Civil Procedure Flowchart

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

SMALL CLAIMS

Action Purely civil in nature where the claim or relief prayed for is solely for payment or reimbursement of sum of money, and Civil aspect of criminal actions Scope Payment of money where the value of the claim does not exceed P100,000 Exclusive of interests and cost

Move for Execution

Postponement: Granted only upon proof of inability of part yto appear Availed only once

File in court Accomplished & verified Statement of Claim o In duplicate Certification of Nonforum shopping 2 Duly certified photocopies of the actionable document Affidavit of witnesses Other evidence to support claim GR: If not attached to claim, evidence cannot be presented during hearing EX: Good cause

Decision Rendered on the same day as the hearing Based on the facts established by evidence Immediately entered by the Clerk of Court in the court docket Copy served on the parties Final and unappealable

Referral to another judge Either party may move in writing Made within the same day the motion is filed & granted By the Executive Judge to the designated judge within the same day of referral New judge hear and decide case within 5 working days from receipt of order of assignment

Pay docket and other legal fees UNLESS allowed to litigate as indigent Must pay P1,000 fee for service of summons and process 1. File motion to sue as indigent to Executive/Presiding Judge 2. If granted, case raffle or assigned to court designated to hear case. 3. If denied, plaintiff given 5 days within which to pay docket fees. o Otherwise, dismissed w/o prejudice Joinder of claims : Provided total amount claimed not exceed P100,000 Affidavits must state: 1. Only facts of direct personal knowledge of the affiants 2. Admissible as evidence Inadmissible affidavit or portion is expugned from the record

Hearing Judge read aloud a short statement explaining the nature, purpose, and rule of procedure of small claims Judge exert efforts to bring parties to an amicable settlement of the dispute Form of settlement: 1. In writing 2. Signed by the parties 3. Submitted for court approval Settlement discussions are strictly confidential If efforts at settlement fail, hearing proceed in an informal and expeditious manner. o Terminated within 1 day.

Dismiss Claim Outright Examine allegations of the statement of Claim and evidence attached thereto On any of the grounds apparent form the claim Summons and Notice of Hearing Issue summons on the day of receipt of Statement of Claim, directing defendant to submit verified response Issue notice to both parties o Direct them to appear before it on a specific date and time of hearing o Warning : No justified postponement is allowed. o Express prohibition against failing MTD and other prohibited pleading under Sec. 14 Accompanied by: 1. Copy of statement of claim and documents submitted by the plaintiff 2. Copy of the response to be accomplished by defendant

File verified response Serve on the plaintiff Accompanied by: 1. Certified photocopies of documents 2. Affidavits of witnesses 3. Other evidence in support thereof Grounds under Rule 16 of ROC should be pleaded File counterclaim; Otherwise, barred

Within 10 days from receipt of summons

GR: If not attached to claim, evidence cannot be presented during hearing EX: Good cause

Appearance If through a representative: 1. For a valid cause. 2. Not a lawyer 3. Related to or next-of-kin of the individual-party 4. Authorized under an SPA o To enter into an amicable settlement o To enter into stipulations or admissions of facts of documentary exhibits Juridical entities not represented by a lawyer in any capacity. Attorneys are not allowed. UNLESS attorney is the plaintiff/defendant.

Fails to file response but appears at the date set for hearing Court ascertain what defense he has to offer Proceed to hear, mediate or adjudicate the case on the same day

Pre-Trial File pre-trial brief Preliminary conference Pre-trial

Within 10 days

Joinder of issues Answer Counterclaim Cross claim Third Party Claim Defenses Objections Lis Pendens Dismissal upon motion of plaintiff

Trial Motion for postponement Order of trial Consolidation Trial by commissioner Demurrer to evidence Amendment to conform to the evidence

Intervention Subpoena Dismissal due to fault of plaintiff

Pay docket/legal fees

Fail to file an answer

Default Order Remedy Partial N/A

Summons Contents When served How served

After acquired jurisdiction but before responding to a pleading Motion to strike Motion for extension to file Amendment as a matter of right Supplemental pleadings Bill of particulars Motion to dismiss Dismissal upon notice by plaintiff Modes of Discovery (EXCEPT Admission)

Judgment Rendition Entry Kinds of judgment Execution Kinds When issued Conduct of Sale Rules on Redemption Third party claim Satisfaction Enforcement

Motion for reopening trial Before finality MR MNT Appeal Final and executory

After finality

Petition for relief Annulment of judgment

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

Reply Answer to counterclaim or cross claim Bring new parties Amendment by leave of court Summary judgment Judgment on the pleadings Discovery by Admission of Adverse Party

File complaint Cause of Action Parties Parts of a pleading Filing & Service

Stages in a Civil Action (Rules 1-47)

Venue Real action Personal action By agreement

Jurisdiction MTC, RTC, CA, SC

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

FILE A COMPLAINT Cause of Action Elements: 1. Existence of a legal right of the plaintiff 2. Correlative duty of a defendant to respect one’s right 3. Act or omission of the defendant in the violation of plaintiff’s right Joinder of COA: 1. Comply with the rules of joinder of parties; 2. Not include SCA or actions governed by special rules; 3. COA between same parties but pertain to different jurisdiction or venue, joinder may be allowed in RTC provided one of the COA falls within jurisdiction of said court and venue lies therein; and 4. Claims in all COA are principally for recovery of money, aggregate amount claimed shall be the test of jurisdiction. Restrictions on joinder of COA: 1. Jurisdiction 2. Venue 3. Joinder of parties

Parties Who may be parties: 1. Natural person o Must be of age of majority o Minor/Incompetent – with the assistance of father, mother, guardian, or guardian ad litem o Married person – GR: sue jointly. EX: (1) Judicial separation; (2) Separation of at least one year; (3) Separation of property agreed upon in the marriage settlements; (4) Administration of all the property in the marriage has been transferred to the wife; (5) Litigation is between husband and wife; (6) Suit concerns paraphernal property; (7) Action is upon the civil liability arising from a criminal offense; (8) Litigation is incidental to the profession, occupation or business in which she is engaged; (9) Civil action referred to in Articles 25 to 35 of CC; (10) Quasidelict. o Supervening incapacity – Upon motion and notice, continue action but assisted by legal guardian or guardian ad litem 2. Juridical person o Duly incorporated in the SEC o GR: Foreign corporation doing business without a license cannot sue. EX: Philippine citizen/entity benefited and etopped from challenging corporate personality 3. Entities authorized by law Real party in interest o Stands to be benefited or injured by the judgment in the suit; or o Entitled to the avails of the suit. Indispensable party – Without whom no final determination can be had of an action Necessary Party – 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.

Requisites of a class suit: 1. Subject of the controversy is of common or general interest to many persons; 2. Persons are so numerous that it is impractical to bring them all to court; 3. Parties actually before the court are sufficiently numerous and representative; 4. Representative sue or defend for the benefit of all. Elements of joinder of parties: 1. Right or relief in favor of or against the parties joined in respect to or arising out of the same transaction or series of transaction; 2. Common question of law or fact. Failure to implead: o Indispensable – null & void judgment o Necessary – waiver Substitution of parties: 1. Death o Claim is not extinguished o Duty of counsel : (1) Inform the court within 30 days after such death of the fact thereof, (2) Give the names and address of legal representative/s o Court orders legal representative/s to appear and be substituted within 30 days from notice o Heirs may be allowed to be substituted for the deceased 2. Public officer dies, resigns, or cease to hold office 3. Transfer of interest Indigent litigant – exempt from payment of docket and other lawful fees and of transcripts of stenographic notes (constitute as a lien) 1. Indigent under Rule 141, Sec. 19 o Gross income and that of immediate family do not exceed an amount double the monthly minimum wage of an employee; and o Do not own real property with a FMV as stated in current tax declaration of more than P300,000 2. In excess of requirements under Rule 141, apply indigency test. o No money or property suffient and available for food, shelter, and basic necessities for himself and his family. o Upon ex parte application & hearing

Parts of a Pleading 1. Caption o (1) Name of the court; (2) Title of the action; and (3) Docket number. 2. Body o (1) Designation; (2) Allegations of claims/defenses; (3) Relief; (4) Date 3. Signature o Of party, or of counsel o Contents: 1)He has read the pleading; 2)To the best of his knowledge, information & belief there is good ground to support it; 3)It is not interposed for delay. 4. Verification o Contents: 1) Affiant has read the pleading; and 2) Allegations therein are true and correct of his personal knowledge or based on authentic records. o Substantial compliance:Signed by attorney. 5. Certificate Against Forum Shopping [CNFS] o Contents: 1) He has not commenced any action or filed any claim involving the same issues in any court and no such other action or claim is pending; 2) If there is such other pending action or claim, a complete statement of the present status of it; and 3) If he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within 5 days to the court. oNoncompliance: (1) Dismissal without prejudice, (2) Not curable by amendment o GR: Signed by the petitioner himself and not by counsel, EX: Substantial compliance (reasonable cause for failure to sign) o False certification: (1) indirect contempt, (2) administrative action, (3) criminal action o Willful & deliberate forum shopping: (1) summary dismissal with prejudice, (2) direct contempt, (3) admin sanctions

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

FILE A COMPLAINT MODES OF SERVICE

COMPLETE

Personal Service 1. Deliver copy to the party or his counsel 2. Leave copy in party’s or counsel’s office with his clerk or with a person having charge thereof 3. Leave copy at the party’s/counsel’s residence with a person of sufficient age and discretion residing therein o No person is found in his office, o Office is not known, or o No office.

Upon delivery

actual

Registered Mail 1. Deposit copy in the office In a sealed envelope Plainly addressed to party or his counsel at his (1) Office, if known; (2) Residence, if known Postage fully pre-paid With instructions to the postmaster to return to the sender after 10 days if undelivered

1. Upon actual receipt by the adressee, or 2. After 5 days from the date he received the first notice of the postmaster Whichever date is earlier

Ordinary Mail No registry service is available in the locality of either the sender or the addressee

Upon the expiration of 10 days after mailing UNLESS court otherwise provides

Substituted Service 1. Deliver copy to clerk of court Cannot serve personally or by mail Office and place of residence of party and counsel are unknown With proof of failure of both personal service and service by mail

At the time of delivery

PROOF OF SERVICE 1. Written admission of the party served, or 2. Official return of server, or 3. Affidavit of party serving Contains full statement of date, place and manner of service

MODES OF FILING

PROOF OF FILING

Personal Service Presenting original copies to the Clerk of Court Date of filing : Clerk of court endorse on the pleading the date and hour of filing

1. By its existence in the record of the case, or 2. If not, by written or stamped acknowledgment of its filing by the clerk of court on the copy of the same

Registered Mail Date of filing : Date of mailing as shown by the post office stamp on the envelope or registry receipt

1. 2.

SERVICE OF JUDGMENTS, FINAL ORDERS, OR RESOLUTIONS Personal Service Registered Mail

By affidavit ant registry receipt issued by mailing office Upon receipt by sender, file: 1. Registry return card, or 2. Unclaimed letter + Certified/sworn copy of notice given by postmaster Affidavit mailing

of

person

Publication If summoned by publication and party failed to appear At the expense of the prevailing party

By registered receipt, and Affidavit of person who did the mailing Contains full statement of date and place of depositing the mail

Filing : Act of presenting the pleading or other paper to the clerk of court Service : Act of providing a party with a copy of the pleading or paper concerned. GR: Rule 13 applies to all pleadings and papers. EX : Summons. Paper required to be filed : Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment, similar papers. Priority of service: 1. Personal 2. Other modes + Written explanation Violation : Consider paper as not filed

PAY DOCKET AND LEGAL FEES Filing of the appropriate initiatory pleading and payment of the prescribed docket fee vests the court with jurisdiction over the subject-matter or nature of the action. Where the filing of the initiatory pleading is not accompanied by payment of the docket fee, the court may allow payment of the fee within a reasonable time but in no case beyond the applicable prescriptive or reglementary period. The same rule applies to permissive counterclaims, third-party claims and similar pleadings. Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading and payment of the prescribed filing fee but, subsequently, the judgment awards a claim not specified in the pleading, or if specified the same has been left for determination by the court, the additional filing fee therefor shall constitute a lien on the judgment. Specify the amount of damages being prayed for in the body of the pleading and in the prayer. Said damages shall be considered in the assessment of the filing fees in any case. Any pleading that fails to comply with this requirement shall not be accepted nor admitted, or shall otherwise be expunged from the record.

ISSUE SUMMONS Contents: 1. Name of the court 2. Names of the parties to the action 3. Direction that defendant answer within the time fixed 4. Notice: If he doesn’t answer, plaintiff will take judgment by default and may be granted the relief applied for. Attachment: 1. Copy of the complaint, and 2. Order for appointment of guardian ad litem, if any Impossibility of prompt service o "Reasonable time" is defined as "so much time as is necessary under the circumstances for a reasonably prudent and diligent man to do, conveniently, what the contract or duty requires that should be done, having a regard for the rights and possibility of loss, if any, to the other party." oThere must be several attempts by the sheriff to personally serve the summons within a reasonable period [of one month] which eventually resulted in failure to prove impossibility of prompt service. o "Several attempts" means at least 3 tries, preferably on at least two different dates. In addition, the sheriff must cite why such efforts were unsuccessful Person of suitable age and discretion : One who has attained the age of full legal capacity and is considered to have enough discernment to understand the importance of a summons. He must have the "relation of confidence" to the defendant. Competent person in charge: (1)The one managing the office or business of defendant, such as the president or manager; (2)Have sufficient knowledge to understand the obligation of the defendant in the summons, its importance, and the prejudicial effects arising from inaction on the summons. Proof of service: (Made in writing by server) 1. Set forth manner, place and date of service 2. Specify any paper which have been served with the process and the name of the person who received the same 3. Sworn to when made by person other than sheriff or his deputy

By whom served: 1. Sheriff 2. Deputy sheriff 3. Other proper court officer 4. Any suitable person authorized by the court o For justifiable reasons MODE OF SERVICE

Return: o Serve to plaintiff’s counsel within 5 days after service has been completed o How: (1) Personally, (2) Registered mail o Return summons to clerk who issued it + Proof of service Alias summons: (On demand of the plaintiff) o Grounds: (1) Summons returned without being served, (2) Summons has been lost o Serve copy of return on plaintiff’s counsel within 5 days after failure of service o State reasons for failure of service HOW

Personal Service o Whenever practicable

1. Handing a copy of summons in person, or 2. Tender summons o If refused to receive and sign summons

Substituted Service o If for justifiable reasons, personal service cannot be made within a reasonable time

1. Leave copy of summons at the defendant’s residence o With some person of suitable age and discretion residing therein 2. Leave copy of summons at defendant’s office or regular place of business o With competent person in charge

Publication in a newspaper of general circulation

Identity or whereabouts are known By leave of court

oProof of service: 1. By affidavit of— • Printer, foreman or principal clerk • Editor, business or advertising manager 2. By affidavit showing – • Deposit of copy of summons and order for publication in post office • Postage prepaid • Directed to defendant by registered mail to his last known address

Resident temporarily outside the country By leave of court Nonresident and not found in the country Grounds: 1. Action affects the personal status of the plaintiff or relates to 2. Subject of the action is property within the Philippines in which the defendant has or claims a lien or interest 3. Action in which the relief demanded consists in excluding the defendant from any interest in the property 4. Property of the defendant has been attached within the Philippines By leave of court + Answer not less than 60 days after notice How: 1. Personal service 2. Publication + Send copy of summons and order of court by registered mail to the last known address of defendant 3. Any other manner the court may deem sufficient

Upon whom summons is served: Natural person: o Minors – personally and with -1. Legal guardian 2. Guardian ad litem (applied for by the plaintiff) 3. Father or mother o Incompetents 1. Legal guardian 2. Guardian ad litem (applied for by the plaintiff) o Prisoners 1. By the officer having management of jail or institution who is deemed deputized as special sheriff Juridical person: o Entity without juridical personality 1. Upon any one of the defendants 2. Upon the person in charge of the office or place of business NOT bind individually any person whose connection with the entity has, upon due notice, been severed before action was brought. o Domestic private juridical entity 1. President 2. Managing partner 3. General manager 4. Corporate secretary 5. Treasurer 6. In-house counsel o Foreign private juridical entity 1. Resident agent designated by law 2. If none, government official designated by law 3. Any of its officers or agents within the Philippines o Republic of the Philippines – Solicitor General o Public corporations 1. Executive head 2. Other officer/s as law or court may direct

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

AFTER ACQUIRED JURISDICTION BUT BEFORE RESPONDING TO A PLEADING Motion to Strike (R 9, S 12) When: 1. Before responding to a pleading 2. If no responding pleading filed, within 20 days after service of the pleading 3. Any time – Upon court’s own initiative Grounds: (1) Sham or false, (2) Redundant, (3) Immaterial, (4) Impertinent, (5) Scandalous matter Bill of Particulars (R 12) Purpose : Of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading When : 1. Before responding to a pleading, or 2. Within 10 days from service of a reply Filed either in a separate or amended pleading + Serve copy on the adverse party Contents: (1) Point out the defects complained of, (2) Paragraphs wherein they are contained, and (3) Details desired. Action of the court: 1. Deny or grant outright o If granted, comply with order within 10 days from notice of order. o Effect of noncompliance : (1) Strike out pleading, (2) Other order as it deems just. 2.Allow parties opportunity to be heard File responsive pleading : o When : (1) After service of BOP or more definite pleading, (2) After notice of denial of motion o Time to plead: Within period to which he was entitled at the time of filing his motion (not less than 5 days) Becomes part of the pleading for which it is intended. Dismissal upon notice by plaintiff (R17, S1) GR: Dismissal is without prejudice UNLESS otherwise specified in the order. EX: When filed by plaintiff who has once dismissed in a competent court an action based on or including the same claim.

Motion for Extension to File (R 11, S 11) On such terms as may be just Amendment as a matter of right (A) and Supplemental Pleading (S) (R 10, S 2 & 6) Upon (1) Motion of the party, (2) Reasonable notice, (3) Terms as are just For (A) : (1) Add/strike out allegation or name of party, (2) Correct a mistake in name, allegation or description For (S) : Set forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. Answer within 15 (A) or 10 (S) days from notice of the order admitting the same Motion to Dismiss (R 16) Grounds: 1. No jurisdiction over the person 2. No jurisdiction over subject matter 3. Improper venue 4. Plaintiff has no legal capacity to sue 5. Litis pendentia 6. Res judicata or statute of limitations 7. States no cause of action 8. Claim or demand has been paid, waived, abandoned or extinguished 9. Unenforceable under Statute of Frauds 10.Condition precedent for filing the claim has not been complied with Hearing : Submit arguments on questions of law and evidence on questions of fact involved EXCEPT those not available at that time o Evidence presented automatically forms part of evidence during trial Action of the court: (1) Dismiss the action, (2) Deny the motion, (3) Order amendment of pleading. Time to plead: File answer within period to which he was entitled at the time of filing his motion (not less than 5 days) Bar refiling of action if MTD granted: grounds (6), (8), and (9) If MTD granted, counterclaim prosecuted in the same/separate action

DISCOVERY

PETITION/ACTION

WHO APPLIES

SCOPE

Verified petition in the court of the place of residence of any expected adverse party Motion in the court in which the judgment was rendered By leave of court after jurisdiction has been obtained over any defendant or over property which is subject of the action (Motion) W/o leave of court after an answer has been served (Notice) Written request for admission

A person who desire to perpetuate his own testimony or that of another person

ANY MATTER cognizable in any Philippine court

PRODUCTION OF DOCUMENTS/ THINGS (Rule 27)

Motion + Good cause

Any party

PHYSICAL AND MENTAL EXAMINATION (Rule 28)

Motion + Good cause + Notice to (1) party to be examined and (2) all other parties

Court in which the action is pending may in its discretion

DEPOSITIONS BEFORE ACTION (Rule 24) DEPOSITION PENDING APPEAL (Rule 24) DEPOSITIONS PENDING ACTION (Rule 23) and INTERROGATORY (Rule 25)

ADMISSION BY ADVERSE PARTY (Rule 26)

Rule 23: Any party Rule 25: Any party desiring to elicit material and relevant facts from any adverse parties A party

For use in the event of further proceedings in said court ANY MATTER Not privileged Not annoy, embarrass, or oppress the deponent or party Relevant to the subject of the pending action

Genuineness of Any material and relevant document described in and exhibited with the request The truth of any material and relevant matter of fact set forth in the request. For order to produce and permit inspection and copying Not privileged Contain evidence material to any matter involved in the action In his possession, custody, or control For order to permit entry Any designated relevant object or operation In an action in which the mental or physical condition of a party is in controversy

Effect of Interruption (R 22, S 2) (Applies to R 12 & R 16) The day of the act that caused the interruption shall be excluded in the computation. Start to run after notice of cessation of the cause thereof.

Disqualification by Interest 1. Relative within the 6th degree of consanguinity or affinity Of any of the parties /Of counsel 2. Employee Of any of the parties /Of counsel 3. Counsel of any of the parties 4. Person who is financially interested in the action Substitution of parties Does not affect the right to use depositions previously taken Depositions taken and duly filed in a former action may be used in another action involving the same subject and parties

Persons before whom it may be taken: In the Philippines 1. Any judge 2. Notary Public 3. Person authorized to administer oaths o Stipulated in writing In foreign countries 1. Secretary of embassy/legation 2. Consul general 3. Consul 4. Vice-consul 5. Consular agent 6. Appointed by commission/letters rogatory o Letters rogatory must be with leave of court and granted only when a commission is returned unexecuted o On application and notice 7. Person authorized to administer oaths o Stipulated in writing

NOTICE AND SERVICE Deposition before action

Serve upon each person named in the petition as an expected adverse party Notice + Copy of the petition WHEN : At least 20 days before the date of the hearing TO WHOM : (1) on the parties; and (2) prospective deponents HOW : In the manner provided for service of summons

Deposition upon oral examination before action

Give reasonable notice in writing to every other party to the action Contents of notice : (1) Time and place; (2) Name and address of each person to be examined, if name is known; (3) General description to identify him or the particular class/group to which he belongs, if name is not known After service of notice + On motion of any party = court may enlarge or shorten the time

Deposition upon written interrogatories before action

Serve upon every other party Contents of notice : (1) Name and address of person who is to answer them; (2) Name or descriptive title and address of the deposition officer

Deposition pending appeal

Same notice and service as if the action was pending therein

Interrogatories to parties

Serve upon the adverse party Only one set of interrogatories is allowed UNLESS leave of court is obtained by the same party.

Deposition before action

Used in an involving the subject matter

action same

Deposition pending action and pending appeal

Interrogatories to parties

Used at the trial, upon hearing of a motion, or an interlocutory proceeding

Relate to any matters that can be inquired into

Against any party who (1) was present; (2) represented at the taking; (2) had due notice

1. Deposition of a witness – may be used by any party To contradict or impeach the deponent’s testimony as a witness For any purpose if the court finds that: o Witness is dead; o Witness resides at a distance more than 100 km from place of trial or hearing, or is out of the Philippines • UNLESS it appears that absence of witness is procured by party offering the deposition o Witness is unable to testify because of age, sickness, infirmity, or imprisonment; o Party offering the deposition has been unable to procure the attendance of the witness by subpoena; or o Exceptional circumstances exist as to make it desirable to allow the deposition to be used. • Upon application and notice • In the interest of justice • With due regard to the importance of presenting the testimony of witnesses orally in open court 2. Deposition of any party, or anyone who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation – may be used by an adverse party for any purpose 3. If only part of the deposition is introduced Adverse party may require all of it which is relevant to the part introduced Any party may introduce any other parts. Proof of service of notice Constitute sufficient authorization for the issuance of subpoenas o For the persons named in said notice o By the COC of the place in which the deposition is to be taken Cannot issue a subpoena duces tecum without court order

Scope Any matter 1. Not privileged 2. Relevant to the subject of the pending action 3. Not restricted by protective order or motion to limit examination

Effect of Taking : Not deemed to make person his witness Effect of Using : GR : Makes deponent the witness of party introducing the deposition EX : 1. Used to impeach/contradict 2. Deposition of opponent 3. Deposition of an officer of a corporation

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

MODES OF DISCOVERY (DEPOSITIONS)

Procedure for taking depositions

MODES OF DISCOVERY (DEPOSITIONS) Protection Order (R 23, S 16)

Protection Order (R 23, S 28)

Motion to terminate or limit examination (R 23,S 18)

WHO

1. By any party 2. By person to be examined

1. By a party 2. By a deponent

1. By any party 2. By a deponent

WHEN

After notice is served AND prior to taking of testimony of deponent

After service of interrogatories AND prior to taking of testimony of deponent

Any time during the taking of deposition

WHERE

Court in which action is pending

Court in which action is pending

1. Court in which the action is pending 2. RTC of place where deposition is being taken

HOW

Motion + Good cause

Motion + Good cause

Motion/Petition

GROUNDS

1. Not be taken 2. Taken only at some designated place 3. Taken only in written interrogatories 4. Certain matters shall not be inquired into 5. Scope of the examination shall be held with no one present (EXCEPT (1) parties to the action; (2) counsel of parties) 6. Sealed deposition opened only by order of the court 7. Secret processes, developments, or research need not be disclosed 8. Parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court 9. Any other order which justice requires to protect party/witness from annoyance, embarrassment, or oppression

1. Any order specified in Secs. 15, 16, 18 which is appropriate and just 2. Deposition not taken before designated officer 3. Taken only in oral examination

Examination conducted to annoy, embarrass, or oppress the deponent or party

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

Order officer to: 1. Cease from taking the deposition 2. Limit the scope and manner of taking the deposition Taking of deposition resumed only upon order of the court in which the action is pending.

Record of Examination 1. Put the witness under oath 2. Record the testimony o BY WHOM : (1) By officer; (2) By someone acting under his direction and in his presence o Taken stenographically UNLESS agree otherwise o Officer shall note all objections upon the deposition In lieu of participating in the oral examination, parties may transmit written interrogatories to the officer.

Submission to Witness WHEN : After testimony is fully transcribed GR:Witness examine deposition and read to or by him. EX: Waived by the witness and by the parties Changes in form or substance : 1. Entered upon the deposition by the officer o With statement of the reasons given by the witness 2. Witness signs the deposition o UNLESS (1) Waiver; (2) Witness is ill; (3) Witness cannot be found; (4) Witness refuses to sign [WICR] 3. If not signed by the witness, officer shall sign it,. o State on the record the fact of WICR and reason given, if any o May be used as fully as though signed UNLESS court upholds motion to suppress Certification by the Officer Contents of certification: 1. Witness was duly sworn to by deposition officer, and 2. Deposition is a true record of the testimony given by the witness After certification, securely seal deposition in an envelope indorsed with the title of the action. Filing of the Officer WHERE : Court in which the action is pending He can send it by registered mail to the clerk for filing.

Rules on Objections Objections to direct interrogatories : within 10 days. Objections to cross interrogatories : within 5 days. Objections to re-direct interrogatories : within 3 days. Objections to re-cross interrogatories : within 3 days. At the trial or hearing, any party may object or rebut any relevant evidence contained in a deposition.

Notice of Filing given to all parties Failure of party giving notice to attend OR serve subpoena : Pay the amount of reasonable expenses incurred by party and his counsel in so attending Furnish Copies WHEN : Upon payment of reasonable charge TO WHOM : (1) To any party; (2) To deponent

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

NOTE: Discovery is subject to the discretion of the court and may be availed of at any stage of the proceeding, even during execution.

MODES OF DISCOVERY

Admission by Adverse Party WHO

A party

WHEN

Any time after issues have been joined

WHERE ORDERS or EFFECTS

File and serve upon any other party Copies of the documents shall be delivered with the request o UNLESS copies have already been furnished Implied admission of matters on which an admission is requested o WHEN : 1. Within a period not less than 15 days after service of admission, or 2. Within such time as the court may allow o Serve a sworn statement 1. Denying specifically the matters of which an admission is requested 2. Set forth in details the reasons why he cannot truthfully either admit or deny those matters Objections: o WHEN : Within the period for and prior to the filing of sworn statement o Defer filing of sworn statement until objections are resolved Effect of admission: 1. For the purpose of the pending action 2. Not constitute an admission by party making an admission for any other purpose 3. Not used against a party making an admission in any other proceeding May withdrawn or amended Failure to file and serve: o Not permitted to present evidence of such fact (asked to be admitted) o UBLESS good cause + prevent failure of justice

Production or Inspection of Documents or Things

Physical and Mental Examination of Persons

Any party

A party in an action in which his mental or physical condition is in controversy

Court in which the action is pending

Court in which the action is pending

1. To produce and permit the inspection and copying or photographing By or behalf of the moving party Of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things o Not privileged o Contain evidence material to any matter involved in the action o In his possession, custody or control 2. To permit entry upon property In his possession or control Purpose : Inspecting, measuring, surveying, or photographing the (1) property or (2) any designated relevant object or operation

Deliver copy of a detailed written report of the examining physician o If requested by the party examined [PE] o BY WHOM : Party causing the examination to be made [PCEM] o Sets out the findings & conclusions o EFFECT : PCEM entitled upon request to receive from PE a like report Any examination Previously or thereafter made Same mental/physical condition PE waives any privilege o In that action or any other involving the same controversy o Regarding the testimony of every other person (1) who examined; (2) may thereafter examine him o In respect of same mental/physical examination o Grounds: 1) By requesting and obtaining a report of the examination 2) By taking the deposition of the examiner

Contents of the Order: (1) Time; (2) Place; (3) Manner of making the inspection and taking copies and photographs; (4) Other terms and conditions as are just

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

MODES OF DISCOVERY

Effects of Errors and Irregularities in Depositions As to notice – Waived o UNLESS written objection is promptly served on party giving the notice As to disqualification of officer – Waived o UNLESS made (1) before taking of deposition begins; or (2) as soon as disqualification becomes known or could be discovered with reasonable diligence As to competency or relevancy of evidence o Waived ONLY when ground of the objection is one which might have been obviated or removed if presented at that time As to oral examination and other particulars – Waived o UNLESS reasonable objection is made at the taking o Relating to: 1) Manner of taking of depositions 2) Form of the questions or answers 3) Oath or affirmation 4) Conduct of the parties 5)Errors of any kind which might be obviated, removed or cured if promptly prosecuted As to form of written interrogatories – Waived o UNLESSS served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories AND within 3 days after service of the last interrogatories authorized. As to manner of preparation – Waived o UNLESS a motion to suppress is filed 1)With reasonable promptness after such defect is ascertained 2)With due diligence defect might have been ascertained o Relating to: 1) Manner in which testimony is transcribed 2) Manner in which deposition is prepared, signed, certified, sealed, indorse, transmitted, filed or otherwise dealt with by the officer

Refusal to comply with Modes of Discovery 1. Refusal to answer WHAT : (1) Upon oral examination; (2) Any interrogatory under Rule 23/25 WHO : (1) Party; (2) Deponent ACTIONS TAKEN: 1. Examination may be (1) completed on other matters OR (2) adjourn o As the proponent of the question may prefer 2. Proponent apply for an order to compel an answer o WHERE : Court of the place where the deposition is being taken 3. If granted, require to pay reasonable expenses incurred in obtaining the order o WHO : (1) Refusing party; (2) Deponent; (3) Counsel advising the refusal; (4) Both (1)/(2) and (3) o Including attorney’s fees 4. If denied and filed without substantial justification, require to pay reasonable expenses incurred in opposing the application o WHO : (1) Proponent; (2) Counsel advising the filing of the application; (3) Both of them o Including attorney’s fees 2. Contempt of court Grounds: 1. Refuses to be sworn 2. Refuses to answer any question after being directed to do so by the court in which deposition is being taken

Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines.

3. Other consequences WHO: (1) Any party; (2) Officer; (3) Managing agent Refused to obey the following orders: 1. Order requiring him to answer designated questions 2. Order to produce any thing for inspection, copying, or photographing 3. Order to permit inspection, copying, or photographing any thing 4. Order to permit entry upon land or other property 5. Order requiring him to submit to a physical or mental examination The court may order that: 1. Matters regarding which the questions were asked, or the character of the land or the thing, or the physical and mental condition of the party be taken to be established; 2. Disallowance of the disobedient party’s claims; 3. Prohibition of the disobedient party to present evidence; 4. Striking out of the pleadings or parts thereof; 5. Staying further proceedings until order is obeyed; 6. Dismissal of the action or parts thereof; 7. Rendering judgment by default against the disobedient party; or 8. Arrest of any party or of agent o EXCEPT order to submit to a physical or mental examination 4. Refusal to admit under R 26 REFUSED TO ADMIT: 1. Genuineness of any document 2. Truth of any matter of fact EFFECT : Order to pay reasonable expenses incurred by the other party, including attorney’s fees o UNLESS (1) good reasons for the denial; or (2) admissions sought were of no substantial importance 5. Failure of party to attend or serve answers willfully WHO : (1) Party; (2) Officer; (3) Managing agent HOW : On motion and notice EFFECT : 1. Strike out all or any part of any pleading of that party 2. Dismiss the action/proceeding/any part thereof 3. Enter judgment by default against that party 4. Order to pay reasonable expenses incurred by the other party, including attorney’s fees

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

DEFAULT

Upon motion of claiming party + Notice to defendiant + Proof of failure to answer Kinds: 1. General order of default 2. “As in default” – failure to appear during pre-trial Order of default : Still entitled to notice of subsequent proceedings Remedy for Order of Default: o Motion to set aside (FAME + Meritorious defense + Under oath) Judgment in default : Grant claimant such relief as his pleading may warrant UNLESS the court in its discretion require claimant to present evidence. Remedies for Judgment in Default: 1. Appeal 2. Motion for New Trial 3. Petition for relief 4. Petition for Certiorari 5. Annulment of judgment Partial Default: o Claim states a common cause of action against several defendants o Try case against all upon the answers filed by some defendants and render judgment upon evidence presented Extent of relief: o Award not exceed amount or be different in kind from that prayed for o Not award unliquidated damages No defaults allowed: 1. Annulment or declaration of nullity of marriage 2. Legal separation 3. Summary Procedure 4. Special Civil Action EXCEPT: interpleader, declaratory relief

JOINDER OF ISSUES Answer Defending party sets forth his defenses When: o Natural: 15 days after service of summons o Juridical: 30 days after receipt of summons Counterclaim (CC) Any claim which a defending party may have against an opposing party. Kinds: 1. Compulsory o Within jurisdiction of the court as to the amount and nature o Arises out of or is connected with the transaction or occurrence constituting the subject matter of opposing party’s claim o Not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction 2. Permissive Must pay docket fees, regardless if permissive or compulsory Cross claim (XC) Any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim Must pay docket fees Omitted CC or XC Grounds : (1) oversight, (2) inadvertence, (3) excusable neglect, (4) when justice requires By leave of court By amendment before judgment Third party claim Filed by defending party against a person not a party to the action for contribution, indemnity, subrogation, or any relief, in respect of opponent’s claim With leave of court Must pay docket fees

Defenses Kinds: 1. Negative o Specific denial of the material fact/s alleged in the pleading of the claimant essential to his cause/s of action 2. Affirmative o 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 o Grounds : 1) Fraud 2) Statute of limitations 3) Release 4) Payment 5) Illegality 6) Statute of frauds 7) Estoppel 8) Former recovery 9) Discharge in bankruptcy 10) Any other matter by way of confession and avoidance 11) Grounds for Motion to Dismiss Kinds of denials: 1. Partial denial o Defendant denies only a part of the averment and specify so much of it as is true and material 2. Absolute denial o Defendant specifies each material allegation of fact the truth of which he does not admit, o Whenever practicable, defendant sets forth the substance of the matters upon which he relies to support his denial 3. Denial by disavowal of knowledge o Defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint

Objections (R 9, S 1 & 2) GR: Defenses and objections not pleaded either in a motion to dismiss or an answer are deemed waived. EX: (1) No jurisdiction over the subject matter, (2) Litis pendentia, (3) Res judicata, (4) Statute of limitations A compulsory counterclaim or cross claim not set up shall be barred. Lis Pendens (R 13, S 14) A notice of a pendency of the action between the parties involving title to or right of possession over real property Covers only property subject of litigation Requisites: 1. Action affects the TITLE or the right of possession of the real property; 2. AFFIRMATIVE RELIEF is claimed; 3. NOTICE shall contain the name of the parties and the object of the action or defense an a description of the property affected thereby; and 4. Action in rem. When: (1) Upon the filing of the complaint or the filing of the answer, or (2) any time afterwards. Any purchaser or encumbrancer of the property affected shall be bound or deemed to have constructive notice of the same. Grounds for cancellation: 1. The notice is for the purpose of molesting the adverse party; or 2. It s not necessary to protect the rights of the party who caused it to be recorded. Dismissal upon motion of plaintiff (R17, S2) Needs approval of the court Dismissal without prejudice Dismissal limited to the complaint if a counterclaim is pleaded by defendant prior to service upon him of plaintiff’s motion for dismissal Defendant can prosecute his counterclaim: 1. Separate action, 2. Same action (if within 15 days from notice of motion he manifests his preference)

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

AFTER ANSWER IS FILED Reply Denies or allege facts in denial or avoidance of new matters alleged by way of defense in the answer When: Within 10 days from service of pleading responded to Answer to counterclaim or cross claim When: Within 10 days from service of pleading

Bring 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 the CC or XC If jurisdiction can be obtained over the party Amendment by leave of court Upon (1) Motion of the party, (2) Notice to adverse party, (3) Opportunity to be heard Purpose: (1) Add/strike out allegation or name of party, (2) Correct a mistake in name, allegation or description Substantial amendments only by leave of court o Denied if only made with intent to delay Answer within 10 days from notice of the order admitting the same

Judgment on the pleadings Grounds: 1. Answer fails to tender an issue 2. Admits the material allegations of the adverse party’s pleading Always full judgment When : At least 3 days before the hearing Can be rendered motu proprio during pre-trial; Always on motion of the party during trial

Summary judgment Ground : Issues apparently exist or specific denials or affirmative defenses are in truth set out in the answer but the issues thus arising from the pleadings are sham, fictitious or not genuine, as shown by affidavits, depositions, or admissions o No genuine issue as to any material fact EXCEPT as to amount of damages, and o Moving party entitled to judgment as a matter of law When : At least 10 days before the hearing File opposing affidavits, depositions or admissions : At least 3 days before hearing Can be full or partial judgment Cannot be rendered motu proprio Filed affidavits in bad faith or solely for delay: 1. Order to pay other party the amount of reasonable expenses incurred 2. Contempt

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

VENUE

REAL ACTION

PERSONAL ACTION

Affects title to or possession of real property, or interest therein

Personal property is sought to be recovered or where damages for breach of contract are sought

Founded on the privity of real estate

Founded on privity of contract

Filed in the court where the property or any part thereof is situated

Filed in the court where 1. Plaintiff or any principal plaintiff resides, 2. Defendant or any of the principal defendant resides, or 3. Where he may be found (nonresident defendant) AT THE OPTION OF THE PLAINTIFF

If nonresident defendant and cannot be found in the Philippines: o Action affects (1) personal status of plaintiff, or (2) any property of defendant located in the Philippines o File (1) Plaintiff resides, or (2) Where property or any portion is situated Stipulations on venue: 1. In writing; 2. Made before the filing of the action; and 3. Exclusive as to the venue.

Venue is procedural, not jurisdictional. Rule on venue not applicable: 1. Specific rule or law provides otherwise 2. By agreement of parties (stipulated venue) Waiver of venue: 1. Failure to object via MTC; 2. Affirmative relief is sought; 3. Voluntary submission; 4. Laches. GR: Cannot be dismissed motu proprio. EX : Summary Procedure

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

PRE-TRIAL

Plaintiff move ex parte to set for pre-trial conference Within 5 days from filing of reply or after last pleading has been served and filed. If plaintiff fails, Branch COC issue a notice of pretrial o Serve on counsel, or on party who has no counsel Issue Pre-Trial Order May dictate it in open court in the presence of the parties and counsel Signed by parties and/or counsel Within 10 days after termination of pre-trial

Pre-trial is mandatory. Non-appearance excused only if: 1. Valid cause 2. Authorized representative o Enter into amicable settlement o Submit to ADR o Enter into stipulations or admissions Effect of failure to appear o Plaintiff: Dismiss action with prejudice o Defendant: Allow plaintiff to present his evidence ex parte and court to render judgment

At least 3 days before pre-trial

Pre-Trial Brief Contents: 1. Statement of willingness to enter into an amicable settlement or to ADR 2. Summary of admitted facts & proposed stipulation of facts 3. Issues to be tried 4. Documents/exhibits to presented o Only evidence pre-marked during the pre-trial will be allowed to be offered during the trial EXCEPT Good cause 5. Manifestation to avail mode of discovery or referral to commissioners 6. Number and names of witnesses, substance of testimony & # of hours Must be strictly complied with Failure to file has same effect as failure to appear at the pre-trial.

If mediation fails, schedule continuance of pre-trial conference. Duties of Trial Judge 1.Adopt the minutes of preliminary conference and confirm markings of the exhibits. 2.Order consolidation if there are cases arising out of same facts 3.Order amendment if pleadings are not in order. 4.Resolve interlocutory issues. 5.Scrutinize every single allegation of the complaint and other pleadings. 6.Define and simplify factual and legal issues arising from pleadings. 7.Determine propriety of rendering a summary judgment or judgment on the pleadings. 8.Agree on specific trial dates. One Day Examination of Witness Rule Last day of hearing, (1) make formal offer of evidence after presentation of last witness; and (2) opposing party immediately interpose his objections. 1.Determine most important witnesses to be heard. 2.Order parties to use affidavits of witnesses as direct testimonies. Subject to cross examination 11. Submit to COC names, addresses & contact # of witnesses 12. Order delegation of reception of evidence to COC 13. Refer case to trial by commissioner

Preliminary Conference At the start, refer parties and/or counsel to PMC mediation unit Duties of Branch COC: 1. Assist in reaching a settlement 2. Mark documents/exhibits 3. Consider such other matters as may aid in its disposition 4. Ascertain undisputed facts and admissions on the genuineness & due execution of documents Both parties and/or counsel must sign Minutes of Preliminary Conference Duties of Judge: 1. Study all the pleadings 2. Determine the issues 3. Not terminate case even if parties manifest that they cannot settle the case 4. Endeavor to persuade parties to arrive at a settlement

If all efforts to settle fail

Judge confer with the parties If no amicable settlement, confer with parties and opposing counsel to consider manner of compromise based on the evidence presented. If not successful, confer with party and counsel separately. If manner of compromise is not successful, confer with parties without counsel.

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

TRIAL

Notice of Trial WHEN : Upon entry of a case in the trial calendar In such manner as shall ensure receipt of the party at least 5 days before date of trial Adjournment From day to day and to any stated time Cannot adjourn a trial for a longer period than 1 month for each adjournment and more than 3 months in all o EXCEPT authorized in writing by the SC Court Administrator

Agreed statement of facts o WHO : Parties to any action o WHAT : Upon facts involved in the litigation o EFFECTS : 1. Submit the case for judgment on the facts agreed upon, without the introduction of evidence 2. If agree only on some of the facts in issue, trial held as to the disputed facts in such order as the court prescribe. o FORM: 1. In writing, or 2. Verbally in open court Judge to receive evidence o WHO : Court where case is pending o WHAT : Evidence to be adduced by the parties Delegation to clerk of court o Grounds: 1) In default 2) Ex parte hearings 3) In any case where the parties agree in writing o COC must be a member of the bar o No power to rule on objections To any admission, or to the admission of exhibits Objections resolved by the court upon submission of his report and transcripts within 10 days from termination of hearing

Order of Trial Limited to issues stated in the pretrial order Procedure: 1. Plaintiff adduce evidence 2. Defendant adduce evidence 3. Third-party defendant adduce evidence, if any 4. Parties against whom any CC or XC has been pleaded adduce evidence o In the order to be prescribed by the court 5. Adduce rebutting evidence only o UNLESS good reasons + in furtherance of justice, permit to adduce evidence upon the original case 6. Deemed submitted for decision o WHEN : Upon admission of evidence

o UNLESS directed to (1) argue; or (2) submit respective memoranda or any further pleadings Several defendants + Separate defenses + Appear by different counsel = Court determine the relative order of presentation of their evidence Amendment to conform to the evidence ACT: (1) To conform to the evidence, and (2) to raise issues raised in the pleadings GROUNDS : 1. When issues not raised by the pleadings are tried with the consent of the parties 2. Evidence is objected to at the trial that it is not within the issues made by the pleadings BY WHOM : Any party WHEN : Any time even after judgment HOW: By motion Failure to amend does not affect result of the trial of these issues Court may grant continuance

Motion for Postponement Grounds: 1. Absence of evidence By affidavit 1) Showing materiality or relevancy of such evidence 2) Due diligence has been used to procure it If the adverse party admits the facts to be given in evidence, the trial shall not be postponed. o Even if he objects/reserves the right to object to their admissibility 2. Illness of party or counsel By affidavit or sworn certification 1) Presence of P/C at the trial is indispensable 2) Character of P/C’s illness is such as to render his non-attendance excusable Consolidation Applies to (1) actions involving common questions of law or fact pending before the same judge, and (2) special proceedings Case which was appealed later and bearing the higher docket number is consolidated with the case having the lower docket number GR: The consolidation of several cases involving the same parties and subject matter is discretionary with the trial court. EX: Consolidation becomes a matter of duty if (1) two or more cases are tried before the same judge or, (2) filed with different branches of the RTC, one of such cases has not been partially tried. Demurrer to Evidence WHEN : After plaintiff has completed the presentation of his evidence (and have formally offered his evidence( GROUND : Upon the facts and law the plaintiff has shown no right to relief If denied, right to present evidence If granted but on appeal reversed, deemed waived right to present evidence

Trial by Commissioner (Cm) Reference to Cm: 1. By consent o Written consent of both parties o Irregularity in appointment must be raised in trial court; otherwise, waived. 2. By motion or Motu Proprio o Situations covered: 1) Trial of an issue of fact requires examination of a long account Cm hear and report upon the whole issue/any specific question involved 2) Taking of account is necessary For the information of the court before judgment For carrying a judgment into effect 3) Question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the case 4) Question of fact, other than upon the pleadings, for carrying a judgment or order into effect Order of reference may specify or limit the powers of the Cm. Powers of Cm: 1. Report only upon particular issues, or to do or perform particular acts, or to receive and report evidence only; 2. Exercise the power to regulate the proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties; 3. Issue subpoena & subpoena duces tecum; 4. Swear witnesses; and 5. Rule upon the admissibility of evidence o Unless otherwise provided in the order of reference First meeting of parties or their counsels o Within 10 days after date of reference o Cm must notify parties or their counsel o Failure to appear : (1) proceed ex parte; (2) adjourn to a future day (w/ notice) Order to expedite proceedings & to make report o On notice to parties and Cm Report of Cm: o WHEN : Upon completion of trial/hearing o Set forth findings of fact & conclusions of law o Attach all exhibits, depositions, papers, and the transcript of testimonial evidence o Upon filing of report, notify parties by clerk Object within 10 days o Upon expiration of 10-day period, report set for hearing : (1) adopt; (2) modify; (3) reject; (4) recommit w/ instructions; or (5) require parties to produce further evidence

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

JUDGMENT

Final Order When it determines the merits of the case and finally disposes of the pending action so that nothing more can be done with it in the lower court FORM: 1. In writing 2. Personally & directly prepared by a judge 3. State clearly and distinctly the facts and the law on which it is based 4. Signed by the judge 5. Filed with the clerk of court Date of finality is date of its entry Rendition HOW : By filing of the signed decision with the clerk of court If the decision is sent by the judge by registered mail, it is considered filed in court as of the date of its receipt by the clerk. Promulgation It is the process by which a decision is published, officially announced, made known to the public or delivered to the Clerk of Court for filing, coupled with notice to the parties or their counsel. Several Judgment Action must be against several defendants Where the liability of each party is clearly separable and distinct from that of his coparties such that the claims against each of them could have been the subject of separate suits, & judgment for or against one of them will not necessarily affect the others Judgment rendered against one or more of the parties, leaving the action to proceed against the others Judgment Upon a Confession Rendered by the court when a party expressly agrees to the other party’s claim or acknowledges the validity of the claim against him

Modification of Judgment GR: Before the lapse of the period to appeal, the judge can change the judgment, or even make a new one. A decision that has acquired finality becomes immutable and unalterable. (Doctrine of Conclusiveness or Immutability of Judgments) EX: 1. Correction of clerical errors 2. Nunc pro tunc entries 3. Void judgments 4. Whenever circumstances transpire after the finality of the decision making its execution unjust and inequitable. Entry of Judgment WHEN : No appeal, MNT, or MR if filed within the prescribed time WHERE : Book of entries of judgments Contents of record: 1. Dispositive part of judgment/order 2. Signed by the clerk 3. With a certificate that such judgment or order has become final and executory Judgment Upon a Compromise Rendered by the court on the basis of a compromise agreement entered into between the parties to the action. Clarificatory Judgment Where the judgment is ambiguous and difficult to comply with Judgment Pro Tunc Rendered to enter or record such judgment as had been formerly rendered but has not been entered as thus rendered Void Judgment If a decision is void, it has no legal effect at all. EXCEPT Doctrine of operative facts

Conditional Judgment The effectivity of which depends upon the occurrence or the non-occurrence of an event; It is void. Sin Perjuicio Judgment One that makes reservation in favor of some parties as to the right to do something in a separate and further proceedings. It is not a binding one. Incomplete Judgment One that does not dispose of all the issues of a case validly raised. It is not final until it is completed. Judgment on the Merits When it amounts to a legal declaration of the respective rights and duties of the parties, based upon the disclosed facts Erroneous Judgment A judgment contrary to the express provisions of law is erroneous but it is not void. Once it becomes final and executor, it is binding and effective as any judgment and, though erroneous, will be enforced as a valid judgment in accordance with its dispositions.

Separate Judgment Presupposes that there are several claims for relief presented in a single action WHEN : Any stage o Upon a determination of the issues material to a particular claim and all CC arising out of the transaction or occurrence which is the subject matter of the claim May stay its enforcement o Until rendition of subsequent judgment o Prescribe conditions as may be necessary to secure the benefit of party in whose favor judgment is rendered Judgment against entity w/o juridical personality Set out their individual/proper names, if known

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

BEFORE FINALITY

Common Provisions for MNT or MR WHEN FILED : Within 15 days from notice of judgment or order WHEN RESOLVED : Within 30 days from time motion is submitted for resolution FILED BY : Aggrieved party Contents: 1. In writing 2. State ground/s 3. Served by movant on adverse party Pro Forma motion shall not toll reglementary period of appeal Actions of the court: 1. Set aside judgment or order and grant a new trial 2. Deny the motion 3. Amend judgment or order o Court finds that (1) excessive damages have been awarded, or (2) judgment or order is contrary to evidence or law Partial MNT or MR o Grounds affect the issues as to: 1) Only a part or less than all of the matter in controversy 2) Only one or less than all of the parties to it o Order new trial/grant reconsideration as to such issues if severable Without interfering with judgment or order upon the rest Denial of MNT or MR: o Order is not appealable o Appeal from judgment or final order

Motion for Reopening Trial Presented only after either or both parties have formally offered and closed their evidence before judgment. It is controlled by no other rule than the paramount interest of justice, resting entirely on the sound discretion of a court. Motion for Reconsideration Grounds: 1. Damages awarded are excessive 2. Insufficiency of evidence 3. Decision is contrary to law Pro Forma Motion o Where a MR is but a reiteration of reasons and arguments previously set forth in the movant’s memorandum and which the trial court had already considered, weighed and resolved adversely before it rendered its decision now sought to be considered GR: Second MR is not allowed. EX: 1. For extraordinarily persuasive reasons and only upon express leave first obtained 2. Meritorious on its face 3. Substantial justice Contents: 1. Point out specifically the findings or conclusions of judgment or order which are o Not supported by evidence o Contrary to law 2. Make express reference to testimonial or documentary evidence or to provisions of law alleged to be contrary to findings

Motion for New Trial Grounds: 1. Fraud, accident, mistake or excusable negligence o Ordinary prudence could not have guarded against o Probably impair the rights of an aggrieved party o Supported by affidavits of merits 2. Newly discovered evidence o Could not discover and produce at the trial with reasonable diligence o If presented, would probably alter the result o Supported by (1) affidavits of witnesses by whom such evidence is expected to be given; or (2) duly authenticated documents which are proposed to be introduced in evidence Pro Forma Motion o If a motion for new trial does not satisfy the requirements of this rule, it is pro forma and does not suspend the period to appeal. Second MNT o Where the ground was not available or existing at the time when the first motion was filed o Filed within the time provided excluding the time during which the first motion had been pending If MNT is granted o Original judgment or order shall be vacated o Action stand for trial de novo o Recorded evidence taken upon former trial shall be used at the new trial without retaking the same If material & competent to establish issues

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

APPEALS

Ordinary Appeal Kinds: 1. Notice of Appeal o Filed in the court that rendered judgment o Contents: 1) Parties (Appellant, Appellee) 2) Judgment or order appealed from 3) Material dates 2. Record of Appeal o Required only in (1) special proceedings; and (2) multiple appeals o Contents: 1) Full names of all parties (caption) 2) Judgment or order appealed from 3) Copies of pleadings, related to appealed judgment for the proper understanding of the issue In chronological order 4) Data showing appeal perfected on time 5) Include by reference all evidence taken If issue of fact is raised on appeal Specify documentary evidence by exhibit numbers of letters by which it was identified Specify testimonial evidence by names of corresponding witnesses If whole evidence is used, statement to that effect would be sufficient. 6) Subject index (if exceed 20 pages) Courts: o MTC RTC (Within territorial jurisdiction) f o RTC CA Title remain as it was in the court of origin Period of appeal interrupted by MR or MNT. No motion for extension to file MNT or MR. Where both parties are appellants, they may file a joint record on appeal. Perfection of appeal: o Notice : Upon filing of notice of appeal in due time o Record : Upon approval of record on appeal filed in due time With respect to subject matter Court loses jurisdiction o Notice : Upon perfection of appeal in due time and expiration of time to appeal of other parties o Record : Upon approval of record on appeal filed in due time and expiration of time to appeal of other parties Only over the subject matter If efforts to complete the records fail, COC indicate in his letter of transmittal : (1) exhibits/transcripts not included; (2) Reasons for nontransmittal; (3) Steps taken or could be taken to have them available. Documents transmitted with record on appeal : (1) proof of payment of docket and lawful fees; (2) certified copy of the Minutes; (3) order of approval; (4) certificate of correctness; (5) original documentary evidence; (6) original and 3 copies of transcripts

Petition for Review Kinds: 1. Petition for Review under Rule 42 o File within 15 days from notice of judgment o Appeal stay judgment EXCEPT SumPro UNLESS law provides otherwise 2. Petition for Review under Rule 43 o File within 15 days from (1) notice of judgment, (2) from last publication, or (3) denial of MNT/MR o Only 1 MR is allowed. o Findings of fact must be supported by substantial evidence in order to bind CA. o Appeal not stay judgment UNLESS for just terms Courts: o MTC RTC CA o QJA CA Requirements: 1. Verified 2. Pay docket and other lawful fees 3. Deposit 500php for costs 4. Filed in 7 legible copies o Original copy intended for the court o Contents: (1) Full names of parties, without impleading lower courts or judges; (2) Material dates; (3) Concise statement of matters involved, issues raised, specification of errors, arguments relief upon; (4) Clearly legible duplicate originals or true copies of judgments of both lower courts (Certified correct by COC of RTC); (5) CNFS May grant additional extension of 15 days only. o No further extension UNLESS for most compelling reason and not exceed 15 days. Fail to comply with requirements : Dismiss appeal Comment: of Respondent: o Filed in 7 legible copies o Accompanied by certified true copies of such material portions of record and supporting papers o Contents: (1) W/N he accepts statement of matters; (2) Point out insufficiencies or inaccuracies but without repetition; (3) Reasons why should not be given due course, Perfection of appeal : Upon timely filing the petition and payment of docket and other lawful fees RTC lose jurisdiction upon perfection of appeal and expiration of time to appeal.

Appeal

Reglementary Period

Notice of Appeal

Notice of Appeal and Record of Appeal

Appeal in habeas corpus

Appeal in amparo cases

Appeal in habeas data

Custody of minors and writ of habeas corpus in relation to custody of minors Annulment of voidable marriages, declaration of absolute nullity of void marriages, and legal separation

Within 15 days from notice of the judgment or final order appealed from Within 30 days from notice of judgment or final order appealed from Within 48 hours from notice of judgment or final order appealed from Within 5 working days from the date of notice of the adverse judgment Within 5 working days from the date of notice of the adverse judgment Within 15 days from notice of the denial of the MR/MNT Within 15 days from notice of the denial of the MR/MNT

MTC to RTC Both Civil Criminal Cases

Civil Cases

Criminal Cases

and

File appellant’s brief within 15 days from receipt of the notice of the clerk of court File appellee’s brief within 15 days from receipt of the appelllant’s brief RTC to CA File appellant’s brief within 45 days from receipt of notice of the clerk of court File appellee’s brief within 45 days from receipt of the appellant’s brief File appellant’s brief within 30 days from receipt of the notice of the clerk of court File appellee’s brief within 30 days from receipt of the appellant’s brief

Rules on Appeal from the Judgments of the RTC Original Jurisdiction 1.

To the CA

1.

To the SC

Appellate Jurisdiction

Questions of fact or mixed questions of fact and law Questions of law

Notice of Appeal; (Record on Appeal only in specpro and multiple appeals) Petition for review on certiorari under Rule 45

Questions of fact, of law, or mixed questions of fact and law

Petition for review under Rule 42

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

APPEALS

Petition for Review on Certiorari (SC) WHEN : Within 15 days from (1) notice of judgment appealed from, or (2) denial of MNT/MR filed in due time Requirements: 1. Verified 2. Only questions of law are raised 3. May include application for provrem o By verified motion at any time during the proceedings 4. Pay docket and other lawful fees 5. Deposit 500php for costs 6. Proof of service on lower court and adverse party 7. Filed in 18 copies o Original copy intended for SC May grant extension of 30 days only o On motion duly filed and served o With full payment of docket and other lawful fees o Deposit for costs before expiration of reglementary period o Only for justifiable reasons GR: Applicable to crim and civ cases EX: Penalty imposed is death, reclusion perpetua or life imprisonment

Contents of petition: 1. Full names of parties, without impleading lower courts or judges 2. Material dates 3. Concise statement of matters involved and reasons or arguments relied upon 4. Clearly legible duplicate original or certified true copy of judgment o Certified by COC a quo o Requisite number of plain copies o Material portions of the record 5. CNFS Fail to comply with any of the requirements : Dismiss appeal o Grounds for denial motu proprio: (1) Without merit; (2) Prosecuted manifestly for delay; (3) Questions raised are too unsubstantial Review is not a matter of right, but of sound discretion. o Granted only when there are special and important reasons If given due course, elevate complete records of the case or specified parts within 15 days from notice.

Petition for Review on Certiorari (R 45) Mode of appeal Continuation of the appellate process over the original case Seeks to review final judgments or final orders

Petition for Certiorari (R 65) Special civil action Independent action

Questions of law Filed within 15 days from notice of judgment or final order appealed from Not require a prior MR Stays the judgment appealed from

Parties are the original parties with the appealing party as the petitioner and the adverse party as respondent without impleading the lower court or its judge Filed with SC

May be directed against an interlocutory order or matters where no appeal may be taken from Questions of jurisdiction Filed not later than 60 days from notice of judgment, order or resolution, or from notice of denial of MR Prior MR is required Does not stay the judgment or order subject of the petition unless enjoined or restrained Parties are the aggrieved party against the lower court or quasi-judicial agency and the prevailing parties Filed with RTC, CA, SC

Ordinary Appealed Cases Completion of record: o COC inform CA and recommend measures necessary to complete the record CA takes appropriate action towards completion of record within the shortest possible time o Where completion could not be accomplished within a sufficient period Due to insuperable or extremely difficult causes Motu Proprio or Motion of any party Declare record and accompanying transcripts and exhibits sufficient Issue order explaining reason File memoranda (instead of briefs) o Cases : (1) Certiorari; (2) Prohibition; (3) Mandamus; (4) Quo warranto; (5) Habeas Corpus o WHEN: Within a non-extendible period of 30 days from receipt of notice GR: No extension to file briefs. EX : Good and sufficient cause + Motion filed before expiration of time sought to be extended Contents of Appellant’s brief: 1. Subject index (*Same with Appellee’s brief) o With digest of arguments and page references o Table of cases alphabetically arranged o Textbooks & statutes with references to pages where they are cited 2. Assignment of errors o Stated separately, distinctly & concisely o Without repetition & numbered consecutively 3. Statement of the case o Clear and concise statement of (1) nature of the action; (2) summary of the proceedings; (3) appealed rulings and order; (4) nature of judgment; (5) any other necessary matters o With page references to the record 4. Statement of facts (*Same with Appellee’s brief) o Clear & concise statement in narrative form 1) Of the facts admitted by both parties 2) Of the facts in controversy o With substance of proof relating thereto in sufficient detail o With page references to the record 5. Clear & concise statement of issues of fact/law 6. Argument on each assignment of error (*Same with Appellee’s brief) o With page references to the record o Authorities relied upon cited by (1) page of report at which case begins, and (2) page of report on which citation is found 7. Relief 8. Copy of judgment/order appealed from (appendix) o Not brought up by record on appeal

Original Cases filed in the CA Parties : Petitioner, Respondent Cases covered: (1) Certiorari; (2) Prohibition; (3) Mandamus; (4) Quo Warranto; (5) Annulment of Judgment Contents of the petition: 1. Full names and addresses of all parties 2. Concise statement of matters involved 3. Factual background of the case 4. Grounds relied upon 5. Material dates(For actions filed under R65) 6. CNFS Filed in 7 clearly legible copies o With proof of service on respondent o Original copy intended for the court o Accompanied by clearly legible duplicate original or certified true copy of judgment Material portions of the record Other relevant documents

Other requisite number of copies of the petition accompanied by clearly legible plain copies of all documents attached to original Pay docket and other lawful fees, and deposit 500php for costs Fail to comply with any of the requirements : Dismiss appeal Jurisdiction over person of Respondent: 1. Service of order indicating initial action on the petition 2. Voluntary submission Action of the court : (1) Dismiss outright with specific reasons; or (2) Require respondent to file comment within 10 days from notice o Fail to file comment : (1) Decide case on the basis of the record; (2) Disciplinary action against disobedient party Only pleadings required by CA are allowed. All other pleadings filed only with leave of court. Determination of factual issues : (1) Conduct hearings; or (2) Delegate reception of evidence Supreme Court Original cases : (1) Certiorari; (2) Prohibition; (3) Mandamus; (4) Quo warranto; (5) Habeas corpus; (5) Disciplinary proceedings against member of the Bar; (6) Cases affecting ambassadors, other public ministers and consuls File 18 clearly legible copies with proof of service on adverse parties Only by Petition for Review on Certiorari. EXCEPT Penalty imposed is death, reclusion perpetua or life imprisonment (Notice of appeal)

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

APPEALS

Preliminary Conference WHEN : Any time during pendency of a case WHO : Parties and counsels Contents: 1. Consider the possibility of an amicable settlement o EXCEPT when the case is not allowed by the law to be compromised 2. Define, simplify and clarify the issues for determination 3. Formulate stipulations of facts and admissions of documentary exhibits, limit the number of witnesses to be presented in cases falling o Within the original jurisdiction of the court, or o Within its appellate jurisdiction where an MNT is granted on the ground of newly discovered evidence 4. Take up such other matters which may aid the court in the prompt disposition of the case Record of the conference: o All the actions taken o Stipulations and admissions made o Issues defined Within 5 days from resolution, any party shall show valid cause why it should not be followed. Motion for Reconsideration WHEN FILED : Within 15 days from notice WHEN RESOLVED : Within 90 days from date when the court declares it submitted for resolution With proof of service on adverse party No second MR by the same party is permitted. Stays execution of judgment UNLESS for good reasons

Motion for New Trial WHEN FILED : Anytime after appeal for lower court has been perfected and before CA loses jurisdiction WHEN RESOLVED : Within 30 days from time motion is submitted for resolution Ground : Newly Discovered Evidence [NDE] o Could not discover and produce prior to the trial with reasonable diligence o If presented, would probably alter the result o Accompanied by affidavits showing facts constituting the grounds and NDE Action of the court: (1) Grant; (2) Refuse; (3) Order taking of further testimony (with notice to both; either orally or depositions); (4) Render judgment on just terms

Dismissal of Appeal Grounds (CA): 1. Failure of the record on appeal to show on its face that the appeal was taken within the period fixed; 2. Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules; 3. Failure of the appellant to pay the docket and other lawful fees; 4. Unauthorized alterations, omissions or additions in the approved record on appeals; 5. Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided; 6. Absence of specific assignment of errors in the appellant’s brief, or of page references to the record; 7. Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order; 8. Failure of the appellant to appear at the preliminary conference or to comply with orders, circulars, or directives of the court without justifiable cause; and 9. Fact that the order or judgment appealed from is not appealable 10. By agreement of the parties; 11. Appealed case has become moot or academic; 12. Appeal is frivolous or dilatory. Grounds (SC): 1. Failure to take the appeal within the reglementary period; 2. Lack of merit in the petition; 3. Failure to pay the requisite docket fee and other lawful fees or to make a deposit for costs; 4. Failure to comply with the requirements requiring proof of service and contents of and the documents which should accompany the petition; 5. Failure to comply with any circular, directive or order of the SC without justifiable cause; 6. Error in the choice or mode of appeal; and 7. Case is not appealable to the SC

Order/Judgment Not Appealable

Remedy

Order denying petition for relief or any similar motion seeking relief from judgment Interlocutory order

Petition for Certiorari Prohibition under Rule 65

or

Order disallowing or dismissing an appeal Order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent Order of execution

1. Certiorari 2. Petition for Relief 1. Petition for Relief 2. Action to annul judgment 3. Petition for certiorari

Judgment or final order for or against one or more several parties or in separate claims, counterclaims, cross-claims, and third-party claims, while the main case is pending Order dismissing an action without prejudice

1. Wait for the decision in the entire case then appeal 2. May allow a separate appeal

Rule 65

Petition for Certiorari

1. Refile his complaint 2. Petition for Certiorari

COMMON RULES FOR APPEALS: Neypes Rule : If the motion is denied, the movant has a “fresh period” of 15 days from receipt of notice of the order denying or dismissing the MR/MNT within which to file a notice of appeal. The perfection of an appeal in the manner and within the period prescribed by law is not only mandatory but jurisdictional. Payment in full of the docket fee within the prescribed period is mandatory. o Failure to pay allows only discretionary dismissal, not automatic dismissal, of the appeal. o Such power to dismiss should be used in the exercise of the court’s sound discretion in accordance with the tenets of justice and fair play and with great deal of circumspection considering all attendant circumstances. An appeal may be withdrawn as a matter of right at any time before the filing of the appellee’s brief. Thereafter, the withdrawal may be allowed in the discretion of the court. A party who did not appeal from a decision of a court cannot obtain affirmative relief other than that granted in the appealed decision. Material Date Rule: When (1) Notice of the judgment, final or order subject of the petition was received; (2) MNT or MR, if any, was filed; and (3) Notice of the denial of MNT/MR was received.

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

APPEALS

Procedure in RTC (Ordinary Appeal from MTC) Procedure in CA (Petition for Review from RTC) File notice/record of appeal Within 15 days from receipt of judgment Serve copies of notice to adverse parties May withdraw appeal before records are transmitted to appellate court COC or Branch COC of lower court transmits original record or record on appeal to RTC. Within 15 days from perfection of appeal Together with transcripts and exhibits, certified as complete Copy of letter of transmittal sent to parties COC of RTC notify parties Upon receipt of complete record or record on appeal

File petition for review Within 15 days from notice of decision, or denial of MR/MNT Serve copy of petition on RTC & adverse party

Within 10 days from notice

Require Respondent to file comment (not MTD) Copy served on petitioner Residual Jurisdiction of RTC 1. Issue orders of protection and preservation of rights of parties 2. Approve compromises 3. Permit appeals of indigent litigants 4. Order execution pending appeal 5. Allow withdrawal of appeal

Appellant submits memorandum Within 15 days from notice Memo discuss errors imputed to lower court Copy of memo furnish to adverse party Fail to file : Dismiss appeal Appellee may file memorandum Within 15 days from receipt of appellant’s memorandum Before judgment is rendered, RTC may allow withdrawal of appeal. Case remanded to court of origin for execution.

Case submitted for decision Upon filing of appellee’s memorandum, or expiration of period to do so Basis of RTC decision: o Entire record of the proceedings in the court of origin o Memoranda filed Action : (1) Reverse; (2) Affirm; (3) Modify

Dismiss outright Grounds: 1. Patently without merit 2. Prosecuted manifestly for delay 3. Questions raised are too unsubstantial

Appeal is given due course Upon filing of comment or other pleadings, or after expiration of period CA finds prima facie that lower court committed an error of fact or law Within 15 days from notice

Set for oral arguments

Require parties to submit memoranda

Records of RTC may be elevated

Decide appeal Upon the filing of last pleading or memorandum, OR by court itself By 3 Justices of a Division Action : (1) Reverse; (2) Affirm; (3) Modify; (4) New Trial; (5) Further proceedings

Procedure in CA (Ordinary Appeal from RTC) File notice/record of appeal Within 15/30 days from receipt of judgment Serve copies of notice to adverse parties Upon filing of record on appeal and no objection is filed within 5 days from receipt of copy Residual Jurisdiction of RTC 1. Issue orders of protection and preservation of rights of parties 2. Approve compromises 3. Permit appeals of indigent litigants 4. Order execution pending appeal 5. Allow withdrawal of appeal

Approval of Record on Appeal

Dismiss motu proprio or on motion Grounds: 1. Filed out of time 2. Non-payment of docket fees and other lawful fees

Within 30 days from perfection of appeal COC of RTC transmits original record or record on appeal to CA Duty of COC of lower court: 1. Verify correctness of original record or record on appeal and make a certification 2. Verify completeness of records 3. If incomplete, complete records 4. Transmit records to CA Furnish parties with copies of transmittal Appellant files 7 copies of Appellant’s Brief Within 45 days from notice 2 copies of memo furnish to adverse party, with proof of service Appellee may file Appellee’s Brief Within 45 days from receipt of appellant’s brief

Amendment Inclusion of any omitted matters deemed essential to determination of issue

Appellant redraft the record WHEN: 1. Within time limited in the order; 2. Extension granted; or 3. Within 10 day from receipt if no time fixed Include additional matters o in chronological sequence

Case submitted for decision Upon filing of appellee’s memorandum, or expiration of period to do so Decision by 3 Justices of a Division Action : (1) Reverse; (2) Affirm; (3) Modify; (4) New Trial; (5) Further proceedings

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

APPEALS

Procedure in Ordinary Appealed Cases Order of transmittal of record Within 30 days after perfection of appeal Either party may file a motion with the trial court (with notice to the other) COC of CA docket case & notify parties Upon receipt of (1) original record or record on appeal; (2) accompanying documents & exhibits; (3) proof of payment of docket & other lawful fees Appellant file with COC 7 clearly legible copied of the approved record on appeal Within 10 days from receipt of notice Together with proof of service of 2 copies upon appellee Any unauthorized alteration, omission or addition shall be a ground for dismissal. Appellant submits Appellant’s brief Within 45 days from notice FORM : 7 legible copies of legibly typewritten, mimeographed or printed brief Proof of service of 2 copies upon appellee

Appellee may file Appellee’s brief Within 45 days from receipt of appellant’s brief FORM : 7 legible copies of legibly typewritten, mimeographed or printed brief Proof of service of 2 copies upon appellant

Appellant may file reply brief Within 20 days from receipt of appellee’s brief Answer points not covered in his main brief

Case submitted for decision

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

AFTER FINALITY

Petition for Relief Exceptional circumstances + No other remedy available WHEN : Within 60 days after learning of judgment AND not more than 6 months after such judgment was entered o Cannot be extended; o Both periods must be complied with WHERE : MTC or RTC (In the same case) WHO : Only parties to the proceeding Grounds: 1. Judgment or final order entered against a party by FAME; or 2. Judgment or final order is rendered and party has been prevented by FAME from taking an appeal Requirements: 1. Verified 2. Supported by affidavit showing the FAME relied upon 3. Affidavit of merit show facts constituting the petitioner’s good or substantial COA or defense After petition is filed, court shall order adverse parties to answer within 15 days from receipt. o Petition must be sufficient in form and substance to justify relief o After answer is filed or expiration of period, court shall hear the petition. If granted, o Judgment set aside and court shall proceed as if timely MNT has been granted; or o If against denial of appeal, court shall give due course to appeal. May issue injunction o Petitioner files bond in favor of adverse party o Bond answers for damages in case petition is dismissed or petitioner fails on the trial of the case upon its merit o Not extinguish any liens of the adverse party NOTE: FAME ,as a ground, is only available in the following instances: 1. MNT (Rule 37) 2. Petition for Relief (Rule 38) 3. Motion to set aside order of Default (Rule 9) 4. MR order during pre-trial allowing plaintiff to present evidence

Annulment of Judgment No other remedy available + No fault of petitioner WHERE : RTC or CA Grounds: 1. Extrinsic Fraud o Filed within 4 years from discovery o Extraneous evidence may be presented. o If petition is granted, the court may on motion order the trial court to try the case as if a timely MNT had been granted. 2. Lack of Jurisdiction o Before barred by laches or estoppel by laches o Only evidence in the records of the case may be considered. o If petition is granted, set aside the questioned judgment and render the same null and void, without prejudice to the original action being refiled in the proper court. Requirements: 1. Verified 2. State with particularity o Facts and law sustaining the ground and those supporting the petitioner’s good and substantial cause of action or defense 3. Filed in 7 clearly legible copies 4. Attach certified true copy of the judgment 5. Affidavits of witnesses or documents supporting the COA or defense 6. CNFS If the petition has no substantial merit, petition may be dismissed outright with specific reasons. Suspends period for refiling of original action o From filing of original action until finality of judgment of annulment o Not suspended if extrinsic fraud is attributable to the plaintiff Other actions of the court: 1. Award of damages, attorney’s fees, & other relief 2. Award order of restitution A party aggrieved by a judgment or resolution of a quasi-judicial body enumerated under Rule 43 may avail of a petition for review to the CA under Rule 47 and not an action to annul the judgment or resolution.

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011

EXECUTION

Kinds of Execution Does not affect the right to use depositions previously taken

Third Party Claim Does not affect the right to use depositions previously taken

When Issued Does not affect the right to use depositions previously taken

Satisfaction Does not affect the right to use depositions previously taken

Conduct of Sale Does not affect the right to use depositions previously taken

Enforcement Does not affect the right to use depositions previously taken

Rules on Redemption Does not affect the right to use depositions previously taken

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 4A 2011 Intervention WHO : 1. Has a legal interest in the matter in litigation 2. Has a legal interest in the success of either of the parties 3. Has an interest against both parties 4. Is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court/officer Factors to be considered by the court: 1. Whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties; and 2. Whether the intervenor’s rights may be fully protected in a separate proceeding WHEN : At any time before the rendition of judgment Attach a copy of pleading-in-intervention to motion to intervention o Must be served on the original parties o Complaint-in-intervention if he asserts a claim against either or all of original parties File answer with 15 days from order to admit complaint-in-intervention o Answer-in-intervention if he unites with defending party in resisting a claim Remedies for denial of intervention: (1) Appeal; (2) Mandamus; (3) Certiorari

Dismissal due to fault of the plaintiff No justifiable reason Grounds: 1. Fails to appear on the date of the presentation of his evidence in chief 2. Fails to prosecute for an unreasonable length of time 3. Fails to comply with the Rules of Court 4. Fails to comply with any order of the court HOW: Motion of defendant / Motu Proprio Defendant may prosecute his CC in the same or in a separate action EFFECT : Dismissal with prejudice o Unless otherwise declared by the court

Subpoena Kinds: 1. Subpoena duces tecum o Process directed to a person which requires him to bring with him any books, documents, or other things under his control. o Contents: 1) Name of the court; 2) Title of the action/investigation; 3) Directed to the person required to attend; and 4) Reasonable description of the books, documents or things demanded Appear to be prima facie relevant o Grounds for Quashal: 1) Unreasonable and oppressive, 2) Relevancy of the books, documents or things does not appear, 3) Person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production 4) Witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served. HOW: Motion WHEN: In any event, at or before the time specified o If improperly issued, remedy is motion to vacate or set aside the subpoena. 2. Subpoena ad testificandum o Process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, at any investigation conducted by competent authority, or for the taking of his deposition. o Contents: 1) Name of the court; 2) Title of the action/investigation; and 3) Directed to the person required to attend o Grounds for Quashal: 1) Witness is not bound 2) Witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served Who may issue: 1. Court before whom witness is required to attend; 2. Court of the place where the deposition is to be taken; 3. Officer/body authorized by law to do so in connection with its investigations; or 4. Any Justice of the SC or CA in any case or investigation pending within the Philippines

Signed by the clerk of court May be issued more than once at any time Subpoena issued to a prisoner o Judge/officer examine & study carefully such application to determine whether the same is made for a valid purpose o A prisoner (1) sentenced to death, reclusion perpetua or life imprisonment and (2) who is confined in any penal institution shall be brought outside the penal institution for appearance or attendance in any court only when authorized by the SC o Deposition may be taken only if with leave of court & such prescribed terms. Service: 1. Delivered to the person o Original exhibited and copy of subpoena delivered 2. Tender o If subpoena ad testificandum, the fees for one day’s attendance and the kilometrage allowed by these rules EXCEPT THAT, when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof, the tender need not be made. o if subpoena duces tecum, the fees for one’s days attendance subject to the same exception as a subpoena ad testificandum; and the reasonable cost of producing the books, documents or things. 3. Substituted service o Leave copy of summons at the defendant’s residence With some person of suitable age and discretion residing therein o Leave copy of summons at defendant’s office or regular place of business With competent person in charge Witness given reasonable time for preparation and travel Effect of failure to attend: 1. Indirect contempt o Willful + Without adequate cause 2. Order arrest o Willful + Without just cause o Upon (1) proof of the service; and (2) proof of the failure of the witness to attend o Issued to the sheriff of the province, or his deputy o Cost of the warrant and seizure of such witness shall be paid by the witness o EXCEPTIONS: 1) Witness resides more than 100 kilometers from his residence to the place where he is to testify by the ordinary course of travel 2) Detention prisoner if no permission of the court in which his case is pending is obtained.