse and that motion should be set for hearing. [3] Ex-Parte Motions If an ex-parte motion is reduced into writing, that motion on its face already violates the rules because an ex parte motion is not served upon the adverse party and usually it is not set for hearing in accordance with the provisions of the rules on motion. NOTICE OF HEARING (Sec. 5) The notice of hearing must be addressed to the adverse party or the lawyer of the adverse party not to the branch clerk of court.[4] Example; Mr Juan Dela Cruz lawyer for the defendant please take note that the foregoing motion will be heard with the RTC on particular motion day at 8:30 etc. PROOF OF SERVICE (Sec. 6) At the bottom of the Notice, there must be proof of service by registered mail or by personal service as the case may be. If a motion is submitted to court does not emit the requirements the formalities the mechanisms and the rule as to service and notice of hearing that motion is a scrap of paper.[5] OMNIBUS MOTION (Sc. 8) In any civil proceeding if there is an objection to a pleading or to any claim it should be contained in the motion or in another pleading. If the objections are not setup, these objections are deemed omitted except for the non waivable defenses. [6] --xXx--

1

Rule 15, Section 1. Motion defined. — A motion is an application for relief other than by a pleading. Rule 15, Section 2. Motions must be in writings. — All motions shall be in writing except those made in open court or in the course of a hearing or trial 3 Rule 15, Section 4. Hearing of motion. — Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant. 4 Rule 15, Section 5. Notice of hearing. — The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion. 5 Rule 15, Section 6. Proof of service necessary. — No written motion set for hearing shall be acted upon by the court without proof of service thereof. 6 Rule 15, Section 8. Omnibus motion. — Subject to the provisions of section 1 of Rule 9, a motion attacking a pleading, order, judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed waived 2

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2013 LECTURE BY DEAN JARA ABRIDGEMENT MOTION TO DISMISS RULE 16 WHEN NOT APPLICABLE In regular procedure in civil cases, a motion to dismiss is allowed. However, a motion to dismiss is prohibited in certain procedures and circulars of the court such as; 1. Small claims; 2. Summary procedure; 3. Writ of Amparo; and 4. Habeas Data ; A motion to dismiss under rule 16 should be filed as a matter of general practice before the defendant submits an answer. Q: Can the defendant properly file an answer and a motion to dismiss at the same time? A: Yes, but only if the motion to dismiss will simply be incorporated in the answer. The answer should not be separate from the motion to dismiss. In this case there will be a preliminary hearing as if a motion to dismiss has been filed by the defendant.[1] Time For Filing A motion to Dismiss may be filed before the filing of an answer to the complaint or pleading asserting a claim.[2] Non-Waivable Defenses But in the case of a non waivable defense [3] the defendant may file a motions to dismiss one after another without violating the omnibus motion rule if the grounds are founded on these non waivable defenses. Example; The defendant filed a motion to dismiss based on prescription. If that is denied he can file a second motion to dismiss based on litis pendentia. If that is dismissed he can file a third motion to dismiss based on lack of jurisdiction over the subject matter. If that is denied he can file a fourth motion to dismiss founded on res Judicata. RESOLUTION OF MOTION (Sec. 3) In the resolution of a motion to dismiss, Rule 16 gives to the court 3 choices; 1. Grant the motion; 2. Deny the motion; or 3. Order amendment of the pleadings. [4] Fourth Option A fourth option is now given to the trial court by virtue of these laws on Alternative Dispute Resolution. If these grounds are available, the court can refer the matter into mediation or arbitration as the case may be and suspend further hearings.

1 Rule 16, Section 6. Pleading grounds as affirmative defenses. — If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed 2 Rue 16, Sec. 1. 3 Rule 9, Section 1. (1) the court has no jurisdiction over the subject matter; (2) there is another action pending between the same parties for the same cause; (3) the action is barred by a prior judgment; (3) or by statute of limitations. 4 Rule 15, Section 3.Resolution of Motion. — After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Q: Is there any procedural advantage if the defendant, instead of filing a motion to dismiss under Rule 16, will simply answer the complaint based on the affirmative defenses enumerated in rule 16? A: YES. If the court orders the dismissal based on the affirmative defenses filed in an answer, the defendant will be given an opportunity to recover his claim for damages if in his answer there are counterclaims, permissive or compulsory, together with the affirmative defenses. [1] No Counterclaim or Cross-claim with Motion to Dismiss The defendant cannot file a motion to dismiss with a counterclaim or a crossclaim because a motion to dismiss is not a pleading. An answer, being a pleading, can have a crossclaim or a counterclaim against the plaintiff as the case may be. Omnibus Motion Rule If there is a motion to dismiss founded on grounds other than the non waivable defenses, the grounds not cited are deemed omitted. Example; If lack jurisdiction over the person of the defendant, a waivable defense, is the only ground stated in the motion to dismiss a which was denied, the defendant is precluded from filing a second motion to dismiss on the ground of improper venue because these are waivable defenses. There could be a second motion to dismiss if the succeeding motions to dismiss are founded on the non waivable defenses. GROUNDS FOR MOTION TO DISMISS (Sec. 1) A motion to dismiss may be made on any of the following grounds: a. That the court has no jurisdiction over the person of the defending party; b. That the court has no jurisdiction over the subject matter of the claim; c. That venue is improperly laid; d. That the plaintiff has no legal capacity to sue e. That there is another action pending between the same parties for the same cause; f. That the cause of action is barred by a prior judgment or by the statute of limitations; g. That the pleading asserting the claim states no cause of action; h. That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished; i. That the claim on which the action is founded is enforceable under the provisions of the statute of frauds; and j. That a condition precedent for filing the claim has not been complied with; LACK OF JURISDICTION OVER THE SUBJECT MATTER Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on the ground that the court has no jurisdiction over the subject matter of the claim. [2] Tijam v. Sibonghanoy. [3] FACTS: If the trial court does not have jurisdiction over the subject matter of the case, normally the conclusion is that the judgment of the court is void because the court must have jurisdiction over the subject matter before it can properly try the case. If the defendant kept silent about this issue, and then the defendant allows the court to conduct a hearing on the case, he allows the court to decide the case. The defendant appeals to the Court of Appeals and did not raise the issue of lack of jurisdiction. The CA 1

Rue 16, Sec. 6 (2) The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. 2 Rule 16, Section 1. Grounds. — Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds: (b) That the court has no jurisdiction over the subject matter of the claim; 3 G.R. No. L-21450 (April 15, 1968) Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT renders its own decision affirming the decision of the RTC and after receiving the decision of the CA, instead of filing a motion for reconsideration, the defendant challenges the decision of the trial court and the court of appeals on the ground that the trial court did not have jurisdiction from the very start. And lastly that case has been pending before the courts for 15 years. HELD: The court said it is true that lack of jurisdiction over the subject matter can be raised at anytime even for the first time on appeal but in this case we have to make use of the rule on estoppel by laches. The case has been pending for 15 years and during this 15 year period the defendant did not challenge the jurisdiction of the court in fact the parties litigated by filing submissions to the court of appeals. The Supreme Court said that while the decision really may be challenged because of the absence of jurisdiction over the subject matter, the defendant is estopped by laches by his act of negligence in failing to raise this issue as soon as possible. He is guilty of estoppel by laches he can no longer challenge the validity of the decision of the court. Estoppel by Laches The case of Tijam v. Sibonghanoy was decided in 1968 it’s really an old case. Despite this, we should not forget about Tijam v. Sibonghanoy. In Rule 47, one of the grounds for annulment of judgment is lack of jurisdiction over the subject matter. The only exception when there is estoppel by laches.[1] That is an express recognition of the 1997 rules about the applicability of the case of Tijam v. Sibonghanoy. So we still have laches by estoppel as a good defense against this non waivable defense of lack of jurisdiction over the subject matter. Soliven vs Fastforms. [2] In this case, the complainant filed a complaint for recovery of sum of money in the amount of P170,000.00 before an RTC after the effectivity of B.P. 129 and R.A. 7691. In BP 129, in order to determine the competent court in complaints for money, we should exclude items like interests damages cost and attorney’s fees. The defendant, thinking that the trial court had jurisdiction, filed an answer and in that answer incorporated a counterclaim. Later the court rendered a judgment in favor of the plaintiff. This time, the defendant filed a motion for reconsideration before the trial court and he raised the issue of lack of jurisdiction over the subject matter. The trial court denied the motion because the defendant participated in the case. HELD: The case eventually reached the Supreme Court and the Supreme Court said the defendant will no longer be allowed to challenge the jurisdiction of the court. We cannot make use of that concept of estoppel by laches because the period was not similar to Tijam. But what the supreme court did here was to introduce another kind of estoppel. The court said there may be no estoppel by laches but there is estoppel in pais that is estoppel by deed. The act of the defendant in participating actively during the trial of the case and in seeking an affirmative relief through a counterclaim contained in his answer makes the defendant in estoppel in pais. He can no longer challenge the validity of the decision rendered by the court although the court may not have jurisdiction over the case. So another kind of estoppel was now set by the SC in order to prevent a party from challenging jurisdiction the first is estoppel by laches in Tijam and then the second one is estoppel in pais estoppel by deed. Figueroa v. People [3] This was a criminal case. In Figueroa there was a criminal case filed against the accused for reckless imprudence resulting to homicide. If you recall under BP 129 these criminal cases of reckless negligence are cognizable by an inferior court under BP 129. But unfortunately in Figueroa the information was filed by the prosecutor before the RTC. The prosecutor was unaware that the RTC did not have jurisdiction. There was trial where the court the prosecution and the accused presented their respective evidence. The trial court convicted the accused. The accused appealed to the CA and then in the CA the accused 1 Rule 47, Section 3. Period for filing action. — If based on extrinsic fraud, the action must be filed within four (4) years from its discovery; and if based on lack of jurisdiction, before it is barred by laches or estoppel. 2 G.R. No. 147406 (July 14, 2008) 3 G.R. No. 147406 (July 14, 2008).

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2013 LECTURE BY DEAN JARA ABRIDGEMENT moved for the dismissal of the information of the criminal case on the ground of lack of jurisdiction. The solicitor general who is the lawyer of the people of the Philippines cited this doctrine in Soliven v. Fastforms. The CA agreed with the Solicitor General applying the rule on estoppel in pais. The case reached the SC. HELD: The SC said the judgment is void because we cannot apply the rule of estoppel in pais in this case. So even if there was active participation by the accused in a criminal case he still can challenge the validity of the information against him if the court really has no jurisdiction over the case. Since this case of Figueroa is a criminal case but the case of Soliven is a civil case does it really matter? I'm not saying that you follow Figueroa or you follow Soliven v. Fastforms but if you are confronted with a problem on lack of jurisdiction and it is a civil case you apply Soliven v. Fastforms but if the problem involves a criminal case then you follow Figueroa. There is reason really for the SC to adopt a different path in Figueroa because Figueroa was a criminal case and of course the liberty of the accused was to be considered. LACK OF JURISDICTION OVER THE PERSON Another ground for motion to dismiss is lack of jurisdiction over the person of the defendant. [1] This will take place if the defendant is not properly served by summons, in accordance with Rule 14 either service in person or substituted service. Filing a motion to dismiss If the defendant contends that the court has not acquired jurisdiction over his person, he has to file a motion to dismiss before that same court. Q: If the defendant files a motion to dismiss before the court on the ground of absence of jurisdiction over his person, does not the defendant admit that the court already has jurisdiction over his person? A: NO. The filing by the defendant of a motion to dismiss on that ground is the only mechanism available to him to manifest to the court that the court has not acquired jurisdiction over his person. Special Appearance Rule By virtue of special appearance, the defendant tells the court that his appearance before the court in filling a motion to dismiss is only for the purpose of telling the court, that it has no jurisdiction over his person. [2] A defendant is free to file a motion to dismiss citing as to one of the grounds lack of jurisdiction over his person and other grounds in Rule 16. He is not deemed to have waived his argument that the court has no jurisdiction over his person. Example; The defendant who does not respond on the summons, on the belief that the filing of an answer will in effect make himself liable for the claim in the complaint. Then he is declared in default. He receives the order of the court and then following the rules, the defendant files a motion to lift the order of default. The filing of a motion to lift the order of default, as wells as a motion for reconsideration or a new trial is in effect, submission of the defendant to the jurisdiction of the court over his person. FAILURE TO STATE A CAUSE OF ACTION [3] There is failure to state a cause of action when; a. He does not allege a right; or 1 Rule 16, Section 1. Grounds. — Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds: (a) That the court has no jurisdiction over the person of the defending party; 2 Padua v. Galvez (March 10, 201) 3 Rule 16, Section 1 (g) That the pleading asserting the claim states no cause of action;

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2013 LECTURE BY DEAN JARA ABRIDGEMENT b.

Even if he alleges a right, it was not violated;

In Rule 16 failure to state a cause of action assumes that the plaintiff really has a cause of action and the failure to state will solely be the fault of the lawyer who prepared the complaint. Lack of Cause of Action v. Failure to State a Cause of Action Failure to state a cause of action is a ground for a motion to dismiss. However, lack of cause of action is not a ground for motion to dismiss. Example; Let us say that there is accion reinvindicatoria before the RTC but there is no allegation as to the assessed value of the property. The defendant files a motion to dismiss for lack of jurisdiction over the subject matter. In hearing the motion, the only evidence to be taken into account by the court is the complaint itself. Q: If the decides that it really has no jurisdiction. Can the lawyer for the plaintiff still amend his complaint? A: YES. The order of dismissal will not be entered until the lapse of 15 days. During that time, the plaintiff may still amend the complaint as a matter of right [1] because a motion to dismiss is not a responsive pleading. [2] DISMISSAL WITH PREJUDICE The dismissal founded on (f), (h), and (i) of Rule 16 [3] is a judgment on the merits. The complaint has been extinguished and the dismissal is with prejudice. Q: What is the recourse of the plaintiff if the order of dismissal has become final and executory? A: If dismissal is based on paragraphs (f), (h), and (i) of Rule 16 and the order has not been entered, the remedy of the plaintiff is to appeal. [4] Q: If the order of dismissal is founded on other grounds, what is the remedy of the plaintiff? A: If the dismissal is founded not on (f), (h), and (i), the dismissal is without prejudice. Rule 41 states that the remedy is to file an appropriate petition under Rule 65, certiorari or prohibition. [5] Factual Issue v. Legal Issue There is a procedural difference if a motion to dismiss is founded purely on a question of law compared to a question of fact. If founded on a legal issue, the court will simply read the allegations in the complaint and will not allow presentation of evidence. If the issue raised is a factual issue the court will be forced to conduct a hearing s if it were a hearing on the merits.

1

Rule 10, Section 2; Soledad v. Mamañgun (May 30, 1963). 3 Rule 16, Section 1, (f) That the cause of action is barred by a prior judgment or by the statute of limitations; (h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished; (i) That the claim on which the action is founded is enforceable under the provisions of the statute of frauds; 4 Rule 16, Section 5. Effect of dismissal. — Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f), (h) and (i) of section 1 hereof shall bar the refiling of the same action or claim. 5 Rule 41, Section 1. Subject of appeal. — An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. No appeal may be taken from: (h) An order dismissing an action without prejudice. In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. 2

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Q: Defendant files a motion to dismiss based on the ground that the obligation has been extinguished but it was denied by the court. Can the defendant file an answer based on the same affirmative defense? A: YES, he can still make use it. Q: Can the defendant, after filing the answer with the affirmative defense, move the court to allow a preliminary hearing with this affirmative defense? A: NO because there was already a hearing on the same ground. However he may be allowed to present additional evidence during the trial. Q: If a complaint was dismissed through a motion with or without prejudice, do we consider the dismissal as a final order? A: YES. Any dismissal by the court is a final order. Q: If a complaint was dismissed based on paragraph (f), (h), and (i), can the plaintiff avail a petition for certiorari under Rule 65? A: NO. The proper remedy is to appeal under Rule 41 because a motion to dismiss based on (f), (h), and (i) is with prejudice.[1] Rule 65 may be availed of only if the judgment or final order is not appealable. [2]

--xXx--

1 Rule 41, Section 1. Subject of appeal. — An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. No appeal may be taken from xxx (h) An order dismissing an action without prejudice. 2 Rule 41, Section 1. Subject of appeal, In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.

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2013 LECTURE BY DEAN JARA ABRIDGEMENT DISMISSAL OF ACTIONS RULE 17 Q: If the court orders the complainant to amend his complaint so as to include an indispensible party but the complainant refuses to do so, can the court order the dismissal of the complaint? A: YES. Under Rule 17, failure to comply with the order of the court is a ground for dismissal with prejudice. [1] DISMISSAL UPON NOTICE BY PLAINTIFF (Sec. 1) The dismissal contemplated in section 1is the dismissal of a complaint upon the initiative of the plaintiff itself. When To file the Notice A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. [2] Q: Is there a difference between the motion filed by the plaintiff than a notice of dismissal? A: YES. A “motion” gives the court the prerogative to grant or deny. A “notice” gives the court no discretion except to confer. General Rule The Notice of dismissal is without prejudice.

[3]

Exception; The plaintiff tells the court that the notice should be considered as an adjudication upon the merits.

[4]

Q: If the dismissal of the complaint is confirmed by the court and he receives the notice of confirmation and the plaintiff again change his mind, can he file another complaint? A: NO. The confirmation of the dismissal will be entered only after the lapse of fifteen days. Within the 15 day period, the plaintiff can change his mind. He will just ask the court to revive his complaint. Q: Supposing that the defendant files a motion to dismiss under rule 16, and subsequently the plaintiff files a notice of dismissal, which of the two submission should be resolved by the court? A: The court should do is to confirm the notice of dismissal by the plaintiff. Two Dismissal Rule A notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. [5] Example; The creditor files a complaint against the debtor for the recovery of an obligation for P500,000. After receiving the summons, the defendant pleaded the complainant not to proceed with the complaint and promised to pay the debt. Thus, the plaintiff files a notice of dismissal. The case confirmed the dismissal. Thereafter, the defendant does not still pay. 1

Rule 17, Sec. 3. Section 1. Dismissal upon notice by plaintiff. — A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. xxx 3 Rule 17, Section 1. Unless otherwise stated in the notice, the dismissal is without prejudice xxx 4 ibid. 5 Ibid. 2 Rule 17,

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Q: Based on the example above, can the plaintiff file a second complaint? A: YES. The notice of dismissal is without prejudice. The plaintiff then files a second complaint. Q: If the plaintiff files a second notice of dismissal, and the defendant again failed to pay, can he file a third complaint? A: NO. The rule states that the second dismissal is with prejudice, the court is not given discretion. Q: Is there a situation where the second dismissal will not be considered with prejudice? A: YES. If one of the cases has not been file before a competent court, that dismissal will not be with prejudice. DISMISSAL UPON MOTION BY PLAINTIFF (Sec. 2) The plaintiff, after defendant files an answer, is not given a prerogative to file a notice of dismissal but must file a motion. [1] Q: If the plaintiff files a motion to dismiss, can the defendant object? A: YES. Section 2 is clear in saying that the dismissal is without prejudice. [2] The defendant can insist that the dismissal should be considered with prejudice. Counterclaim If the defendant has already filed an answer and has set up a counterclaim, he could insist on the dismissal but the court should continue with his counterclaim although it is a compulsory counterclaim.[3] In effect section 2 gives us a very rare situation where a compulsory counterclaim could survive without the principal action. DISMISSAL DUETO FAULT OF PLAINTIFF (Sec. 3) Dismissal due to the fault of the plaintiff may be made; 1. Upon motion of the defendant; or 2. Upon the court's own motion (motu proprio). [4] Dismissal due to the fault of the plaintiff are as follows; 1. If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint; 2. Failure or to prosecute his action for an unreasonable length of time; 3. Failure to comply with the lawful order of the court; 4. Failure to obey the provisions of the Rules of Court;[5]

1 Rule 17,

Section 2. Dismissal upon motion of plaintiff. — Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff's instance save upon approval of the court and upon such terms and conditions as the court deems proper. xxx 2 Rule 17, Section 2. Dismissal upon motion of plaintiff. — xxx Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. xxx 3 Rule 17, Section 2. Dismissal upon motion of plaintiff. — xxx If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiffs motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. xxx 4 Rule 17, Section 3. Dismissal due to fault of plaintiff. — If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. xxx 5 Ibid. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Dismissal is With Prejudice The dismissal is upon the adjudication of the merits.[1] Order Must be Valid In order to be valid, the order of dismissal should comply with the essentials requirements of a valid judgment under Rule 36; [2] 1. It must be in writing; 2. Personally and directly prepared by the judge; 3. Must state clearly and distinctly the facts and the law on which it is based; 4. Signed by the Judge; and 5. Filed with the clerk of the court; The SC said for a trial court to render a valid judgment, the court should explain why and how it come to a conclusion that the plaintiff failed to prosecute. [3] Without such explanation, the judgment is null and void. --xXx--

1

Rule 17, Section 3. Dismissal due to fault of plaintiff. — xxx This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. 2 Rule 36, Section 1. Rendition of judgments and final orders. — A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the court. 3 Shimzu v. Magsalin (June 20, 2012) Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT PRE-TRIAL RULE 18 Pre-Trial is Mandatory Pre-trial is mandatory in all cases; civil or criminal. Even in summary procedure, we have compulsory pre-trial, though it is called preliminary conference. [1] WHEN CONDUCTED (Sec. 1) It is the duty of the plaintiff to schedule his complaint for pre-trial within five days after the last pleading has been filed. [2] Q: Will the case be dismissed if the plaintiff fails to move for pre-trial? A: NO. If the plaintiff fails to file said motion within the given period, the Branch Clerk of Court shall issue a notice of pre-trial. [3][4] NATURE AND PURPOSE (Sec. 2) The pre-trial is mandatory. The court shall consider: a. The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; b. The simplification of the issues; c. The necessity or desirability of amendments to the pleadings; d. The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; e. The limitation of the number of witnesses; f. The advisability of a preliminary reference of issues to a commissioner; g. The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist; h. The advisability or necessity of suspending the proceedings; and i. Such other matters as may aid in the prompt disposition of the action. Pre-Trial Modified by SC Circular This rule on pre trial has been modified by certain circulars of the SC, applying the principles of mediation and conciliation. The process of mediation and conciliation are as follows; • The trial courts tell the parties that they should first attend mediation and conciliation by SC accredited mediators or conciliators; • The mediator or conciliator will issue a notice to the litigants on the date scheduled for the mediation and conciliation; • Failure of the plaintiff to appear at the mediation and conciliation conference is a ground for dismissal with prejudice; • Failure of the defendant to appear at the mediation and conciliation conference allows the plaintiff to present evidence ex parte; • If there is no agreement - the parties are required to go back to court to attend the formal the pretrial conference; 1 1991 Revised Rules on Summary procedure. Sec. 7. Preliminary conference; appearance of parties. — Not later than thirty (30) days after the last answer is filed, a preliminary conference shall be held. The rules on pre-trial in ordinary cases shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule. 2 A.M. No. 03-1-09-SC, Pre-Trial, Civil Case, 1.2: Within five (5) days from date of filing of the reply, the plaintiff must promptly move ex parte that the case be set for pre-trial conference. If the plaintiff fails to file said motion within the given period, the Branch Clerk of Court shall issue a notice of pre-trial. 3 Ibid. 4 Soliman v. Fernandez (June, 4, 2014).

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2013 LECTURE BY DEAN JARA ABRIDGEMENT •

The conciliator or mediator will simply submit his report to the court and the record will be return to the court for a pretrial conference;

FAILURE TO APPEAR (Sec. 5) There are serious sanctions and consequences for failure to attend the pre-trial conference. If the plaintiff failed to appear in the pre-trial conference, the sanction is a dismissal of the complaint with prejudice. In case of a defendant, the sanction is for the plaintiff to present his evidence ex parte. [1] Default in Rule 9 v. RULE 9 If a defendant is in default, the plaintiff may present evidence ex parte; The court may only award what the plaintiff has prayed for in the complaint;

Default in Rule 18 RULE 18 If a defendant is in default, the plaintiff may present evidence ex parte; The court may make an award in accordance with the evidence presented by the plaintiff;

Criminal Case v. Civil Case CRIMINAL CASE CIVIL CASE There must be a pre-trial The parties can stipulate conference; on facts even without a pretrial conference; stipulation of facts must They can be Made be reduced in writing, verbally or in writing; signed by the accused and his counsel, and approved by the court PRE-TRIAL ORDER (Sec. 7) After the pretrial conference is terminated, a trial court is required to issue a pretrial order. The pre-trial specifies the issues that had not been stipulated upon and the issues that should be the object of the trial. [2] It is the pretrial order that will be followed by the court, when the court finds it necessary to conduct a trial. The court can even disregard the pleadings submitted by the parties. Example; The plaintiff files a complaint against the defendant for the recovery of an unpaid loan. The issue that is raised by the pleadings is whether or not the plaintiff is entitled to recover P 1 million from the defendant. During the pre-trial conference, the parties agree that the issue to be tried is actually the entitlement of the plaintiff to recover from the defendant a piece of land. That is the issue that is embodied in the pretrial order. Is that pretrial order valid?

1 Rule 18, Section 5. Effect of failure to appear. — The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless other-wise ordered by the court. A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof. (2a, R20) 2 Rule 18, Section 7. Record of pre-trial. — The proceedings in the pre-trial shall be recorded. Upon the termination thereof, the court shall issue an order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed to the pleadings, and the agreements or admissions made by the parties as to any of the matters considered. Should the action proceed to trial, the order shall, explicitly define and limit the issues to be tried. The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice.

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2013 LECTURE BY DEAN JARA ABRIDGEMENT YES. Although it is in conflict with the pleadings raised by the parties, Rule 18, Sec. 7 states the pretrial order that will govern the course of the proceeding even there is no amendment in the pleadings. Q: Why do we allow the trial court to change the issues without changing the pleadings? A: In a Pre-trial conference in a civil case, the Court allows the parties must come into an agreement themselves regarding the issues to be resolved. However such procedure is not proper in a criminal case. Q: In the situation above, If the plaintiff presents evidence that he is entitled to recover the piece of land can, he also presents evidence that he is entitled to recover P1M? A: NO, if the defendant objects. However, if the defendant does not object, the plaintiff will be able to present an issue not raised in the pretrial order. Q: Why do we allow the plaintiff to present evidence on an issue not raised in the pretrial order? A: Because the rule on amendment to conform to evidence allows the parties in the civil case to jump from one issue to another as long as the parties agreed. --xXx--

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2013 LECTURE BY DEAN JARA ABRIDGEMENT REMEDIES TO APPEAL A JUDGMENT AVAILABLE REMEDIES For a civil case, the remedies available to the aggrieved party would depend primarily on whether the judgment has been entered or not. If the judgment is not yet final and executory, the following remedies are as follows; 1. Motion for New Trial or Reconsideration under Rule 37; and 2. Appeal; If the Judgment has become final and executory, the following remedies are as follows; 1. Relief of Judgment under Rule 38; 2. Annulment of Judgment under Rule 47; 3. Petition for Certiorari under Rule 65; 4. Collateral attack if the judgment is void on it’s face; [1] Remedies in a Criminal Case in a criminal case, the remedies available before the judgment of conviction becomes final are as follows; 1. New trial or reconsideration under Rule 121; 2. Appeal under Rule 122; and 3. Reopening of the case under Rule 119; Reopening of Cases in a Civil Case Despite the absence of an express provision allowing the reopening of a case in a Civil Case, it does not mean that reopening of a civil case is not available in a civil case. It is still available in a civil case but before the judgment is rendered. Jurisprudence states that reopening of a case is allowed only before judgment has been rendered and only for the purpose of allowing the movant to offer evidence which he may have forgotten to present during trial or additional evidence. [2][3]. The Supreme Court once said that there are no grounds specifically mentioned in the Rules. Reopening a civil case is not expressly recognized. [4] Reopening a Criminal Case In a criminal case, reopening as a remedy is expressly recognized in criminal procedure. The accused may file a motion to reopen the case even after a judgment of conviction has been rendered as long as such judgment is not yet final and executory. [5] Relief of Judgment not available in a Criminal Case In criminal procedure, a petition for relief from judgment and Annulment is not available. If the accused only feels that his detention in prison is unlawful, his remedy is Habeas Corpus.

1

Arcelona v. CA (G.R. No. 102900, October 2, 1997) Lopez v. Liboro (1948) 3 Rule 30, Sec. 5 (f) 4 “There is no justification in law and in fact for respondent judge's void act of ordering the reopening of the case which has long become final and which has in fact been executed. It is settled that once a decision becomes final and executory, it is removed from the power or jurisdiction of the court which rendered it to further alter or amend, much less revoke it” (Turqueza v. Hernando, 1980) 5 Rule 119, Section 24. Reopening. — At any time before finality of the judgment of conviction, the judge may, motu proprio or upon motion, with hearing in either case, reopen the proceedings to avoid a miscarrage of justice. The proceedings shall be terminated within thirty (30) days from the order grating it. 2

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2013 LECTURE BY DEAN JARA ABRIDGEMENT The SC has made this very clear already. Annulment of judgment under Rule 47 applies only to a civil case. It cannot apply to a criminal case. Otherwise, the petition for annulment of judgment of acquittal will be a sufficient basis to put the accused in double jeopardy. [1] --xXx--

1

Ibid.

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2013 LECTURE BY DEAN JARA ABRIDGEMENT RULE 37, 52, AND 53 NIEW TRIAL AND RECONSIDERATION NEW TRIAL (Sec. 1) A motion for new trial is founded on the following grounds; (FAME) [1] 1. Fraud; 2. Accident; 3. Mistake; 4. Excusable negligence which ordinary prudence could not have prevented and which probably impair the rights of the movant; and 5. Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result; (NDE) Extrinsic Fraud In a motion for new trial, the fraud contemplated in 37 is always extrinsic fraud. If the fraud is intrinsic, the motion will be denied. In Rule 37, Section 1, the phrase "that could not have been prevented with the exercise of ordinary prudence" will really imply the type of fraud that could be a ground for new trial which is extrinsic fraud. Example; The presentation of a forged document will not be a ground for new trial because the presentation of a forged document by the plaintiff could be easily avoided by the defendant through the use of ordinary prudence. He could have called witnesses to testify that that document was forged. Another instance of dishonesty which the court did not consider extrinsic fraud is when the plaintiff presented witnesses who were perjured. Extrinsic fraud is that which deprived a party of his day in court. If we allow every act of dishonesty to be a ground for new trial, there will never be an end to litigation. Mistake By virtue of the rule on agency, [2] the general rule is that the mistake of the lawyer is the mistake of the client; the act of the agent is the act of the principal. However, if the mistake of the lawyer amounts to bad faith and there is an insinuation that the lawyer committed the mistake to cause the defeat of his client, then that will be a ground for new trial. Newly Discovered Evidence If the ground for new trial is a newly discovered evidence, such evidence, if admitted by the court, will probably alter the result of the case. Thus, we cannot consider corroborating evidence as NDE. Affidavit of Merits (Sec. 2) The affidavit of merit should be executed by persons who have personal knowledge of the circumstances surrounding these acts of FAME. We only need an affidavit of merit if the grounds relied upon are FAME.[3]

1 Rule 37. Section 1. Grounds of and period for filing motion for new trial or reconsideration. — Within the period for taking an appeal, the aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party: (a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; xxx 2 (New Civil Code) Article 1868. By the contract of agency a person binds himself to render some service or to do something in representation or on behalf of another, with the consent or authority of the latter. 3 Rule 37, Section 2. Contents of motion for new trial or reconsideration and notice thereof xxx

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2013 LECTURE BY DEAN JARA ABRIDGEMENT If the ground relied upon is newly-discovered evidence (NDE), we don't need affidavit of merit. What we need is an affidavit of the witness who is going to give testimony if the motion is granted. But if the evidence to be presented is documentary, an authentic copy should be attached to the motion for new trial.[1] Second Motion for New Trial (Sec. 5) A second motion for new trial is expressly allowed by the court provided the second motion is founded on a different ground. [2] Effects if Granted If the motion for new trial is granted and it is not a partial motion for new trial, the judgment will be vacated but the evidence presented during the trial of the case will not be disturbed.[3] If the motion for new trial is partially granted, the court may order a new trial to other issues, if severable, without interfering with the judgment or final order upon the rest. [4] MOTION FOR RECONSIDERATION There are only 3 grounds in a motion for reconsideration in Rule 37; [5] 1. Damages awarded are excessive; 2. The evidence is insufficient to justify the decision or final order; or 3. The decision or final order is contrary to law; No Second Motion for Reconsideration There is also a rule that only one motion for reconsideration will be allowed to the aggrieved party. A second MR will not be allowed even if based on another ground. [6] The only exception is if the second motion for reconsideration is with leave of court. NO MOTION FOR EXTENSION OF TIME But whether it is a motion for new trial or motion for reconsideration, the court will not allow an extension of time to file these motions.[7] PRO FORMA MOTION A pro forma motion will always be denied and the losing party may lose all the remedies available to him because the pro forma motion will not stop the running of the reglementary period to appeal. [8] 1

Rule 37, Section 2 xxx A motion for reconsideration shall point out a specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. xxx 2 Rule 37, Section 5. Second motion for new trial. — A motion for new trial shall include all grounds then available and those not so included shall be deemed waived. A second motion for new trial, based on a ground not existing nor available when the first motion was made, may be filed within the time herein provided excluding the time during which the first motion had been pending. xxx 3 Rule 37, Section 6. Effect of granting of motion for new trial. — If a new trial is granted in accordance with the provisions of this Rules the original judgment or final order shall be vacated, and the action shall stand for trial de novo; but the recorded evidence taken upon the former trial, insofar as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same. 4 Rule 37, Section 7. Partial new trial or reconsideration. — If the grounds for a motion under this Rule appear to the court to affect the issues as to only a part, or less than an of the matter in controversy, or only one, or less than all, of the parties to it, the court may order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest. 5 Rule 37, Section 1. xxx Within the same period, the aggrieved party may also move for reconsideration upon the grounds that the damages awarded are excessive, that the evidence is insufficient to justify the decision or final order, or that the decision or final order is contrary to law. 6 Rule 37, Section 5. xxx o party shall be allowed a second motion for reconsideration of a judgment or final order. 7 Rollque v. CA (1991) 8 Rule 37 Section 2. Contents of motion for new trial or reconsideration and notice thereof. — xxx A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal. (2a) Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT If you read Rule 37 for civil cases, the Rule is very explicit in requiring that a motion for new trial or reconsideration must strictly comply with the requirements of a motion so that that motion will not fall under the concept of a pro forma motion. [1] If the denial comes after the expiration of the 15-day period, then the aggrieved party would have lost the remedy of appeal. He would only be left with the remedies of petition for relief from judgment, annulment of judgment and certiorari under 65. Pro-Forma Motion in a Criminal Case In a criminal case, nothing is mentioned about a pro forma motion for new trial for reconsideration. In a criminal case, the SC said there is no such thing as a pro forma motion in a criminal case. So in a criminal case, the filing of motion for new trial or reconsideration will always stop the running of the period to appeal, even if it is pro forma. [2] New Trial or Reconsideration; Criminal v Civil CRIMINAL CIVIL There is a pro-forma No Pro Forma Motion; Motion May be made motu Must always be upon proprio with the consent motion; [3] of the accused; In New Trial, the evidence There is no need to retake presented during the trial the evidence presented in must be retaken; [4] the trial; Q: A defendant in a civil case while the period to appeal is running have three remedies; motion for new trial, motion for reconsideration and appeal. What happens if the defendant avails all three? A: The SC said that if the losing party files an appeal during the pendency of a motion for new trial or motion for reconsideration, the motions are deemed abandoned. It is the appeal that will prevail. [5] Q: If the winning party filed a motion for execution pending appeal under Rule 39 and the losing party filed a motion for new trial, can the court act on the motion for execution pending appeal without first resolving the motion for new trial? A: NO. The SC said it is not proper. The trial court should first resolve the motion for new trial. [6] DENIAL OF MOTION FOR NEW TRIAL OR RECONSIDERATION If a motion for new trial or motion for reconsideration is denied, the denial cannot be appealed.

1 Rule 37, Section 2. Contents of motion for new trial or reconsideration and notice thereof. — The motion shall be made in writing stating the ground or grounds therefor, a written notice of which shall be served by the movant on the adverse party. xxx A motion for new trial shall be proved in the manner provided for proof of motion. A motion for the cause mentioned in paragraph (a) of the preceding section shall be supported by affidavits of merits which may be rebutted by affidavits. A motion for the cause mentioned in paragraph (b) shall be supported by affidavits of the witnesses by whom such evidence is expected to be given, or by duly authenticated documents which are proposed to be introduced in evidence. 2 People of the Philippines v. Colmenares (February 29, 1960) 3 Rule 121, Section 1. New trial or reconsideration. — At any time before a judgment of conviction becomes final, the court may, on motion of the accused or at its own instance but with the consent of the accused, grant a new trial or reconsideration. (1a) 4 Rule 121, Section 6. Effects of granting a new trial or reconsideration. — xxx (a) When a new trial is granted on the ground of errors of law or irregularities committed during the trial, all proceedings and evidence affected thereby shall be set aside and taken anew. The court may, in the interest of justice, allow the introduction of additional evidence. 5 PNB-Republic Bank v. Salvacion (2008) 6 JP Latex Technology v. Ballons Inc. (2009)

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2013 LECTURE BY DEAN JARA ABRIDGEMENT What should be appealed is the decision itself rendered by the court.

[1]

In appealing the judgment, the aggrieved party can assign as error the denial of the motion for new trial or reconsideration. NEW TRIAL OR RECONSIDERATION BEFORE THE COURT OF APPEALS (RULES 52 and 53) Q: If the Trial Court decided a case in the exercise of its appellate jurisdiction, can a defeated party file motion for reconsideration? A: YES. There could still be motion for reconsideration even if the Regional Trial has decided the case in the exercise of its appellate jurisdiction. Q: If the Court of Appeals has rendered its own decision, can the defeated party file a motion for reconsideration? A: YES. Under Rule 52, there could be motion for reconsideration before the Court of Appeals. Q: Can there be a motion for new trial before the Court of Appeals? A: YES. However, under Rule 53 a motion for a new trial may only be granted on the sole ground of newly discovered evidence. [2] We cannot anymore use fraud, accidents, mistakes and excusable negligence. New Trial under Rule 37 v. Rule 53 NEW TRIAL OR NEW TRIAL RECONSIDERATION RULE 53 RULE 37 Fraud, Accident, Mistake, Excusable Only Newly discovered evidence are negligence, and newly discovered available as grounds for new trial; evidence are available as grounds for new trial; Judgment of the RTC is Motion for New Trial may be filed indispensible prior to the new trial; even prior to the judgment of the Court of Appeals; Motion For New Trial Not Allowed by Supreme Court The Supreme Court does not entertain a motion for new trial regardless of the merit of that motion for new trial. The Supreme Court generally is not a trier of facts and a motion for new trial, will always involved a question of fact based on newly discovered evidence.

--xXx--

1

Rule 37, Section 9. Remedy against order denying a motion for new trial or reconsideration. — An order denying a motion for new trial or reconsideration is not appealed, the remedy being an appeal from the judgment or final order. 2 Rule 53, Section 1. Period for filing; ground. — At any time after the appeal from the lower court has been perfected and before the Court of Appeals loses jurisdiction over the case, a party may file a motion for a new trial on the ground of newly discovered evidence which could not have been discovered prior to the trial in the court below by the exercise of due diligence and which is of such a character as would probably change the result. The motion shall be accompanied by affidavits showing the facts constituting the grounds therefor and the newly discovered evidence. (1a) Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT RULE 38 RELIEFS FROM ORDERS, JUDGMENTS AND OTHER PROCEEDINGS Relief from judgment is a remedy available to the aggrieved party after the entry of judgment. GROUNDS (SEC. 1) the aggrieved party may file a petition for relief of judgment under Rule 38 on any of the following grounds;[1] 1. Fraud; 2. Accident; 3. Mistake; 4. Excusable Negligence; PERIODS TO FILE RELIEF OF JUDGMENT (Sec. 3) In Rule 38, there are two periods to be reckoned; 1. Within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be set aside; and 2. The 6-month period is counted from entry of judgment;[2] Q: If the aggrieved party filed a petition for relief from judgment before the entry of judgment, should the case be dismissed? A: NO. The Supreme Court once held that although the filing of that petition was really improper, the trial court should have treated the petition for relief from judgment as a motion for new trial because the grounds for motion for new trial are similar to those of petition for relief from judgment which is a very liberal attitude adopted by the Supreme Court. [3] Q: Is a petition for relief from judgment considered similar to annulment of judgment? A: NO. A petition to annul judgment is an independent action while a petition for relief from judgment is just a continuation of the original case. [4] Q: If a judgment has already been entered and the winning party filed a motion for execution under Rule 39, but the losing party file a petition for relief of judgment under Rule 38, should the court grant the motion for execution? A: YES. The grant of motion for execution after the judgment has become final and executory is a ministerial duty of the court under Rule 39. [5] Q: If the court grants the motion for execution, will it not render academic the relief from judgment filed by the aggrieved party? 1 Rule 38, Section 1. Petition for relief from judgment, order, or other proceedings. — When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside. (2a) 2 Rule 38, Section 3. Time for filing petition; contents and verification. — A petition provided for in either of the preceding sections of this Rule must be verified, filed within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken, and must be accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts constituting the petitioner's good and substantial cause of action or defense, as the case may be. 3 Laurel v. Cui (1980) 4 Rule 38, Section 2. Petition for relief from denial of appeal. — When a judgment or final order is rendered by any court in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented from taking an appeal, he may file a petition in such court and in the same case praying that the appeal be given due course. 5 Rule 39, Section 1. Execution upon judgments or final orders. — Execution shall issue as a matter of right, or motion, upon a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected.

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2013 LECTURE BY DEAN JARA ABRIDGEMENT A: NO. The executing court that granted the motion for execution can issue a TRO or a preliminary injunction against the enforcement of the writ of execution. [1] Q: If petition for relief from judgment is granted, can the winning party appeal from the granting of the petition for relief from judgment? A: NO. The answer is no because the granting of the petition is only interlocutory. Q: If a petition for relief from judgment is denied, is the denial a final order? A: YES. Q: Can an order denying a relief from judgment be appealed? A: NO. Under Section 1 of Rule 41, it is a final order which is not appealable. petitioner is to file a petition under Rule 65.

[2]

The remedy of the

--xXx--

1 Rule 38, Section 5. Preliminary injunction pending proceedings. — The court in which the petition is filed may grant such preliminary injunction as may be necessary for the preservation of the rights of the parties, upon the filing by the petitioner of a bond in favor of the adverse party, conditioned that if the petition is dismissed or the petitioner fails on the trial of the case upon its merits, he will pay the adverse party all damages and costs that may be awarded to him by reason of the issuance of such injunction or the other proceedings following the petition, but such injunction shall not operate to discharge or extinguish any lien which the adverse party may have acquired upon, the property, of the petitioner. 2 Rule 41, Section 1. Subject of appeal. —. xxx No appeal may be taken from: xxx (b)An order denying a petition for relief or any similar motion seeking relief from judgment; xxx

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2013 LECTURE BY DEAN JARA ABRIDGEMENT GENERAL PRINCIPLES ON APPEALS Appeal as a remedy could be a matter of right or a matter of discretion. When we say that the aggrieved party has the right to appeal, it means to say that when he is able to perfect the appeal, the appellate court has no choice but to render a decision as an appellate tribunal. When we say that appeal is a matter of discretion, we are giving to the appellate court the discretion on whether or not to entertain the appeal. Available Remedies Pre-judgment Remedies available prior to the entry of judgment; 1. A motion for new trial; 2. A motion for Reconsideration; and 3. Appeal; MODES OF APPEAL For a civil case, there are only 3 modes of appeal; 1. Ordinary appeal;[1] 2. Appeal by petition for review with the CA;[2] and 3. Appeal by petition for review on certiorari under Rule 45;[3] If the case originates from an inferior court, the only mode of appeal available is ordinary appeal, even if the questions raised are purely questions of law. The Constitution does not give to the SC exclusive appellate jurisdiction to entertain appeals involving purely questions of law. GENERAL PRINCIPLES OF APPEAL The following are concepts which are relevant to appeal which are usually found in the decisions of the Supreme Court resolving propriety or impropriety of appeals; 1. A final order compared to an interlocutory order; 2. Question of fact compared to question of law; 3. Material data rule in appeals; 4. Improper appeal and Erroneous appeal; 5. Memorandum decision on appeal; and 6. Harmless errors; [4]

1

Rule 41, Section 2. Modes of appeal. — (a) Ordinary appeal. — The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where law on these Rules so require. In such cases, the record on appeal shall be filed and served in like manner. xxx 2 Rule 41, Section 2. Modes of appeal. — xxx b) Petition for review. — The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42. xxx 3 Rule 41, Section 2. Modes of appeal. — xxx (c) Appeal by certiorari. — In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with the Rule 45. 4 Rule 51, Section 6. Harmless error. — No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting a new trial or for setting aside, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect which does not affect the substantial rights of the parties. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT MATERIAL DATA RULE The material data rule requires the appellant, regardless of the mode of appeal, to inform the court about the dates; 1. When he received the decision; 2. When he received a denial of his motion for new trial or reconsideration; This allows the court to immediately ascertain if the appeal is perfected on time. If the appeal is not perfected on time, the appellate court has not acquired jurisdiction over the appealed case. ERRONEOUS V. IMPROPER APPEAL Erroneous appeal and improper appeal is also mention in the rules. Improper Appeal There is an improper appeal when the mode of appeal used by the applicant is the correct mode but the issues or the questions raised in that appeal should not be raised during the appeal.[1] Example; Under the rules, when there is an appeal by ordinary appeal under Rule 41 from the Regional Trial Court to the Court of Appeals, questions of fact and of law could be raised. however, if the only issue raised in that appeal is purely question of law, the Court of Appeals has no jurisdiction. [2] Erroneous Appeal Erroneous appeal, on the other hand, refers to a situation where the mode of appeal used is not the correct mode. Example; If the correct mode is ordinary appeal but the mode used by the appellant is petition for review, the appeal shall be dismissed. Q: From the inferior court the mode of appeal is a notice of appeal, which is ordinary appeal. If the aggrieved party chooses instead filed a petition for review, which is the wrong mode, should the Regional Trial Court dismiss the appeal on the ground that the appellant has chosen a wrong mode of appeal? A: NO. The Supreme Court held that the Regional Trial Court acting as appellate should not dismiss a petition for review which is the wrong mode of appeal because the contents of the petition for review more than satisfied the requirements of notice of appeal. The petition for review is a very lengthy document which also contains an application of the material data rule, the assignment of errors, and arguments. In the notice of appeal, the appellant simply tells the court in one paragraph, “I am appealing from the decision rendered by the court dated such and such and together with this notice of appeal, I have paid the appellate court docket fee of so much”. Q: If the Regional Trial Court is acting as an appellate court, and the appellant filed a notice of appeal with the Court of Appeals, can the appeal be entertained? A: NO. The appeal will be dismissed because the mode of appeal used is erroneous and it will not confer jurisdiction anymore upon the Regional Trial Court. --xXx--

1 Rule 50, Section 2. Dismissal of improper appeal to the Court of Appeals. — An appeal under Rule 41 taken from the Regional Trial Court to the Court of Appeals raising only questions of law shall be dismissed, issues purely of law not being reviewable by said court. Similarly, an appeal by notice of appeal instead of by petition for review from the appellate judgment of a Regional Trial Court shall be dismissed. (n) 2 Ibid.

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2013 LECTURE BY DEAN JARA ABRIDGEMENT RULE 40 APPEALS FROM THE MUNICIPAL TRIAL COURTS TO THE REGIONAL TRIAL COURTS HOW TO APPEAL (Sec. 3) The aggrieved party will file a notice of appeal

[1]

and of course pay the appellate court docket fees.[2]

In some instances, the aggrieved party is required to file a record of appeal.

[3]

The payment of appellate court docket fees is jurisdictional. Q: Is a motion to dismiss allowed in a pending case for unlawful detainer? A: NO. A case for unlawful detainer is a summary procedure [4] which prohibits a motion to dismiss unless the ground is lack of jurisdiction or absence of prior Barangay conciliation. [5] Q: If the inferior court grants a motion to dismiss based on lack of jurisdiction over the subject matter, which is a dismissal is without prejudice, can the order of dismissal be appealed? A: YES. Although the general rule under Rule 41 is that no appeal may be taken from an order dismissing an action without prejudice.[6] However, Rule 40 states that if the RTC affirms the dismissal made by the inferior court, it is the duty of the RTC to assume jurisdiction over the case. [7] In unlawful detainer decided by an inferior court, there could be an appeal to the RTC on both factual and legal questions. Whenever the mode of appeal used is ordinary appeal, the appeal is a matter of right.

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Rule 40, Section 3. How to appeal. — The appeal is taken by filing a notice of appeal with the court that rendered the judgment or final order appealed from. The notice of appeal shall indicate the parties to the appeal, the judgment or final order or part thereof appealed from, and state the material dates showing the timeliness of the appeal. xxx 2 Rule 40, Section 5. Appellate court docket and other lawful fees. — Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from the full amount of the appellate court docket and other lawful fees. Proof of payment thereof shall be transmitted to the appellate court together with the original record or the record on appeal, as the case may be. (n) 3 Rule 50, Section 3. xxx A record on appeal shall be required only in special proceedings and in other cases of multiple or separate appeals. xxx 4 Revised Rules on Summary Procedure - Section 1. Scope. — This rule shall govern the summary procedure in the Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, and the Municipal Circuit Trial Courts in the following cases falling within their jurisdiction: xxx (1) All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered. Where attorney's fees are awarded, the same shall not exceed twenty thousand pesos (P20,000.00). 5 Revised Rules on Summary Procedure - Sec. 19. Prohibited pleadings and motions. — The following pleadings, motions or petitions shall not be allowed in the cases covered by this Rule: xxx (a) 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 the preceding section (Barangay Conciliation); 6 Rule 41, Section 1. Subject of appeal. — An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. xxx No appeal may be taken from: xxx (h) An order dismissing an action without prejudice. 7 Rule 41, Section 8. Appeal from orders dismissing case without trial; lack of jurisdiction. — If an appeal is taken from an order of the lower court dismissing the case without a trial on the merits, the Regional Trial Court may affirm or reverse it, as the case may be. In case of affirmance and the ground of dismissal is lack of jurisdiction over the subject matter, the Regional Trial Court, if it has jurisdiction thereover, shall try the case on the merits as if the case was originally filed with it. In case of reversal, the case shall be remanded for further proceedings. If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof, but shall decide the case in accordance with the preceding section, without prejudice to the admission of amended pleadings and additional evidence in the interest of justice. (n) Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Q: Before the RTC as an appellate court, since the appeal by the losing party is a matter of right, can the RTC also order the dismissal of the appeal because the appellant has violated certain orders or provisions of the Rules of Court? A: YES. The losing party as an appellant should also obey the orders of the RTC such as the submission of an appeal memorandum.[1] Q: If the RTC renders its own decision, can there be a second appeal? A: YES. The appeal from the RTC as an appellate court to the CA is an appeal via petition for review under Rule 42. A second appeal is generally a matter of discretion. The second mode of appeal, governed by Rule 42 of the Rules, is brought to the CA on questions of fact, of law, or mixed questions of fact and of law.[2] Q: From the CA, do we allow a third appeal? A: YES. A third appeal to the SC via petition for review on certiorari under Rule 45 raising only pure questions of law is always a matter of discretion in a civil case. Q: Can a Trial Court exercising original jurisdiction file a notice of appeal directly to the Supreme Court? A: NO. The only mode of appeal that is allowed in civil cases with the Supreme Court is Rule 45 that is petition for review on certiorari or appeal by certiorari. Q: If the proper remedy is a petition for review on certiorari under Rule 45, but appellant in avertedly calls his petition simply a petition for certiorari under Rule 65, will the Supreme Court dismiss the petition? A: NO. The Supreme Court said, after all the contents of a petition for certiorari under Rule 65 are exactly the same as the contents of petition for review on certiorari under Rule 45.[3] However, the Supreme Court cautioned parties that petition for certiorari, although in fact it should be a petition for review on certiorari, should be filed within the time given for petition for review on certiorari, which is within a period of 15 days and not 60 days as provided by Rule 65. [4] Otherwise the appeal will be dismissed.[5] --xXx--

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Rule 40, Section 7. Procedure in the Regional Trial Court. — (b) Within fifteen (15) days from such notice, it shall be the duty of the appellant to submit a memorandum which shall briefly discuss the errors imputed to the lower court, a copy of which shall be furnished by him to the adverse party. Within fifteen (15) days from receipt of the appellant's memorandum, the appellee may file his memorandum. Failure of the appellant to file a memorandum shall be a ground for dismissal of the appeal 2 Far Eastern Surety and Insurance Co. v. People of the Philippines (November 20,2013) 3 Oaminal v. Castillo (2003) 4 Rule 65, Section 4. When and where petition filed. — The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion. 5 Ibd. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT RULE 43 APPEALS FROM THE COURT OF TAX APPEALS AND QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS In the Court of Appeals, the decisions that could be appealed to the Court of Appeals may not exclusively come from the courts of justice. It may also come from quasi-judicial bodies. However, in both cases, there is just a common mode of appeal that is petition for review. Q: Is there any procedural difference if a petition for review filed before the Court of Appeals comes from the Regional Trial Court and from the quasi-judicial bodies? A: YES. The decision of the Regional Trial Court in the exercise of its appellate jurisdiction cannot be executed except by an execution pending appeal under Rule 39. On the other hand, decisions rendered by a quasi-judicial body, is enforceable even during the pendency of the appeal. [1] Q: Is there any way to stop the execution of the judgment rendered by a quasi-judicial body during the pendency of the appeal? A: YES. The appellant may ask the Court of Appeals to issue a writ of preliminary injunction. Q: Why do we allow execution of a judgment that is being reviewed by the Court of Appeals when the judgment is rendered by quasi-judicial bodies but we do not allow that when the judgment is rendered by the Regional Trial Court? A: The quantum of evidence required in quasi-judicial bodies is only substantial evidence whereas in the Regional Trial Court the quantum of evidence is preponderance of evidence. If we compare also the remedies available to the defeated party before the trial court and before the appellate courts, like the Regional Trial Court, the Court of Appeals and Supreme Courts we will also notice that if the appellate court becomes higher and higher, the remedies available to the defeated party on that appeal is considerably lessen. --xXx--

1 Rule 43,

Section 12. Effect of appeal. — The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may deem just. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT RULE 44 ORDINARY APPEALED CASES APPELLANT’S BRIEF (Sec. 7) During the pendency of the appeal, the Court of Appeals will require the appellant to submit a brief, called a brief for the appellant.[1] When to File The appellant must submit his brief within forty-five days from the receipt of the notice of the clerk of court that all evidence are attached to the record. The appellant must submit his appeal on time complete with the essentials mentioned in the Rules of Court, otherwise the appeal will be dismissed. CONTENTS OF APPELLANT’S BRIEF (Sec. 13) The Rules requires that the contents of the brief for the appellant is divided into several chapters; 1. Subject Index; [2] 2. An Assignment of Errors; [3] 3. Statement of the case;[4] 4. Statement of Facts; [5] 5. Issues of fact or law; [6] 6. Argument; [7] 7. Relief; and [8] 8. Copy of the judgment or final order appealed from; [9] If the brief for the appellant does not contain an assignment of errors, the court will dismiss the appeal even if there is a brief submitted by the appellant if the brief does not contain assignment of errors. Q: Why is the Court of Appeals very much interested in the assignment of errors, without which the appeal will be dismissed? A: The assignment of errors is essential because the Court of Appeals presume that the decision by the Regional Trial Court appealed from is a correct decision in accordance with the presumption of regularity.

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Rule 44, Section 7. Appellant's brief. — It shall be the duty of the appellant to file with the court, within forty-five (45) days from receipt of the notice of the clerk that all the evidence, oral and documentary, are attached to the record, seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellee. 2 Rule 44, Section 13 xxx (a) A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited; xxx 3 Rule 44, Section 13 xxx (b) An assignment of errors intended to be urged, which errors shall be separately, distinctly and concisely stated without repetition and numbered consecutively; xxx 4 Rule 44, Section 13 xxx (c) Under the heading "Statement of the Case," a clear and concise statement of the nature of the action, a summary of the proceedings, the appealed rulings and orders of the court, the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy with page references to the record; xxx 5 Rule 44, Section 13 xxx (d) Under the heading "Statement of Facts," a clear and concise statement in a narrative form of the facts admitted by both parties and of those in controversy, together with the substance of the proof relating thereto in sufficient detail to make it clearly intelligible, with page references to the record; xxx 6 Rule 44, Section 13 xxx (e) A clear and concise statement of the issues of fact or law to be submitted, to the court for its judgment; xxx 7 Rule 44, Section 13 xxx (f) Under the heading "Argument," the appellant's arguments on each assignment of error with page references to the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found; xxx 8 Rule 44, Section 13 xxx (g) Under the heading "Relief," a specification of the order or judgment which the appellant seeks; xxx 9 Rule 44, Section 13 xxx (h) In cases not brought up by record on appeal, the appellant's brief shall contain, as an appendix, a copy of the judgment or final order appealed from. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT The appellant is not allowed to introduce evidence to show that errors are have been committed by the Regional Trial Court, and thus he must rely on the records of the case. Q: Is it sufficient for the appellant to state in his brief that “the Regional Trial Court committed an error in deciding the case against the appellant” as the only error? A: NO. The errors should be specified particular facts, conduct, orders issued by the court, which could have affected his substantial rights. APPELLEE’S BRIEF (Sec. 8) If it is the appellee who does not submit his brief, the appeal will not be dismissed. choose not to submit a brief at all.

[1]

The appellee can

Q: What is the effect if the appellee does not submit a brief? A: The court will simply decide the case without a brief coming from the appellee. HARMLESS ERROR (Rule 51, Sec. 6) The principle of harmless error expressly provides that only errors committed by the court in admission of evidence, in issuing orders that affects substantial rights of the appellant will be considered by the appellate court. [2] The General Rule In civil cases that are brought on appeal, the appellate court will only resolve the issues raised in the assignment of errors. Exception; A an exception, the appellate court may resolve issues not assigned if such issue is closely related to one of the issues raised by the appellant in his brief. However, in a criminal case, if there is an error committed by the trial court whether it is assigned as an error or not assigned as an error, the Court of Appeals or even the Supreme Court can take that into consideration in resolving the case. --xXx--

1 Rule 44, Section 8. Appellee's brief. — Within forty-five (45) days from receipt of the appellant's brief, the appellee shall file with the court seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellant. 2 Rule 51, Section 6. Harmless error. — No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting a new trial or for setting aside, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect which does not affect the substantial rights of the parties.

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2013 LECTURE BY DEAN JARA ABRIDGEMENT RULE 45 APPEALS BY CERTIORARI TO THE SUPREME COURT APPLICABILITY (Sec. 9) Appeal by certiorari to the Supreme Court is the only mode of appeal used in civil cases. Thus, we cannot use notice of appeal we cannot use a petition for review the Supreme Court strictly applies this rule on appeal.[1] In a criminal case however, a notice of appeal may be filed to the Supreme Court when the penalty imposed is life imprisonment or reclusion perpetua by the Court of Appeals. [2] ONLY QUESTIONS OF LAW In a petition for review on certiorari filed before the Court of Appeals, it is axiomatic that only question of law can be raised.[3] If both question of law and question of fact was raised, the Supreme Court has the discretion to remand the case to the Court of Appeals but that is always a matter of discretion. [4] Exceptions; Under Rule 45, the Supreme Court is clear in saying that only questions of law could be raised in petition for review on certiorari. However, the Supreme Court has recognized a number of exceptions; [5] 1. When the conclusion is a finding grounded entirely on speculation, surmises and conjectures; 2. When the inference made is manifestly mistaken, absurd or impossible; 3. Where there is a grave abuse of discretion; 4. When the judgment is based on a misapprehension of facts; 5. When the findings of fact are conflicting; 6. When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; 7. When the findings are contrary to those of the trial court; 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 petitioners' main and reply briefs are not disputed by the respondents; and 10. When the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record;

1

Rule 45, Section 9. Rule applicable to both civil and criminal cases. — The mode of appeal prescribed in this Rule shall be applicable to both civil and criminal cases, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. 2 Rule 122. Section 3. How appeal taken. — xxx (c) The appeal to the Supreme Court in cases where the penalty imposed by the Regional Trial Court is death, reclusion perpetua, or life imprisonment, or where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed, shall be by filing a notice of appeal in accordance with paragraph (a) of this section. xxx 3 Rule 45, SECTION 1. Filing of petition with Supreme Court. – A party desiring to appeal by certiorari from a judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise only questions of law, which must be distinctly set forth. The petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency. (As amended by A.M. No. 07-7-12-SC) 4 Rule 56, Section 6.Disposition of improper appeal. — xxx An appeal by certiorari taken to the Supreme Court from the Regional Trial Court submitting issues of fact may be referred to the Court of Appeals for decision or appropriate action. The determination of the Supreme Court on whether or not issues of fact are involved shall be final. xxx 5 Cirtek Employee’s Labor Union v. Cirtek Electronics (June 6, 2011) Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT 11. When the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, could justify a different conclusion; [1] I suggest that you memorize about five of them and that will probably be enough for you to answer problems on appeals concerning Rule 45. Exceptions under The Supreme Court Circulars The following circulars of the Supreme Court allows factual issues to be raised in a petition under Rule 45 are; 1. Writ of Kalikasan; [2] 2. Amparo;[3] and 3. Habeas Data; [4] --xXx--

1

Carolina Industries Inc. v. CMS Stock Brokerage (May 17, 1980) No. 09-6-8-SC, Rules of Procedure For Environmental Cases, Rule 7, Section 16. Appeal. - Within fifteen (15) days from the date of notice of the adverse judgment or denial of motion for reconsideration, any party may appeal to the Supreme Court under Rule 45 of the Rules of Court. The appeal may raise questions of fact. 3 A.M. No. 07-9-12-SC, The Rule on the Writ of Amparo, SEC. 19. Appeal. – Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. xxx 4 A. M. No. 08-1-16-SC, The Rule on the Writ of Habeas Data, Sec. 19. Appeal. - Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. 2 A.M.

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2013 LECTURE BY DEAN JARA ABRIDGEMENT RULE 39 PART 1: EXECUTION AND SATISFACTION OF JUDGMENTS Rule 39 is described by the decisions of Supreme Court as the rule that which gives life to the law because it enables the winning party to recover the award given in his favor. SATISFACTION OF JUDGMENT It is not correct to assume that in order to satisfy the judgment we should always make use Rule 39. Satisfaction of judgment as conceived in Rule 39 is a forcible satisfaction of judgment. Example; If the judgment creditor is awarded 2 million pesos as payment by the judgment debtor, the judgment creditor need not resort to Rule 39 as long as he receives 2 million pesos from the judgment debtor. In other words, there is voluntary payment by the judgment debtor. If the judgment debtor refuses to pay, the only remedy of the judgment creditor is to enforce payment by making use of Rule 39; making a levy on his properties and by selling this levied properties at public auction. MINISTERIAL DUTY (Sec. 1) An order of execution is always a ministerial duty of the court of origin after judgment has been resolved by the appellate court and upon the expiration of the period to appeal such judgment in case no appeal is perfected. [1] Court of Origin The matter of execution is a duty of the court of origin, i.e. if it is the inferior court that originated the case, it is the inferior court that will have the duty to enforce satisfaction of the claim. The higher courts usually do not issue an order for the execution of judgment. [2] Example; If a case was decided by the Regional Trial Court and the appeal has reached the Supreme Court, the judgment creditor cannot ask for the execution of judgment from the Supreme Court even if such decision has been affirmed by the Supreme Court. The lawyer for the judgment creditor must wait for the records to be returned to the court of origin. Q: What happens if the judgment creditor files a motion for execution but the records of the case is yet to be received by the court of origin? A: The court of origin will tell the judgment creditor that they cannot act on the motion for execution because the records of the case is yet to be received. Q: Is there a remedy for the judgment creditor in this situation? A: YES. In such cases, the appellate court will simply issue a certified true copy of the entry of judgment. That certified true copy will be submitted immediately to the court of origin as basis of granting of a motion for execution. [3]

1 Rule 39, Section 1. Execution upon judgments or final orders. — Execution shall issue as a matter of right, or motion, upon a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected. xxx 2 Rule 39, Section 1 – xxx The appellate court may, on motion in the same case, when the interest of justice so requires, direct the court of origin to issue the writ of execution. 3 Rule 39, Section 1 – xxx If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in the court of origin, on motion of the judgment obligee, submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party. xxx

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Q: Can the order of execution be issued by the court motu proprio? A: NO. If the judgment creditor does not file a motion for execution, the court will not know whether there has been voluntary satisfaction of the judgment. Q: Considering that the judgment has become final and executory and it becomes the ministerial duty of the court to issue an order of execution, can the motion for execution can be heard ex parte without notifying the judgment debtor or giving him a copy of the motion? A: This issue which is the subject of conflicting decisions of the Court. The latest that I know of says that a motion for execution of a final and executory judgment can be heard ex parte, but previous decisions are to the effect that the judgment debtor should also be given a copy of the motion for execution because the judgment debtor may have grounds to oppose the issuance of the writ of execution. You adopt that old doctrine that the motion for execution of a final and executory judgment should always be furnished upon the judgment debtor and that the motion cannot be heard ex parte. EXECUTION BY MOTION OR INDEPENDENT ACTION (Sec.6) In the Rules, the period within which the court can grant a motion for execution as a ministerial duty is 5 years from entry of judgment. Then after the end of 5 years, there could be revival of judgment, no longer a motion but an independent action. The independent action to revive the judgment must be filed within the second five year period. [1] Q: The rules assume that the period of prescription for the enforcement of a judgment is a ten year period. Is this a correct assumption? A: YES. Under the Civil Code, the prescriptive period for the enforcement of a final and executory judgment is really a period of ten years.[2] Rule 39 divided the ten year period into two parts. In the first five years, you can execute a judgment through a motion; a motion for execution. In the second five years the judgment creditor must file an independent action for the revival of that judgment. Q: What happens if the judgment creditor files a motion for execution after the lapse of the first 5 years? A: The court will deny the motion because the court does no longer have the authority to order execution through the granting of a motion for execution. Q: Is the first 5 year period strictly implemented by the Rules? A: It is not. Q: Can it be extended? A: YES. The Supreme Court has decided that if the execution of the judgment within the first 5 year is delayed and delay is attributable to the conduct or act that is traceable solely to the judgment debtor, the 5 year period is correspondingly extended that is equal to the period of delay caused by the conduct of the judgment debtor. [3]

1

Rule 39, Section 6. Execution by motion or by independent action. — A final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. The revived judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations. 2 Article 1144. The following actions must be brought within ten years from the time the right of action accrues: xxx (3) Upon a judgment. (New Civil Code) 3 Jacinto v. IAC (1988) Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Example; The judgment creditor files a motion for execution on the 3rd year within the first 5 years from entry of judgment rendered by the RTC. When the judgment debtor received the copy of the motion for execution, he filed a petition for the annulment of the judgment under Rule 47 before the Court of Appeals accompanied by a preliminary injunction. The preliminary Injunction was granted. After 2 years, the Court of Appeal rendered a judgment dismissing the petition for annulment of judgment. So there is a delay by 2 years. If the 5 year period has already lapsed, then we are going to add another 2 years with that 5 year period. So the 5 year period will be deemed automatically extended up to 7 years within which to execute the judgment to the filing of a mere motion. 2 ways of delaying the motion for execution; 1. A preliminary Injunction on the order of execution as an incident of Rule 38; 2. A preliminary Injunction on the order of execution as an incident of Rule 47; Q: If the motion for execution is granted, which is expected because the judgment has become final and executory, can the judgment debtor appeal from the order granting the motion for execution? A: NO. Under Rule 41 section 1, an order granting execution is not appealable. The only remedy of the judgment debtor is to file a petition under Rule 65. Q: Supposing the trial court denies a motion for execution of a judgment that has already been entered, is appeal the only remedy of the judgment creditor? A: NO. Aside from appeal, the judgment creditor should file a petition for mandamus under Rule 65 because mandamus is a writ that will compel the trial court to perform a ministerial duty and in Rule 39, as long as the judgment has been entered. Q: Can the trial court rightfully quash a writ of execution already issued by despite the judgment being final and executory? A: As a general rule, the trial court cannot quash or rightfully deny a motion for execution if the judgment has been entered. Exception; 1. When the judgment sought to be enforced has been novated; 2. The judgment has become dormant - the five 5 year period has already stared and no motion for execution has been filed by the judgment creditor. In such a case, the only remedy is an independent action to revive the judgment; Q: Can the parties, the judgment debtor and judgment creditor enter into a compromise agreement after the judgment has become final and executory? A: YES. Q: What happens to the judgment if the terms of the comprise agreement between the debtor and creditor are not consistent with the award given? A: The compromise agreement will novate the judgment. Example; If the judgment awards to the judgment creditor a 2 million pesos but because the debtor and the creditor are long-time friends, they enter into a compromise agreement where the entitlement of the judgment creditor is reduced from 2 million to P1.5 million and that the debtor will have a period of 1 year within which to mitigate fully the obligation. That compromise agreement is the law between the creditor and the debtor and that will have the effect of novating the judgment. Q: Supposing that within the first five year period the court grants a motion for execution and levied the properties of the judgment debtor. However, the properties levied upon were Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT not sold at public auction within the first five years. Can the properties levied upon within the first 5 year period be sold at public auction on year six or seven? A: YES. According to the court, it is enough that there is a motion for execution filed within the first five years and there is an actual levy of the properties of the judgment debtor. It does not matter if the actual sale of the levied property takes place after the end of 5 years. [1] Q: Supposing that a motion for execution was filed within the first five years from the date of entry of judgment, however the execution sale of the land was made beyond the 10 year period. Is the sale valid? A: NO. The Supreme Court held that a property subject of a motion for execution filed within the first five years must be sold within 10 years from the date the judgment is entered. Otherwise, the appellant’s judgment is barred by prescription. [2] Q: Supposing that a creditor files a motion for execution beyond the 5 year period and convinced the judgment debtor not to oppose a motion by executing a manifestation. Thereafter, the judgment debtor changed his mind and opposed the motion. May the court grant the motion for execution? A: NO. After the end of the first 5 year period the court losses jurisdiction to execute a judgment by a mere motion and the fact that the judgment debtor did not oppose the issuance of the writ cannot vest jurisdiction upon the court simply by inaction on the part of the parties. Revival of Judgment The revival mentioned in the rules is an independent action pertaining to the second 5 year period. Q: Since Revival of Judgment is an independent action, if the original action was a real action for the recovery of title to or possession of a property, can we consider the petition to revive the judgment still as a real action? A: YES. If the original action is a real action, the action to revive that judgment will also be a real action and therefore the venue in Rule 4 still apply. If the action is a real action the venue is the place where the property is situated.[3] Court of Jurisdiction An action to revive the judgment since it is an independent action will always be cognizable by the Regional Trial Court because it is not capable of pecuniary estimation. Q: Supposing that the action sought to be revived is a decision rendered by an inferior court, should we file the action for revival of judgment with the inferior court? A: NO. A revival of judgment is incapable of pecuniary estimation and is thus cognizable therefore by the Regional Trial Court under BP 129. REVIVAL OF JUDGMENT (Sec 34) In Section 34, Rule 39, the use of term “revival of judgment”’ is more specific. The revival of judgment in section 34 is not the revival of a judgment that has become dormant. The situation contemplated in section 34 is that judgment is executed, properties are levied upon, and these properties had been sold in public auction but the highest bidder or anybody who thereafter acquires the property is not able to get possession of the property because of opposition or because of legal obligations that are related to the execution of judgment. ENFORCEMENT OF JUDGMENT (Sec. 9 and 10) A judgment may be enforced through the following modes of writ of execution; 1

The Government of the Philippines v. Echaus (March 13, 1941) Ansaldo v. Fidelity and Surety Co. (Aril 27, 1951) 3 Infante v. Aran Builders (2007) 2

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2013 LECTURE BY DEAN JARA ABRIDGEMENT 1. If the judgment awards money, there will be a levy on execution of properties;[1] 2. If the judgment is on delivery of personal property or delivery documents, the property ordered to be delivered will be seized by the sheriff and then there is delivery of possession with the judgment creditor; [2] 3. If the judgment directs the judgment debtor to sign a deed of conveyance or a deed of sale in favor of judgment creditor and the judgment debtor refuses to sign the document, the court can appoint another person usually the clerk of the court to sign the document on behalf of the judgment debtor; [3] 4. If the judgment directs the debtor, the defendant to vacate a piece of land or building and he refuses to vacate building the court through the sheriff will forcibly oust him from the building, the court will throw out the things belonging to the occupant from that building; [4] Q: In a deed of execution issued by the court in case of a money award, the debtor tell the court that he has money but he does not want to pay. Can the court cite him in contempt? A: NO. Generally, citation for contempt is not a remedy in Rule 39 generally to enforce a judgment. The writ is addressed to the sheriff of the court and not to the judgment debtor. Thus it is the duty of the sheriff to carry out the dispositive portion of the judgment. Q: May there be citation for contempt if there is an award of money by way of exception? A: YES. If the respondent is ordered and fails to pay support, it is not only contempt [5] that he will be facing but he will be facing a criminal case for failure to give support. [6] LEVY ON PROPERTIES In the levy of the properties under Rule 39, the levy does not automatically mean that possession of the levied properties will be in the hands of the sheriff or in the physical possession of the court. The debtor will continue to be in possession of the real properties, he will not be ousted from the properties.

1 Rule 39, Section 9, (b) Satisfaction by levy. — If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed, of for value and not otherwise exempt from execution giving the latter the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the judgment.xxx 2 Rule 39, Section 10, (e) Delivery of personal property. — In judgment for the delivery of personal property, the officer shall take possession of the same and forthwith deliver it to the party entitled thereto and satisfy any judgment for money as therein provided. 3 Rule 39, Section 10, (a) Conveyance, delivery of deeds, or other specific acts; vesting title. — If a judgment directs a party to execute a conveyance of land or personal property, or to deliver deeds or other documents, or to perform, any other specific act in connection therewith, and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done shall have like effect as if done by the party. If real or personal property is situated within the Philippines, the court in lieu of directing a conveyance thereof may by an order divest the title of any party and vest it in others, which shall have the force and effect of a conveyance executed in due form of law. xxx 4 Rule 39, Section 10, (c) Delivery or restitution of real property. — The officer shall demand of the person against whom the judgment for the delivery or restitution of real property is rendered and all persons claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession thereof to the judgment obligee, otherwise, the officer shall oust all such persons therefrom with the assistance, if necessary, of appropriate peace officers, and employing such means as may be reasonably necessary to retake possession, and place the judgment obligee in possession of such property. Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money. xxx 5 Rule 61, Section 5. Enforcement of order. — If the adverse party fails to comply with an order granting support pendente lite, the court shall, motu proprio or upon motion; issue an order of execution against him, without prejudice to his liability for contempt. 6 R.A. 9262, SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against women and their children is committed through any of the following acts: xxx (e) (2) Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman's children insufficient financial support; xxx

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2013 LECTURE BY DEAN JARA ABRIDGEMENT In levy of real properties, the court will submit to the registry of property a copy of the levy on execution and ask the registry of property to annotate the fact that this piece of land is already been a subject of levy on execution which will serve as lien over the real property of the judgment debtor.[1] In levy of personal property, the physical possession of the personal property will be turned over to the sheriff. The personal property will be literally in custodia legis.[2] PUBLIC AUCTION (Section 19) A levy on properties under Rule 39 should always be followed by a sale at public auction of the properties.[3] If there is only a levy without a sale at public auction then that levy can be considered as nullified later on by the court. PROPERTIES EXEMPT FROM EXECUTION (Section 13) Under Rule 39 and some special laws, there certain properties of the judgment debtor which cannot be the subject of a levy.[4] If a property of the debtor is exempt from execution and it is levied upon the levy is void and since the levy is void the sale is also void. If the levy is valid, however, it does not follow that the sale is also valid because under the rules there are some certain requirements that must be complied with before a sale of a levied property could take place. There certain formalities to be followed. For instance, if the property levied upon is real property, there must first be a publication of the sale of the properties. [5]

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Rule 57, Section 7, (a) Real property, or growing crops thereon, or any interest therein, standing upon the record of the registry of deeds of the province in the name of the party against whom attachment is issued, or not appearing at all upon such records, or belonging to the party against whom attachment is issued and held by any other person, or standing on the records of the registry of deeds in the name of any other person, by filing with the registry of deeds a copy of the order, together with a description of the property attached, and a notice that it is attached, or that such real property and any interest therein held by or standing in the name of such other person are attached, and by leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province. Where the property has been brought under the operation of either the Land Registration Act or the Property Registration Decree, the notice shall contain a reference to the number of the certificate of title, the volume and page in the registration book where the certificate is registered, and the registered owner or owners thereof. 2 Rule 57, Section 7, (b) Personal property capable of manual delivery, by taking and safely keeping it in his custody, after issuing the corresponding receipt therefor; 3 Rule 39, Section 19. How property sold on execution; who may direct manner and order of sale. — All sales of property under execution must be made at public auction, to the highest bidder, to start at the exact time fixed in the notice. After sufficient property has been sold to satisfy the execution, no more shall be sold and any excess property or proceeds of the sale shall be promptly delivered to the judgment obligor or his authorized representative, unless otherwise directed by the judgment or order of the court. When the sale is of real property, consisting of several known lots, they must be sold separately; or, when a portion of such real property is claimed by a third person, he may require it to be sold separately. When the sale is of personal property capable of manual delivery, it must be sold within view of those attending the same and in such parcels as are likely to bring the highest price. The judgment obligor, if present at the sale, may direct the order in which property, real or personal shall be sold, when such property consists of several known lots or parcels which can be sold to advantage separately. Neither the officer conducting the execution sale, nor his deputies, can become a purchaser, nor be interested directly or indirectly in any purchase at such sale. 4 See Rule 39, Section 13. 5 Rule 39, Section 15. Notice of sale of property on execution. — Before the sale of property on execution, notice thereof must be given as follows: xxx c) In case of real property, by posting for twenty (20) days in the three (3) public places abovementioned a similar notice particularly describing the property and stating where the property is to be sold, and if the assessed value of the property exceeds fifty thousand (P50,000.00) pesos, by publishing a copy of the notice once a week for two (2) consecutive weeks in one newspaper selected by raffle, whether in English, Filipino, or any major regional language published, edited and circulated or, in the absence thereof, having general circulation in the province or city; Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT TERCERIA (Section 16) The rule on terceria or third party claim in Rule 39 is also contained in Rule 57, Section 14 in relation to writ of preliminary attachment. In rule 39 for the validity of a levy, the property levied upon must belong to the judgment debtor. If the property levied upon belongs to another person, the levy is not valid. Thus, if the sheriff sells the property, nonetheless, the sale is not valid. Remedy of the Owner In rule 39, the remedy of the real owner is to file a third party complaint. If the property levied upon is personal property, capable of manual delivery, the true owner can file a complaint for replevin against the sheriff who has seized the personal property. If the property levied upon is real property, he can file a complaint to prevent the sheriff from selling the property and to compel the return of the property to the true owner. The other remedies which are expressly acknowledged by Rule 39 is the commencement of a separate and independent action for the recovery of the property that has been levied upon. [1] The owner can make use of these remedies successively. If he files a third party claim and he does not succeed in recovering the property by reason of the 3rd party claim, he can avail of the remedy to file a complaint for the recovery of the real or personal property, as the case maybe. Third Party Complaint But the easiest and most practical remedy available right away to the third party claimant is this third party claim. A third party claim does not require the filing of a pleading, it is just an affidavit filed by the third party claimant to the sheriff or to the court.[2] In the affidavit, one should also append supporting documents and papers that will justify his claim to the property. Q: Can the court render a judgment that will tell the sheriff that the true owner of the property is not the 3rd party claimant but the judgment debtor? A: NO. The court has no such authority because we are already at the stage of execution of judgment, thus the case is already completed, it has been terminated. The third party claim will just be an incident to the execution process that is being followed by the court. Regardless of the finding of the execution court that the true owner of the property is the judgment debtor, that will not be binding on the third party claimant. It will not constitute res judicata in so far as the third party claimant is concerned. Q: What is the remedy of the third party if the sheriff schedules the property to a public auction sale? 1

Rule 39, Section 16. xxx The officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if such bond is filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate action, or prevent the judgment obligee from claiming damages in the same or a separate action against a third-party claimant who filed a frivolous or plainly spurious claim. xxx 2 Rule 39, Section 16.Proceedings where property claimed by third person. — If the property levied on is claimed by any person other than the judgment obligor or his agent, and such person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same upon the officer making the levy and copy thereof, stating the grounds of such right or tittle, and a serves the same upon the officer making the levy and a copy thereof upon the judgment obligee, the officer shall not be bound to keep the property, unless such judgment obligee, on demand of the officer, files a bond approved by the court to indemnity the third-party claimant in a sum not less than the value of the property levied on. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. xxx Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT A: The third party claimant is to file an independent action in order to prevent the sheriff from selling the property (complaint for injunction and damages, for instance). Q: Can you file an injunction with the execution court? A: NO. If it is a complaint for injunction, you should file it in the Regional Trial Court which has jurisdiction over the case and the venue will depend on the residence of the third party claimant or the sheriff or the judgment debtor. It is the third party claimant who will have the right to choose the venue of the action. Q: If the property levied upon is a personal property, say a car in the possession of the judgment debtor but is really owned by the third party claimant, can the third party claimant file a complaint for replevin to recover the car from the sheriff? A: YES. In that complaint for replevin, the defendants would be the sheriff and also the judgment creditor because the levy was a result of a motion for execution that was filed by the judgment creditor. Q: If the execution court is RTC and the third party claimant decides to file a complaint for replevin, can he file the complaint before an inferior court? A: YES. A complaint for replevin is cognizable by the inferior courts depending upon the value of the personal property.[1] Example; So if the execution court is the RTC, but the car is valued at only 250,000 pesos and the true owner, the third party claimant files a complaint for replevin, the complaint will have to be filed with the inferior courts. That inferior court, in the complaint for replevin can issue a writ of replevin or a warrant of seizure before the sheriff and the judgment creditor could file an answer. Q: Can the judgment creditor and the sheriff argue before the inferior court that the inferior court does not have the authority to issue the writ of replevin or warrant of seizure because that is interfering with the processes issued by the Regional Trial Court? A: NO. The sheriff of the inferior court can enforce the replevin. He can seize the car from the sheriff. Q: Can the sheriff or the judgment creditor invoke the provisions of Rule 60 that a writ of replevin cannot be enforced when the property is already subject to attachment or the property is under distraint by reason of non-payment of taxes. [2] A: The court said that the writ of replevin issued by the inferior court will prevail over the levy on execution made by the sheriff because such levy on execution is a void execution. [3] The requirement in 60 which states that property under custodia legis cannot be the subject of a writ of replevin assumes that the levy on execution is a valid levy on execution. If the judgment debtor is not the owner of the property levied upon, that levy is void and therefore there could be a seizure or confiscation by another sheriff in compliance with the writ of replevin issued by another court or even an inferior court. MTC issues a writ of preliminary mandatory Injunction against RTC In our example, it is also proper for the inferior court to issue a writ of preliminary mandatory injunction against the sheriff so that the sheriff will be prevented from going ahead with the sale. 1

See B.P. 129 as amended by R.A. 7691 Rule 60, Section 2. Affidavit and bond. — The applicant must show by his own affidavit or that of some other person who personally knows the facts: xxx (c) That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; xxx 3 Tillson v. CA (G.R. No. 89870, May 28, 1991) 2

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2013 LECTURE BY DEAN JARA ABRIDGEMENT So this could be a situation, an instance, where a process issued by an inferior court can be enforced in order to defeat a process issued by a higher court. The levy court is a RTC but the injunction court is an inferior court. But the injunction will not be directed against the RTC, it will be directed against the sheriff of the RTC to prevent him from selling the property which is the subject of a void levy on execution. SEVERAL LEVIES ON EXECUTION The rule does not prohibit the enforcement of several levies on execution over the same piece of land owned by judgment debtor because a vendee does not immediately obtain ownership of the property. Q: In Rule 39, if a property of the judgment debtor has been subjected to a levy on execution, can it be made the subject of another or further levy on execution? A: Yes. There could be several levy on execution over the same property of the judgment debtor. Example; If we have three levies on execution, they are all annotated at the back of the title, then we just follow the rule on seniority that we follow in mortgages and other encumbrances. The first levy will be superior to the second and third levy. The second and third are inferior to the first levy on execution. In fact the SC has also held that if a property of a debtor, a piece of land owned by the debtor, is the subject of different levies and the judgment debtor sells the property, the buyer will have to respect the annotation of levies at the back of the title. [1] Q: If this property of the judgment debtor is already mortgaged for instance with the PNB which is still uncancelled or existing, can the sheriff levy on a mortgaged property of judgment debtor? A: YES. Levy under Rule 39 does not affect ownership of the property. Levy only creates a lien. When the property of the judgment debtor is levied upon, he does not lose ownership of the property. Likewise, the public auction sale does not necessarily mean that he will automatically lose ownership of that levied and sold property especially if that property is a piece of land. Under rule 39, the judgment debtor can still exercise right of redemption so that he will still keep his title to the property. SUCCESSIVE REDEMPTION (Section 27, 28) In cases where there are two different levies over the same piece of land which was sold at public auction, the law gives the judgment debtor a right of redemption which is also be enjoyed by the second levy owner. Rule 39 defines redemptioner as the judgment debtor and his successors-in-interest, and any creditor who holds another levy or lien subsequent to that of the levying creditor who has caused the sale of the property.[2] If it is the second levy holder redeems the property, the judgment debtor can make a further redemption of the property.[3]

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BPI v. Noblejas (G.R. No. L-12128, March 31, 1959_ Rule 39, Section 27. Who may redeem real property so sold. — Real property sold as provided in the last preceding section, or any part thereof sold separately, may be redeemed in the manner hereinafter provided, by the following persons: (a) The judgment obligor; or his successor in interest in the whole or any part of the property; (b) A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold. Such redeeming creditor is termed a redemptioner. 3 Rule 39, Section 28 Time and manner of, and amounts payable on, successive redemptions; notice to be given and filed. —. Property so redeemed may again be redeemed within sixty (60) days after the last redemption upon payment of the 2

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2013 LECTURE BY DEAN JARA ABRIDGEMENT If the one who redeems is a redemptioner or another levy or lien holder, we can apply the rule on successive redemption which says that another redemption could take place within 60 days from the efficacy of the first redemption even if the period of redemption has already expired. [1] EFFECT OF REDEMPTION BY JUDGMENT OBLIGOR (Section 29) In the rule of successive redemption in Rule 39, we can speak of successive redemption if the redemptioner is not the judgment debtor himself, but when the judgment debtor redeems the property from the highest bidder, further rights of redemption are cut off by virtue of the redemption made by the judgment debtor.[2] Example; For instance, if there are two redemptioners aside from the judgment debtor. The period of redemption for all of them is 1 year from the registration of the certificate of sale. If the second levy holder redeems, then the third levy holder can also further redeem from him within 60 days from the date of the last redemption. In any event, within that 1-year period, the judgment debtor can always exercise his right of redemption which will cut-off the right of redemption given to others. Q: Will it not prejudice these other levy holders if we cut off the right of redemption? A: NO. The other levy holders can still enforce their levy by having another public auction sale of that levied property. In civil law as well as in rule 39, the SC has accepted the principle that whenever there is a doubt in the interpretation of redemption rules and laws, the interpretation should always be in favor of the judgment debtor or the redemptioner.[3] Redemption of Personal Property Rule 39 is very clear in saying that right of redemption will exist only when the property sold at public auction is a real property. When the property levied upon and sold at public auction is personal property, there is no right of redemption. Because of these distinctions given in the rules, the SC promulgated principles that are applicable to redemption of personal property.

sum paid on the last redemption, with two per centum thereon in addition and the amount of any assessments or taxes which the last redemptioner may have paid thereon after redemption by him, with interest on such last named amount, and in addition, the amount of any liens held by said last redemptioner prior to his own, with interest. The property may be again, and as often as a redemptioner is so disposed, redeemed from any previous redemptioner within sixty (60) days after the last redemption, on paying the sum paid on the last previous redemption, with two per centum thereon in addition, and the amounts of any assessments or taxes which the last previous redemptioner paid after the redemption thereon, with interest thereon, and the amount of any liens held by the last redemptioner prior to his own, with interest. 1 Rule 39, Section 28. Time and manner of, and amounts payable on, successive redemptions; notice to be given and filed. — xxx Property so redeemed may again be redeemed within sixty (60) days after the last redemption upon payment of the sum paid on the last redemption, with two per centum thereon in addition and the amount of any assessments or taxes which the last redemptioner may have paid thereon after redemption by him, with interest on such last named amount, and in addition, the amount of any liens held by said last redemptioner prior to his own, with interest. The property may be again, and as often as a redemptioner is so disposed, redeemed from any previous redemptioner within sixty (60) days after the last redemption, on paying the sum paid on the last previous redemption, with two per centum thereon in addition, and the amounts of any assessments or taxes which the last previous redemptioner paid after the redemption thereon, with interest thereon, and the amount of any liens held by the last redemptioner prior to his own, with interest.xxx 2 Rule 39, Section 29. Effect of redemption by judgment obligor, and a certificate to be delivered and recorded thereupon; to whom payments on redemption made. — If the judgment obligor redeems he must make the same payments as are required to effect a redemption by a redemptioner, whereupon, no further redemption shall be allowed and he is restored to his estate. 3 Cometa v. CA (G.R. No. 141855, February 6, 2001) Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT One of these principles is that when the properties levied upon and sold at public auction is personal property and the price is inequitably low at public auction sale, the sale is void.[1] Example; The personal property is a car owned by the judgment debtor, the market value of the car is 800,000. At the public auction sale, the highest bid is only 50,000. Here, the highest bidder can acquire a car worth 800,000 for only 50,000. If we apply the principles given by the SC, the same is void. The court can issue an order declaring the same as ineffectual and that the same is void because the price is inequitably low. The sheriff must schedule another public auction sale until the price that will not fall within the classification of an inequitably low price. Redemption of Real Property But when the property sold at public auction is real property, it does not matter whether the highest bid is high or low or even if the price generated is inequitably low. [2] Example; And the court explained that even if the piece of land owned by the judgment debtor is worth 700,000 and highest bid is only 50,000, the sale is valid. The SC said if the price is very low and the property is real, that is advantageous to the judgment debtor because if he decides to redeem the property, he will only have to produce 50,000 and then he will get his property that has been sold at public auction. The public auction sale of this piece of land could also result in a situation where the price generated during the auction sale will not sufficient to pay the claim of judgment creditor. Example; The claim of judgment creditor is 1,000,000. A piece of land owned by judgment debtor is levied upon and sold at public auction and the highest bid is 500,000 by the judgment debtor. There will remain unpaid balance of another 500,000. In order to redeem the property, the judgment debtor should deliver only 500,000 because the redemption price is always the highest bid of the property plus interest and other additional cost. Q: In the example above, can the judgment creditor have another levy on the same property that has been redeemed by judgment debtor? A: The judgment creditor can have another levy because, according to Rule 39, there must be full satisfaction of the award to put an end to the case.[3] Q: If the judgment creditor decides to have another levy on the same property that has been previously levied upon as a result of his execution process but this property has been redeemed by the judgment debtor, can the same levy creditor impose or carry out another levy in the same property? A: By virtue of Res Judicata, the same levying creditor no longer levy on the same property. If the same levying creditor wants to get full satisfaction, he should make another levy on another property of the judgment debtor. However, this principle does not prohibit other creditors from making a levy on the property that was already redeemed by the judgment debtor.

1 When there is a right to redeem, inadequacy of price should not be material because the judgment debtor may reacquire the property or else sell his right to redeem and thus recover any loss he claims to have suffered by reason of the price obtained at the execution sale. (Hulst v. PR Builders Inc., G.R. No. 156364, September 3, 2007) 2 Ibid. 3 Rule 39, Section 40. Order for application of property and income to satisfaction of judgment. — The court may order any property of the judgment obligor, or money due him, not exempt from execution, in the hands of either himself or another person, or of a corporation or other juridical entity, to be applied to the satisfaction of the judgment, subject to any prior rights over such property.

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Rents, Earnings, and Income of Property Pending Redemption (Sec. 32) The fruits of the property sold at public auction will still redound to the judgment debtor while the period of redemption.[1] The basis is that the judgment debtor retains ownership of the property while period of redemption is running. During the auction sale of this levied property, it is usually the judgment creditor who will offer the highest bid because the judgment creditor can give an amount equivalent to the award given to him by the court. Example; If the award in favor of judgment creditor is 1,000,000, the judgment creditor can give a bid as high as 1,000,000 and he does not to turn over the task to the sheriff because he will just tell the sheriff I will consider the 1,000,000 bid as full payment of my claim. If a stranger is the highest bidder and he bids for 1,000,000, this stranger is expected to shell out 1,000,000 and deliver it to the sheriff. Q: Can the judgment creditor be forced to shell out cash equivalent to this highest bid even if the highest bid is the exact equivalent of his claim? A: Generally NO, but if there is terceria or third party claim and the highest bidder is the judgment creditor, the judgment creditor must still shell out cash in order to be declared by the court and the sheriff as the highest bidder of the property. Remedies of the judgment creditor if he is not fully paid (Sections 36, 37, and 41) The creditor may avail the following remedies in case he is not fully paid; 1. The judgment creditor to file a motion with the court for the examination of the judgment debtor;[2] 2. The judgment creditor may file a motion for the examination of a debtor of the judgment debtor; [3]

3. And the third remedy is for the judgment creditor to file a motion for the appointment of a receiver of the remaining properties of the judgment debtor; [4]

1 Rule 39, Section 32. Rents, earnings and income of property pending redemption. — The purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on execution, or the value of the use and occupation thereof when such property is in the possession of a tenant. All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his period of redemption 2 Rule 39, Section 36. Examination of judgment obligor when judgment unsatisfied. — When the return of a writ of execution issued against property of a judgment obligor, or any one of several obligors in the same judgment, shows that the judgment remains unsatisfied, in whole or in part, the judgment obligee, at any time after such return is made, shall be entitled to an order from the court which rendered the said judgment, requiring such judgment obligor to appear and be examined concerning his property and income before such court or before a commissioner appointed by it at a specified time and place; and proceedings may thereupon be had for the application of the property and income of the judgment obligor towards the satisfaction of the judgment. But no judgment obligor shall be so required to appear before a court or commissioner outside the province or city in which such obligor resides or is found. 3 Rue 39, Section 37. Examination of obligor of judgment obligor. — When the return of a writ of execution against the property of a judgment obligor shows that the judgment remain unsatisfied, in whole or in part, and upon proof to the satisfaction of the court which issued the writ, that a person, corporation, or other juridical entity has property of such judgment obligor or is indebted to him, the court may, by an order, require such person, corporation, or other juridical entity, or any officer, or member thereof, to appear before the court or a commissioner appointed by it, at a time and place within the province or city where such debtor resides or is found, and be examined concerning the same. The service of the order shall bind all credits due the judgment obligor and all money and property of the judgment obligor in the possession or in the control of such person corporation, or juridical entity from the time of service; and the court may also require notice of such proceedings to be given to any party to the action in such manner as it may deem proper. 4 Rule 39, Section 41. Appointment of receiver. — The court may appoint a receiver of the property of the judgment obligor; and it may also forbid a transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution.

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2013 LECTURE BY DEAN JARA ABRIDGEMENT --xXx--

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2013 LECTURE BY DEAN JARA ABRIDGEMENT RULE 39 PART 2: EFFECT OF JUDGMENTS The last topic in Rule 39 is of course one of the most important in procedure - the principle of RES JUDICATA. Res judicata n rule 39 is covered by sections 47 and 48. and then 48, is about the effect of a foreign judgment that is a judgment rendered by a foreign court. EFFECTS OF JUDGMENTS AND FINAL ORDERS (Section 47) Section 47 is the effect of a local judgment after it is entered. Requisites of Res Judicata There are three principle requisites of Res Judicata; 1. Identity of parties; 2. Identity of causes of action; and 3. Identity of subject matter The effect of Res Judicata under section 47 depends upon the nature of the action whether the action is in rem or in personam. EFFECTS OF A JUDGMENT IN REM The effect of Judgment in Rem is answered by letter (a) of Section 47; a.

In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or administration or the condition, status or relationship of the person, however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate;

When the judgment is a judgment in rem, the judgment is conclusive not upon the parties, it is conclusive upon the title to a thing, upon the personal political or legal condition of a person. Judgment Conclusive upon the Title to the Thing If the judgment is conclusive upon the title to the thing, that judgment will be binding upon the litigants or anybody who might have an interest to the title of the thing although these persons might not have been involved in the litigation process. This is the reason why a land registration or a cadastral proceeding is considered as an action in rem because the judgment in these proceedings is conclusive upon the title, it is not considered conclusive upon the plaintiff or defendant. Judgment Conclusive upon the will or administration of a deceased person In the probate of a will which is another proceeding in rem, where there is a decision by the court admitting the will to probate, it is conclusive upon the will or administration therefore anybody who might have an interest in the will will have to respect that decision by the court. The probate of a will is not conclusive upon the fact that the testator is dead. It is only prima facie. If at all, it can serve only not as a conclusive proof of the death of the testator but it could convince the court that the testator really is dead.

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2013 LECTURE BY DEAN JARA ABRIDGEMENT The reason for the caveat is because in civil law, as well as in rules of court, a probate of will can be commenced even if the testator is still alive. The probate of a will in so far as the common requirements of a will are concerned is conclusive. However, in so far as the issue as to whether the testator is dead or alive, it is not conclusive. Judgment Conclusive upon the personal condition of a person The personal condition of a person, if a person has in his favor a decree of adoption, he is the adoptee of Juan Dela Cruz, the decree is conclusive upon the personal status of that adoptee and therefore, anybody who transacts with the adoptee will be bound by the decree of adoption issued by the adoption court. EFFECTS OF A JUDGMENT IN PERSONAM The effect of a judgment in personam is letter (b) of Section 47; b.

In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been missed in relation thereto, conclusive between the parties and their successors in interest, by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity;

The word conclusive is followed by the phrase upon the parties and their successors-in-interest litigation for the same thing under the same title and in the same capacity. Compulsory Counterclaim or Cross-Claim When the rule says that the judgment is “conclusive upon their parties and their successors-in-interest as to matters directly adjudged or as to matters which could have been adjudged”, that phrase as to matters that could have been decided or litigated in relation thereto, will refer for instance to a compulsory counterclaim or a cross-claim. We learned that a compulsory counterclaim or a cross-claim that is not set up in the same action will be barred because they are matters which could have been raised in relation to the principal action. Example; An example of an action in personam could be an action involving title to property by reconveyance of property. Plaintiff vs. defendant, the action for reconveyance of property, this is not in rem but in personam. Not all actions involving real property is in rem. If the action is only for reconveyance or accion reinvindicatoria, although what is involved is real property, that action is still in personam Q: X as stranger file his own complaint against the plaintiff in the first case for the recovery of real property. Can the plaintiff in the first case set up the defense of res judicata? A: He cannot. Because the parties in the second case are not the same in the first case. Q: If there is already an identity of subject matter, does it not follow that there will be identity of causes of action? A: NO. There could identity of subject matter but the causes of action could be still different. Example; In Accion Reinvindicatoria, the cause is for recovery of title to property. The subject matter is of course a piece of land. There could be another complaint filed involving the same piece of land but the cause of action is different. For instance, in unlawful detainer the cause is for recovery of title to property

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2013 LECTURE BY DEAN JARA ABRIDGEMENT involving the same piece of land. Although there is identity of subject matter, the causes of action will be different. CONCLUSIVENESS OF JUDGMENT Letter of (c) of section 47 speaks about the principle of conclusiveness of judgment; c.

In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.

Conclusiveness of judgment is a type of res judicata but with limited application. There could be identity of parties and identity of subject matter but there is no identity of causes of action. That’s why the subsequent cases can prosper. Example If there is a 1,000,000 indebtedness each payable in two instalments of 500,000, each instalment, if violated or if defaulted, will give rise to one cause of action. The debtor defaults in the payment of the first instalment. As a consequence, the creditor filed a complaint to recover 500,000 only for the first instalment. The debtor argues in his answer that the promissory note upon which the complaint is based is a forged promissory note. The RTC decides in favor of the creditor. Then the judgment is entered. After the entry of judgment, the second instalment also becomes due. Q: Can the creditor file a second complaint for the recovery of the second instalment? A: YES. Our principle is that each instalment if unpaid will give rise to a separate cause of action so if the second instalment becomes due and unpaid, the creditor can file a separate complaint against the debtor. The second complaint can prosper. Q: If the debtor will again raise the issue that the promissory note contains his false signature-it is a spurious promissory note. Will the court still make adjudication as to whether that note is a forged promissory note or a genuine promissory note? A: Not anymore. The finding in the first case by the court that the promissory note is genuine will be conclusive in so far as the creditor and debtor is concerned in another case. In conclusiveness of judgment, the subsequent case will not be dismissed, it will prosper but the court cannot make an adjudication on the issue that has already been decided in the first case. IMMUTABILITY OF JUDGMENT When the judgment is entered as contemplated in Sec. 47, there is a judgment on the merits that is rendered by a court of competent jurisdiction is as provided-judgment in rem and judgment in personam. The collateral principle we adopt on this rule on res judicata is that the judgment that has been entered becomes immutable. It can no longer be change or modified even by the SC itself. But it does not mean to say that the judgment that has become final and executory can no longer be challenged, it can still be challenged by way of exception to the general rule. Exception 1. Annulment of judgment under Rule 47 - the court which decided the case may not have jurisdiction which is one of the grounds to annul a judgment; 2. Petition for Relief of Judgment under Rule 38 - Petition for relief from judgment on the ground of fraud, accident, mistake or excusable negligence;

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2013 LECTURE BY DEAN JARA ABRIDGEMENT In the case of F.G.U. Insurance v. RTC, [1] the SC summarized four instances where a final and executory judgment can be modified, challenged or even set aside; 1. The correction of clerical errors; 2. The so-called nunc pro tunc entries which cause no prejudice to any party; 3. Void judgments; and 4. Whenever circumstances transpire after the finality of the decision rendering its execution unjust and inequitable; In 2008, the SC also came out with another decision which says that the SC has the inherent power to change or modify a final and executory judgment if substantial justice so requires. So you can consider that as the fifth exception.[2] EFFECT OF FOREIGN JUDGMENTS (Sec. 48) Section 48 which refers to a foreign judgment also refers to a foreign judgment in rem and foreign judgment in personam. Judgment in Rem The first paragraph of Section 48 provides that the judgment of foreign court is conclusive upon the title to the thing. So the first part speaks also about a judgment in rem that is adjudicated by a foreign court, the judgment in rem is conclusive also upon the title to the thing. Judgment in Personam In judgment is in personam, the judgment of the foreign court is only a presumptive evidence of the rights between the parties in the complaint. Example; A creditor seeks before the Japanese court is for the recovery of an unpaid loan. The Japanese court held in favor the creditor. So the debtor is required to pay the said sum of 100,000 US dollars. The Japanese court has not executed the judgment but somehow the creditor and debtor live in the Philippines. The judgment debtor has accumulated certain properties in the Philippines. Q: Can the judgment creditor in that Japan case file a motion for execution before a Philippine court? A: NO. The Philippine court knows nothing about the Japan case. There is no basis for the Philippine court to issue a writ of execution. Q: Is there a remedy available to the creditor in order to enforce the decision of the Japan court in the Philippines? A: YES. The second paragraph of Section 48 says that the judgment of the Japan court is a presumptive evidence of the rights between the parties. Q: How does the judgment creditor make use of the rule that the decision of the Japan court is a presumptive evidence of the rights between the parties to the case? A: The creditor should file an independent or separate complaint for the enforcement of the decision of the Japan court. The only evidence that he needs in order to convince the court that there is preponderance of evidence in his favor is a certified true copy of the decision rendered by the Japan court. The local court will now apply the presumption given in Section 48.

1 2

G.R. No. 161282, February 23, 2011 Heirs of Maura So v. Obliosca (G.R. No. 147082, January 28, 2008)

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Policy of Preclusion The last paragraph of Sec. 48, speaks about repelling a judgment by a foreign court whether it is a judgment in rem or a judgment in personam. This is known as the Policy of Preclusion. The Policy of Preclusion seeks to protect party expectations resulting from previous litigation, to safeguard against the harassment of defendants, to insure that the task of courts not be increased by never-ending litigation of the same disputes. Otherwise, If every judgment of a foreign court were reviewable on the merits, the plaintiff would be forced back on his/her original cause of action, rendering immaterial the previously concluded litigation. [1] The judgment of a foreign court can be repelled by 1. Evidence of want of jurisdiction; 2. Evidence of want of notice; 3. Collusion; 4. Fraud; or 5. Clear mistake of law or fact; Q: Can we also oppose the motion for execution for judgments rendered by local courts using the grounds mentioned in Sec. 48? A: It cannot be done if the judgment is rendered by local courts. Q: Why can the defendant of the local judgment not oppose the execution by setting up the defenses under Section 48? A: We do not allow a motion for execution to be opposed or denied on the argument that the court did not have jurisdiction over the subject matter or jurisdiction over the person of the defendant, because that will be a collateral attack on the judgment. Only direct attack on the judgment is allowed by filing a petition to annul the said judgment and the ground to be used is lack of jurisdiction over the person or over the subject matter. [2] When we say collaterally, the person attacking the judgment does not file a separate complaint for the purpose of having the judgment set aside. In the matter of attacking a local judgment, as long as the judgment, on its face, appears to be a valid judgment, in writing, there are findings of fact and conclusions of law, there is the signature of judge, there is presumption of correctness of judgment. Exception; There is one occasion, according to the Supreme Court, where we could collaterally attack a judgment. If the judgment is on its face a void judgment, for instance, a judgment rendered by a court contains only a dispositive portion, it does not contain findings of fact or conclusions of law, that judgment is, on its face, a void judgment. [3] It does not with the constitutional requirements of a valid judgment. That can be attacked collaterally. JURISDICTION Under B.P. 129, since the action to enforce the judgment of a foreign court is incapable of pecuniary estimation, then it is the Regional Trial Court who has the proper jurisdiction because it is the only court which can take cognizance of cases incapable of pecuniary estimation.

1 2

Mijares v. Ranada (G.R. No. 139325, April 12, 2005) In Re: Transfer Certificate of Title No. 14123. Tirso T. Reyes v. Milagros Barretto-Datu (G.R. No. L-5549, February 26,

1954) 3 Arcelona

v. CA (G.R. No. 102900, October 2, 1997) citing El Banco Español-Filipino v. Palanca (G.R. No. L-11390, March

26, 1918) Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Q: Does the MTC have jurisdiction to enforce a foreign judgment if it is capable of pecuniary estimation? A: NO. Regardless of the amount of money involve, the subject matter of an action to enforce a foreign judgment is the foreign judgment itself. Thus, even if the subject matter of the case is capable of pecuniary estimation, the jurisdiction would still fall under Regional Trial Courts. [1]

--xXx--

1

Mijares v. Ranada (G.R. No. 139325, April 12, 2005)

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2013 LECTURE BY DEAN JARA ABRIDGEMENT PROVISIONAL REMEDIES GENERAL PROVISIONS The term Provisional Remedies is considered synonymous with the terms interim reliefs and provisional order. Provisional Remedies under 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) The enumeration of provisional remedies in the Rules of Court is not an exclusive enumeration of provisional remedies. We have to include the enumeration of interim reliefs in other circulars of the Supreme Court or the enumeration of provisional orders in a separate circular of the Supreme Court. Provisional Remedies under the Circular of the Supreme Court. 1. Writ of Habeas Data; (A. M. No. 08-1-16-SC) 2. Writ of Amparo as a provisional remedy in certain cases; (A.M. No. 07-9-12-SC) 3. The provisional remedies under a Writ of Amparo if it is the main action; a. Temporary Protection Order; (Sec. 14, a) b. Production Order; (Sec. 14, b) c. Witness Protection Order; (Sec. 14, c) d. Inspection Order; (Sec. 14, d) 4. Provisional Order in Marriage-Related Cases; (A.M. 02-11-12-SC) a. Spousal Support; (Sec. 2) b. Child Support; (Sec. 3) c. Child Custody; (Sec. 4) d. Visitation Rights; (Sec. 5) e. Hold Departure Order; (Sec. 6) f. Order of Protection; (Sec. 7) g. Administration of Common Property; (Sec. 8) 5. Interim Reliefs under a Writ of Kalikasan; (A.M. No. 09-6-8-SC) a. Temporary Environmental Protection Order (TEPO); (Part II, Rule 2, Sec. 8) b. Preliminary Attachment; (Part IV, Rule 13, Sec. 1) c. Cease and Desist Order; (Part III, Rule 7, Sec. 5) d. Discovery Measures under the Writ of Kalikasan; (Part III, Rule 7, Sec. 12) i. Ocular Inspection Order; ii. Production Order; PROVISIONAL REMEDY AS THE PRINCIPAL ACTION The common element and the general rule for provisional remedy is that there must be a pending principal action, except in those instances when the provisional remedy or provisional order can be treated as the principal action. An example of this is the Writ of Amparo which can be a principal action by itself or it can also be treated as a provisional remedy. The same goes for Habeas Data. Since we always require an independent principal action before we can make use of these provisional remedies, it follows that we cannot institute an independent action solely for the purpose of obtaining as a principal relief any of these provisional remedies. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Example; A creditor cannot file a complaint for the issuance solely of preliminary attachment. The case will completely be dismissed. LEVY ON ATTACHMENT (RULE 57) V. LEVY ON EXECUTION (RULE 39) You should also be careful in ascertaining whether attachment is provisional or it is not a provisional remedy. In Rule 57 the attachment is a provisional remedy because of the word preliminary. But if the attachment is a final attachment, it is no longer a provisional remedy. It is now part of the execution process under Rule 39. The process in Rule 39 is described as levy on execution in order to differentiate Rule 39 from Rule 57. Levy on execution is just another term for levy on final attachment. When we talk about levy on attachment, we refer to a preliminary attachment. POSTING OF BONDS AS COMMON ELEMENT Although we have now several provisional remedies and interim reliefs or provisional orders, it is not correct to assume that they follow common rules. If you analyze the provisional remedies found in the rules of court, one of the common elements is the requirement for the applicant to post a bond; 1. Attachment bond; (Rule 57) 2. Injunction bond; (Rule 58) 3. Receivers bond; (Rule 59) and 4. Replevin bond; (Rue 60) The only provisional remedy which does not require the posting of a bond is support pendente lite. In the circular on marriage related cases, the family court can grant these provisional orders with or without bond. It all depends on the discretion of the family court. On the same circular, the law also provides that the family court can grant these provisional orders with or without a hearing. THE ORDER IS MERELY INTERLOCUTORY Another rule that applies provisional remedy that is in common, the issuance of these interim reliefs is always interlocutory, the order is not the final order because it has nothing to do with the merits of the case. The accepted remedy to challenge an order granting the provisional remedy is rule 65. But in some circulars that has also been changed substantially. Example; In summary procedure if in the cases that are cognizable by the inferior court, where the inferior court is governed by the summary procedure if the inferior court grants a provisional remedy it is interlocutory, it is not appealable but the adverse party cannot file a petitioner under rule 65. In other words there is no remedy available to the adverse party. Rule 65 is one of the prohibited pleadings in summary procedure. Thus, Rule 65 cannot be availed to challenge the interlocutory order issued by the inferior court. WRIT OF AMPARO The Writ of Amparo which can be a principal action by itself or it can also be treated as a provisional remedy. The same goes for Habeas Data.

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Bonds In the Amparo circular, there is nothing mentioned about the posting of a bond by the applicant, so it would seem that just like the circular on marriage related cases the court do not need a bond before the court can validly issue this interim relief. In the Amparo circular, when it comes to the interim relief of production and inspection order, there must be a motion filed by the applicant and there must be a hearing conducted by the court. In respect to protection order and witness protection order, these provisional remedies can be issued by the court without a hearing, ex parte. Prohibited Pleadings In Amparo likewise, there is also a section on prohibited pleadings. There is a similar provision in Amparo circular that if the Amparo court grants a provisional order or an interim relief and therefore that order is interlocutory, rule 65 is also not applicable. [1] POWER TO GRANT PROVISIONAL REMEDIES OF THE INFERIOR COURT In the past, before BP 129, there was the question as to the totality or the authority of the inferior court to grant provisional remedy. But this was settled by BP 129. If you read section 33 of BP 129, it is now clearly provided that the inferior court has the authority to grant provisional remedy as long as it has jurisdiction over the action. [2] So there is no question at all that the inferior court can grant preliminary attachment, preliminary injunction, replevin, receivership, as a provisional remedy. --xXx--

1

Section 11 (12), A.M. No. 07-9-12-SC

2 B.P. 129, Section 33. (1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate,

including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not exceed One hundred thousand pesos (P100,000.00) or, in Metro Manila where such personal property, estate, or amount of the demand does not exceed Two hundred thousand pesos (P200,000.00) exclusive of interest damages of whatever kind, attorney's fees, litigation expenses, and costs, the amount of which must be specifically alleged: Provided, That where there are several claims or causes of action between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions; Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT RULE 57 PRELIMINARY ATTACHMENT GROUNDS WHICH ATTACHMENT MAY ISSUE (SEC. 1) Going to rule 57, in section 1 there are 6 instances where the court can properly grant an application for preliminary attachment; Intent to Defraud In respect to the first 5 instances,[1] there is a common requisite, that there is an intention on the part of the adverse party to defraud the applicant. It is only in the last instance [2] where there is no such requirement that must be shown that the adverse party has intention to defraud the applicant. The only requirement is that the defendant is a non-resident and not found in the Philippines and summons can be served upon him by publication. The fact that the defendant is a non-resident and is not found in the Philippines is closely related to the provision in Rule 14 when the party can properly apply for publication of the summons in order for the court to acquire jurisdiction to try and decide when a property of the absent defendant is a non-resident and is not found in the Philippines.[3] Example; A plaintiff filed a complaint for money. There is no security given to him. According to the applicant, the debtor is a dishonest person and intends to leave the Philippines with the intention to defraud the applicant, or he may not actually defraud the applicant. Kinds of Fraud In the cases mention in Section 1 the conduct of the adverse party will be criminal in character; embezzlement, or misappropriation of property entrusted to him. The fraud committed by the adverse party could be a criminal fraud punishable under RPC. 1

Section 1. Grounds upon which attachment may issue. — At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases: (a) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors; (b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; (c) In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person; (d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; (e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or 2 (f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication. 3 Rule 14, Section 15. Extraterritorial service. — When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT The adverse party may have only a civil fraud. Civil fraud is an act of fraud but it has not reached the level of a crime. It also will justify the issuance of a writ of Preliminary Attachment. When there is fraud in contracting the obligation, that is dolo causante in civil law. When there is fraud in performance, there is dolo incidente in civil law. And in both instances that is a justification for the issuance of a writ of PA.[1] Q: If the debtor draws a check and delivers the check in payment of his obligation to the creditor and the check bounces, can the creditor file a complaint and ask for the granting of Preliminary Attachment? A: YES. The Supreme Court held that the issuance of a bouncing check is covered by Section 1, that is fraud in the performance of the obligation.[2] ATTACHMENT OVER AN EXISTING SECURITY (Sec. 3) As a general rule, attachment where indebtedness was already secured is prohibited to prevent the secured creditors from attaching additional property and thus tying up more of the debtor’s property than was necessary to secure the indebtedness unless; 1. The obligation had not been secured originally; or 2. If secured at its beginning, the security later became valueless; [3] Q: Supposing that the plaintiff-creditor holds a collateral given by the debtor and there is already an existing of security, but it is not sufficient to cover the obligation. Can the secured creditor properly move for the issuance of Preliminary Attachment? A: YES. Section 3 of the Rule 57 states that the mortgagee, who holds a security for the payment of liability, asks for the issuance of a Preliminary Attachment, the Court may grant it only if the applicant does not hold a sufficient security for the payment of his claim. [4] If the court grants the Preliminary Attachment, the creditor will now look for the other properties of the creditor that could be the subject of attachment. He should not be attaching the same property he already holds a collateral security of land, he can attach another piece of land so the creditor now as security of payment of his claim. MANNER OF ATTACHING THE PROPERTY (Sec. 5) Generally, there is serious irregularity if Rule 57 authorizes the court to grant the Preliminary Attachment ex parte without notice to the defendant and even before the court has acquired jurisdiction over the person of the defendant through the service of the summons. However, In Preliminary Attachment, levy on attachment could be granted ex parte [5].

1

Rule 57, Section 1 (d) Cuartero v. CA (G.R. No. 102448, August 5, 1992) 3 Salgado v. CA (G.R. No. 55381, March 26, 1984) 4 Rule 57, Section 3. Affidavit and bond required. — An order of attachment shall be granted only when it appears by the affidavit of the applicant, or of some other person who personally knows the facts, that a sufficient cause of action exists, that the case is one of those mentioned in section 1 hereof, that there is no other sufficient security for the claim sought to be enforced by the action, and that the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. The affidavit, and the bond required by the next succeeding section, must be duly filed with the court before the order issues. 5 Rule 57, Section 2. Issuance and contents of order. — An order of attachment may be issued either ex parte or upon motion with notice and hearing by the court in which the action is pending, or by the Court of Appeals or the Supreme Court, and must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, unless such party makes deposit or gives a bond as hereinafter provided in an amount equal to that fixed in the order, which may be the amount sufficient to satisfy the applicant's demand or the value of the property to be attached as stated by the applicant, exclusive of costs. Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions. 2

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Rule 57 the rule authorizes the court to approve Preliminary Attachment even if the defendant has not been served with summons, because the motion is ex parte without notifying the defendant. Since there is a strong possibility that the defendant later on might challenge the writ, the rules introduced the concept of prior and contemporaneous service of summons. [1] 3 Stage Proceeding of Preliminary Attachment And the court explained, the issuance of Preliminary Attachment is a 3 stage proceeding; 1. The court issues the order granting the application; 2. The writ of attachment issues pursuant to the order granting the writ, and 3. The writ is implemented; For the initial two stages, it is not necessary that jurisdiction over the person of the defendant should first be obtained. However, once the implementation commences, it is required that the court must have acquired jurisdiction over the defendant for without such jurisdiction, the court has no power and authority to act in any manner against the defendant. [2] So what rule 57 requires is to observed the rule on prior and contemporaneous service of summons. Prior or Contemporaneous Service of Summons The concept of prior or contemporaneous service of summons requires that summons must have been served previously, or at least served contemporaneous with the actual attachment of the property. Example; If the properties of the adverse party have been attached, the sheriff should see to it that the summons have been served upon the defendant today or prior to the attachment. If the summons is served upon the defendant today that will remedy the irregularity of lack of jurisdiction. As we said earlier, this rule on prior or contemporaneous service of summons applies to all provisional remedies which can be issued granted by the court ex parte even before the court has acquired jurisdiction over the person of the defendant. So we can apply it in injunction, where the court issues ex parte a TRO or PI. The Supreme Court has also said that the rule on attachment should be strictly construed against the pleader in order to protect the rights of ownership of the adverse party.[3] ATTACHMENT OF REAL AND PERSONAL PROPERTY (Sec. 7) The possession of the property subject to the Preliminary Attachment depends upon the nature of the property. Personal Property If the properties of the defendant subject of the Preliminary Attachment are personal properties capable of manual delivery, it could be prejudicial to the right of ownership of the defendant because it will be

1

Rule 57, Section 5.Manner of attaching property. — The sheriff enforcing the writ shall without delay and with all reasonable diligence attach, to await judgment and execution in the action, only so much of the property in the Philippines of the party against whom the writ is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, unless the former makes a deposit with the court from which the writ is issued, or gives a counter-bond executed to the applicant, in an amount equal to the bond fixed by the court in the order of attachment or to the value of the property to be attached, exclusive of costs. No levy on attachment pursuant to the writ issued under section 2 hereof shall be enforced unless it is preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint, the application for attachment the applicant's affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines. xxx 2 Cuartero v. CA (G.R. No. 102448, August 5, 1992) 3 Spouses Delos Santos v. Metropolitan Bank and Trust Company (G.R. No. 153852, October 24, 2012) Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT seized by the sheriff. But the car will not be delivered to the applicant. It will be in custody of the court as long the preliminary attachment is not lifted. [1] Example; If a car is subject to Preliminary Attachment, it will be seized by the sheriff and will be in custody of the court as long the preliminary attachment is not lifted. So if the court will finally decide the case after 3 years, during that 3 year period, the defendant will not be able to use it, it will be used by the sheriff or of the court. Real Property If the property seized or attached is a piece of land, the defendant’s possession will not be affected. But the only inconvenience to be suffered by the owner is that in the registry of the property, the property is subject of preliminary attachment. It does not affect his title. [2] Thus, the owner can still sell the property, but the of the land that is the subject of the Preliminary Attachment cannot complain later on that he is a buyer in good faith. He has notice of the existence of preliminary attachment. Debts and Credits If the defendant owns a sizeable bank account, the sheriff could issue a writ of garnishment and served it upon the bank. [3] And when the bank received the writ of garnishment, the bank will freeze the account up to the amount of the claim. The bank will not allow him to withdraw. If it is a checking account, and he has issued checks to a current account, the checks will be dishonored upon presentment because the accounts are now frozen. COUNTER-BONDS (Sec. 12) In order for the defendant will get his rights of ownership in full, he can simply defeat the PA by putting up a cash deposit in the court equivalent to the amount of the attachment bond. [4] If he does not have that much cash, he can just file a counter-bond, issued by a surety authorized by the Supreme Court. 1

Rule 57, Section 7. Attachment of real and personal property; recording thereof. — Real and personal property shall be attached by the sheriff executing the writ in the following manner: xxx (b) Personal property capable of manual delivery, by taking and safely keeping it in his custody, after issuing the corresponding receipt therefor; xxx 2 Rule 57, Section 7. Attachment of real and personal property; recording thereof. — Real and personal property shall be attached by the sheriff executing the writ in the following manner: (a) Real property, or growing crops thereon, or any interest therein, standing upon the record of the registry of deeds of the province in the name of the party against whom attachment is issued, or not appearing at all upon such records, or belonging to the party against whom attachment is issued and held by any other person, or standing on the records of the registry of deeds in the name of any other person, by filing with the registry of deeds a copy of the order, together with a description of the property attached, and a notice that it is attached, or that such real property and any interest therein held by or standing in the name of such other person are attached, and by leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province. Where the property has been brought under the operation of either the Land Registration Act or the Property Registration Decree, the notice shall contain a reference to the number of the certificate of title, the volume and page in the registration book where the certificate is registered, and the registered owner or owners thereof. 3 Rule 57, Section 7. Attachment of real and personal property; recording thereof. — xxx (d) Debts and credits, including bank deposits, financial interest, royalties, commissions and other personal property not capable of manual delivery, by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a copy of the writ, and notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ; xxx 4 Rule 57, Section 12. Discharge of attachment upon giving counter-bond. — After a writ of attachment has been enforced, the party whose property has been attached, or the person appearing on his behalf, may move for the discharge of the attachment wholly or in part on the security given. The court shall, after due notice and hearing, order the discharge of the attachment if the movant makes a cash deposit, or files a counter-bond executed to the attaching party with the clerk of the court where the application is made, in an amount equal to that fixed by the court in the order of attachment, exclusive of costs. But if the attachment is sought to be discharged with respect to a particular property, the counter-bond shall be equal to the value of that property as determined by the court. In either case, the cash deposit or the counter-bond shall secure the payment Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT The filing or a bond or payment of cash deposit will make it a ministerial duty of the court to lift the PA and that will enable to get back his properties. DISCHARGE OF ATTACHMENT ON OTHER GROUNDS (Sec. 13) Another remedy of the defendant is to file a motion the lifting of the PA on the ground of the issuance is improper or irregular. [1] The grounds of irregularity or impropriety is always a remedy in challenging the provisional remedy. However, this needs a motion filed by the defendant. The motion should be heard and must give notice to the applicant. Q: If the defendant has already posted a counter bond, and therefore the preliminary attachment has already been lifted, can the defendant still file a motion for the lifting of Preliminary Attachment or reversal of the order granting the PA? A: YES. The Supreme Court held that the attachment debtor cannot be deemed to have waived any defect in the issuance of the attachment writ by simply availing himself of one way of discharging the attachment writ, instead of the other. [2] IRREGULAR OR EXCESSIVE ATTACHMENT (Sec. 20) The Provision of Section 20 that is the extent of liability of the applicant when it turns out the granting of the remedy of the court is improper or irregular. Q: If there is a pending case and the applicant wins, there is now a judgment on the merits in favor of the applicant. Can the losing party, the defendant, still hold the applicant liable for improper or irregular attachment even if he lost the case? A: YES. If the applicant eventually wins the case, it means the applicant has a cause of action. But it does not necessarily follow that the cause of action falls under Section 1 of Rule 57. The only instances the court should grant preliminary attachment are the instances mentioned in Section, 1 Rule 57. If the applicant failed to prove that his case falls under the cases mentioned in Section 1 of Rule 57, it means that the issuance of the court of the writ of preliminary attachment was irregular and improper and the applicant shall be liable for damages as a matter of course. Damages Filed in the Same Case The first principles in section 20, is that the recovery of damages should be had in the same case, not in a separate or independent civil action. [3] Thus, the adverse party must submit an application for the of any judgment that the attaching party may recover in the action. A notice of the deposit shall forthwith be served on the attaching party. Upon the discharge of an attachment in accordance with the provisions of this section, the property attached, or the proceeds of any sale thereof, shall be delivered to the party making the deposit or giving the counter-bond, or to the person appearing on his behalf, the deposit or counter-bond aforesaid standing in place of the property so released. Should such counterbond for any reason be found to be or become insufficient, and the party furnishing the same fail to file an additional counterbond, the attaching party may apply for a new order of attachment. (12a) 1 Rule 57, Section 13. Discharge of attachment on other grounds. — The party whose property has been ordered attached may file a motion with the court in which he action is pending, before or after levy or even after the release of the attached property, for an order to set aside or discharge the attachment on the ground that the same was improperly or irregularly issued or enforced, or that the bond is insufficient. If the attachment is excessive, the discharge shall be limited to the excess. If the motion be made on affidavits on the part of the movant but not otherwise, the attaching party may oppose the motion by counter-affidavits or other evidence in addition to that on which the attachment was made. After due notice and hearing, the court shall order the setting aside or the corresponding discharge of the attachment if it appears that it was improperly or irregularly issued or enforced, or that the bond is insufficient, or that the attachment is excessive, and the defect is not cured forthwith. 2 Calderon v. IAC (G.R. No. 74696, November 11, 1987) 3 Rule 57, Section 20. Claim for damages on account of improper, irregular or excessive attachment. — An application for damages on account of improper, irregular or excessive attachment must be filed before the trial or before appeal is perfected or before the judgment becomes executory, with due notice to the attaching party and his surety or sureties setting forth the facts showing his right to damages and the amount thereof. Such damages may be awarded only after proper hearing and shall be included in the judgment on the main case. xxx Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT recovery of damages arising from the wrongful improper issuance of PA in the same case filed by the applicant. The most practical way or informing the court that the adverse party has a claim for damages is to set up in the answer a compulsory counter claim, for the recovery of damages. If the adverse party eventually wins, he will just have to ask the court to motion for the court to conduct a hearing to the extent of liability to which the adverse party is entitled. It is not possible for the defendant who has won the case to file a separate complaint for the recovery of damages arising from the wrongful attachment. If he does so that action will be dismissed even if there is no motion to dismiss filed because the ground for dismissal in that second complaint is res judicata which is a non-waivable defense. Damages Not Equal to Bond In section 20, there is nothing stated that the liability of the attaching creditor will be limited to the value of the attachment bond by the court, there is nothing mentioned. What section 20 provides is that if the attachment bond is insufficient to answer for the liability of the applicant to answer for damages then there could be an availment of writ of execution under rule 39. [1] Example; If the attachment bond is 100k, the court can fixed the liability of the applicant to 500k pesos. The liability of the bond will be 100k and the 400k can be satisfied by making use of rule 39. There could now be a levy on execution of the properties belonging to the applicant. Damages Applicable to other Provisional Remedies Section 20 is applicable in other provisional remedies like Preliminary Injuction, Receiver and replevin. Well there is a bond required before the court will grant this provisional remedy. The manner of collecting the damages on the part of the applicant if it turns out later that the issuance of provisional remedy is wrongful or improper. --xXx--

1 Rule 57, Section 20. Claim for damages on account of improper, irregular or excessive attachment. — xxx Nothing herein contained shall prevent the party against whom the attachment was issued from recovering in the same action the damages awarded to him from any property of the attaching party not exempt from execution should the bond or deposit given by the latter be insufficient or fail to fully satisfy the award.

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2013 LECTURE BY DEAN JARA ABRIDGEMENT RULE 58 PRELIMINARY INJUNCTION PRELIMINARY INJUNCTION (Sec. 1) Preliminary Injunction and Temporary Restraining Order could be availed of in any civil action where the relief or principal relief sought is to prevent the defendant from performing an act. On the other hand, Preliminary Mandatory Injunction compels the performance of an act.[1] Preliminary injunction is not limited to civil action. We can also make use of them in criminal case, even in a special proceedings In PI, there are in fact 2 provisional remedies that are contemplated and require injunction bonds 1. Temporary Restraining Order; and 2. the writ of Preliminary injunction;

[2];

Even if the TRO in exceptional cases can be granted ex parte, the injunction court should always require a bond. HEARING AND PRIOR NOTICE (Sec. 5) As a General Rule, a court cannot grant a TRO and PI without a hearing, unlike a Preliminary Attachment. We should always expect a hearing conducted by the court even in cases of the TRO. There is an exception however given in the rules, when there is grave and irreparable injury. [3] Temporary Restraining Order The court if it is a single sala court can grant a Temporary Restraining Order that will not go beyond 20 days, not extendible. But the court will fix a TRO bond. During the 20 day period, the court will conduct now a new hearing for the purpose of determining whether or not the court will issue a PI. In a multi-sala court, where courts consists of different branches, it is the executive branch which can issue a Temporary Restraining Order ex parte. However, the Temporary Restraining Order ex-parte is good only for 72 hours that is 3 days. During which, the petitioner usually files a motion of special raffle. [4]

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Rule 58, Section 1. Preliminary injunction defined; classes. — A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction. 2 Rule 58, Section 4. Verified application and bond for preliminary injunction or temporary restraining order. — A preliminary injunction or temporary restraining order may be granted only when: xxx (b) Unless exempted by the court the applicant files with the court where the action or proceeding is pending, a bond executed to the party or person enjoined, in an amount to be fixed by the court, to the effect that the applicant will pay to such party or person all damages which he may sustain by reason of the injunction or temporary restraining order if the court should finally decide that the applicant was not entitled thereto. Upon approval of the requisite bond, a writ of preliminary injunction shall be issued. xxx 3 Rule 58, Section 5. Preliminary injunction not granted without notice; exception. — No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made, may issue a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided. Within the said twenty-day period, the court must order said party or person to show cause, at a specified time and place, why the injunction should not be granted, determine within the same period whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order. 4 Section 5. Preliminary injunction not granted without notice; exception. — xxx However, and subject to the provisions of the preceding sections, if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a single sala court may issue ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance but he shall immediately comply with the provisions of the next preceding section as to service of summons and the documents to be served therewith. Thereafter, within the aforesaid seventyIntellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Preliminary Injunction With respect to Preliminary Injunction, the presence of summary hearing is absolute. There is no exception. It is only in TRO where it can be issued ex parte as an exception to the general rule. After the raffle is completed, the sala before which the action has been assigned will now conduct a summary hearing to determine whether or not it will issue a writ of Preliminary Injunction. A.M. No. 07-7-12 The modification in 2007 SC circular is that if a court issues a writ of PI which has no term anymore, that is it is good until it is lifted or until the case has finally decide. [1] Furthermore, the court that issued the writ of Preliminary Injunction must decide the Preliminary Injunction within a period of 6 months.[2] Otherwise, if the court does not raised a need of 6 months to which the principal action could be decided, the PI will be perpetual injunction, because it is good until the case has been finally decided. Example; So if the court grants a PI today, it has only a period of 6 months within which to decide the principal case. The court would either rule in favor of the applicant or defendant. If the court rules in favor of the defendant, the PI is automatically lifted. PROHIBITED TRO OR PRELIMINARY INJUNCTION Although the authority of the court is very broad in the issuance of a writ of PI, there are instances where a court cannot grant a writ of Preliminary Injunction or TRO; 1. Except the Supreme Court, court cannot prevent the enforcement of Kalikasan statutes; 2. If there is a Temporary Environmental Protection Order issued by any court, it is only the Supreme Court that can prevent the carrying out of the TEPO; [3] 3. In the case of infrastructure projects of the national government, only the SC can issue an injunctive relief against the carrying out of infrastructure; [4] 4. When it is a government owned bank that forecloses a mortgage like DBP, it is only the Supreme Court that can stop the government bank from proceeding with the foreclosure of the mortgage, whether judicial or extra-judicial;[5] two (72) hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard. In no case shall the total period of effectivity of the temporary restraining order exceed twenty (20) days, including the original seventy-two hours provided herein. xxx 1 A.M. NO. 07-7-12-SC; Sec. 5. Preliminary injunction not granted without notice; exception. xxx However, if issued by the Court of Appeals or a member thereof, the temporary restraining order shall be effective for sixty (60) days from service on the party or person sought to be enjoined. A restraining order issued by the Supreme Court or a member thereof shall be effective until further orders. xxx 2 A.M. NO. 07-7-12-SC; Sec. 5. Preliminary injunction not granted without notice; exception. xxx The trial court, the Court of Appeals, the Sandiganbyan or the Court of Tax Appeals that issued a writ of preliminary injunction against a lower court, board, officer, or quasi-judicial agency shall decide the main case or petition within six (6) months from the issuance of the writ. 3 A.M. No. 09-6-8-SC, PART II: CIVIL PROCEDURE, RULE 2: PLEADINGS AND PARTIES; Section 10. Prohibition against temporary restraining order (TRO) and preliminary injunction. - Except the Supreme Court, no court can issue a TRO or writ of preliminary injunction against lawful actions of government agencies that enforce environmental laws or prevent violations thereof. 4 REPUBLIC ACT NO. 8975; Section 3. Prohibition on the Issuance of Temporary Restraining Orders, Preliminary Mandatory Injunctions. – No court, except the Supreme Court, shall issue any temporary restraining order, preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions, officials or any person or entity, whether public or private acting under the government direction, to restrain, prohibit or compel the following acts: (a) Acquisition, clearance and development of the right-of-way and/or site or location of any national government project; (b) Bidding or awarding of contract/ project of the national government as defined under Section 2 hereof; (c) Commencement prosecution, execution, implementation, operation of any such contract or project; (d) Termination or rescission of any such contract/project; and (e) The undertaking or authorization of any other lawful activity necessary for such contract/project. 5 PRESIDENTIAL DECREE No. 385 xxx Section 2. No restraining order, temporary or permanent injunction shall be issued by the court against any government financial institution in any action taken by such institution in compliance with the mandatory foreclosure provided in Section 1 hereof, whether such restraining order, temporary or permanent injunction is sought by the borrower(s) or any third party or parties, except after due hearing in which it is established by the borrower and admitted by the Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT 5. And in jurisprudence, the court has no injunctive relief against the Bureau of Customs (violation of separation of powers); [1] 6. The court cannot grant injunctive relief against the bureau of immigration, against deportation proceedings. That is already beyond the authority of the injunctive relief. GROUNDS FOR DENIAL OF INJUNCTION (Section 6) Unlike in the case of preliminary attachment where it is a ministerial duty of the court to lift the Preliminary Attachment after filing the counter-bond, posting a counter-bond in Preliminary Injunction does will not automatically lift the Injunction. The court still has to study the merit of the lifting of the injunction bond. There will be a motion for hearing and the court will determine the merit. [2] In order for the Court to lift the Preliminary Injunction after filing the counter-bond, there must be a grave irreparable injury that will be sustained by the party enjoined. And the meaning of irreparable injury according to the court is that injury cannot be measured exactly in terms of pesos and centavos that is no mathematical formula in determining the liability or damages that could be suffered by the applicant in injunction.[3] INJUNCTION IN SUMMARY PROCEDURE In Preliminary Injunction and Preliminary Mandatory Injunction, we should always relate this to summary procedure. A case that is exclusively cognizable by an inferior court that is following the summary procedure is Unlawful detainer or Forcible entry.[4] The Civil Code provides that the Court may grant Preliminary Prohibitory or Mandatory Injunction in cases involving an unlawful detainer and forcible entry.[5] If the inferior court grants a Preliminary Prohibitory or Mandatory Injunction, such order cannot be challenged under Rule 65 because it is a prohibited pleading under the Rules of Summary Procedure. [6] But when that ejectment case is elevated to the RTC in its appellate jurisdiction, though the Preliminary Prohibitory or Mandatory Injunction is still not appealable because it remains interlocutory, it can now be challenged by Rule 65 because the RTC will no longer observe the summary procedure. It will now follow the regular procedure given in the rules of court as an appellate court.

government financial institution concerned that twenty percent (20%) of the outstanding arrearages has been paid after the filing of foreclosure proceedings. 1 Subic Bay Metropolitan Authority v. Rodriguez (G.R. No. 160270, April 23, 2010) 2 Rule 58, Section 6. Grounds for objection to, or for motion of dissolution of, injunction or restraining order. — The application for injunction or restraining order may be denied, upon a showing of its insufficiency. The injunction or restraining order may also be denied, or, if granted, may be dissolved, on other grounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits. It may further be denied, or if granted, may be dissolved, if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order. If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified. 3 An injury is considered “irreparable," if it is of such constant and frequent recurrence that no fair or reasonable redress can be had therefor ina court of law, or where there is no standard by which their amount canbe measured with reasonable accuracy, that is, it is not susceptible of mathematical computation. (BPI v. Hontanosa, G.R. No. 157163, June 25, 2014 citing Philippine National Bank v. Castalloy Technology Corporation, G.R. No. 178367, March 19, 2012) 4 Rule 70, Rules of Court. 5 Civil Code, Article 539. Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall be protected in or restored to said possession by the means established by the laws and the Rules of Court. A possessor deprived of his possession through forcible entry may within ten days from the filing of the complaint present a motion to secure from the competent court, in the action for forcible entry, a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof. 6 Revised Rules on Summary Procedure, Sec. 19. Prohibited pleadings and motions. — The following pleadings, motions or petitions shall not be allowed in the cases covered by this Rule: xxx (g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT --xXx--

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2013 LECTURE BY DEAN JARA ABRIDGEMENT RULE 59 RECEIVERSHIP Provisional remedies are ordinarily availed of by the litigants during pendency of the case. In Receivership, however there is no fix time in which the court can appoint a receiver. If the case is still pending a receiver can be appointed, if the case has been decided a receiver can still be appointed. If we are now in the process of execution, a receiver can still be appointed. Receivership Under Rule 39 Under rule 39, the Court grants the creditor the following remedies if the debt is unsatisfied; 1. Creditor will ask for the satisfaction of the debt; [1] 2. Examination of the debtor; [2] 3. Creditor will ask for appointment of a receiver of the properties of a judgment debtor;

[3]

A receiver cannot be appointed by the court ex-parte, there has to be a summary hearing. APPOINTMENT OF A RECEIVER In the appointment of a receiver, the practically the issue is left at the discretion of the court, i.e., the qualification of a receiver, how many receivers will be appointed,[4] how much will be paid to the receiver.[5] Since it is the court that appoints a receiver, it can also fire and appoint a new one, as a receiver whenever there is a need for the preservation of the property.[6] GROUNDS FOR RECEIVER SHIP (Sec. 1) You will also notice that the ground for the appointment of a receiver is quite broad. The grounds are the following; 1. Whenever the court feels that there is a need to appoint a receiver for the purpose of preserving of the property under litigation; [7] 2. In case of foreclosure of mortgage for the preservation of the property, or rven if there is no proof that the collateral will be loss or deteriorate provided that there is a written stipulation by the parties; [8]

1

Rule 39, Section 9. Execution of judgments for money. Rule 39, Section 36. Examination of judgment obligor when judgment unsatisfied. 3 Rule 39, Section 41. Appointment of receiver. — The court may appoint a receiver of the property of the judgment obligor; and it may also forbid a transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution. 4 See Section 1, Rule 59. 5 Rule 59, Section 8. Termination of receivership; compensation of receiver. — Whenever the court, motu proprio or on motion of either party, shall determine that the necessity for a receiver no longer exists, it shall, after due notice to all interested parties and hearing, settle the accounts of the receiver, direct the delivery of the funds and other property in his possession to the person adjudged to be entitled to receive them and order the discharge of the receiver from further duty as such. The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires. 6 Ibid. 7 Rule 59, Section 1. Appointment of receiver. — Upon a verified application, one or more receivers of the property subject of the action or proceeding may be appointed by the court where the action is pending or by the Court of Appeals or by the Supreme Court, or a member thereof, in the following cases: (a) When it appears from the verified application, and such other proof as the court may require, that the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it; xxx 8 Rule 59, Section 1. Appointment of receiver. — Upon a verified application, one or more receivers of the property subject of the action or proceeding may be appointed by the court where the action is pending or by the Court of Appeals or by the Supreme Court, or a member thereof, in the following cases: xxx b)When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage; xxx 2

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2013 LECTURE BY DEAN JARA ABRIDGEMENT 3. After judgment to preserve the property pending appeal or to aid the execution of the property; [1]

4. Whenever the court deems it necessary for preserving the property;

[2]

Generally the purpose of a receivership is simply to preserve the property from deterioration. Q: Who between the parties does the receiver represent? A: The receiver is not a representative of either parties. The SC has classified a receiver as a representative of a court, an officer of a court. [3] GENERAL POWERS OF A RECEIVER (Sec. 6) Because he is an officer of a court, the receiver cannot file a case as a receiver without the consent of the receivership court. If he decides to file a complaint, on recovery of certain properties under receivership, he needs permission from the receivership court. [4] On the other hand, if the third person has a grievance against a receiver in his capacity as a receiver, the third person must also get the permission of the receivership court.[5] If a permission is not granted, that action will fail, because it is deemed filed in violation under the rules given in receivership. BOND OF THE APPLICANT AND RECEIVER (Sec. 2 and Sec. 4) In receivership, there are two bonds that are filed; 1. Applicant shall file a bond for the appointment of the receiver;[6] 2. The Receiver will file a bond if the court grants the application;[7] So there is an applicant’s bond and there is a receiver’s bond. The receiver bond is designed to protect the parties from litigation from being abused and mislead by the receiver in the performance of his duties. --xXx-1 Rule 59, Section 1. Appointment of receiver. — Upon a verified application, one or more receivers of the property subject of the action or proceeding may be appointed by the court where the action is pending or by the Court of Appeals or by the Supreme Court, or a member thereof, in the following cases: xxx (c) After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; xxx 2 Rule 59, Section 1. Appointment of receiver. — Upon a verified application, one or more receivers of the property subject of the action or proceeding may be appointed by the court where the action is pending or by the Court of Appeals or by the Supreme Court, or a member thereof, in the following cases: xxx (d) Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation. 3 JOSE PLATON and ROMAN CASTILLO vs. HON. CLAUDIO SANDOVAL (G.R. No. L-49031, August 28, 1944) 4 Rule 59, Section 6. General powers of receiver. — Subject to the control of the court in which the action or proceeding is pending a receiver shall have the power to bring and defend, in such capacity, actions in his own name; to take and keep possession of the property in controversy; to receive rents; to collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver; to compound for and compromise the same; to make transfers; to pay outstanding debts; to divide the money and other property that shall remain among the persons legally entitled to receive the same; and generally to do such acts respecting the property as the court may authorize. However, funds in the hands of a receiver may be invested only by order of the court upon the written consent of all the parties to the action. (7a) No action may be filed by or against a receiver without leave of the court which appointed him. 5 Ibid. 6 Rule 59, Section 2. Bond on appointment of receiver. — Before issuing the order appointing a receiver the court shall require the applicant to file a bond executed to the party against whom the application is presented, in an amount to be fixed by the court, to the effect that the applicant will pay such party all damages he may sustain by reason of the appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause; and the court may, in its discretion, at any time after the appointment, require an additional bond as further security for such damages. 7 Rule 59, Section 4. Oath and bond of receiver. — Before entering upon his duties, the receiver shall be sworn to perform them faithfully, and shall file a bond, executed to such person and in such sum as the court may direct, to the effect that he will faithfully discharge his duties in the action or proceeding and obey the orders of the court

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2013 LECTURE BY DEAN JARA ABRIDGEMENT RULE 60 REPLEVIN Replevin is accepted as a main action or as a provisional remedy at the same time. The recovery of the possession of personal property capable of manual delivery is usually referred as a complaint for replevin. APPLICATION (Sec. 1) In a real action we cannot make use of a writ of replevin. In replevin cases, it is always for the recovery of possession of personal property. Without this writ of replevin as a provisional remedy, the plaintiff will be able to recover the personal property only after the court has finally decided the case.[1] Example; If the plaintiff files a complaint for the recovery of a car against the defendant and he does not use of replevin as a provisional remedy, there is no way by which he can obtain a possession of the car while it the case is pending. The only time when the plaintiff can get back the car is when the court has finally decided the case and the decision is in favor of the plaintiff. If the court will take 5 years to finally decide the case, during period of 5 years, the car subject of the litigation will be in the hands of the defendant. Chances are by the time the case is decided, the car would have already been junk. Q: Can the court grant the application for replevin ex-parte? A: YES. In fact replevin could only be granted by the trial court because it can be granted only before the defendant answers. If the defendant has already answered, then it would be improper for the trial court to grant this writ of replevin. Examle; If the complainant files a complaint today for the recovery of a car and submit an application for a writ of replevin also filed today, and the court grants it today, the sheriff will look for the car. And if the sheriff finds the car in the possession of the defendant, the sheriff will seize the car from the defendant, but following again the rule on prior or contemporaneous service of summons in order to cure any defect on jurisdiction. So the sheriff will seize the car, and then after seizing the car, the sheriff will take it for 5 days, that is five day holding period. If within that holding period, there is no counter bond and there is no challenge to the court as to the sufficiency of the replevin, at the 6th day, the sheriff will give the car to the plaintiff. The Court of Jurisdiction The court of jurisdiction is not always the RTC but may be an inferior court, because if it is a personal property, the jurisdiction depending upon the value of the personal property alleged in the complaint.[2] AFFIDAVIT AND BOND (Sec. 2) The bond required in Replevin is always double the value of the personal property. [3] In other words, the court has no discretion, the replevin bond will always, be in double of the value of the property as alleged in the complaint. If all these requisites are met, the sheriff will seize the property from the defendant, or from any person who claims to be entitled to its possession because of the authority given by the defendant. 1

Rule 60, Section 1. Application. — A party praying for the recovery of possession of personal property may, at the commencement of the action or at any time before answer, apply for an order for the delivery of such property to him, in the manner hereinafter provided. 2 See Sec. 5 of B.P. 129 as amended by R.A. 7691 3 Rule 60, Sec. 2 xxx The applicant must also give a bond, executed to the adverse party in double the value of the property as stated in the affidavit aforementioned, for the return of the property to the adverse party if such return be adjudged, and for the payment to the adverse party of such sum as he may recover from the applicant in the action. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT When Property is in the Possession of a Third Person The problem arises when the car is not in possession of the defendant, but in the possession of the third person who claims ownership of the car. In that case, the sheriff will not seize the car because the authority of the sheriff to seize the car is only if it is in the possession of the defendant or some other person claiming under the authority of the defendant. Otherwise, the sheriff will be committing a crime if he seizes the car from the third person. Example; In order to remedy this situation, lawyers of the plaintiff always advise their clients to implead the known defendants and an unknown defendant, i.e. the person in possession of the car. So we have a complaint where the caption is plaintiff vs. Juan dela Cruz and john doe, an unknown defendant.Thus, when the sheriff looks for the car, he does not find in possession of Juan de la Cruz, he finds it in the possession of a third person, that third person will be John Doe and the sheriff can rightfully seize the car from anybody who might be in possession of the car. RETURN OF PROPERTY (Sec. 5) If the car is seized, there is a holding period of a 5 days. [1] Within that 5 days period, the defendant should file a motion to challenge the sufficiency of the bond, although it is double the property or he can say that the complaint is undervalued in order that the replevin bond became smaller. [2] PROCEEDINGS WHERE PROPERTY IS CLAIMED BY A THIRD PERSON (Sec. 7) If a third person claims ownership of the car, he can file a third party claim.[3] However, the third party claim in rule 60 must be filed within the 5 day period otherwise it becomes a useless third party claim. After the end of 5 days, the sheriff has the duty to deliver the car to the plaintiff so while the case is going on it is the plaintiff in possession and enjoying the car. REPLEVIN v. ATTACHMENT In a complaint for replevin, the plaintiff tells the court that he is owner of the car or entitled to the possession, whereas in the complaint for PI, the property to be attached by the plaintiff should not be his own property. Q: A complaint for replevin was filed by applicant for recovery of personal property capable of manual delivery. The court included that the writ that the sheriff cannot enforced the writ because the car can no longer be found, it seems that the property simply disappeared. The plaintiff moved for Preliminary Attachment on the ground that the defendant has gotten hold of the property and that he has hidden the car because the car cannot be found at all. Can an application for Replevin be converted to Preliminary Attachment?

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See Rule 60, Section 6. Rule 60, Section 5. Return of property. — If the adverse party objects to the sufficiency of the applicant's bond, or of the surety or sureties thereon, he cannot immediately require the return of the property, but if he does not so object, he may, at any time before the delivery of the property to the applicant, require the return thereof, by filing with the court where the action is pending a bond executed to the applicant, in double the value of the property as stated in the applicant's affidavit for the delivery thereof to the applicant, if such delivery be adjudged, and for the payment of such sum, to him as may be recovered against the adverse party, and by serving a copy of such bond on the applicant. 3 Rule 60, Section 7. Proceedings where property claimed by third person. — If the property taken is claimed by any person other than the party against whom the writ of replevin had been issued or his agent, and such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds therefor, and serves such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the applicant, the sheriff shall not be bound to keep the property under replevin or deliver it to the applicant unless the applicant or his agent, on demand of said sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property under replevin as provided in section 2 hereof. In case of disagreement as to such value, the court shall determine the same. No claim for damages for the taking or keeping, of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. xxx 2

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2013 LECTURE BY DEAN JARA ABRIDGEMENT A: NO. If the plaintiff does not succeed the writ of replevin issued by the court, he cannot simply file another application for the issuance of Preliminary Attachment over the same property or different property. If the plaintiff decides to move for Preliminary Attachment because of failure to carry out the replevin, he should overhaul the complaint filed because the allegations contained in the complaint for the Preliminary Attachment are different from the allegations contained in the issuance of writ of replevin. So if we need a security, we should have in the hands of the plaintiff a property belonging to the defendant not the property of the plaintiff. So it could not be done unless, the complaint is amended so that the amended of complaint change the substantial allegations contained in that complaint. ALTERNATIVE JUDGMENTS (Sec. 9) In the complaint of replevin the decision of the court could be in alternative; the property will be delivered to the proper party, or the value of that property if it could not be delivered.[1] It is only the replevin that the court is given an express authority to render alternative judgment. --xXx--

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Rule 60, Section 9. Judgment. — After trial of the issues the court shall determine who has the right of possession to and the value of the property and shall render judgment in the alternative for the delivery thereof to the party entitled to the same, or for its value in case delivery cannot be made, and also for such damages as either party may prove, with costs. Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT RULE 61 SUPPORT PENDENTE LITE The last provisional remedy under the rules as I said is also mentioned in the circular of the Supreme Court on provisional orders in marriage related cases.[1] Under the circular, support can be either; 1. Spousal Support; [2] and 2. Child Support; [3] Jurisdiction In that circular, the family court which has the exclusive jurisdiction over a complaint for support [4][5] can grant spousal or child support even without hearing or without a bond, which is also a provision in provisional remedy in support pendente lite. HEARING AND BOND (Sec. 3) In support pendente lite, it is one of the provisional remedy which does not require the posting of a bond under the circular. We follow that principle in that circular, child support and spousal support could be granted by the family court with or without a hearing, with or without a bond. [6] However, in the rules, the support pendente lite can only be allowed after conducting a hearing where the parties are given the change to explain. [7] The reason why this is required in the rules of court under support pendente lite is that a court cannot conceivably issue an order granting support unless the court is able to determine whether the petitioner really needs a support and even if he really needs support, whether or not the respondent has the financial ability to grant support. Because if the court simply grants the application without examining the financial ability of respondent, the provisional remedy will be useless and the respondent who has no means of support to go to jail. On the other hand, the family court can order child or spousal support without a hearing the side of the parties to determine the needs of the spouse, or the child, or the financial ability of the defendant. Because one of the requirements in family related cases is that there must be inventory of properties submitted to the family court to the petitioner. EFFECT OF FAILURE TO GIVE SUPPORT In support proceedings, there are three remedies given by substantive law which is certainly very unfavorable to us men; 1. We can be imprisoned for citation of contempt; [8]

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A.M. No. 02-11-12-SC, RE: PROPOSED RULE ON PROVISIONAL ORDERS A.M. No. 02-11-12-SC, Sec. 2. Spousal Support. 3 A.M. No. 02-11-12-SC, Sec. 3. Child Support. - The common children of the spouses shall be supported from the properties of the absolute community or the conjugal partnership. 4 A.M. No. 02-11-12-SC, Sec. 2. Spousal Support. xxx (d) The Family Court may direct the deduction of the provisional support from the salary of the spouse. 5 A.M. No. 02-11-12-SC, Sec. 3. Child Support. - The common children of the spouses shall be supported from the properties of the absolute community or the conjugal partnership. xxx The Family Court may direct the deduction of the provisional support from the salary of the parent. 6 A.M. No. 02-11-12-SC, Section 1. When Issued - Upon receipt of a verified petition for declaration of absolute nullity of void marriage or for annulment of voidable marriage, or for legal separation, and at any time during the proceeding, the court, motu proprio or upon application under oath of any of the parties, guardian or designated custodian, may issue provisional orders and protection orders with or without a hearing. These orders may be enforced immediately, with or without a bond, and for such period and under such terms and conditions as the court may deem necessary. 7 Rule 61, Section 3. Hearing. — After the comment is filed, or after the expiration of the period for its filing, the application shall be set for hearing not more than three (3) days thereafter. The facts in issue shall be proved in the same manner as is provided for evidence on motions. 8 See Rule 71, Rules of Court. 2

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2013 LECTURE BY DEAN JARA ABRIDGEMENT 2. Execution of our properties under Rule 39; [1] and 3. We can be sent to jail not because of contempt but because we have committed a crime.

[2]

INDEPENDENT ACTION FOR DAMAGES (Sec. 6) Unlike in recovery of damages in a wrongful issuance of Attachment, Injunction, and Replevin which should be in the same case and not in an independent or separate action for damages, the provision on support pendente lite it is expressly provides that there could be an independent action for the recovery of money that has been given as support in compliance with the order of the court. [3] So we do not have to file a claim in the principal action, the one who gave support following the order of the court for him to give support can file a separate complaint for the recovery of the amount that is needed in compliance with the order of the court. PROTECTION ORDER Although the provisional orders are called by some other name, these provisional orders partake of the nature of the injunction, an example is a protection order.[4] A protection order in family related cases is effectively a prohibitory and mandatory injunction at the same time because in the protection order, the family court prohibits the respondents from performing an act. The family court can tell the respondent that “don’t ever visit your child in school”, that is effectively a prohibitory injunction.[5] It could also be in form of mandatory injunction, the court can tell the petitioner “permit him to enter the conjugal house, so that he can remove his clothing”. [6] Effectively the protection order in the marriage related cases partakes of a prohibitory injunction and the mandatory injunction. ADMINISTRATION OF COMMON PROPERTY We have also this concept of receiver in marriage related cases. Instead of appointment in the family court to appoint a receiver, what the court can do is to appoint an administrator. [7] So the administrator is effectively a receiver of this property under litigation in charge of solving the property owned in common by the husband and wife. --xXx--

1 Rule 61, Section 5. Enforcement of order. — If the adverse party fails to comply with an order granting support pendente lite, the court shall, motu proprio or upon motion; issue an order of execution against him, without prejudice to his liability for contempt. 2 R.A. 9262, Sec 5, (e) (2) 3 Rule 61, Section 6. Support in criminal cases. — In criminal actions where the civil liability includes support for the offspring as a consequence of the crime and the civil aspect thereof has not been waived, reserved and instituted prior to its filing, the accused may be ordered to provide support pendente lite to the child born to the offended party allegedly because of the crime. The application therefor may be filed successively by the offended party, her parents, grandparents or guardian and the State in the corresponding criminal case during its pendency, in accordance with the procedure established under this Rule. 4 A.M. No. 02-11-12-SC, Sec. 7. Order of Protection. 5 A.M. No. 02-11-12-SC, Sec. 7. Order of Protection - he court may issue an Order of Protection requiring any person; (a) to stay away from the home, school, business, or place of employment of the child, other parent or any other party, and to stay away from any other specific place designated by the court; xxx 6 .M. No. 02-11-12-SC, Sec. 7. Order of Protection - he court may issue an Order of Protection requiring any person; xxx (e) to permit a designated party to enter the residence during a specified period of time in order to take personal belongings not contested in a proceeding pending with the Family Court; 7 M. No. 02-11-12-SC, Sec. 8. Administration of Common Property. - If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the court may, upon application of the aggrieved party under oath, issue a provisional order appointing the applicant or a third person as receiver or sole administrator of the common property subject to such precautionary conditions it may impose. xxx

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2013 LECTURE BY DEAN JARA ABRIDGEMENT

ENVIRONMENTAL CASES

WRIT OF KALIKASAN In the writ of Kalikasan, the usual provisional remedy that is issued by the court is of temporary environment protection order. Bonds Required The applicant is not required to post a bond in the matter of issuance of temporary environmental protection order,[1] and just like the preliminary injunction, there can be an ex parte issuance good for 72 hours, but the Kalikasan court can extend that until the case is finally decided.[2] What is original in this Kalikasan circular is the party who will be required to post a bond in the TEPO is not the applicant, it is the adverse party, who will file a motion for the victim of the TEPO in order to protect his interest. Duration So if you compare that temporary environmental protection order to the temporary restraining order, In TRO there is a definite time, and it is called a stag, it cannot be extended by the court, but in Kalikasan cases the temporary environmental protection order can be extended by the court until the case is finally decided. [3] In the circular on Kalikasan, the issuance of the TEPO is of course interlocutory and can be challenged by availing Certiorari under Rule 65. In challenging the TEPO, the Certiorari under Rule 65 can only be filed in the Supreme Court.[4] In other words, if we avail of rule 65 in Kalikasan case we cannot file the petitioner with the RTC, CA, it is only in the SC that can entertain a petition assailing the issuance of TEPO. COMPLAINT AND ANSWER Whether it is an environmental case (except criminal cases), a writ of Kalikasan, or a writ of Continuing Mandamus, the complainant must attach all documentary and/or object evidence available to him in his complaint[5]

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A.M. No. 09-6-8-SC, RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, Part II, Rule 2, Section 8. Issuance of Temporary Environmental Protection Order (TEPO). xxx The applicant shall be exempted from the posting of a bond for the issuance of a TEPO. 2 A.M. No. 09-6-8-SC, RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, Part II, Rule 2, Section 8. Issuance of Temporary Environmental Protection Order (TEPO). - If it appears from the verified complaint with a prayer for the issuance of an Environmental Protection Order (EPO) that the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of the multiple-sala court before raffle or the presiding judge of a single-sala court as the case may be, may issue ex parte a TEPO effective for only seventy-two (72) hours from date of the receipt of the TEPO by the party or person enjoined. Within said period, the court where the case is assigned, shall conduct a summary hearing to determine whether the TEPO may be extended until the termination of the case. xxx 3 Ibid. 4 Part II, Rule 2, Section 10. Prohibition against temporary restraining order (TRO) and preliminary injunction. - Except the Supreme Court, no court can issue a TRO or writ of preliminary injunction against lawful actions of government agencies that enforce environmental laws or prevent violations thereof. 5 A.M. No. 09-6-8-SC, RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, Part II, Rule 2, Section 3. Verified complaint. xxx The plaintiff shall attach to the verified complaint all evidence proving or supporting the cause of action consisting of the affidavits of witnesses, documentary evidence and if possible, object evidence. The affidavits shall be in question and answer form and shall comply with the rules of admissibility of evidence. xxx Intellectual Property of Anonymous Lawyer | www.facebook.com/Anonymouslawer

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2013 LECTURE BY DEAN JARA ABRIDGEMENT Likewise, respondent must attach his answer, evidence available to him.

[1]

together with all the documentary and/or object

EFFECT OF FAILURE TO FILE AN ANSWER In Civil Action in Kalikasan cases, if the defendant does not file an answer, we cannot file a motion to declare defendant in default because a motion to declare defendant in default is also prohibited in Kalikasan cases. [2] Q: If the defendant does not file an answer and the plaintiff is prohibited from filing a motion to declare the defendant in default, do we expect the court to render a judgment just like in summary procedure according to the tenor of complaint? A: YES. The Kalikasan circular provides that if the defendant does not answer, it is the duty of the court to declare the defendant in default without the corresponding motion of the plaintiff, and thereafter receives evidence ex parte. [3] Consent Decree And in Kalikasan cases, while the court’s totally used the state policy which encourages the compromise agreement of settling the civil action. If there is a compromise agreement based in a Kalikasan civil case, the judgment is not called a judgment based upon compromise, the circular has another term that is a consent decree. [4] [5] --xXx--

1 A.M. No. 09-6-8-SC, RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, Part II, Rule 2, Section 14. Verified answer. - Within fifteen (15) days from receipt of summons, the defendant shall file a verified answer to the complaint and serve a copy thereof on the plaintiff. The defendant shall attach affidavits of witnesses, reports, studies of experts and all evidence in support of the defense. 2 A.M. No. 09-6-8-SC, RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, Part II, Rule 2, Section 2. Prohibited pleadings or motions. xxx (d) Motion to declare the defendant in default; xxx 3 A.M. No. 09-6-8-SC, RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, Part II, Rule 2, Section 15. Effect of failure to answer. - Should the defendant fail to answer the complaint within the period provided, the court shall declare defendant in default and upon motion of the plaintiff, shall receive evidence ex parte and render judgment based thereon and the reliefs prayed for. 4 A.M. No. 09-6-8-SC, RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, PART I RULE 1 GENERAL PROVISIONS, Section 4. Definition of Terms. – xxx (b) Consent decree refers to a judicially-approved settlement between concerned parties based on public interest and public policy to protect and preserve the environment. xxx 5 A.M. No. 09-6-8-SC, RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, RULE 3 PRE-TRIAL, Section 5. Pre-trial conference; consent decree. – xxx The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute. The judge may issue a consent decree approving the agreement between the parties in accordance with law, morals, public order and public policy to protect the right of the people to a balanced and healthful ecology. xxx

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