CivPro Jara Notes

SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)    

We take up Part II of the lectures on Remedial Law. You are through with Part I – criminal procedure and evidence. You were forced to read criminal procedure ahead of civil procedure because that is the curricula that is required by the board of legal interpretation for law schools. You see, criminal procedure is taken up in 2nd year – much ahead of civil procedure. Criminal procedure really is taken up by 2nd year law students and then civil procedure is taken up by 3rd year law students. The other reason why there was a lecture on criminal procedure ahead of civil procedure is to emphasize that, although learned in criminal procedure that, generally, the criminal action carries the civil aspect of the case, with regard to the civil aspect of the case, we usually do not apply the rules for civil procedure. X X X the defendant – the accused –, after he enters the plea of not guilty, is not required to file an answer to the civil aspect of the case. It is enough that he pleads not guilty. That plea of not guilty is also a denial of this probable civil remedy. This is also the reason why, in a civil aspect that is brought along by the criminal action, we don’t apply the rule on specific denial. This is required in civil cases. In a criminal case, the plea of [not] guilty is not considered a specific denial if we apply the rules on civil cases because the plea of not guilty will… if there is a plea of not guilty, the court cannot compel the accused to explain why he is entering such plea. If he chooses to plead not guilty, the court can do nothing about it. The court cannot ask the accused: what are your reasons? what are your defenses? Unlike in a purely civil action where there is a civil complaint filed against the defendant and the defendant simply tells the court in his answer, “I deny liability”. If we apply civil procedure, that is a judicial admission of liability. In fact, that kind of denial in a civil case may lead to a judgment on the pleadings. In civil, purely civil cases, – not the civil aspect of a criminal case – there is always a need for specific denial which is not, again, required in the civil aspect of a criminal case. So do not have the impression that although a criminal case carries with it, generally, the civil aspect of the case… We don’t apply civil procedure to the civil aspect. That criminal case which carries with it the civil aspect will always be governed by criminal procedure, not by civil procedure. The only difference, probably, that can be cited with respect to procedural rules governing the civil aspect of a criminal case will be the quantum of evidence. You learned in criminal procedure that the guilt of the accused shall be demonstrated by proof beyond reasonable doubt. But in so far as the civil aspect of the case is concerned, the quantum should only be preponderance of evidence. So that, in a criminal case, it is very likely that the accused will be acquitted of the crime but he can be held civilly liable because the quantum of evidence used, in so far as the civil aspect, is not proof beyond reasonable doubt but only preponderance of evidence. But just like in criminal procedure, we always start with the topic on jurisdiction of courts. With respect to jurisdiction over civil actions, we have several laws governing jurisdiction of courts in civil cases. Primarily, we

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     have the Constitution. And then we have the Judiciary Act of 1948 – that is R.A. 296. And then we have this B.P. 129 – the Judiciary Reorganization Act – and its amendments. And then we have the law creating the family court – I think it was in 1997. And then the law creating the Sandiganbayan. Because we have so many substantive laws governing jurisdiction of courts X X X identified the general law on jurisdiction in this country. The general law on jurisdiction in our country is B.P. 129. All other laws are special laws governing jurisdiction. So that if you find the conflict between B.P. 129 and the special law on jurisdiction, we just apply the rule on statutory construction: the special law prevails over the general law. A good example is the provision in B.P. 129 on the jurisdiction of a regional trial court. X X X In testing the jurisdiction of a regional trial court, B.P. 129 says that a Regional Trial Court exercises exclusive original jurisdiction over the enumeration of cases, one of which is cases which were cognizable by the then Juvenile and Domestic Relations Court. So we have all these in the Juvenile and Domestic Relations Court and then B.P. 129 provided that, thereafter, the jurisdiction of the Juvenile and Domestic Relations Court shall be exercised by the Regional Trial Court in the concept of exclusive original jurisdiction. But X X X in the Family Court law, which is a special law, it is provided that a Family Court has exclusive original jurisdiction over cases involving marriage, adoption, guardianship of minors, X X X criminal cases and civil cases that involve a minor. There is then a conflict now between B.P. 129 and the law creating the Family Court. But since the law creating the Family Court is a special law, its provisions will prevail over that of B.P. 129. That is why these civil cases in adoption… they are no longer cognizable by the Regional Trial Court. They are cognizable by the Family Court. We also meet in our classroom discussion the legal maxim that jurisdiction is a matter of substantive law. But that is not necessarily true. What is governed by substantive law, in so far as jurisdiction is concerned, is jurisdiction over the subject matter and over the nature of the case. This is the aspect of jurisdiction that is governed by B.P. 129 and the other substantive laws on jurisdiction. There are other aspects of jurisdiction aside from jurisdiction over the subject matter or over the nature of the action. One aspect of jurisdiction is jurisdiction over the person of the litigants. That is not governed by B.P. 129. That is governed by the Rules of Court. Another one is jurisdiction over the property involved. That is also not governed by B.P. 129. It’s governed by the Rules of Court. Jurisdiction over the issues of a case – that is not governed by B.P. 129. That is governed by the Rules of Court. So jurisdiction, as part of substantive law, is limited to the authority of a court to decide in so far as the subject matter is concerned or the nature of the action. But when it comes to jurisdiction over the person of the plaintiff, jurisdiction over the person of the defendant, jurisdiction over the issues… these are aspects of jurisdiction that are governed by procedural law – mostly, by the Rules of Court. You’ll also notice that in B.P. 129 that B.P. 129 does not mention anything about the Supreme Court. B.P. 129 begins with the Court of Appeals and goes down to the Regional Trial Court, the inferior courts, and in the last part, there is a mention of the Shari’a Court. So where does the Supreme Court derive its authority in exercising

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     jurisdiction over the subject matter of the case or over the nature of the action? Of course, it is vested by the Constitution itself. But if we read the Constitution on the jurisdiction of the Supreme Court, the Constitution classifies the jurisdiction of the Supreme Court only into 2 kinds, that is: original jurisdiction X X X and appellate jurisdiction. But the Constitution does not say that the original jurisdiction of the Supreme Court is exclusive – it’s just plain original. The Constitution does not also tell us that the appellate jurisdiction of the Supreme Court is exclusive appellate. It only says that Supreme Court exercises appellate jurisdiction over the following cases. We now ask whether the jurisdiction of the Supreme Court is exclusive or coordinate with other courts. And yet, in most law books, there is always an item concerning exclusive original jurisdiction of the Supreme Court and also exclusive appellate jurisdiction of the Supreme Court. The basis of all these commentary is the old Judiciary Act of 1948. The Judiciary Act of 1948 talks about the Supreme Court. It confers jurisdiction upon the Supreme Court in a very thorough manner such that the Judiciary Act of 1948 provides for exclusive appellate jurisdiction, exclusive original jurisdiction of the Supreme Court. In other words, we still enforce and recognize the Judiciary Act of 1948. It has not been repealed by the Judiciary Reorganization Act. B.P. 129 did not repeal the old Judiciary Act. The old Judiciary Act is still in force. But what’s repealed by B.P. 129, in so far as the old Judiciary Act is concerned, are provisions of the Judiciary Act of 1948 which are inconsistent with B.P. 129. So do not be of the impression that we no longer have the Judiciary Act of 1948. We still enforce and recognize the Judiciary Act of 1948. The best argument to support this statement is found in Sec. 9 of B.P. 129. If you read Sec. 9, that’s the section providing for the jurisdiction of the Court of Appeals. In Sec. 9 of B.P. 129, there is an enumeration of cases that are allocated to the Court of Appeals exercising original jurisdiction and exclusive appellate jurisdiction. It is in that last part of Sec. 9. That part which talks about appellate jurisdiction of the Court of Appeals. We notice a clause in Sec. 9 saying that the Court of Appeals exercises appellate jurisdiction over cases decided by the Regional Trial Court or quasi-judicial bodies in said laws that are assigned to the Supreme Court under the provisions of the Judiciary Act of 1948. That’s the best proof that the Judiciary Act of 1948 is still in force. It is expressly recognized as existing up to the present by the provisions of B.P. 129. When it comes to the jurisdiction of the Supreme Court under the Constitution as stated, the Constitution provides for a limited number of cases over which the Supreme Court can exercise original jurisdiction and over limited number of cases over which the Supreme Court can exercise appellate jurisdiction. And as we said earlier, these are not exclusive. The exercise of original jurisdiction is not exclusive. The exercise of appellate jurisdiction by the Supreme Court as provided by the Constitution is likewise not exclusive. Why do we say this? We have to read the provisions of the Constitution together with the provisions of B.P. 129 in allocation of jurisdiction with the other courts. The cases that are assigned to the Supreme Court in the exercise of its original jurisdiction involve cases involving ambassadors, ministers and consuls. And then there’s also the vesting upon the Supreme Court of original jurisdiction over cases involving petitions for certiorari, petition for mandamus X X X. If we read the provisions of the Constitution together with B.P. 129, we will find out that the same authority

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     is given by B.P. 129 to other courts like the Court of Appeals. Again, in Sec. 9, B.P. 129 provides that the Court of Appeals also exercises original jurisdiction over petitions for certiorari, prohibition, and mandamus, quo warranto, or habeas corpus. And then under the Chapter on the jurisdiction of the Regional Trial Court , B.P. 129 also vests upon the Regional Trial Court a similar authority. The Regional Trial Court shall exercise original jurisdiction over petitions for certiorari, prohibition, and mandamus, and quo warranto. So if we take the Constitution together with B.P. 129, there are, in effect, 3 courts in our judiciary which exercise original jurisdiction over these petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus. They are the Supreme Court, Court of Appeals, and the Regional Trial Court. Which means to say, theoretically, that if a petitioner feels that his rights have been violated let’s say through a grave abuse of discretion committed by a lower court, he can file a petition for certiorari or prohibition or mandamus against this judicial officer with the Supreme Court, or with the Court of Appeals, or with the Regional Trial Court upon his choice. Theoretically, that is the implication where the Constitution and B.P. 129 have given 3 different courts a similar jurisdiction over petitions for certiorari, prohibition, and mandamus. So for purposes of jurisdiction, there is nothing wrong if, for instance, there is a case pending before an inferior court (a Municipal Trial Court or a Municipal Circuit Trial Court) and this inferior court gravely abuses its discretion amounting to lack of jurisdiction, and the aggrieved litigant decides to file a petition for certiorari or prohibition or mandamus directly to the Supreme Court. There is nothing wrong with that theoretically in so far as the issue of jurisdiction is concerned. Because the Constitution has vested upon the Supreme Court original jurisdiction to entertain these petitions together with the Court of Appeals and together with the Regional Trial Court. But the choice given by B.P. 129 and the Constitution over the jurisdiction of these petitions is only theoretical. It has been greatly limited by certain procedural rules. That is with respect to certiorari, prohibition, and mandamus. The limitation is known as hierarchy of courts. Certiorari, prohibition, and mandamus, procedurally, are governed by Rule 65. If you read Rule 65, you will meet a section, I think it’s Sec. 4, which speaks about hierarchy of courts. This is a limitation given to the right of a petitioner to file a petition directly with the Supreme Court. That’s a petition for certiorari, prohibition, or mandamus, or even quo warranto. While theoretically we can file the case with the Supreme Court, we should follow the procedural principle of hierarchy of courts. In Rule 65, it is expressly provided that petitions for certiorari, prohibition, and mandamus would be filed directly with a Regional Trial Court or the Court of Appeals. If we analyze carefully Sec. 4 of Rule 65, that is a severe limitation of the right of an aggrieved party x x x as provided for in the Constitution. So although one of the basic principles why Congress enacted B.P. 129 was to do away with the concept of concurrence in jurisdiction, B.P. 129 has not been able to do away entirely with concurrent jurisdiction. B.P. 129 does not use the word concurrent in vesting jurisdiction upon the courts. The law classifies the jurisdiction only into original jurisdiction, appellate jurisdiction, original and exclusive, appellate and exclusive. Unlike in the past, under the old Judiciary Act of 1948, where the law expressly contained provisions that conferred concurrent jurisdiction over certain cases upon different courts which resulted, really, in confusion. That’s one of the purposes why we now have the Judiciary Reorganization

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     Act – to do away with concurrence in jurisdiction. Generally, B.P. 129 has been able to do away with this concept in concurrence of jurisdiction except with respect to certiorari, prohibition, and mandamus, quo warranto, and habeas corpus since the Constitution and B.P. 129 allocate original jurisdiction upon 3 courts X X X, then it is safe to conclude that these 3 courts exercise original and concurrent jurisdiction over these petitions. With respect to the Court of Appeals, B.P. 129 classifies the jurisdiction of the Court of Appeals into original and exclusive jurisdiction, original jurisdiction, and then exclusive appellate jurisdiction. With respect to the original and exclusive jurisdiction of the Court of Appeals, there is only 1 case over which the Court of Appeal can exercise exclusive original jurisdiction. And that is annulment of judgment of a Regional Trial Court. Because the Constitution as well as B.P. 129 provide for certain cases only that could be adjudicated by the Supreme Court and by the Court of Appeals in the exercise of their original jurisdiction, we cannot classify the Supreme Court and the Court of Appeals as courts of general jurisdiction although they are the 2 highest courts of the land. The Supreme Court, although it is the Supreme Court, is not a court of general jurisdiction. It is still a court of limited jurisdiction. Its authority is limited to those provided in the Constitution. Outside of those provided in the Constitution, the Supreme Court does not exercise jurisdiction over other cases. The same is true with the Court of Appeals. In Sec. 9 of B.P. 129, the authority of the Court of Appeals is very limited in so far as exclusive original jurisdiction is concerned. There is, as we said, only 1 case over which the Court of Appeals can exercise exclusive original jurisdiction. That is a petition to annul a judgment of a Regional Trial Court. If the Court of Appeals is given the authority to annul the judgment of a Regional Trial Court, does not the conferment of this authority carry with it the authority of the Court of Appeals to annul the judgment of an inferior court, which is lower in rank than a Regional Trail Court? That is a logical argument. If the Court of Appeals can annul a judgment of a Regional Trial Court, it should be reasonable that the Court of Appeals can also annul the judgment of an inferior court. But that is not to construe jurisdiction over the subject matter or over the nature of the action since the Court of Appeals since a court of limited jurisdiction. The Court of Appeals can only annul the judgment of a Regional Trial Court. It cannot annul the judgment of an inferior court. Does it mean to say that, while the decision of a Regional Trial Court can be annulled in a case filed before the Court of Appeals, that the decisions of an inferior court is immune from annulment by the Court of Appeals? That is right. The decision of a Regional Trial Court can be annulled by the Court of Appeals because that is what B.P. 129 provides. But the decision of an inferior court is immune from annulment by the Court of Appeals. But the decision of an inferior court can be annulled by the Regional Trial Court. Why is this so? Is it so provided in B.P. 129 that a Regional Trial Court can annul the judgment of an inferior court? There is really nothing provided in B.P. 129. If you read B.P. 129, I think the jurisdiction of the RTC starts with Sec. 19, there is no provision on the Regional Trial Court’s jurisdiction which expressly confers upon a Regional Trial Court an authority to annul a judgment of an inferior court. Nothing is provided in that matter in B.P. 129.

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)    

Since we are talking about annulment of judgment, we might just as well go to the procedural principles and X X X to Rule 47 – and that’s the rule on annulment of judgment. You will notice it is Rule 47 of the Rules which gives us the procedure to be followed when it comes to annulment of judgment The annulment of judgment mentioned in Rule 47 is the annulment of judgment conferred by B.P. 129 to the Court of Appeals. In Rule 47, we will notice that the 1st part – the 1st few sections of that very short rule – speaks about how a petition to annul a judgment of a Regional Trial Court is filed with the Court of Appeals… what the Court of Appeals can do after the filing of the petition. But in the last 2 or 3 sections of Rule 47, the topic is suddenly changed from annulment of judgment rendered by a Regional Trial Court to annulment of judgment rendered by an inferior court. So there is a jump from annulment of judgments rendered by the Regional Trial Court to annulment of judgment rendered by an inferior court. And in these last few sections of Rule 47, the Supreme Court says that a judgment of an inferior court can be annulled although there is again no mention B.P. 129. And the court that has jurisdiction – original exclusive jurisdiction – to annul a judgment rendered by an inferior court is a Regional Trial Court. Can we not challenge the Supreme Court under Rule 47 to a Regional Trial Court of authority to annul the judgment of an inferior court considering that B.P. 129 does not expressly give to a Regional Trial Court authority to annul the judgment of an inferior court? We cannot because, under B.P. 129, there is an allocation to the Regional Trial Court of jurisdiction to entertain and decide all kinds of actions which are not especially given to other courts. In other words, that provision of B.P. 129 is the justification why our books treat the Regional Trial Court as a court of general jurisdiction. In fact, it is only the Regional Trial Court that is considered as a court of general jurisdiction in our system and it is because of that provision in B.P. 129. If you conceive about an action and then you start asking yourself which court has jurisdiction over this action. But then you go through a process of elimination. If you entertain the idea of going to the Supreme Court, then you just read the Constitution. And then you eliminate the Supreme Court if it has no authority under the Constitution. Then you go to the Court of Appeals. Then you read B.P. 129. If, under B.P. 129, the Court of Appeals does not have jurisdiction then it does not really have jurisdiction. Then you go to an inferior court. If an inferior court also does not have jurisdiction, then you can be sure it is a Regional Trial Court that has jurisdiction over the case. That is the principle is followed by Rule 47 when the Supreme Court, in the last few sections of Rule 47, inserted a provision saying that with respect to the decisions of an inferior court, it is a Regional Trial Court that has exclusive original jurisdiction. Because while there is an action known as annulment of judgment rendered by an inferior court, since substantive laws have not allocated authority to decide these cases to any other court, then it follows that it is a Regional Trial Court that has jurisdiction over these cases. In our study of Rule 47, the threshold case that you probably read or was assigned to read is that case of Islamic Da’wah v. Court of Appeals. In that case, the Supreme Court traced the history of annulment of judgment as an

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     action. The Supreme Court mentioned that in the past, before B.P. 129, the Supreme Court had from the start recognized the propriety, the regularity of filing a petition for the annulment of judgment rendered by a court. And before B.P. 129, the Supreme Court said that annulment of judgment of an inferior court can be entertained by a Regional Trial Court. How about a judgment rendered by a Regional Trial Court? Can it be entertained by a coordinate court? By another Regional Trial Court? The Supreme Court said yes because a Regional Trial Court is a court of general jurisdiction. That’s the reason why in B.P. 129, the Court deemed it necessary to incorporate this provision giving exclusive authority to the Court of Appeals to annul a judgment rendered by the Regional Trial Court – to do away with the anomalous situation then obtaining, before B.P. 129, where a Regional Trial Court can annul a judgment rendered by another Regional Trial Court. Because there was no specific provision in substantive law which allocated unto other courts this authority to annul a judgment of a Regional Trial Court. So, because of B.P. 129, we now have a situation where the Court of Appeals can annul the judgment of a Regional Trial Court expressly provided. And it is a Regional Trial Court that can annul the judgment of an inferior court. How about the Court of Appeals? Can the Supreme Court annul a judgment of the Court of Appeals, given that the Supreme Court is the highest court of the land? The answer is no. Because there is nothing provided in the Constitution which gives to the Supreme Court authority to annul a judgment of the Court of Appeals. So while we have an action to annul a judgment of a Regional Trial Court, an action to annul the judgment rendered by an inferior court… there is no recognized action, under the Constitution or under B.P. 129 or under the Judiciary Act of 1948, authorizing the Supreme Court to annul the judgment rendered by the Court of Appeals. Although there is 1 isolated decision by the Supreme Court which mentioned that the Court of Appeals itself can annul its own decision. But that is not so provided in B.P. 129. If we rely solely on substantive laws like the Constitution and B.P. 129, there is no such action as annulment of judgment rendered by the Court of Appeals. It does not mean to say that the judgment of the Court of Appeals is immune from annulment. There could still be an annulment if the Supreme Court will exercise what we call its equity jurisdiction. Rule 65, most likely, could be a remedy in order to annul the judgment of the Court of Appeals based on the same grounds that are given in Rule 47. But there is no actual, recognized by substantive law, that is filed for the purpose of annulling the judgment of the Court of Appeals. But B.P. 129 recognizes the propriety of a petition to annul the judgment rendered by the Regional Trial Court. It also recognizes the propriety of filing an action to annul the judgment of an inferior court. If a judgment of a Regional Trial Court, if a judgment of an inferior court can be the subject of annulment by the Court of Appeals or by the Regional Trial Court, as the case may be, can we not also seek the annulment of a judgment rendered by a quasi-judicial body or an administrative agency? After all, these quasi-judicial bodies, they also exercise the functions of a court. That is, the adjudicate, they determine the rights and liabilities of the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     litigants in the cases that are presented before them. This is also a settled issue. Annulment of judgment under B.P. 129, as procedurally explained by Rule 47, does extend to annulment of judgment of quasi-judicial bodies. There is no such thing as annulment of a judgment of a quasi-judicial body or an administrative body unless the law creating the quasi-judicial body or a chapter of that administrative body allows the petition to be filed for the annulment of these decisions of quasi-judicial bodies. In other words, we cannot file a petition under Rule 47 for the annulment of the decision of a Civil Service Commission or a Securities and Exchange Commission. You will notice that in Rule 47, which follows, literally, the provisions of B.P. 129, it is provided that Rule 47 refers to an action filed by a petitioner to annul the judgment rendered by a Regional Trial Court in a civil case. That is clearly provided in Rule 47, which is what, literally, what B.P. 129 provides. B.P. 129 provides that the Court of Appeals can annul a judgment of a Regional Trial Court. Now, the procedure, as given in Rule 47, is the Court of Appeals can allow the judgment of a Regional Trial Court in a civil action. So if the action is not a civil action, it is simply a criminal action or it is a decision rendered by a quasi-judicial body, then we cannot make us of Rule 47. Since Rule 47 says that the annulment contemplated in B.P. 129 – the authority given to the Court of Appeals to annul the judgment – refers to a judgment of a Regional Trial Court in a civil action. Does it mean to say that the judgment of a Regional Trial Court acting as a criminal court cannot be the subject of annulment under Rule 47? You know very well that a Regional Trial Court could act as a civil court and it could also act as a criminal court because the Regional Trial Court exercises original jurisdiction over both civil actions and criminal actions. With respect to the exercise by the Regional Trial Court of authority over civil actions, the decision of a Regional Trial Court in these civil actions could be the subject of annulment of judgment by the Court of Appeals under Rule 47. But if the decision rendered by a Regional Trial Court is a decision in a criminal case, even if we can challenge the validity because of the lack of jurisdiction or collusion or fraud, if the decision rendered by the X X X [Regional Trial Court] is a decision in a criminal case, we cannot use Rule 47. Rule 47 is not a remedy to annul a judgment rendered by the RTC in the exercise of its jurisdiction as a criminal court. So you do away with the impression that Rule 47 is a remedy to annul a judgment rendered by a Regional Trial Court in all kinds of actions. Sec. 1 of Rule 47 is very clear. The decision of the Regional Trial Court must be in a civil case so that it can be the subject of annulment under B.P. 129, in relation to Rule 47. Does it mean to say then a decision of a Regional Trial Court in a criminal case cannot be annulled? The answer is yes, under Rule 47. But a decision of a Regional Trial Court in a criminal case can be annulled but not under Rule 47. It can still be annulled by filing a petition for habeas corpus. Habeas corpus is the equivalent of annulment of judgment rendered by the RTC in a civil case because B.P. 129 is very clear that, in relation to Rule 47, what can be annulled under Rule 47 is only a decision of a Regional Trial Court in a civil case. If a party desires to challenge the validity of a decision rendered by the Regional Trial Court in a criminal case, he should not resort to Rule 47. He should file a petition for habeas corpus.

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)    

Is there a difference actually between Rule 47, that is a petition to annul the judgment rendered by a Regional Trial Court in a civil case, to a petition for habeas corpus, which is a special proceeding but designed to set aside the decision of a Regional Trial Court in a purely criminal case? There are substantial differences. Annulment of judgment under Rule 47 is what we call as a direct attack on a final and executor judgment. The only purpose why a party X X X resorts to Rule 47 is to have the decision declared null and void – nullified and set aside. But in a criminal case where the decision of the RTC may not be valid because of the same reasons given in Rule 47 – lack of jurisdiction or extrinsic fraud – the remedy is habeas corpus which is not a direct attack on the judgment rendered by a Regional Trial Court. Habeas corpus, in other words, is an indirect attack on the judgment of a Regional Trial Court in this criminal case. Why is it an indirect attack unlike annulment, which is a direct attack on a judgment? In habeas corpus, where it is filed in order to nullify a decision of a Regional Trial Court in a criminal case, the principal relief which the petitioner in habeas corpus seeks is to declare that the petitioner has been deprived of his liberty unlawfully – unlawful deprivation of a right… that is the principal relief which habeas corpus seeks. It is not principally to set aside a judgment of a Regional Trial Court in that criminal case. So that if you compare these remedies which seek to nullify or set aside the judgment of a Regional Trial Court in a civil case and in a criminal case, the remedies of the petitioner in a criminal case are more advantageous than simply compared to an annulment of judgment. Because annulment of judgment is a direct attack on the judgment. While in a criminal case, the detainee or prisoner can challenge the validity of the judgment of conviction although he is not attacking directly the validity of the judgment of conviction. He is attacking the validity of the deprivation of his liberty. You will also notice that Rule 47 is inserted in the 16 or 17 rules concerning appeals. In our Rules, the procedure for appeal starts with Rule 40 and it ends up with Rule 56. So from Rule 40 up to Rule 56, the topic of these 16 or 17 different rules is always cases on appeal. Except now Rule 47, that’s why the insertion is quite scandalous. Annulment of judgment should have been included in the enumeration of special civil actions because it is incorporated in the Rules on appeal but annulment of judgment has nothing to do with appeals. B.P. 129 considers annulment of judgment as an original action to be filed with the Court of Appeals or with a Regional Trial Court. And in Rule 47, particularly applied to a petition for annulment commenced before the Court of Appeals, you will notice that some of the features of a special civil action are carried by a petition to annul the judgment filed with the Court of Appeals. For instance, if a petition to annul a judgment of a Regional Trial Court in a civil case is filed before the Court of Appeals, the Court of Appeals has the authority to outrightly dismiss the petition. That is similar to Rule 65 where a court can outrightly dismiss a petition for certiorari if it is not meritorious on its face. That is, of course, provided in Rule 47. The Court of Appeals can outrightly dismiss a petition to annul a judgment. So if the petitioner has in mind stopping the execution or preventing the execution of a final and executory judgment rendered by the Regional Trial Court by making use of Rule 47, there is a big

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     chance he will not succeed because the Court of Appeals could outrightly dismiss a petition to annul a judgment filed before the Court of Appeals. Since the judgment sought to be annulled under Rule 47 is a final and executor judgment, will the filing of a petition to annul the judgment be a good reason for the trial court to deny a motion for execution? Even if there is a petition to annul a judgment rendered by the Regional Trial Court, if that decision has become final and executory and it is not the subject of annulment of judgment, Rule 47 is not a justification for the trial court not to execute its final and executor judgment. So the prevailing party can still move for the execution of that judgment, notwithstanding the commencement and pendency of a petition to annul the judgment of the Regional Trial Court. The only remedy available to a petitioner in annulment of judgment before the Court of Appeals to stop execution is to apply for a provisional remedy of preliminary injunction or temporary restraining order. That’s why in most petitions to annul a judgment filed with Court of Appeals, the petitioner variably applies for the issuance of a TRO or preliminary injunction. Without these provisional remedies, even if there is a petition with the Court of Appeals for the annulment of judgment of a Regional Trial Court in a civil case, that petition to annul a judgment will not prevent the execution of that final and executor judgment. Under Rule 47, in relation to B.P. 129, on annulment of judgments commenced before the Court of Appeals, is it correct to say that only the litigants before the Regional Trial Court can make us of annulment of judgment? That question has also been answered by the Supreme Court in the threshold case of Islamic Da’wah v. Court of Appeals. That case ruled that annulment of judgment, as contemplated in B.P. 129 and also as envisioned in Rule 47, does not prohibit a stranger from filing a petition to annul a judgment rendered by a Regional Trial Court although the petitioner may not have been a litigant in that particular case. He can do so as long as he can show that he will be prejudiced by the execution of the decision sought to be annulled. You will also notice that the requirements in Rule 47 before annulment of judgment can be properly commenced are very strict. 1 of the requirements is that the petitioner must show that the remedies for motion for new trial, that is, petition for relief and appeal, are no longer available through no fault of his own. In other words, if the judgment has not yet become final and executor, a litigant cannot make use of annulment of judgment because he can still appeal. He has other remedies. He can file a motion for new trial. If he has filed a motion for new trial and that motion is denied and he neglects to appeal, so the judgment becomes final and executory, can he now properly file a petition to annul the judgment? Still no because his failure to appeal was through his own fault. He could just have appealed the judgment of the court. Let us say that the aggrieved party has failed to appeal, has failed to file a motion for new trial… and his failure to do so cannot be traced to his negligence or inexcusable conduct, can he now file a petition to annul the judgment in the Court of Appeals? Still the answer is no because there is still an available remedy to challenge a final and executor judgment. And that is a petition

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     for relief from judgment. The rules in 47 which apply the provision of B.P. 129 on annulment of judgment rendered by a Regional Trial Court are very, very strict. All the other remedies must not have been availed of through no fault of the petitioner. So even if we cannot fault the petitioner, as long as petition for relief from judgment is still a remedy, still available, we cannot resort to annulment of judgment under 47. In that case of Islamic Da’wah, the Supreme Court said that if we allow a stranger to avail of annulment of judgment of a Regional Trial Court in a civil case where he is not a party, then we should not also require the petitioner to satisfy the requirements like availability, availment of new trial, motion for new trial, or appeal, or petition for relief from judgment. The reason, according to the court, is that a stranger to a case cannot possibly cannot possibly make use of a motion for new trial or appeal or a petition for relief from judgment because these remedies, under the Rules, are available only to a litigant in a case. If the petitioner is not a litigant, he could not conceivably satisfy this requirement. If you compare the procedure in Rule 47 between annulment of judgment that is commenced before the Court of Appeals and annulment of judgment commenced before a Regional Trial Court, you will immediately notice a very significant difference. While the Court of Appeals has the authority to outrightly dismiss a petition to annul judgment, a Regional Trial Court cannot. So if there is a petition to annul a judgment filed before the Regional Trial Court and the subject judgment, of course, is one that has been rendered by an inferior court, the Regional Trial Court has no authority to outrightly dismiss that petition to annul the judgment. In so far as the Regional Trial is concerned in a petition to annul a judgment rendered by an inferior court, that petition to annul should be treated just like any other case. So after of the filing of petition to annul, the Regional Trial Court will issue a summons and then, having served upon the respondents, let the respondents file the answer, and then file the case, and then render the decision. That is the significant difference between annulment of judgments commenced before the Court of Appeals compared to annulment of judgment commenced before the Regional Trial Court. In Rule 47, if the judgment is annulled, then it is declared void by the court. So it can no longer be enforced or, if that judgment has already been executed, the Court of Appeals or the Regional Trial Court can order restitution of properties if that is still possible. In analyzing Rule 47, the provisions of Rule 47 in relation to B.P. 129 on annulment of judgment conferred upon the Court of Appeals and the Regional Trial Court, I suggest that you also read a rule in evidence. That is, impeachment of a judicial record which you must have taken up. That is in Rule 132 of Evidence. Impeachment of judicial record. In that evidentiary rule, impeachment of judicial record means to discredit a judicial record. A judgment of a court if, of course, a judicial record. So we can discredit or set aside a judgment of the court under that principle of impeachment of judicial record. This is related to Rule 47 as well as to the provisions of B.P. 129 on annulment. In B.P. 129, there are no grounds for annulment mentioned at all. The grounds for annulment are contained in Rule 47 and also in Rule 132 of Evidence. If I’m

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     not mistaken, that would be Sec. 28 or 29 or 30 of Rule 132 in Evidence. The topic is impeachment of judicial record. In that evidentiary rule of impeachment of judicial record, there are 3 grounds X X X: 1) lack of jurisdiction, 2) fraud, and 3) collusion. If we compare that to Rule 47, there are only 3 grounds in Rule 47: 1) absence of jurisdiction over the subject matter, or 2) absence of jurisdiction over the person of the litigants, and then 3) extrinsic fraud. Rule 47 does not mention anything about collusion as a ground to annul the judgment. Does it matter? It does not matter. Collusion is encompassed by the term extrinsic fraud as a ground for annulment of judgment. So there is no conflict between impeachment of judicial record and the grounds mentioned in Rule 47 for the annulment of judgment. We go back to B.P. 129 and talk about the jurisdiction of a Regional Trial Court. With respect to a Regional Trial Court, the jurisdiction of a Regional Trial Court is founded on certain factors. The 1st one is whether or not an action is incapable of pecuniary estimation. The other one is if the action is a real action – it involves title to or possession of real property. And then, if it does not involve real property or the action does not within the concept of incapable of pecuniary estimation, then it is the amount involved – whether it is properly for the recovery for money or for the recovery of personal property. The 1st factor is an action incapable of pecuniary estimation. So if you come across of an action that is incapable of pecuniary estimation, then that action is cognizable by a Regional Trial Court. Is it correct to say then that all actions incapable of pecuniary estimation are cognizable by a Regional Trial Court always? That also is not a correct assumption. If you read again B.P. 129, there are several actions incapable of pecuniary estimation which are not exclusively cognizable by a Regional Trial Court. For instance, annulment of judgment which we discussed a minute ago… Annulment of judgment is not capable of pecuniary estimation but B.P. 129 says that annulment of judgment rendered by a Regional Trial Court is cognizable only by the Court of Appeals. How about annulment of an arbitral award by a barangay court which could also be the subject of annulment of judgment under the Local Government Code? That is not capable of pecuniary estimation. Is it cognizable exclusively by the Regional Trial Court? The answer is no. Annulment of a judgment or an arbitral award by a barangay court acting as an arbitral body, although incapable of pecuniary estimation, is cognizable only by an inferior court. This is so provided by the Local Government Code. So the Local Government Code is a special law in this matter. If it conflicts with B.P. 129, then it is the special law that will prevail. Certiorari, prohibition, and mandamus. They are actions incapable of pecuniary estimation but they are not exclusively cognizable a Regional Trial Court. So the provision in B.P. 129 which allocates to a Regional Trial Court exclusive original jurisdiction over actions which are not capable of pecuniary estimation admits of several exceptions. And these several exceptions are also found in B.P. 129. So not all actions incapable of pecuniary estimation are cognizable only by a Regional Trial Court. There are such actions not capable of pecuniary estimation which are allocated not to a Regional Trial Court but to other courts under the provisions of B.P. 129.

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)    

With respect to real actions, that is title to or possession of property… this is now qualified by the amendment to B.P. 129 which expanded the jurisdiction of inferior courts. These are the actions involving title to or possession of real property: accion reinvindicatoria, accion publiciana… they are cognizable by a Regional Trial Court exercising exclusive original jurisdiction as long as the assessed value of the property is more than P20,000 or P50,000, as the case may be. So you have to relate it to the expanded jurisdiction of the inferior courts. But with respect to unlawful detainer and forcible entry – they are also actions involving possession of real property – then they are always cognizable exclusively by an inferior court, regardless of the assessed value of the property. Is it possible that an action is a real action and at the same time one that is not capable of pecuniary estimation? The answer is also yes. We have such actions. They are real actions but they are also incapable of pecuniary estimation. A good example is foreclosure of real estate mortgage since the property in mortgage to be foreclosed is a mortgage constituted over real property, then that foreclosure of real mortgage is a real action but, at the same time, it is not capable of pecuniary estimation because the issue to be resolved by the court – by the foreclosure court – is always this issue: does the mortgagee (the plaintiff) have the right to foreclose? That issue is not capable of pecuniary estimation. So what do we do in determining jurisdiction if an action is both a real action and one that is incapable of pecuniary estimation? What factor will be determinative of the jurisdiction of the court? Will it be the assessed value of the property or will it be the fact that the issue involved is not capable of pecuniary estimation? Again, this is a settle issue. The Supreme Court said that if an action carries the feature both of incapable of pecuniary estimation and a real action, like foreclosure of real mortgage, the determinative factor is the feature of incapable of pecuniary estimation. So it is a Regional Trial Court that will always have jurisdiction over foreclosure of real mortgage even if the assessed value of the property sought to be foreclosed is only P1,000. As long as the action is foreclosure of mortgage, the action is exclusively cognizable by a Regional Trial Court. So if you find in one action the 2 features which could be determinative of jurisdiction – incapable of pecuniary estimation and real action – the determining factor will always be that characteristic that it is not capable of pecuniary estimation. So it is a Regional Trial Court that will have jurisdiction. The feature of foreclosure of mortgage as a real action will only be important in determining the venue of the action but not the jurisdiction of the court. A similar action which applies the same principle is expropriation of a piece of land. Expropriation of a piece of land is also a real action because it involves title to or possession of real property. But expropriation of a piece of land will not take into account the assessed value of the land sought to be expropriated for purposes of determining jurisdiction over the case. According to the Court, expropriation, although it could be a real action, is also an action that is not capable of pecuniary estimation. So expropriation of real property, even if the assessed value again is P1,000, will always be cognizable by a Regional Trial Court.

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     When it comes to personal action under B.P. 129, the determining factor will be the amount sought to be recovered if it is purely a claim for money. Or if it is recovery of personal property, it is the value of the personal property according to the complaint. But when it comes to a pure collection suit – that is, the creditor is interested only in collecting money from the defendant – there are exclusions given in the amendment to B.P. 129. Excluding charges, interests, attorney’s fees, and damages. So the determining factor in a complaint for the recovery of money, in so far as jurisdiction of court is concerned, will only be the principal sought to be recovered. So that if the amount sought to be recovered by the plaintiff in his complaint against the defendant is P1,000,000 – a total of P1,000,000 – the conclusion that the case is cognizable by the Regional Trial Court will not be correct. A complaint to recover the totality of P1,000,000 could be cognizable exclusively by an inferior court if the P1,000,000 is the aggregate of the principal, the interest, the costs, the damages, the attorney’s fees… then we have to find out the principal which the plaintiff seeks to recover. If the principal is only P200,000 but P800,000 represent interest, damages, costs, and other excluded items, that will be cognizable by an inferior court. That is now settled. Supposing that the complaint is for the recovery of damages. You know very well that in a complaint to recover damages, what is sought to be recovered is always money in terms of pesos and centavos. But under the amendment to B.P. 129, we should exclude the item of damages. Supposing the complaint is purely for damages, and the plaintiff seeks to recover actual damages, moral damages, temperate damages, exemplary damages… How will we now ascertain the jurisdiction of the court? We cannot use the rule of exclusion because what the plaintiff seeks as are relief is the recovery of damages. Let us say that the plaintiff seeks to recover P100,000 actual damages, P500,000 moral damages, and then another P500,000 exemplary damages. The aggregate will be P1.1M but the complaint says that, principally, the plaintiff seeks to recover actual damages of P100,000. With what court do we file that complaint? Again, this is settled. It should be with the Regional Trial Court. When it comes to complaints purely for damages, the determining factor, in so far as jurisdiction of courts is concerned, is the aggregate amount of damages – the totality of the damages. So even if the complaint has specified the amount of damages for each aspect – actual, moral, exemplary, temperate damages – the court that will acquire jurisdiction is the court that has authority to rule on the aggregate totality of all the damages claimed by the plaintiff. With respect to recovery of personal property… For instance, the recovery of a car. Do we take into account the assessed value of the car in order to ascertain the jurisdiction of the court? The answer is no. B.P. 129 and the amendment to B.P. 129 takes into account the assessed value for purposes of jurisdiction for real properties. With respect to personal properties, the assessed value of that personal property has nothing to do with jurisdiction of the court. So instead of using as a standard the assessed value, when it comes to personal property, the determining factor will be the value of the personal property according to the complaint. In other

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     words, in our complaint for the recovery of a car, replevin for instance… If the plaintiff wants the case to be tried by the Regional Trial Court, all that he needs to do is state in his complaint is that the value of the car is P800,000 although it may not be true. Although it may be a false figure. When it comes to personal property, we always rely on the variation given by the plaintiff in his complaint. So the jurisdiction of the court will depend solely on the allegations in the complaint. Whether the allegation is true or false, the jurisdiction will be determined by the figure given in that complaint, with respect to personal properties. Supposing the defendant challenges the valuation given by the plaintiff in his complaint by telling the court that the car could not be worth P800,000 because it is a 30 year old car… the true value of the car is only P100,000. And then the defendant is willing to submit evidence to show the true value of the car. Will the court entertain the defendant’s move? No. The court will not. The jurisdiction of the court will be based solely in the allegations in the complaint. In civil cases, after the court has acquired jurisdiction over this particular complaint, relying on the allegations contained in the complaint, it is very likely that, after trial, the evidence submitted by both sides will convince the court that the true value of the car is really P100,000. Can the Regional Trial Court decide the case although it is now the conclusion by the Regional Trial Court that the value of the car is only P100,000? The answer is yes. If a Regional Trial Court acquires jurisdiction over a complaint to recover a car which, according to the complaint is valued at P800,000, the Regional Trial Court continues to exercise jurisdiction over the case until it is finally decided, regardless of the finding of the court that the value of the car is only P100,000. You know that principle very well. That is called adherence to jurisdiction. Once the court acquires jurisdiction over the car, it cannot be ousted of that jurisdiction. It will continue to exercise jurisdiction over the case until the case is finally adjudicated. The only means by which we can oust the court – the Regional Trial Court – of jurisdiction over the case is if Congress enacts a law saying that the jurisdiction of the court will not be based solely in the allegations in that complaint. In other words, if Congress decides to abandon the principle of adherence to jurisdiction then it is possible that the RTC will be deprived of jurisdiction. But as long as the principle of adherence to jurisdiction is not abandoned by Congress, then if the court acquires jurisdiction over a particular case, the exercise by the court of the jurisdiction of that case continues until that case is finally decided. With respect to inferior courts… Notwithstanding the expansion of the jurisdiction of the inferior courts… Meaning to say that in the expanded jurisdiction of inferior courts, practically all cases that can be decided by a Regional Trial Court can now be decided by an inferior court, depending only on the amount involved… upon the value of the property. So real actions – accion reinvindicatoria, accion publiciana – they are all cognizable by inferior courts now depending upon the assessed value of the property. Even estate proceedings can now be entertained by an inferior court under its expanded jurisdiction. Does it mean to say that an inferior court which exercises expanded jurisdiction can now be treated as a court of general jurisdiction? It’s still a court of limited jurisdiction. It can only take cases that are given to it by substantive law. The provision of B.P. 129 which makes a Regional Trial Court as a court of general jurisdiction is not given to an inferior court. In B.P. 129, in the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     enumeration of cases exclusively cognizable by a Regional Trial Court is an item which says the Regional Trial Court shall exercise exclusive original jurisdiction over all action that are not especially assigned to any other court. That provision in B.P. 129 is not contained in the allocation of jurisdiction to inferior courts. So inferior courts continue to exercise jurisdiction only over cases that are assigned to it under B.P. 129 and special laws, or amendment to B.P. 129. You will also notice that in B.P. 129, with respect to the vesting of authority to inferior courts, there is an identification in Sec. 33 of what we call the totality test in determining jurisdiction. In Sec. 33, the totality test is just a proviso with respect to ascertainment of jurisdiction of courts. The totality test given in B.P. 129 is more encompassing than the totality test given in the Rules of Court. We also have a totality test in the Rules of Court. That is in Rule 2. There is a totality test with reference to the section of joinder of causes of action. If you are going to compare the totality test given in the Rules of Court, under the section on joinder of causes of action, the totality test in the Rules of Court appears to be of a more limited scope. In B.P. 129, the totality test refers to all claims of causes of action that are embodied in 1 complaint, whether they pertain to the same or different parties or they arise out of the same or different transaction. X X X If you compare it to the totality test in Rule 2, the totality test in Rule 2 speaks only about causes of action for money. The totality of money claims will be determinative of the jurisdiction of the courts. In B.P. 129, with respect to inferior courts, we also meet the term delegated jurisdiction to inferior courts. And also the interlocutory jurisdiction to inferior courts or special jurisdiction to inferior courts. In delegated jurisdiction, the inferior court acts as if it is a Regional Trial Court in deciding land registration and cadastral cases which are contested or which will not be contested. If contested, the limitation is the value of the contested property. If uncontested, the inferior court can act as a land registration court or cadastral court without any limitation. But B.P. 129 is very clear in saying that if an inferior courts as a land registration or cadastral court, the decision of the inferior court is appealable to the Court of Appeal, not to a Regional Trial Court. Which is the rule that we follow in B.P. 129. That is the delegated jurisdiction of an inferior court. In habeas corpus proceedings, there is also a mention of an inferior court trying a habeas corpus proceeding. It does not mean to say that habeas corpus is cognizable also by an inferior court. The authority of an inferior court to entertain a petition for habeas corpus refers to a situation where a petition for habeas corpus is filed with the proper court – usually a Regional Trial Court. But there are no judges available to act on the petition. But that petition for habeas corpus is filed, still, with a Regional Trial Court which has jurisdiction over petitions for habeas corpus. So the petition for habeas corpus is filed with the Regional Trial Court but the clerk of court finds out that there are no RTC judges that are available – they are absent or are on leave – that can entertain a petition for habeas corpus. This is the remedy provided in

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     B.P. 129. Attention to habeas corpus cases is urgent under our laws. In fact, habeas corpus proceedings are always given preference by law. So if there are no RTC judges that are available, the next best thing to do X X X is to transfer the petition filed already with a Regional Trial Court to an inferior court. That provision in B.P. 129 does not authorize the filing of a petition for habeas corpus directly with an inferior court. A petition for habeas corpus filed directly with an inferior court can be challenged on jurisdictional grounds because B.P. 120 does not vest unto an inferior court an authority to entertain a petition for habeas corpus. It is only under circumstances where there are no other RTC judges available to entertain a petition for habeas corpus. X X X the judge can now analyze and study the propriety of issuing the writ of habeas corpus. We need a break in the meantime but before we have a break, I will give you this riddle and then you try to answer it. Just like the riddle in grade school X X X. The question is: who am I? I am just an object. A face in a crowd. Nothing outstanding about it… about my form… about my look. But, usually, I’m between 4 inches to 8 inches long. And both genders, both men and women, young or old, adore me. And then I, on one end… I have a forest of X X X but my friends usually tell me that I am like a soldier X X X because I am on call 24 hours a day. If there is no assignment given me, I just hang around… I just lie down doing nothing. But when I’m giving a specific assignment, I see to it that I’m always ready to complete the X X X. And when I am at work, I usually go back and forth and… that is warm and that is dark. And then when I’m through with my job, my assignment, I always see to it that I give out a sticky X X X white X X X and then I return to my X X X and then just hang around and just lie doing nothing. Who is this person or object? Before we leave jursidiction altogether, You have to know the meaning of primary jurisdiction and residual jurisdiction Residual Jursidiction is found in appealed cases particularly Rules 41 and 42. It is the jurisdiction enjoyed by the trial court to act on certain matters even if the case is already on appeal. It is well explained in Rules 41 and 42. So it is not correct to assume that if a case is decided by the trial court and the aggrieved party perfects an appeal on time and the jurisdiction over the case is now assumed by the appellate court, like the Court of Appeals, it is not correct to assume that the trial court is divested entirely of jurisdiction even if there is already a perfected appeal. In Residual Jursidiction, the trial court continues to exercise jurisdiction over ceratin matters for a very limited period of time. And after the expiration of that period, absolute jursidiction over the case will now be assumed by the appellate court. In Primary jurisdiction, this involves quasi judicail bodies, what happens in Primary Jurisdiction is that congress enacts a law which vests jurisdiction under the quasi judicial body to try and decided cases which are cognizable by regular courts under the provisions of BP 129. The reason why congress usually enacts these laws

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     is that congress feels that the quasi judicial body is better equipped in order to decide disputes between the litigants. A good example of a Primary Jurisdiction conferred by substantive law is the jurisdiction given to a quasi judicial body called HLURB, this board is given original jurisdiction, in some cases exclusive original jurisdiction, to adjudicate cases of disputes between a subdivision buyer and a subdivision developer, so if a subdivision buyer feels aggrieved for the non-performance by the developer of his commitments under the contract, the buyer should not file the complaint with a regular court although under BP 129 the regular court may have jurisdiction, usually for breach of contract the remedies given in the CC would Specific Performance, Recission of Contract or damages for both cases or damages alone. In this rule on Primary Jurisdction, these actions will not be assumed by the regular court although BP129 gives the regular court such authority particularly the Regional Trial Court. The jurisdiction is given by substantive law to the quasi judicial body HLURB because the HU presumably is better equipped to adjudicate contests between the subdivion buyer and developer so that there is a breach by the subdivision developer of his commitments to the buyer, what the buyer will do is to file a complaint with the HLURB. There is one case however decided by the SC, where the subdivision developer filed a compalint for ejectment against a subdivision buyer because it was the buyer who allegedly violated the terms of the contract and the developer wanted to recover possession of the property purchased by the buyer. The subdivision buyer challenged the authority of HLURB to entertain a complaint for ejectment which under BP 129 is exclusively cognizable by an inferior court. The SC said the primary jurisdiction of the HLURB does not extend to complaints for ejectment filed by one party against the other. So that in the case of primary jurisdiction vested by substantive law to quasi-judicail bodies, the authority of the quasi-judicial body is interpreted strictly. Ejectment could really be a dispute between a subdivision buyer and developer but then when the purpose is to recover physical possession of the property or even in accion publiciana, the court said that it is the regular court who has authority over the complaint.

Now we go the Rules of Court. In analyzing the provisions of the 1997 Rules of Court you should always bear in mind the consitutional limits that are provided by the Constitution to the authoity of the SC on the rules on pleadings, practice and procedure, like the ROC, the rules should be uniform in all courts of the same grade and then the rules should provide for a speedy and inexpensive determination of the case and then the rules should not increase, decrease or modify substantive rights. So if there is any rule on procedure which violates any one of these limitations given under the Consitution, we may then properly challenge the applicability and validity of these rules of procedure. There was one litigant who challenged the validity of a Rule in Criminal Procedure, it’s Rule 115, and Rule 115 of Criminal Procedure really speaks not about procedure but more of the rights of the accused. So the party said that Rule 115 should be excluded from the Rules of Court for it is not procedural but substantive. It modifies, increases or decreases the rights of the person given by substantive law. The SC denied

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     the petition, saying that while the authority of the SC deals with the procedure, pleadings and practice and that substantive rights should not even be covered, the court said that it is practically impossible for rules of procedure to be devised without incorporating certain provisions that are concered with substantive law. The standard should be if we take the ROC as a whole: are the Rules of Court primarily procedural in character? if the answer is yes and there are certain provisions which speak about substantive rights or it’s coverage, that should not be the justification for deleting the said provisions in the rules of court. The other justification given by the SC is the Civil Code, the CC is substantive law but if we go over the CC, it contains provisions which are not substantive in character, they are also procedural but that does not make CC a procedural law, it’s still a stubstantive law. Some articles cited by the court which refer to procedural matters are articles concerning the issuance by the court of a preliminary mandatory injunction or preliminary injunction in cases of unlawful detainer and focible entry. But the SC said that we cannot simply say that the CC is no longer substantive simply because there are certain articles that speak about procedural matters. So if you come across a provision of the rules of court which violates substantive law in the sense that the rules of court reduces substantive rights or modifies substantive rights there is a possiblity that this provision could be challenged or deleted from the rules. For instance, in special procedings like the settlement of estate of a deceased person there is a provision in the rules concerning the filing of claims. You are familiar with the rule that when a person dies and then there is a settlement proceeding that is commenced with the court, the creditors for money arising from a contract which is expressed or implied, should file their claims against the estate, they have no right to file a civil action for the recovery of the money claim against the estate of the deceased or against the executor or administrator. Otherwise, if the money claim is not submitted within the period fixed under the rules, the claim of these creditors will be barred. and then there is another provision that says that if the deceased is a solidary debtor together with another one who is still alive, it is the duty of the creditor to file a claim against the estate for the recovery of the whole indebtedness. That is a violation of a principle under the Civil Code which says that when there is solidary relationship between two debtors, the creditor is given by the CC the authority to file a complaint against any one of the solidary debtors for the recovery of the whole indebtedness. So, if we apply the Civil Code provisions, the creditor in the example could file a complaint for the recovery of the whole obligation against the solidary debtor who is still alive, he does not have to file a money claim against the estate of the deceased solidary debtor. In several cases which raised this issue, the SC said that the CC provision saying that a creditor can file a complaint against any one of the solidary debtors will not be affected by the provision of the Rules of Court concerning the filing of claims. This is an example of a provision in the Rules of Court which substantially reduces the right given by law to a creditor to file a complaint against any one of the solidary debtors for the recovery of the whole obligation. These 1997 Rules of Court should be interpreted liberally according to the Rules. But the interpretation is not a liberal interpretation in favor of the plaintiff or in favor of the defendant. A court being an impartial party to the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     dispute. The meaning of a liberal interpretation is to promote justice, to carry out the duty of the SC under the limitations given under the Constitution. Under the Rules now, a civil action is always commenced by the filing of a complaint. That is the general rule. There are certin civil actions usually special civil actions which are not commenced by a filing of a complaint. Instead, we file for a petition. But it does not really matter whether we file a petition or a complaint when an action is sought to be commenced. The filing of a complaint has given rise to the action that when a compalint is filed, the court automatically acquires jursidiction over the person of the plaintiff. So in that action, the only problem concerning the jurisdiction is the jurisdiction of the court over the person of the defendant. But the latest decisions, last year the court decided a case where it was held that even if a complaint is filed before a competent court, if the one who filed the complaint is not authorized to do so, the court does not acquire jurisdiction over the person of the plaintiff. In fact, the court said that the court does not even acquire jurisdiction to try or adjudicate the case. So the rule that we follow in our procedural principles which says that the court acquires jurisdiction over the person of the plaintiff through the filing of a complaint will not necessarily give jurisdiction by the court over the person of the plaintiff. The court can examine whether or not the filing of the complaint is authorized by the plaintiff. If it is not authorized by the plaintiff, the court will not acquire jurisdiction over the plaintiff. The court will not even acquire authority to decide the case. The court is absolutely without any jurisdiction to try and decide the case if it is demonstrated that the filing of the complaint is without authority given by the plaintiff. In a complaint properly filed in court, that is one filed by the plaintiff himself or with the authority of the plaintiff, of course the plaintiff under rule 10 has the right to amend that complaint provided that an answer has not yet been filed by the defendant. The amendment made under Rule 10 is a matter of right. If the plaintiff amends that complaint by impleading another defendant, then the court will have nothing to do except accept the complaint since the amendement is a matter of right. And in so far as that new defendant is concerned, the date of the filing of the complaint will relate back to the date when the original complaint was filed unless a new cause of action is introduced in that complaint. In which case, we don’t make use of that relating back doctrine. The classification of actions under the rules is very simple as civil action, a special civil action, criminal action and special proceedings. In the definition of a civil action, it is very clear that we do not necessarily follow the definition of a cause of action under Rule 2. In Rule 2 a cause of action is defined as a violation by the defendant of a right belonging to the plaintiff. So for a cause of action to accrue, the plaintiff must allege that he has a right and that the defendant has violated such right. The indication given by this definition is that the right holder must wait for a person to violate his right before he can have a cause of action to bring an action in court. That concept of a cause of action should always be related to the definition of a civil action under section 1. The definition of a civil action does not require a prior violation of a right so that the rightholder may have a justification to go to court. The definition of a civil action is one by which a person sues another for the enforcement or protection for a violation or a threat to violate such right. So there is no need for an actual

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     violation of a right before a case can be properly filed in court. Under the definition of a cause of action if there is a threat to violate a right, there is already a cause of action. Our rules of procedure become complicated when there are several rights that are violated by one and the same wrongful act. If there is just one wrongful act and there are several rights that are violated, how many causes of action will accrue? The standard given by decisions of the court is that in order to determine whether or not several cause of action will arise if there is one wrongful act and there are several right that are violated is to determine whether these rights belong to the same person or to different persons. That is the common standard that we apply now. For instance, if a person drives negligenlty his car, and then he causes, as a result of the negligent driving, damage or wrecks three cars, how many causes of action will accrue against the negligent driver? Using the standard given by the court, we have to determine whether the three cars belong to one person or the three cars belong three different persons. If the 3 cars belong to only one person, only one cause of action will accrue. In other words, the person owning the three cars cannot file an action one complaint for damages involving the first car and another complaint for damages involving the second car and another for the third car. That not possible. That is spitting a cause of action because we are talking about violation of rights in the concept of a cause of action. The owner of the three cars has only one right that has been violated by the wrongful act of the negligent driver. But if these three cars belong to three different owners, the owner of the first car has his own cause the owner of the second has another cause and the owner of the third has his own cause of action. And because there are three causes of action that arise belonging to three different persons then it follows that these three different persons can file separate complaints. They do not have to be joined as plaintiffs in one compalint. They can file their own seprate complaints before the competent court. So that if the 3 cars belong to three different persons, the first owner can file his complaint before the RTC if he claims that the damages suffered by him amount to 500,000. The second car owner can file his own claim before an inferior court if the damages suffered by him abount ony to 200,000. So the filing of these complaints by the 3 different owners will depend on the amount of damages which each will respectively claim in their complaints. The fact that there are 3 different causes of action does not mean that the 3 different parties should go to the same court in order to protect their interest and recover damages suffered by them. In our first example where the wrongful act of driving has caused damages to 3 different cars but belonging to the same person, there is only one cause of action. This owner of the 3 cars can only file one complaint for the recovery of damages of his 3 cars. Can he properly and rightfully go to court right away because his right has been violated by the wrongful act. If we rely solely on substantive law, the answer is yes. As long as a right has been violated by the wrongful act of another, the right holder has the prerogative of going to court for protection and enforcement of his right. If we apply procedural principles, the owner may be precluded from filing right away because other procedural rules has introduced several precedents before a cause of action may accrue and if these conditions are not first satisfied, the filing of the complaint will be premature. There could be dismissal by reason of prematurity. And what are these conditions precedents established by rules of procedure and sometimes by substantive law? The first

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     condition precedent given by procedural and substantive rules is prior barangay conciliation. So even if a right has been violated and the rightful owner goes to court but the dispute is covered by the circular on prior barangay conciliation, then there could be reason for the court to dismiss the case or not to entertain the case and just tell the parties to undergo barangay conciliation. The other condition precedent given by both procedure and substative law is an arbtration clause that is usually given in contracts. The arbitration clause in contracts invariably provide that there is a breach of contract, the innocent contracting party cannot simply go to court. The dispute should first undergo arbitration proceedings. If the arbitration clause breached by immediately filing a complaint in court, the court can refuse of try the case and the court can compel the parties to observe the stipulations under the arbitration clause. The other condition precedent that is purely procedural is the certification on non-forum shopping found in Rule 7. If a complaint or initiatory pleading is filed without a certification on non-forum shopping, and remember that this defect is not curable by amendment, the court acquires jurisdiction over the case under BP 129, but the court can order the dismissal of the case for non observance of the certification as a condition precedent. There is another condition precedent that is given under political law: Exhaustion of administrative remedies for the accrual of a cause of action. Under the civil code, another condition precedent for members of the same family. It must be shown earnest efforts toward a compromise must have been resorted to before going to court. So in the definition of a cause of action under the rules of court is not qualified by certain condition precedents before going to court. He must see to it that these conditions, if applicable, must be observed. The court, although competent and may have jurisdiction over the case, will refuse to try the case and instead issue an order to the plaintiff to comply with the conditions. If there is already a cause of action and these conditions are applicable, the general rule is for every cause of action the rightholder can file one complaint. If there are 2 acuse, the right holder can file 2 complaints. If there are 3 causes, he can file 3 complaits. But what is proscribed by the rules of court is for the plaintiff to file more than a single complaint arising from a single cause of action. In other words, the rules abhor splitting a cause of action. Filing 2 or more complaints founded on the same cause of action is splitting a cause of action. The usual example given in splitting a cause of action is let’s say that the creditor is entitled to receive from the debtor 2 million pesons. The obligation has matured, it has become due but not been paid. In the ordinary cause of things, the creditor should file one complaint for the recover of 2 million pesos plus interest that has been earned by the principal, cost and damages if there are any. If the creditor files one complaint for the recovery of 2 million pesos as principal and this complaint will be filed before a RTC and then he files another complaint for the recovery of interest in the amount of 200,000 pesos in the MTC. That is splitting a cause of action regardless of whether these actions are filed before different courts. Since the rules prohibit a right holder from splitting a cause of action, thus the rule also provides for sanctions. These are given by the rules itself. The filing of one could be used in order to dismiss the other by reason of litis penencia, pendency of another action or if one of the causes has been decided, the decision in one case can be used to dismiss the other by reason of res judicata. So there could be 2 grounds for dismissal of complaints which are a product of splitting of a cause of action. There is a third ground

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     provided by rule 7, and that is forum shopping. So if a right holder splits his cause of action, he can move for dismissal either by reason of litis pendentia, res judicata or under Rule 7 on forum shopping. It is now settled that if a party is guilty of splitting of causes of action, he is also guilty of forum shopping. There is no need to elaborate on whether there is forum shopping as it can be shown that there is splitting of cause of action. Why does the rule in the first place prohibit splitting? If you look at the consequences there is really not much anything that can be suffered by the defendant. In our case the debtor is bound to file 2 million pesos plus interest. So if the creditor files one complaint for the recovery of 2 million and the second complaint for the recover of interest and damages amounting to 200,000. Even if we assume that the plaintiff will eventually win in both cases, he will not enrich himself because in the first case he will be recovering only 2 M and in the second cause only 200,000, his entitlement is merely the same even if he does not split his cause of action. so in the point of view for recovery of money due the creditor, the creditor will not have much benefit that he can derive by splitting the cause of action. Why don’t we just allow the the plaintiff to file as many complaints as he wants involving the same cause? If we look at it, it can even enrich the government because everytime we file, we pay docket fees. We can even encourage for as long as he pays docket fees. If we look at it in that point of view, there is nothing wrong with splitting. But if we look at it at a broader point of view, the effect of splitting a cause of action could be very harmful not to the parties, but to our courts. In our example if we allow two complaints to be filed based on one cause of action, and these cases is filed before 2 different courts, there is a very strong probability that the RTC may decide in favor of the plaintiff and there is also a strong probability that the MTC will decide not in favor of the plaintiff but against the plaintiff, so that our courts may look funny if one court will decide will decide in favor of the plaintiff and the other will decide against him involving the same cause of action and same evidence that will be submitted. In other words, this rule on splitting is for the protection and integrity of our courts. There is a likelihood that the different courts will be rendering conflicting decisions involving the same issue and parties and that will destroy the integrity of our judiciary. Supposing that the plaintiff indeed splits his cause of action against the same defendant, but the defendant ignores the breach of procedure by the plaintiff and does not ask for the dismissal of any one of the cases by reason of litis pendencia or res judicata, can the court on its own order the dismissal of the existing cases? The answer is yes because litis pendencia and res judicata are both not waivable defenses and the defendant does not raise these issues that arise from splitting, the court, on their own, can order the cases pending before them. But if the dismissal is by reason of litis pendencia, it is not correct to assume that both cases will be dismissed. Only one will be dismissed. If by reason of res judicata, the remaining case which is pending will be dismissed. So if both cases are pending, and the defendant files a motion to dismiss these two cases, only one case will be dismissed. In other words, in litis pendencia it is not possible for the defending party to move for dismissal of all pending cases. So that if you are the lawyer for the defendant and you are choosing which of the two will be dismissed, you’d rather move for the dismissal of the case pending before the RTC because the amount involved is 2 million pesos and let the cause before the MTC to depreive the RTC. If the MTC eventually decides the case

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     involving only 200,000 and the decision becomes final and executory, that is the end of the creditor’s claim for 2 million pesos. He can no longer recover because there is now res judicata. Can we give to the defendant a remedy to have the 2 pending cases dismissed? The answer is yes. If the ground for dismissal is forum shopping Rule 7. Under the Rules, if a plaintiff is guilty of forum shopping, the court can order the dismissal of all pending cases but the qualification is that the dismissal is without prejudice. So it is not an adjudication on the merits unless forum shopping is found to be deliberate. But nonetheless, if the wish of the defendant is to have the all the cases dismissed, he can make use of Rule 7. Move for the dismissal on the ground of forum shopping. Anyway, when a person violates the rule on splitting of cause of action he violates the rule on forum shopping. But again one of the cases has been decided, the remaining could be dismissed by reason of res judicata for as long as such decision has become final and executory. Litis pendencia and res judicata are non-waivable defenses. We do not need for any motion from the defendant. For as long as it becomes clear before the trial courts that there is litis pendencia or res judicata, the courts simply follow rule 9 which provides that if it becomes clear during trial that there is litis pendencia or res judicata, it is muto proprio on the part of the trial court to order the dismissal of the case. There are certain instances involving the existence of certain causes of action. If the obligation of the debtor in our example is payable on installments and then principles of this case Larena vs Villanueva which was decided almost 100 years ago. In our example, if there is an obligation to pay 2 million pesos on installment, each installment will have its own date of maturity. Under this decision in Larena vs Villanueva, it is a rule that for each installment that becomes due and unpaid, one cause of action arises for that installment. SO that if there are four installments of 500,000 each and the maturity differ, if the first installment has become due and unpaid, the creditor will now have one cause of action. But the cause of action is for the recovery only of the first installment for the recover of 500,000. Can the creditor insist that if he files a complaint he should be able to recover 2 Million pesos? He cannot because the other installments are not yet due. He still does not have the right which has been violated. But there are certain mechanisms in Civil Law which will enable him to recover the entire obligation simply because one installment has been due and unpaid. We call it in civil law as the acceleration clause. If there is an acceleration clause in our contract, i.e. the nonpayment of the first installment will cause the whole obligation to be due, then the creditor will have one cause of action only. If the first installment has become due and there is an acceleration clause, if the creditor files one complaint only to recover 500,000 and then the case is decided in his favor and judgement is entered, and later on the second installment also becomes due and unpaid, he can no longer file another complaint for the recovery of the second installement by virtue of the acceleration clause. When an acceleration clause works, the whole obligation becomes due and that should be the subject in just one complaint as only a single cause of action accrues in favor of the creditor. But without the clause, the rule of thumb is that each installment, if unpaid, will give rise to different causes of action. So it is possible that there could be different complaints filed by the same creditor against the same debtor corresponding to different installments. The qualification given in Larena is that if two installments are already due, then they should be the subject of just one complaint. There is only one

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     cause of action pertaining to these two installments that have remained unpaind. The other installements which are not yet due cannot be the subject still of a separate complaint. And then together with this case of Larena, the Court also decided another case almost 100 years ago. This case is Blossom vs. Manila Gas. In our example, there is a monetary indebtedness for the debtor to pay 2 million pesos in 4 separate installments. Let’s say that the obligation to pay the first installement will be due on or before December 31,2013. Since you are still in May 2013, can the creditor file today a complaint against the debtor for the recovery of 2 M or even the first installment? The answer is no because the plaintiff still has no right which has been violated by the defendant. So as of today, the creditor cannot complain that his right has been violated. Supposing that last month, the debtor conferred with the creditor, and the debtor in writing formally saying that “I have no intention of paying my obligation in your favor. So I disown my obligaion. Do not expect me to pay anything between now and December 31. Do not expect me to pay you any of the installments that are specified in my note. I have absolutely nothing to do with this promissory note. I won’t pay you a single centavo.” If that is the attitude of the debtor in our example, you can apply the principle in Blossom vs. Manila Gas that is even if the obligations are not yet due according to the terms of the agreement but the debtor his expressred formally his desire not to pay and he tells the creditor that he should not expect any payment from him. The court said that it is an anticipatory breach of the contract. So that if there is an anticipatory breach of the contract, the creditor can rightfully file a complaint against the debtor for the recovery of the whole obligation of 2 million account. But remember that this should be treated merely as an anticipatory breach. That the debtor formally tells that he is not going to pay the indebtedness. Supposing that there is no such anticipatory breach that can be shown by the creditor. He files a complaint today for the recovery of the whole indebtedness, 2 M, although the first installment on or before Dec 31. He files the complaint. Does the RTC have jurisdiction? Of course it has jurisdiction since the amount to be recovered is 2 million. The defendant after receiveing the summons and he does not file any responsive pleading or even if he files an answer but does not raise as an issue the propriety of filing a complaint where the obligation is not yet due. The Court will follow will the order of things in civil procedure and the court will set the case for pre trial and during the pre trial there is no settlement. Let’s say that the pre trail will be scheduled next year, Feb 2014. By the time the pre trial is scheduled, the first installment will become due. There is no amicable settlement. The court scheduled it for trial by the end of 2014 and by that time let us say that the whole obligation has been due. So at the time the Trial Court conducts a trial on the case the debtor has already defaulted but at the time of the filing of the complaint this obligation has not yet been defaulted. Can the Court properly decide the case in favor of the plaintiff? The answer is no. There is a 2005 case with the same set of facts. The title of the case is Swagman Hotel vs. CA. In this case which is a modification of the principle in blossom. The SC said that if a plaintiff files a complaint in court although he has no cause of action at all, but the defendant does nothing and then the claim of the plaintiff matures at the time it is decided, the court still has no authority to decide the case because at the time of filing, the plaintiff has no cause of action. One of the issues raised by the defendant, can we not apply rule 10, that is amendment to confrom to evidence?

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     While the case is not final, the obligation became due already and of course the note must have been presented as evidence that the obligation at that time was already due and demandable. The SC said that we do not apply amendment to conform to evidence if in the first place the plaintiff does not have a cause of action at the time of the filing of the complaint. So it is essential that a complaint must be filed after the cause of action has accrued. If there is no cause of action that has yet accrued and a complaint is filed, the court will have no authority to decide even if it matures and becomes defaulted during the trial of the case. We apply the rule on amendment to conform to evidence only if there is really a cause of action at the time of the filing of the complaint. So you take note of these differences between the rule on anticipatory breach given in Blossom vs Manila Gas and the much later case of Swagman Hotels vs CA. The principle of Swagman has been reiterated by the court in subsequent cases. At the time of the filing of the complaint, the plaintiff must already have a cause of action. He must show that his right has already been violated at the time of the filing. Otherwise, he cannot make use of amendment to conform to evidence. Amendment to conform to evidence presupposes the existence of a cause of action on the part of the plaintiff. The opposite of splitting a cause is joinder of causes of action. Splitting is prohibited while joinder of causes is encouraged by the rules. So in joinder of causes, the plaintiff is encouraged to incorporate as many causes of action as he may have against the same defendant although these causes of action are totally unrelated to one another, although these causes arise from different transaction as long as the parties to the transaction are the same plaintiff and defendant. So a plaintiff can file a complaint against a defendant for accion reinvidicatoria, recovery of money arising from loan, recovery of damages from quasi delict. Althought they arise from different transaction. So that is there is one plaintiff and one defendant. There is nothing wrong if the plaintiff sets up 3 different causes of action although these causes of actions arise from different transactions. The limitations of joinder of causes can be summarized in three issues that is the issue of jurisdiction, the issue of venue and issue of joinder of parties. There could be joinder of causes of action according to Rule 2 which is encouraged as long as the party does not violate the rule on joinder of parties found under the next rule as long as these cause enjoined do not follow different rules of procedure and of course these causes of action should be within the jursidiction of the Trial Court. So that if the plaintiff files a complaint against the same defendant and his first cause of action is accion reinvidicatoria assesed at 1,000 and the second cause of action is for the recovery of money, 2 Million pesos. Obviously, the causes are misjoined because the RTC does not have jurisdiction over the accion reinvidicatoria valued at 1,000. About 7 months ago, the SC decided a case where one of the parties in August 2012, this case presented a joinder of causes where there was really misjoinder of causes of action. The complaint filed by the plaintiff against the defendant set up as first cause of action a complaint for partition. And the second cause of action was for recission of a donation. Both causes of action are cognizable by the RTC. If we rely solely on rule 2 section 5, is there misjoinder of cause of action? the first cause is partition, the second cause is recission of donation. The answer is Yes. Why? because a complaint for partition is a special civil action. If you look at the Rules, Partition is enumerated in the list of Special Civil Actions. While recission of donation is an

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     ordinary civil action. In other words, they are governed by different procedure. So, here is indeed in this case misjoinder of causes of action. But the defendant did not raise this assigned issue. The defendant either did not realize that partition is a special civil action while recission in an ordinary action. The defendant did not do anything and the worse is that the judge did not know any better.  He most likely waited for the defendant to raise this issue on misjoinder of causes of action but since no motion came from the defendant, the judge said “I will just try these two misjoined causes.” Under the rules, can the court muto proprio apply the rule on misjoinder of causes by ordering the severance of one of the cases that is misjoinded? The answer is yes. Under the Rules, we do not really need a motion coming from the defendant. On its own, if the court finds out that there is a misjoinder, the court is given the prerogative motu proprio to order the severance of cases. This is for the benefit of the court because of if the court will wait for the move from the defendant to raise misjoinder of causes, the court will find itself confused with the procedure that will follow. Because partition has a procedure different from ordinary civil actions. In fact, partition under our rules now is a multi-staged proceeding. That’s why it is a special civil action while recission is an ordinary civil action. It is not divided into several stages like a complaint for partition. But since nobody raised the issue of misjoinder and the court did not realize that there was misjoinder of causes, the court just went on to try these two cases until a decision was finally issued by the court. When the matter appealed to the SC, the SC said that there was nothing irregular with the performance of the court even if the causes of action are misjoined. But the issue is not raised before the trial court, and the trial court goes again with the trial of these misjoined causes of action. The decision of the court will still be valid. The only qualification given by the SC is that this misjoined causes should be within the jurisdiciton of the trial court under BP 129. In other words, this rule of joinder of causes could be a ground for severance of one of the causes but if it is not raised timely and the trial court eventually decides the case, the decision of the trial court is binding. It’s perfectly in order as long as the trial court has jurisdiction over the misjoined causes. Does the RTC have jurisdiction over the complaint of partition? Does the RTC have jurisdiction over recission of donation? Recission is incapable of pecuniary estimation. So even if there are misjoined causes in one complaint, but this misjoinder is not raised before the trial court, the parties are deemed to have waived this misjoinder of causes of action. The judgment rendered by the court is valid and it can be executed if it is duly entered. If the court does not motu proprio order the severance of cases, we cannot blame the court for it. It is the bargain of the defendant to raise this as an issue before the trial court. So again, this is the attitude of the SC when it comes to misjoinder of causes of action. As long as the misjoined causes fall within the jurisdiction of the trial court, there is nothing wrong if the trial court will eventually decide the case although there is misjoinder of causes of action. Can the complaint be filed where these two causes of action are set-up? First, it is a petition for certiorari and then as a second cause there is a petition for habeas corpus. If you read literally section 5 that is not allowed. But the SC allowed. A petition for certiorari which is a special civil action could be filed together with a petition for habeas corpus which not a special civil but it is in fact a special proceeding and therefore the procedure

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     followed by 2 different petitions are different. That should be disallowed under Section 5, but that is allowed according to the court by way of exception. A complaint is filed with an inferior court. The first cause of action is reinvidicatoria. Recovery of title to a piece of land. The assessed value of the land is 5000 pesos. The second cause of action is unlawful detainer of a condominium unit. The back rentals to be recovered is 2 Million pesos. So in this complaint the first cause is accion reinvidicatoria of another piece of land or property whose assessed value is 1000 pesos and then unlawful detainer of a condominium unit the back rental sought to be recovered is 2 Million pesos. Does the inferior court over the 2 causes of action. The answer is yes. because an inferior court has jurisdiction over a case of accion reinvidicatoria where the assessed value is only 1000 pesos. The inferior court also has jurisdiction over unlawful detainer regardless of the back rentals sought to be recovered. So with respect to jurisdiction on the part of the inferior court, there is no problem at all. It really has jurisdiction. Are the two causes properly joined? Although they are within the jurisdiction of the inferior, the answer is No. There is still misjoinder although both cases are cognizable by the inferior court. Because accion reinvidicatoria, although cognizable by an inferior court will be governed by ordinary procedure while unlawful detainer will be governed by summary procedure. That is one of the limitations in joinder of causes of action. We cannot join causes of action which are governed by different procedures although they may fall within the jurisdiction of the same court. But you always refer to this new case of Baylon (?), even if there is misjoinder, if it is not raised as an issue, the issue is waived and there is nothing wrong with a decision rendered by the court thereafter as long as the court has jurisdiction over all the causes of action that are misjoined in the same complaint. Good afternoon. To continue with the just today’s discussion on joinder of causes of action, you should be conversant with the limitations to this prerogative given to the plaintiff. You also notice that, unlike joinder of parties, there is a rule against misjoinder of causes of action in the same way that there is a rule against misjoinder of parties. But there is no rule which governs non-joinder of causes of action while in joinder of parties, there is non-joinder and misjoinder of parties. The reason why we cannot conceive of a rule on nonjoinder of causes is because joinder of causes is always permissive. It is always at the option of the plaintiff. That’s why the rules state that the plaintiff can join as many causes of action as he may have. That is permissive. If he does not want to join causes of action against the same defendant, the court cannot force him to do so. But there is a rule against misjoinder of causes and misjoinder occurs when the two causes joined violate some of the limitations contained in Sec. 5, like rule on joinder of parties, rule which prohibits joinder of causes which are governed by different rules, such as when a special civil action is joined together with an ordinary civil action although both would be cognizable by the same court, the joinder is prohibited but as to the mentioned yesterday, the latest decision of the court is to the effect that even if the causes are misjoined, if that issue is not raised on appeal before the Supreme Court or Court of Appeals, these courts will just ignore the violation on the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     rule on joinder of causes of action. The judgment rendered by the court cannot be challenged provided that the court has jurisdiction over the two or more causes that have been joined. The first limitation to joinder of causes is the rule on joinder of parties. And the rule on joinder of parties which serves as a limitation to joinder of causes is the rule in Sec. 6 of Rule 3 that is permissive joinder of parties. In permissive joinder of parties, it envisions a situation where there are two or more plaintiffs, or two or more defendants or both, and the right to relief arises from the same transaction or a series of transactions and there is a common question of law or fact in so far as the defendants and the plaintiffs are concerned. Usually, joinder of permissive joinder of parties, issues when there are at least two causes of action, pertaining to the two plaintiffs or against the two defendants as the case may be. A good example is illustrated by case decided by the court about 10 years ago. The owner of a tract of land discovered one morning that his property has been occupied forcibly or through intimidation or any other means and that they retained physical possession of this property about 10 or 11 informal settlers or squatters constructed their houses on that property. The owner of the land of course wanted to recover physical possession of the property. The procedural problem that they face was this. Can he file, should he file 11 complaints of forcible entry against each one of the informal settlers or squatters or can he file just one complaint against eleven defendants, eleven informal settlers, but in that complaint, he will allege eleven causes of action. Each one cause of action against each one of the informal settlers. The SC said the owner of the land has the option of choosing any one of these remedies. The owner of the land can file eleven complaints for forcible entry but each complaint must implead only one informal settler. He can also file just one complaint against eleven squatters but in that complaint, she should allege eleven causes of action. The last recourse will involve joinder of parties. There is just one complaint, against eleven squatters but in effect, in filing effectively, he can be filing eleven separate complaints, but there is only one complaint. That is the illustration of permissive joinder of parties. We should also note that joinder of parties in Sec. 6 of Rule 3 as a limitation to joinder of causes of action is also permissive in character. The title of the section is permissive joinder of parties. In another section, in Sec. 7 of Rule 3, there is another concept of joinder which is compulsory joinder of parties. In other words, the joinder of parties in compulsory joinder is a must, it is a mandate required by law. And this refers to compulsory joinder of indispensable party. In compulsory joinder of indispensable party, the definition of an indispensable party in the Rule is that it is a party without whom no final determination of a case can be had. Meaning to say that even if the court tries a case without an indispensible party having been impleaded, the decision of the court is void, the proceedings of the court are void. The decision will never be entered; it will never become final and executory. That is the message given in rule on compulsory joinder of indispensible party. If there are only two parties in a contract of sale, there is just one vendor and just one vendee and there is a violation of the conditions of the sale, the innocent contracting party, will of course be indispensable and the party who has committed the breach will also be an indispensable party. The opposite of indispensable party is a necessary or proper party. Rule 3 also gives us the definition of necessary party. But we will know that the joinder of a necessary party is not compulsory. The law does not

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     require the plaintiff to implead a necessary party unlike in the case of indispensable party. Because it is the law itself that compels the inclusion of an indispensable party, what is the sanction if a complaint is filed without impleading an indispensable party? If an indispensable party is not impleaded, either as plaintiff or as a defendant, and the defendant files a motion to dismiss on that ground, that is the ground relied upon by the defendant is an indispensable party has not been impleaded, will the court grant the motion to dismiss? The answer is no. Because Sec. 11 in Rule 3 is very clear: non joinder or misjoinder of a party is not a ground for dismissal. But in other cases, decided by the SC, the motion to dismiss filed by the defendant for the reason that an indispensable party has not been impleaded, is not failure to implead an indispensable party. The ground used by the defendant is failure to state a cause of action. In Rule 16, that is the rule on motion to dismiss, failure to state a cause of action is a ground for dismissal. Failure to implead an indispensable party is not a ground for dismissal under Rule 16. In fact, Rule 3 is very clear in saying misjoinder or nonjoinder of a party is not a ground to dismiss. But if the defendant uses another ground that is failure to state a cause of action, there are conflicting decisions of the SC when the SC resolved the question of whether or not failure to implead an indispensable party is a good ground for dismissal. Remember that the ground used by defendant is not failure to implead an indispensable party but the ground for dismissal is failure to state a cause of action. One set of decisions of the SC said that if an indispensable party is not impleaded and there is a motion to dismiss founded on failure to state a cause of action, the case would be dismissed on that ground. Because there is really failure on the part of the plaintiff to state a cause of action if an indispensable party-defendant is not impleaded. In the definition of a cause of action, the law says that a cause of action exists when there is a violation of the right by another party. In other words, a cause of action envisions the existence of a right and a violation of that right. If there is a wrong doer who has violated the right of a party, that wrongdoer should be impleaded as a party defendant. The reason given by these one set of decisions of the SC in affirming the dismissal of a complaint where an indispensable party defendant has not been impleaded is that the proceedings taken by the court are void. With respect to the parties who are present in the case and with respect to other parties who could have been parties to the cause. The judgment is null and void. And therefore the court said if we don’t dismiss the case, we allow the court to continue trying the case and we allow the court to eventually decide the case. The court will just be spending useless his time, because the judgment to be rendered by the court, in a way cannot be enforced; it will never become final and executory. That was the justification given by the court in this set of decisions which allowed the dismissal of a complaint for failure to state a cause of action. Failure to state a cause of action because an indispensable party-defendant has not been impleaded. The other set, the second set of decisions of the SC is to the effect that if an indispensable partydefendant has not been impleaded, and there is a motion to dismiss filed by the present defendant on the same ground failure to state a cause of action, the court should not dismiss the case. The reason given by the SC is Section 11. Misjoinder or nonjoinder of a party is not a ground for dismissal. The court said: if an indispensable is not impleaded, and a motion to dismiss is filed by the defendant, what the court should do is to order the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     amendment of the complaint. Is it proper for a court to order the amendment of a complaint if the motion before the court is a motion to dismiss? Should not the court either grant or deny the motion to dismiss? If you read Rule 16, on the alternatives, the options given by Rule 16 to a court which is going to rule on a motion to dismiss, Rule 16 really says that a trial court has three options. The first is to deny the motion, the second is to grant the motion and the third is to order an amendment to the pleading. So this decision of the SC is also founded on an express provision of Rule 16. A trial court really can refuse to grant a motion to dismiss by using the third option that is order an amendment of the pleading. In fact as of now, there are four alternatives given to a trial court in resolving a motion to dismiss. The first three: grant the motion, deny the motion or order an amendment to the pleading and the fourth alternative introduced by a circular is that for the court to refer the matter to arbitration or a prior barangay conciliation. There are now four options given to a trial court. But we are interested in the third option given in Rule 16. And the Supreme Court said if a person is an indispensable party to the case and he is not impleaded as a defendant, the person who has been sued in that case can move for a motion to dismiss but the court will not grant the motion, the court will instead order the amendment of that complaint. So the motion to dismiss will not be granted instead, the court will tell the plaintiff: you amend your complaint by impleading the indispensable party. If the plaintiff receives an order from the court, directing him to amend his complaint by impleading an indispensable party, the plaintiff also has a choice. He can ignore the order of the court or he can comply with the order of the court. If the plaintiff complies with the order of the court and the plaintiff amends his complaint, and impleads the indispensable party, then the defect in that case is solved. There is no more procedural defect because an indispensable party has been impleaded. But if the plaintiff disobeys the order of the court, directing him to implead an indispensable party, can the court do something about the disobedience of the plaintiff? This other set of decisions said, the court can now order the dismissal of the case but the dismissal of the case will not be founded on Rule 16 but it will be a dismissal found on Rule 17. Rule 17 is also about dismissal of actions. And the court said if the dismissal of the action is thereafter ordered by a court by reason of the disobedience by the plaintiff of a lawful order of the court, that dismissal under rule 17 is a dismissal with prejudice. In other words, that will be an adjudication upon the merits. If that order of dismissal is finally entered, then there will be res judicata and the plaintiff will be barred from further pursuing his claim in another complaint. This issue as we said is a subject of conflicting decisions of the court and if by chance, this is asked in your examinations, I would suggest that you adapt the second set, that is if an indispensable party has not been impleaded and there is a motion to dismiss the court should not order a dismissal of a case. The court should order the amendment of that complaint. If the amendment is not complied with, the court can now order the dismissal of the case not by reason of a motion to dismiss under Rule 16 but by reason of Rule 17, dismissal of the action by reason of failure to obey a lawful order of the court. Is there a difference between a dismissal under Rule 16 on that ground failure to state a cause of action and a dismissal under Rule 17 failure to obey the rules of court or a lawful order of the court? There is a great difference. If a complaint is dismissed under Rule 16

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     because of failure to state a cause of action and the failures to state a cause is founded on the failure to implead an indispensable party, the order of dismissal under Rule 16 is a dismissal without prejudice. The plaintiff can file another complaint. But in that other complaint, he should see to it that the indispensable should now be impleaded. But if the dismissal of the complaint is by reason of Rule 17, if you read the third section of Rule 17, it is clearly provided that a dismissal for failure of the party to obey a lawful of the court or failure of a party to obey the Rules of Court is a dismissal with prejudice, unless the court otherwise provides. But generally, the dismissal under Rule 17 is a dismissal with prejudice. That should be the thrust of your answer in the event that this problem is given in your bar examination. Failure to implead an indispensable party is not a ground for dismissal of a case. Under Section 11 of Rule 3, nonjoinder or misjoinder of a party is not a ground for dismissal. But if the ground used is failure to state a cause of action, you also say that under Rule 16, a court has an option not to grant the motion to dismiss, not to deny a motion to dismiss but simply order the amendment of the pleading or the complaint. If the order to amend is not complied with, there could now be a dismissal not under Rule 16 but under Rule 17 - Failure to obey a lawful order of the court. How do we distinguish whether a party is an indispensable party or necessary party? This matter is illustrated usually in our textbooks with an illustration of a relationship between a creditor and his two debtors. Let’s say that the creditor lends 1M pesos to two debtors: Debtor 1 and Debtor 2. And then the obligation is defaulted. If the creditor files a complaint, should he implead debtor 1 and debtor 2? Or can he just file a complaint against debtor 1, leaving out in a complaint debtor 2. In other words, in a complaint contemplated by the creditor, who between debtor 1 and debtor 2 is an indispensable party and who between debtor 1 and debtor 2 is a necessary party. That question will not be answered by the Rules of Court. That question will be answered by the Civil Code. In several cases decided by the court, the plaintiff should first evaluate whether the debtors are solidary debtors or they are only joint debtors. So we are going to apply the provisions of the Civil Code. And in the Civil Code, in the absence of any stipulation or some other factors given in the Code itself, when there are two or more debtors of the same indebtedness, the presumption is that they are only joint debtors. But if there is a stipulation that they are jointly and severally liable, then debtors 1 and 2 will be considered as solidary debtors. So we must first establish whether the debtors are joint debtors or solidary debtors. And in determining the relationship of these two debtors to the creditor, it is not the Rules of Court that will guide us. It is the substantive law. It is the civil code to determine whether the parties, the debtors are jointly liable or severally solidarily liable. If we apply the presumption in the Civil Code that debtors 1 and 2 are joint debtors, and the creditor files a complaint for the recovery of the whole indebtedness of 1M pesos, do we consider debtor 1 and debtor 2 as indispensable parties? The answer is YES. If the purpose of the creditor is to recover the entirety of his claim that is 1M pesos, he can recover his credit from both joint debtors. But if the plaintiff, if the creditor decides to run after Debtor 1 only, can the complaint be prosecuted successfully? The answer is YES. Because the creditor has a cause of action against D1. The creditor has a right to compel D1 to pay but from the point of view of the Civil Code, the issue is how much is the liability of D1? Again, applying civil code on joint liability

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     of debtors, d1 is liable to pay only 500K pesos. If the debtors are jointly liable it is not possible for the creditor to recover from only one of the joint debtors 1M pesos. He can recover only the portion of the obligation which has been shared by d1. Why do we say that in our example, the creditor can recover from d1 500K pesos? Why not 400 why not 800K pesos. Because there is another presumption in the civil code that if there is no express stipulation between the parties, the debtors should share equally in the liability. So we are applying presumptions in the civil code. The liability of d1 could be 700k pesos, if that is so stipulated among the parties. But in the absence of stipulation, we assume that the liability of d1 is equal to the liability of d2. Again, if the action is creditor vs. debtor1, the claim that should be recovered by the creditor is only 500K pesos. In this example, d1 is an indispensable party because without d1, it is then unlikely for the court to render a judgment in favor of the creditor directing d1 to pay if d1 is not made defendant to the case. So d1 is an indispensable party. How about d2? Will he be considered as a necessary party in this complaint? The answer is yes. So if there is a complaint filed by the creditor only against d1, the creditor is indispensable, d1 is also indispensable, but d2 will only be impleaded as a necessary party. D2 satisfies all the requirements of a necessary or proper party in that even. If you read the rules, the presence of a necessary party is not indispensable. The case can go ahead. But the presence of a necessary party could be required by the court if in order to give complete accord of relief to the parties in so far as the complaint is concerned or for the purpose of a complete determination of the subject matter of the action. The subject matter of the action for the purpose of satisfying that phrase “complete determination of the subject matter therein” is the recovery of 1M pesos. That’s why d2 becomes only a necessary party. But the rules do not compel the creditor to implead d2. Since d2 is only a necessary party, even if you don’t implead him, the case can prosper, the court can try the case, but the decision of the court will be limited to the awarding to the creditor 500K pesos. What is the duty of the creditor or the plaintiff if he has not impleaded a necessary party? The duty of the plaintiff is only to tell the court that he has left out in his complaint a necessary party. That is enough. So he may not be compelled. He is not compelled by the rules to implead a necessary party. All that he needs to do is to file a complaint against an indispensable party and in that complaint, he will tell the court, I have not impleaded a necessary party. And it is up to the court now to determine whether or not it is essential for the court to order that d2 must be impleaded to this action. If the court does not issue an order requiring the plaintiff-creditor to implead d2, there is no need for the plaintiff to amend his complaint. But if the court orders the plaintiff –creditor to amend his complaint by including by impleading d2, the plaintiff again will have two options either to file in court or not to file in the court. If the plaintiff follows eventually the order of the court, then we will have a situation where the complaint will be amended, the necessary party will be impleaded as defendant but the complaint will now be for the recovery not only for 500k but for the recovery of 1M pesos. If on the other hand, the plaintiff-creditor ignores the order of the court, can the court now make use of Rule 17? Can the court also order the dismissal of the complaint under Rule 17 because of the refusal of the plaintiff to obey a lawful order of the court? We don’t apply Rule 17 in this situation. We don’t apply Rule 17 because Rule 3 itself already provides for a sanction if the plaintiff refuses to

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     obey an order of the court directing him to implead a necessary party. The sanction given in rule 3 is simply that the plaintiff is deemed to have waived his right to recover from the necessary party. That is expressly mentioned in rule 3 concerning impleading a necessary party. So you will also note that there is a difference between the effect of disobedience by a plaintiff to an order of a court to implead an indispensable party compared to the disobedience by the plaintiff to an order by the court to implead a necessary party. If the plaintiff refuses to heed an order of the court to implead an indispensable party, the complaint could be dismissed under rule 17 and the dismissal general is a dismissal with prejudice. If the plaintiff ignores an order of a court to implead a necessary party, the court cannot order the dismissal of the complaint under rule 17. What the court will apply is the sanction given in rule 3,that is failure to implead a necessary party if directed by a court. The case will continue, the case will not be dismissed, but in so far as the necessary party is concerned, the right of the creditor against him is deemed waived. But if you look further into the consequence of that sanction given in rule 3, if later on the plaintiff creditor decides to file a complaint against d2, that complaint will no longer prosper. Why? Because the d2 can now make use of rule 16, file a motion to dismiss on the ground that the claim has been paid, waived, abandoned or otherwise extinguished. So at the end, the effect could be the same. Whether a party not impleaded is indispensable or necessary. But the ground for the dismissal will be different. In the case of an indispensable party, the ground for dismissal is rule 1 sec. 3, failure to obey a lawful order of a court. In the case of a necessary party, the complaint again will also be dismissed under rule 16, that is the claim has been paid, waived, abandoned, or otherwise extinguished. There are other sections in rule 3 which could give rise to an occasion where we have to determine whether a party is indispensable or a necessary party or whether he is a real party at all to the existing case. And we are referring to the rule on assignment or transfer of interest during the litigation. I think that is the last section in rule 3, that transfer of interest pendente lite and transfer of interest before the complaint is filed. We are going to make use of the same example: there is a creditor who has lent out 1M pesos to the debtor. This time, we will only have 1 debtor. The debtor defaults in the payment of the obligation. But before the creditor files a complaint against him, the creditor feels that he needs money right away. So he decides to sell his claim to assign his credit to an assignee. Can the creditor do that. Of course the answer is yes. That is covered by procedural law. That is covered by the civil code. That is simply assignment of right. So if the creditor who has a claim for 1M, decides to assign his credit before a case is filed, he can assign this credit to any person who is willing to assume the risk of indebtedness. That is what we call in civil law assignment of credit. There is an assignor, there is an assignee. Usually in assignment of credit, the assignee pays or buys the credit for an amount which is much less than the credit. So if the credit assigned is 1M and it is assigned, it is very likely that the money to be paid by the assignee for the 1M credit will only be 700K pesos. So it is a claim to recover 1M pesos. It is sold to the assignee for only 700K pesos. So in dealing up a claim of 1M pesos, the creditor will receive only 700K pesos. But the indebtedness is already in default. Can the assignor, the original creditor file a complaint against the debtor for the recovery of 1M pesos? Of course not. Because he is no longer the creditor. He has

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     already sold his right. He is no longer a real party in interest. So that if the original creditor files a complaint against the debtor, the court will dismiss the case. The original creditor is no longer a real party in interest. He has no right to enforce the payment of his claim that has already been assigned to another person. Supposing it is the assignee who will file a complaint against the debtor, will the filing of the complaint be proper. Of course it will be proper. The assignee is a real party in interest. He’s an assignee of the credit, and therefore he stands to be benefited or injured by the outcome of the case. If it is the assignee who will file a complaint against the debtor, can the assignee recover 1M pesos from the debtor? The answer is yes. Because in civil law, the assignee merely steps into the shoes of the assignor, if the assignor was entitled to recover 1M pesos, then assignee is also entitled to recover 1M pesos. But in this case, filed by the assignee, against the debtor, the assignor is not a real party in interest, he is not a necessary party. He cannot be a considered necessary party because he is not even a real party in interest. But if we change the facts a little bit, the answer will also be different. If let’s say that the original creditor has not assigned his credit for 1M. He files a complaint against the debtor for the recovery of 1M pesos. Is the filing of the complaint proper? The answer is Yes. Because he is still the creditor. The owner of the credit. While the case is pending before the RTC, the plaintiff-creditor also feels the need for cash right away. While the case is pending, can the plaintiff-creditor assign his claim? The answer is Yes. He can assign his claim. Does he need the permission of the court? He does not need permission from the court. Because that is not governed by procedural rules. That will still be governed by substantive law, by the provisions of the civil code. So while the case is pending before the RTC, the plaintiff creditor signs or executes a deed of assignment pendente lite, during the pendency of the case in favor of the assignee. The consideration for the assignment is still 700K pesos. There is nothing wrong with the assignment. As we said, he doesn’t even need permission from the court for the plaintiff-creditor to assign his credit during the pendency of the case. So we now have a plaintiff-creditor who has assigned his right to an assignee. Will the assignee be considered as an indispensable party? The answer is NO. Will the assignee pendente lite be considered as a necessary party? Still the answer is No. if you read in that section on transfer pendente lite, we find out that the court has the option not to order the amendment of the complaint. The court can go ahead with the original parties to the case. So the assignee pendent lite is not an indispensable party. The assignee pendent lite is not even a necessary party. Let us say that after the assignment, the assignee may submit a manifestation to the court and tells the court that during the pendency of the case, he acquired the rights of the plaintiff to recover 1M pesos for only 700K pesos. Can the defendant now tell the court: I am willing to pay 700K right away to the assignee but the complaint will have to be dismissed? Because the assignee purchased the credit during the pendency of the case for only 700K, although the credit is really for 1M pesos? Is the stand of the defendant correct? In other words, can defendant compel the assignee to receive 700K pesos as full payment for a 1M peso obligation? The answer is YES. Under the civil code, you will read that is Art. 1634 of the civil code. That is the difference between assignment of a credit before a complaint is filed and assignment of credit while the case is pending before the court. The

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     defendant, the debtor in assignment pendente lite can compel the assignee to accept an amount, the amount paid for the consideration for the assignment for the full payment of the credit. That is what the civil code provides. You always have to analyze whether the assignment takes place before a complaint is filed or the assignment takes place after a complaint is already filed. There is a big difference between the consequences of assignment pendente lite and assignment before the case is commenced for the purpose of satisfying the indebtedness. And we are going to apply the provisions of the civil code on assignment pendente lite when it comes to the manner of satisfying of full payment of the account. Remember that in assignment pendente lite, if the account is only 1M pesos, and there is an assignment only for 700K pesos, the defendant can compel the assignee to receive 700K pesos as full payment for the 1M pesos account. And this is provided in the civil code. Another section in rule 3 which could give rise to the determination or ascertainment as to whether a person will be treated as indispensable or merely a necessary party. It is the rule concerning husband and wife. Rule 3 is very clear in saying that in all actions, the husband and the wife must be joined together. But the exception, there is an exception, except as provided by law. So if we simply rely on the rules of court, whenever there is a case filed by a husband as plaintiff, he should always join his wife as a co-plaintiff. Whenever there is an action filed against the husband, the plaintiff should see to it that the defendants are both the husband and the wife. That is the general rule under the rules of the court. The husband and the wife shall sue or be sued jointly, except as provided for by law. That exception, that phrase, except as provided for by law is also the source of conflicting decisions of the court. If you will notice, the rules simply say except as provided by law. And the rule itself does not provide for the exceptions. So the rule compels us to look for an exception, either from procedural law or from substantive law. Now the Supreme Court in the latest decisions, said that the law contemplated in the exception is the Family Code or the Civil Code as the case may be. And SC said, if we are going to look for the exceptions to this procedural requirement that husband and wife should sue or be sued jointly, the chapter in family code or in the civil code as the case maybe that is most pertinent to this procedural principle will be the rule on partnership or the rules on co-ownership as found in the family code or in the civil code. And in each decision, the court said that it is not always correct to require the husband to include his wife as a co-plaintiff whenever the husband files a case against another person. The court said that under the rules on co-ownership and the rules on partnership, the code, the civil code allows a co-owner or a partner to file a case on behalf of the partnership; a co-owner can file a complaint on behalf of the other co-owners without impleading the co-owners. So that if let’s say the husband is in the retail business, and then a customer of the husband’s business defaults in the payment of an obligation, can we allow the husband to file the case without including his wife as a coplaintiff. Supreme Court said yes, it’s not necessary to include the wife. Why? Because the law on co-ownership, the law on partnership allows a co-owner a sole co-owner to file a case in order to protect the interest of the coownership without impleading the other co-owners. In the family code, it seems even if the property relationship between the husband and wife is covered by conjugal partnership of gains or absolute community of partnership between the husband and the wife, they are treated as co-owners. The husband and the wife are

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     treated for purposes of actions as co-owners of the properties acquired during the marriage. And in civil law, a co-owner is authorized to file a case without including the other co-owners for the protection of the interest of the co-ownership over certain properties. In the civil code, as well as in the family code, according to the code, a co-owner can even file an action of unlawful detainer or forcible entry against a trespasser who co-owned property without including the other co-owners. So as of now, if the husband files a complaint alone, without joining his wife as a party-plaintiff, the filing of the complaint will not be a violation of the rules of court which requires that husband and wife should sue or be sued jointly. We apply the provisions of the family code on coownership as well as the rules of partnership. Either the family code or the civil code provisions will apply. But there is a caveat given by the SC in its decision. If the husband as a co-owner files a complaint against a wrongdoer, he should see to it that in that complaint, he is admitting that he is simply acting as a co-owner of the property. That he recognizes the existence of the co-ownership. But if in the complaint filed by the husband alone, without the wife, the husband alleges that he is the sole owner, that there is no co-ownership between the husband and the wife, then he should implead the wife because he is no longer filing a complaint in representation of the co-ownership but instead he now denies the existence of that co-ownership. That is the caveat given by the court in its latest decision concerning the propriety of the husband filing a complaint alone without being joined by his wife. As long as one of the spouses who acts as plaintiff continues to recognize the existence of the co-ownership, there is nothing wrong if the other spouse is not included in that complaint. So if we allow the husband alone to file a complaint, do we consider the wife as an indispensable party? The wife will not be considered an indispensable party because the law authorizes the husband alone or the wife alone to file the complaint. Is the spouse who was left out considered a necessary party? The court said the spouse who has been left behind in that case is not even considered a necessary party because the case can be adjudicated by the court and the adjudication by the court can become final and executory. There could be a complete determination of the case even without joining the absent spouse. So in this husband and wife relationship, if the law authorizes one of the spouses to file the complaint and when say the law it’s the substantive law, the family or civil code, the absent spouse will not even be treated as a necessary party. Another provision in rule 3 which could give rise to a situation where we have to determine whether a party left out is indispensable or necessary is the idea of class suit. In a class suit, the requirement is that there is a community of interest. There is common interest among persons that are so numerous it is impracticable to bring them all before the courts. And in a class suit the law does not require that all the members of the class should be impleaded as plaintiff or as defendants as the case may be. What the rule requires is only a number enough to represent the members of a class should act as plaintiff or should act as defendant as the case may be. But the most important feature in a class suit is of course community of interest. That is, the interest of the members of the class are not specified. The interest of one member will also be the interest of the rest of the members. But if the interest of one member is different from the interest of the other members, that will not be considered as class suit. If you’ve read the case of Oposa vs. Factoran, that is an example of a class suit. In fact,

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     the doctrine in oposa vs. factoran is now formally a part of the rules of court. That is, a person files a complaint on behalf of children who are yet unborn. That is allowed. Because of the decision in oposa vs. factoran, that is now made a part of the rules of court. Under the circular on kalikasan, in fact, if you have the circular in kalikasan, there is the section called citizen suit, and that section on citizen suit have this verbatim the decision of the SC concerning the feasibility, the propriety of a person filing a case, a kalikasan case on behalf of persons who are yet unborn. You know the reason given by the court in oposa is that this is allowed because of the principle of intergenerational ethic responsibility. But from a procedural point of view, that will be a class suit although the writ of kalikasan conceived a citizen suit that is effectively a class suit. In a class suit, do we consider the members of the class as indispensable or necessary parties? According to the court, in a class suit all the members of the class are indispensable parties. But that is now settled. That is what the SC said that in a class suit, all the members of the class that is involved in the litigation are considered as indispensable parties. If the members of the class are all considered as indispensable parties, should we not identify them individually in the pleadings, in the complaint or in the answer? The SC said no, in a class suit the class may be represented by a sufficient number of the class but although the members of the class are all indispensable parties, they need not be identified individually in the pleadings submitted to the court. In other words, the SC has inserted an exception to the rule on compulsory joinder of indispensable party. The general rule as we said a while ago is that an indispensable party must always be joined. He must always be impleaded because without him, no final determination of the case can be had. But because of this decision of the Supreme Court saying that although the members of a class in a class suit are indispensable parties, they should serve as an exception to our rule that indispensable parties must be impleaded in an existing action. Why did the court conclude that in a class suit the members of the class are all indispensable parties? The reason given by the SC is the last sentence in the definition of a class suit in rule 3 which is very logical. The last sentence in that section on class suit says that a member of a class in a class suit shall have the right to intervene. In other words, if there is a class suit, let us say there are 1000 members of the class and only 20 members of the class have been identified as plaintiff or defendant in the class suit, so if we read the complaint, there are only 20 plaintiffs or 20 defendants as the case may be. But they represent 1000 members of the class. The 1000 members of the class are all indispensable parties according to the court itself. And if anyone of the members of this class decides to intervene in the case, the trial court does not have any discretion to deny the motion for intervention of a member of a class. Because the language of the rules is very clear. A member of a class in a class suit has a right to intervene, which also is now a modification to our concept of intervention. Intervention usually is a matter that is given to the discretion of the trial court. That’s why, in a pending case if a stranger decides to intervene, he has to file a motion for intervention; he has to get permission from the court. If the court decides not to allow the intervention, we cannot accuse the court of abusing its discretion because the law gives to the trial court discretion in allowing an intervention or not allowing an intervention. We leave anything to the discretion of the court. That’s why the general principle in intervention is it is up to the court to allow or not to allow an intervention. But because of

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     this last sentence in the definition of a class suit which gives to a member of a class a right to intervene. Whenever a member of a class in a class suit files a motion for intervention, the court does not have a discretion to deny the intervention. A court will be compelled to allow the intervention because the rule itself states that a member of a class has a right to intervene. In other words, the court has no discretion in granting or denying the motion for intervention by a member of a class in a class suit. The other important topic in rule 3 is about the consequences of the death of a party ̶ either the plaintiff or the defendant in a pending action. When a party dies, whether he is a plaintiff or defendant, the law requires the lawyer of the deceased litigant to give information to the court about the death of his client. This requirement stems from a provision also in civil code, the provision of the civil code on agency. The civil code looks at the relationship between a lawyer and his client as a contract of agency. The client is the principal and the lawyer is the agent. In the civil code, if either the principal or the agent dies, the contract of agency is extinguished. So the relationship is cut off. That’s why the rule is very clear in saying that when a client or litigant dies, it is the duty of the lawyer to inform the court about the death of his client. The lawyer will be telling the court, I am no longer an agent of my principal because my principal has already died. There is no more principal-agent relationship between the two. The lawyer withdraws his right to represent his client in court once his client dies. If the lawyer informs the court about the death of his client either the plaintiff or the defendant, it is now the duty of the court to order substitution if substitution will be proper. So if it is the plaintiff who dies, the court will require the presence of the substitute plaintiff, if it is the defendant who dies the court will require the presence of the substitute defendant. If the court is duly informed about the death of a plaintiff or a defendant, but the court does not observe the process given in the rules concerning substitution, and the court goes ahead with the trial of the case and then the court eventually decides the case, will the proceedings taken by the court, will the judgment of the court be valid? The court said if the trial court does not observe the procedure mentioned in rule 3, after having been notified of a death of a litigant, there is no substitution made by the court, the proceedings taken by the court as well as the judgment rendered by the court are void. So it is now the duty of the court to order substitution of parties. That is if the dismissal of plaintiff if the death of the plaintiff or the defendant does not result to the dismissal of the case. There are certain instances where the death of a plaintiff of defendant will automatically lead to the dismissal of the case. For instance, in marriage related case, legal separation, annulment of marriage, an action to declare the marriage void, if either the husband or the wife who are the contestants dies during the pendency of the case, the case will be automatically dismissed. That is also provided in the family code as well as in the circular of the SC on family related cases. But according to the circular on marriage related cases, if the death of the husband or the wife takes place after the judgment has been entered, the death of the husband or the wife will not affect the judgment. So it is the death of the husband or the wife in marriage related cases which will lead to the dismissal of the case if the death takes place before entry of the judgment rendered by the court. So the focal point will be the entry of judgment in marriage related cases. In cases where the death of the plaintiff or the defendant will

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     not lead to the dismissal of the case, the trial court will have to follow the procedure for substitution of the parties. Note that it’s either the plaintiff or the defendant who will die during the pendency of the case that where we follow this procedural substitution of parties. If it is the plaintiff who dies and we assume that the lawyer for the plaintiff has duly informed the court about the death of his client, the court will now require the lawyer to submit to him a list of heirs of the plaintiff. And it is up to the court now to issue an order directing these heirs of the plaintiff to appear before the court to act as substitute plaintiff. If the heirs refuse to act as substitute plaintiff, can the court compel the heirs or anyone of them to act as substitute plaintiff? The answer is NO. The court has no authority to compel an heir of a deceased litigant to act as a substitute party in the case. If the heirs refuse to act as substitute parties, then the court will have to go to the next step given in rule 3. That is to require the other party, the defendant in the case to seek the appointment of an administrator or executor of the estate. In the appointment of an executor or administrator of estate of course can only be done in a settlement court. We assume that in directing the defendant to seek the appointment of an executor or administrator of the deceased plaintiff, the defendant will be filing a petition for probate of a will or intestacy as the case may be. Because it is only in this proceeding where a court can appoint an administrator or executor of the estate. Remember that in a settlement proceeding, the competent court could be an inferior court, it could also be a RTC, depending upon the gross value of the estate. So if the first case is pending before a RTC, the appointment of an executor or administrator could be secured from an inferior court acting as a settlement court. It is not correct to assume now under the circumstances that simply because the case is pending before a RTC, that the appointment of executor or administrator should also come from a coordinate court, another RTC. It depends on the gross value of the estate for the ascertainment of the competent court in the appointment of an executor or administrator of the estate. If an executor or administrator has already been appointed and he has taken his oath of office, then the trial court, the RTC can now order the executor or administrator to act as a substitute plaintiff or to act as a substitute defendant. This time, the executor or administrator does not have any option to deny, to refuse to act as a substitute party. That is one of the duties of an executor or administrator, to represent the estate of the deceased litigant in pending litigations. So one of the duties or executor or administrator of an estate. And this case will be pursued until the judgment is finally entered. In other words, if the death of the plaintiff or the defendant takes place while the case is undergoing trial and there is an appeal from the decision of the trial court, the executor or administrator will be representing the estate even during the period where there is an appeal to the court of appeals or to the SC. The matter can only be submitted to the settlement court if there is already an entry of judgment. The settlement court will have to wait until this case is finally decided and the decision in the case is finally entered. So what if the complaint is for the recovery of a defaulted loan, and the amount sought to be recovered is 2M pesos and during the pendency of the case, the defendant dies. Will the case be dismissed? The case will not be dismissed. Does not the civil law provide that the death of a debtor will extinguish the obligation? There’s no such provision in the civil law. The death of a debtor does not extinguish an obligation. There are only few factors which are taken in determining whether an

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     obligation to pay money will be extinguished and the death of the debtor is not one of them. So if the debtor dies during the pendency of the case, and the court is notified about the death of the defendant, the court will have to observe the procedure given in rule 3 for substitution of party. So if there is proper substitution, the executor or administrator of the deceased defendant will now be acting as a substitute defendant. The case will be pursued until the decision is entered. So if the decision is in favor of the plaintiff and the decision is finally entered, the decision in favor of the plaintiff has become final and executory and the decision directs the substitute defendant, the executor or administrator, to pay 2M pesos, can the plaintiff-creditor, the judgment creditor, file a motion for execution of that judgment? The answer is no. Rule 3 is very clear. If there is a judgment against the estate represented by the executor or administrator, a judgment for money, which has been entered, that judgment cannot be executed under rule 39. What the judgment creditor should do is to submit his claim supported by a final and executory judgment before the settlement court and in that settlement court, although the judgment is already final and executory, there is no assurance at all that the judgment-creditor will be able to obtain satisfaction of judgment. It is axiomatic in settlement proceedings that when the property of a deceased person is under the control of a settlement court, no court can issue a writ of execution against the estate of the deceased person. We don’t make use of rule 39 when it comes to a final and executory judgment for money against the estate of a deceased person. We follow the procedure for the payment of claims outlined in special proceedings - settlement of estate. We don’t make use of rule 39; we don’t allow the court to issue a writ of execution against the estate of a deceased person although the estate of a deceased person is a party to the case. The satisfaction of judgment will have to be submitted to the settlement court. So after the case is decided by the trial court, and then the decision in favor of the plaintiff becomes final and executory, the trial court has done its duty. The trial court will have no authority at all to issue as a matter of right the writ of execution in favor of a judgment creditor if the defendant is a deceased defendant represented by his estate which is in turn represented by executor or administrator. Now we go to rule 4 on venue of action. Venue is one procedural principle which the SC allows to be changed by the parties. Generally, our rules of procedure cannot be changed by an agreement between the parties. There is only one court that can disregard the rules of court in the application to pending cases and that is the SC. The CA, RTC cannot disregard the provisions of the rules of court although the CA or trial courts feel that application of the rules may lead to injustice. That is a prerogative that is enjoyed only by the SC. The reason why the SC can disregard the rules of court is because it is the SC that is the author of the rules of court. The rules of court come from the SC. So if the court of appeals or the trial courts come to the conclusion that the application of the rules of court may lead to an injustice but they cannot disregard the rules of court, what is the duty of the court of appeals or the trial courts? The trial courts can incorporate in their decision that is written in accordance with the rules, an advisory to the defeated party to appeal the matter to the SC. In that way, they comply with the provision of the rules of court and they give an opportunity to the aggrieved party to bring the matter out to the SC. But in so far as the SC is concerned, if the SC concludes that an application of a procedural

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     principle is inequitable or it will lead to injustice, the SC can simply disregard the rules. We come across in our studies of procedure that even the principle or res judicata can be set aside by the SC although res judicata is a concept that on the state policy, it is envisioned as part of the rules of court. If the rules say that even if the rules say that intervention for instance can be done only before judgment is rendered by the trial court and therefore intervention can no longer be had on appeal, if the SC thinks that an intervention should be allowed even the case is already on appeal, the SC will allow the intervention and the SC has done so several times. So the SC can disregard the provision of the rules of court if the SC thinks that it will lead and work equitable solution of the case. But with regard to venue, this is one procedural principle that can be a subject of stipulation between the contracting parties. In fact, if there is a stipulation between contracting parties concerning venue, which is in conflict with rule 4, it is the stipulation between the parties that will prevail. So that, if you are confronted with a question on venue of actions, do not always look at the problem from the point of view of rule 4. You always first determine whether there is a written agreement between the parties concerning venue and that written agreement has the feature of exclusivity; That agreement must be reduced in writing; The feature of exclusivity and it has been entered before the commencement of the action. Rule 4 on venue is the rule which recognizes the classification of actions into real action and personal actions. So you will notice that in rule 4, there is a venue for real actions, there is a venue for personal actions. But again, there is an express provision saying that the parties can change this rules on venue depending on an agreement reduced into writing with the feature of exclusivity before the case is filed. So in a real action usually, the venue in the absence of an agreement is the place where the property is situated or any portion thereof is situated. So if the land subject of the controversy is located here in Manila, the venue should be Manila. But there is nothing wrong if the parties to a contract let us say a contract of sale involving this parcel of land will agree in that contract of sale that the venue of an action that will arise out of the breach of contract of sale, the venue shall be Quezon City or Makati or even Cebu City. And that will govern the rule on venue in so far as the parties are concerned. In personal actions, that is, the action does not involve real rights or real property, the venue in the absence of stipulation is the residence of the plaintiff or the residence of the defendant, the principal plaintiff of the principal defendant at the option of the plaintiff. Supposing the action is called a mixed action, meaning some decisions of the SC, there is also a classification of action into mixed that is aside from real and personal action, the court added the 3rd classification, a mixed action. The action is both real and personal. What will be the venue of the action in the absence of stipulation? The venue will follow the rule on real actions. So the feature of an action as a real action will prevail over its feature as a personal action in so far as the matter concerning this is concerned. Supposing the action is in personam or the action is in rem, or quasi in rem, do we have a rule on venue under rule 4 if the action is in rem or quasi in rem or in personam? Well if you read rule 4, the only classifications that are relevant or material to venue is the classification of real and personal. So that if the action is in rem or in personam or quasi in rem, how do we determine the venue of the action in the absence of stipulation? That’s not a problem. If the action is in rem or quasi in rem or in personam, all you have to do is to further analyze whether that in rem or quasi in rem

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     or in personam action is real or personal. If an action is classified into in rem, quasi in rem or in personam, it does not mean to say that that classification of in rem or in personam or quasi in rem prohibits further classification of the same action into real or personal action. So we can have an in rem action that is a real action at the same time; we can have an in personam action that is a real action at the same time. But for purposes of venue, we simply follow its classification as a real action. In the same way that an action in personam could also be real or personal. If the action in personam is a real action, then we follow its feature as a real action for purposes of venue. For instance, action reinvindicatoria, that is, to recover title to or ownership or possession of a piece of land is of course a real action. The venue therefore is the place the property or any portion thereof is situated. But if the classification to action reinvindicatoria right away is in personam, you have to further determine if that in personam actin is either real or personal for purposes of venue. Action reinvindicatoria is a real action and at the same time in personam action. It is not correct to say that simply because title to or possession of property is involved, that the action is a real action and at the same time it is an action in rem. A real action could be in personam. We said that action reinvindicatoria, action publiciana, they are real actions but they are also in personam at the same time. A good example of an in rem action which is personal will be settlement of an estate of a deceased person when the only properties of the estate are personal properties. There are no real rights; there are no real properties in the estate. That is in rem because a settlement proceeding is an in rem action but at the same time is only a personal action. You have to be reminded always of the decision of the SC in that old case of Sweetlands (?). Although parties are generally given the prerogative to stipulate on the rules on venue as long as there is that the agreement is reduced into writing and there is a feature of exclusivity and the agreement is entered into before the action is commenced. That in the case of Sweetlands(?), the courts also have the power to determine the validity of an agreement concerning venue. According to the SC in that old case of sweetlands(?), if the agreement concerning venue will cause undue burden of remedies to a plaintiff, then the agreement can be set aside by the court. In that case of sweetlands(?), the injured parties, the plaintiffs were heirs or representatives of a person who died as a result of an accident involving a vessel. In the passenger ticket issued by the shipping company which transportation company usually adhere there is embodied a stipulation saying that the venue of the action shall be the principal office, the place where the principal office of the shipping company is located. That is a valid agreement. But when the victims of this accident tried to file cases in their respective provinces or cities where they were residents, the courts before these complaints were filed told them that you have to follow the rule on venue. You have to file your cases, your claims for damages according to the contract at the place where the principal office of the shipping company is located. And the place where the principal office of the shipping company I think was Cebu City and the victims were all residents of Southern Luzon, of Northern Luzon, so it was practically impossible for the victims to file their complaints in Cebu and attend trial in Cebu. So the court said, exercising its authority on liberal construction, that agreement is void. It is not valid although it is part of the ticket issued by the shipping company adhered to by the victims. The rule on venue in rule 4 is designed for the convenience of the plaintiff, to the injured party. It

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     is not designed to serve the interest of a defended party. That’s why it is axiomatic when it comes to venue that the rule on venue is primarily for the benefit of a plaintiff. That’s why in personal actions, the plaintiff is always given the choice, the option whether to file the complaint in his place of residence or in the residence of the defendant at the choice of the plaintiff. You will also notice that the rule on venue applies only to trial courts. They don’t apply to appellate courts so there is no rule on venue in so far as the SC is concerned because there is only one SC unlike RTC or an inferior court where there are several regional districts throughout the country so this is limited only to trial courts, RTC or inferior courts. We said yesterday that prior barangay conciliation is a condition precedent to the accrual of the cause of action. Even if the rightholder can show that his right is already violated by other party, he cannot simply commence an action in court without first undergoing prior barangay conciliation. As long as the requisites are applicable. There are two requisites under the LGC: first is that the parties must be natural persons and second, they reside in the same city or municipality. As long as these requisites are present, prior barangay conciliation is a must regardless of nature of action, i.e. real or personal. Or if it is a claim for money, regardless of the amount involved. If the party is a creditor and the amount sought is 1 Million pesos, prior barangay conciliation is necessary. It is easy to conclude after reading the LGC and The Implementing Rules approved by the Supreme Court that prior barangay conciliation is a first layer set up by law to prevent parties from bringing the action to any court. The reason is that the courts are loaded with cases. IF there is a chance to settle amicably, then they must do so. After all in the Civil Code, amicable settlement is part of public policy. The barangay court is not really a court. It is part of executive department. In adjudicating disputes it may be considered as quasi-judicial body. Barangay courts are not allowed to adjudicate cases. Their only role is to conciliate, mediate and encourage parties to amicably settle and submit compromise agreement if the parties agreed freely. Procedurally, a barangay court follows more or less the procedure we follow in regular cases. The barangay court sends notice to respondent if a complaint is filed against him. But the complaint does not have to be in writing but barangay courts usually require a written complaint and a written answer. The barangay court also requires payment of fees, but the fees are minimal. In Metro Manila, the highest fee imposed is not more than 50 pesos. A barangay court has the authority to collect docket fee when a complaint is filed. If the complainant fails to appear when the barangay court calls for conferences, the barangay court may order a dismissal and that dismissal is one with prejudice. Thus, the complainant may lose the right to recover his claim against respondent. There is also a rule in venue, but different in the rules set out in Rule 4. The venue before the barangay court is the residence of the respondent if the complainant and respondent reside in different barangays of same cities or municipalities. It does not matter what kind of action is as long as the contestants are natural persons who reside in same city or municipality. This applies to all civil actions. It is applicable also in special civil actions like

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     in an action for unlawful detainer, forcible entry and interpleader. But we do not apply barangay conciliation in an action for declaratory relief because there is really a dispute in such case, also in Rule 65 even if parties reside in same cities or municipalities. The reason is that in the enumeration of excepted cases, it includes public officers in the performance of their duties. In certiorari, prohibition and mandamus, you expect the respondent is always a judge performing judicial or quasi-judicial functions. We also do not apply it in expropriation or quo warranto. The duty of the barangay court is just to convince the parties to settle amicably. If they do not, the barangay court must issue a certification stating that no compromise occurred in matter or case under conciliation. And this enables parties to file a case in court. But if the parties agreed to sign a compromise agreement, then the agreement later on could be considered as a final and executor judgement, that is, if there is repudiation made by anyone of the parties. They may avail the execution of the same. The grounds for repudiation are the same grounds given in the Civil Code and treated as vices of consent (fraud, intimidation etc). If there is repudiation, the barangay court will issue a certification that the plaintiff is free to file a complaint in court. In converting a barangay court in an arbitral tribunal, the parties must sign in writing constituting the barangay court as such. That agreement may also be repudiated within 5 days from submission. If not repudiated, the barangay court will act as quasi-judicial body. It can receive evidence, and render a decision as arbitral body. That decision may also be contested, not by repudiating but a petition to annul before an inferior court. The annulment here is different from that of Rule 47. The annulment in barangay conciliation is founded on vices of consent. It is enough that there is fraud, intimidation or violence shown by the aggrieved party. If there is a compromise agreement submitted, the barangay court need not ask inferior court to confirm compromise agreement. If there is no repudiation, the compromise agreement becomes final and executory and may become a subject of execution by the barangay court.. So, the barangay court after it received compromise agreement, may wait for lapse of 10 days and if there is no repudiation, the barangay court may consider the compromise agreement as the law between the parties. If the terms of the compromise agreement are not complied with by one of the parties, the barangay court may execute the judgement and the period thereof is a very short period of 6 months compared to that of Rule 39, which is 5 years from entry of judgement. And after 5 years there is another period of 5 years for the revival of judgement. Insofar as compromise agreement in barangay courts, we do not follow the same. In the matter of execution in barangay court, while the barangay court may make a levy on execution, the same is limited to personal property. The barangay court is authorized to do so, it means to say that the barangay court may sell these in a public auction to satisfy the claim. If there is no satisfaction of the terms of compromise agreement after selling the properties, the remedy of creditor is to file a petition before inferior court for the enforcement of judgement. In one case decided by the SC, the SC decided a dispute concerning enforcement of compromise agreement. (Miguel v Montanez), it gives a manner in which execution may be done. Under LGC and Implementing Rules,

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     it is specified that a barangay court can enforce the compromise agreement that becomes final and executory through levy of personal properties and sell them in public auction. In the case, the claim of the creditor is for example 500,000 and the creditor and debtor reside in same city or municipalities. There Is a compromise agreement submitted. And the claim of 500,00 was reduced to 200,000. substantially and the creditor admitted that the claim may be paid in installments. The debtor did not comply but the creditor did not repudiate the agreement. So, what the creditor did is not to ask for execution by barangay court but filed a complaint for recovery of the original amount. The trial court said that the only recourse is to enforce the compromise agreement and cannot file an action for recovery. The Supreme Court said that when compromise agreement becomes final and executory and the debtor fails to comply with the terms of the agreement, the Court said that such failure is a repudiation of the agreement. The SC cited Article 2041 of the Civil Code and in this article, it is provided that when a party to compromise agreement does not comply with his obligation, the agreement is deemed rescinded. It is rescission by operation of law. Thus the creditor is entitled to recover the claim before the courts of justice. As long as the terms are complied with, there is no problem. But if the terms are not followed, the failure of debtor to follow means repudiation and automatic rescission of the compromise agreement. In our study of rescission, there must always be a complaint filed. But in the article cited by SC, there is rescission by operation of law and thus judicial decision is not necessary. The creditor then will be reverted to his original position insofar as the original amount is concerned even if he agreed to the reduction of the amount of credit in the compromise agreement. The repudiation then may be manifested by mere refusal or failure to comply with the terms of the agreement. I’m not sure if this decision is applicable to compromise agreements submitted before regular courts of justice. In regular courts if the parties submitted a compromise agreement, such agreement becomes the basis of the judgement of the court

(judgement on compromise) and it is

immediately executory. If the parties violate the terms of the agreement, the remedy is to move for execution. In this case when the parties submitted the compromise agreement before the court, that becomes the law between the parties and it cannot be set aside becased on failure to comply with his obligations. SUMMARY PROCEDURE Summary Procedure refers to Summary Procedure followed by inferior courts in Unlawful Detainer, Forcible Entry and claims for money not exceeding 200,000. Small Claims involve claims for money that do not go beyond 100,000. There are also cases that follow Summary Procedure even though cognizable by RTC. And these cases are those that are mentioned in the Family Code. The only pleadings allowed in Summary Procedure are complaint, answer, compulsory counterclaim and crossclaim. So permissive counterclaim is not allowed. A defendant that has permissive counterclaim must file

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     his own complaint for the enforcement of his claim. There are also motions which are prohibited like Motion to Dismiss under Rule 16 unless the ground is absence of jurisdiction over subject matter or absence of prior barangay conciliation. Since the motion to dismiss is prohibited, does it mean to say that the case may not be dismissed on any of the grounds mentioned in Rule 16? That is not so. What is prohibited is a Motion to Dismiss filed by a defendant, but Summary Procedure allows dismissal based on Rule 16 as long as the order of dismissal comes from court itself, without motion filed by defendant. The court is given authority to dismiss without correlative motion filed by the defendant by examining contents of the complaint. If the court finds that a ground under Rule 16 is present, it may dismiss the case on its own. Thus Rule 16 is still applicable but it is the court that must order dismissal of the case. Ordinarily, a court in which a complaint is filed cannot simply dismiss the complaint without a motion filed by the defendant, even if the court thinks that there is a ground for dismissal except the non-waivable defenses. The defendant is allowed to file responsive pleading. And the period to answer is non extendible. Supposing the defendant ignores the period, and files a motion for extension of 5 days. The court will consider the motion as not having been filed and the defendant cannot expect the court to issue an order denying the motion for extension because that is a prohibited pleading. If there is such a motion filed and the defendant does not file an answer within the non extendible period of 10 days, the plaintiff may ask the court to render judgement based on the complaint and the evidence attached in the complaint. So it is a very risky move to file a motion that is prohibited since it will not be acted upon. The court has the discretion not to act on it. If the defendant is prohibited from filing motion to dismiss except on grounds mentioned earlier, and the defendant after evaluating the complaint is convinced that the case should be dismissed under Rule 16, he may still use the grounds under Rule 16 as an affirmative defense in an answer. He may then raise these issues and the court studies the case after submission of position papers. If the defendant does not answer and the court will render judgement based on complaint and evidence attached, it means that the court will not issue an order that the defendant is in default since a motion to declare the defendant in default is a prohibited motion. An order of default is also prohibited. What follows now is judgement rendered by the court in favor of the plaintiff based solely on the complaint and attachments. If you compare this to regular procedure, if the defendant does not answer, the court cannot simply declare the non-answering defendant in default. If there is no answer and the plaintiff does not file a motion to declare the party in default, the court cannot issue an order of default on its own. It must be initiated by plaintiff by motion. In ordinary procedure, if defendant is ordered in default, he is prohibited from participating in the trial of the case. The reason why Summary Procedure does not allow the court to issue an order of default is to prevent the defendant from making use the remedy to file a motion to lift the order of default, thus delaying the proceedings.

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     In Summary Procedure, some of prohibited motions are motion for new trial, motion for reconsideration and petition from relief from judgement. If there is judgement rendered and the defendant is prohibited from filing those motions, the only remedy of the defendant is to appeal from the judgement. But there is another remedy given, that is, by annulment of judgement under Rule 47 since it is not prohibited. But again, before he can make use of Rule 47, the Rules are very strict insofar as annulment of judgement are concerned. In Summary Procedure, we have preliminary conference similar to pretrial conference. There is no actual trial. What the court would require the parties to do if there are triable issues is to submit testimony of witness in a form of affidavit and position papers. These are the papers to be evaluated by the court in deciding. A trial is not absolutely prohibited since Summary Procedure includes certain criminal cases. If the case is a criminal case, the court cannot do away with a trial. The court cannot deprive the defendant of the right to cross examine the witnesses. What happens then is that the prosecutor will submit affidavit of prosecution witnesses but they may be subject to cross examination. If they don’t go to court for that purpose, the court may strike out the affidavits insofar as such witness is concerned. The reason why trial is allowed in a criminal case is that the SC cannot violate the constitutional right given to the accused to confront the witnesses against him and to cross examine the witnesses in a criminal case. That right is not given to a defendant in a civil case. SMALL CLAIMS In Small Claims, lawyers are prohibited from appearing. The parties may still protect their interest because they are not required to make their own pleadings. There are forms prepared by the courts to be filled out by the parties. It is a matter of asking from the clerk of court of these forms and the parties will just fill up the blanks and then submit it to the court. But payment of docket fees is also necessary. Joinder of causes of action is allowed as long as the causes of action joined will not go beyond 100,000, exclusive of interest, damages, attorney’s fees, litigation expenses, costs. We also have similar section in prohibited pleadings as in Summary Procedure. What is emphasized in Small Claims is the Judicial Dispute Resolution(JDR). The inferior court will encourage the parties to enter into compromise agreement. One of the differences between Small Claims and Summary Procedure is that there are no criminal cases involved in Small Claims. Another important difference is that in Small Claims, the judgement of the court is immediately final and executory. There is no appeal available. It also prohibits Motion for New Trial, Motion for Reconsideration and Petition for Relief from Judgement. All the remedies available to aggrieved party to challenge judgement is not available. The Circular says the judgement is immediately final and executory. The only available relief then is Rule 65. While in Summary Procedure, appeal is available. If appeal is available, Rule 65 is not available. Availability of appeal forecloses availability of Rule 65. Availability of Rule 65 is not really a benefit because petition filed under Rule 65 does not stop the court from rendering a decision unlike in

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     appeal. In appeal, execution of judgement is not allowed except in Unlawful Detainer and Forcible Entry because there is a provision that says that in these cases, the judgement rendered in favor the plaintiff is immediately executory without prejudice to the filing of appeal. In unlawful detainer, the execution of judgement can easily be corrected by posting a supersedeas bond if necessary. These remedies are not available to defendant in Small Claims but he can avail of Rule 65. But when he avails Rule 65 it does not meant to say that the inferior can no longer execute judgement. The only way by which Rule 65 can stop immediate execution of judgement is if the court taking cognizance of Rule 65 will issue TRO or writ of preliminary injunction which may not be complied with by defendant because in preliminary injunction or TRO since the applicant here must post a bond. So it is difficult for the defendant to prevent the execution of judgement in Small Claims. RULE 6 and RULE 10 In ordinary procedure, pleadings are always in writing even if the court is an inferior court. The rules now allow a party to make use of 9 pleadings. If you compare it with motions, there is no limit with respect to number of motions that may be filed.

The Rules classify pleadings into claim pleadings and responsive

pleadings. There are only two responsive pleadings: reply and answer. But it does not mean to say that the defendant cannot make use of claim pleadings like a counterclaim, crossclaim or third party complaint. Even if there is a classification of these pleadings, there is no prohibition on the part of the defendant to make use of these pleadings. If defendant files answer and he thinks he has claims against plaintiff, he may file answer with counterclaim. He may also file a crossclaim against co-defendant. In Rule 7, the classification of pleadings into initiatory and non-initiatory pleadings is necessary for the purposes of determining whether or not the party must accompany his pleading with certification of non-forum shopping. In initiatory pleadings, it is necessary that there is such certification. Without which, the complaint may be dismissed, with prejudice or without prejudice. Also, the classification is necessary to enable the court and the parties to know whether there is a need to pay for docket fees since in initiatory pleadings, payment of docket fees is necessary. If an initiatory pleading is filed without payment of docket fees, the court does not acquire jurisdiction over these pleadings. With respect to a compulsory counterclaim, it is not considered by the court as an initiatory pleading for the purposes of payment of docket fees. If defendant files answer with permissive counterclaim, and he does not pay, and the court has neglected to collect the payment and has tried the case, and in such decision the relief prayed for in the permissive counterclaim is granted by the court, the decision in that counterclaim is void for lack of jurisdiction over that counterclaim. As such it can be subject of collateral attack. With respect to a complaint, what the Rules require to be alleged are only ultimate facts. This rule is not followed in certain cases, like when the case is governed by Summary Procedure since in such procedure, it is necessary that the complaint is accompanied by evidence that the plaintiff decides to submit to the court. Also the circular on Kalikasan, the complaint must be accompanied by evidentiary facts(testimony, documentary).

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     Thus when defendant files his answer, he must support it also with evidence that he intends to present to the court Note that Rule 6 does not prohibit the plaintiff or defendant from alleging evidentiary facts. Ultimate facts are facts which constitute cause of action. An allegation that plaintiff has a right. An allegation that the right is violated by defendant. An allegation that there is compliance of conditions precedent. For instance, an allegation that plaintiff has undergone prior barangay conciliation is an ultimate fact if the case is governed by prior barangay conciliation. Insofar as the answer is concerned, it is a pleading that responds to a complaint. The answer must contain a negative defense, affirmative defense of both. The problems that usually arise in an answer is with respect to a negative defense. A negative defense is an important part of pleading, and when we talk about negative defense, it involves specific denial. The standard to be followed in ascertaining whether denial is a specific denial or not a specific denial is found in sec 10 of Rule 8. There are three modes by which specific denial may be had. The first mode is the denial of allegations with accompanying grounds relied upon to support his denial. Second is part denial and part admission. Third is just a statement that he has no knowledge concerning truth of allegations in the complaint. If you analyze Rule 8 on specific denial, the law does not require the defendant to file an order of reference. It is a choice on the part of the defendant as to what mode he opts to choose. So that theoretically, the defendant may make use of the third mode right away. Theoretically, the defendant may file answer that he has no knowledge and information of the truth of allegations in paragraph 1, 2, 3 etc, I specifically deny paragraphs 1, 2, 3 etc. But the SC discourages the defendant in using the third mode since it imposes some sanctions if defendant insists in using third mode as the only mode in his answer. If you note the allegations in paragraph 1, it usually contains the legal capacity of plaintiff and defendant. If defendant make use of the third mode, it is unreasonable that he alleges that he does not know his citizenship, etc. there are certain allegations in complaint that is known by defendant like his name and residence. If he denies it, he must make use of other modes of denial. To avoid the possibility that defendant may abuse the use of third mode, the SC says that if the defendant says that he has no knowledge as to certain allegations in the complaint and therefore specifically denies them, the defendant has to explain why he has no knowledge with respect to such allegations. If he fails to do so, it will not be considered as specific denial. It will be considered as general denial. And if it is a general denial, it will be treated as judicial admission as to the truth of the allegations contained in the complaint. The effect of judicial admission is that it is considered as conclusive. It cannot be rebutted. If there is judicial admission, there is no hope to rebut the same. The court then may immediately enter judgement on the pleadings upon motion of the plaintiff. Another form of specific denial frowned upon by jurisprudence is this kind: “I specifically deny paragraph 1 of the complaint because I have no business with plaintiff. I deny specifically paragraph 2 because there is no contact between plaintiff and defendant…” that is not specific denial. That is general denial and thus considered as general denial.

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     A negative pregnant is a denial in form since it uses the words specific denial but when you look at the denial, there is no ground to support the denial. That is in violation of the first mode. Thus it may be treated as judicial admission. If defendant files an answer with a general denial, and he uses the words “I specifically deny” but he does not inform the court of the grounds relied upon to support his denial. It is a specific denial in form and insofar as the court is concerned that is a general denial. Does the defendant have any remedy at all to convert the general denial into a specific denial? Yes. It is provided in Rule 10. If the pleader feels that he commits an error, he may amend the pleading as a matter of right before a responsive pleading is filed. In some special proceedings we don’t apply this rule on specific denial since we allow general denial like in Habeas Corpus. But the Circular on Amparo, Habeas Data expressly prohibits general denial. It must always be specific denial.

A counterclaim is a pleading filed by defendant against the plaintiff. There are two

kinds: permissive and compulsory. The Rules made a distinction between a compulsory counterclaim filed before RTC and that filed before an inferior court. The requisites are the same. But we are concerned with the other qualification. A counterclaim may be a compulsory counterclaim if filed with RTC but not a compulsory counterclaim anymore if filed with inferior courts simply because there is an amount alleged in that counterclaim. The usual example of compulsory counterclaim usually alleged in the answer is that the filing of the complaint is unjust and without basis and therefore the defendant has been compelled to avail the services of a lawyer and forced to pay attorney’s fees and because of the unjust filing of the complaint, he suffered damages in the amount of example, 200,000. If that is the tenor of a compulsory counterclaim filed by the defendant in RTC, it is still treated as compulsory counterclaim by RTC even if the amount is only 200,000 which is below the jurisdictional amount. If there is a complaint for the recovery of 1 Million and the defendant alleges compulsory counterclaim where the amount is 200,000,

that will still be entertained by RTC. We cannot

challenge the jurisdiction of RTC simply because the amount is below 400,000. But if the complaint is filed before an inferior court and the amount sought is only 300,000 but the defendant sets up what he calls a compulsory counterclaim in the amount of 600,000. Under the Rules, that counterclaim, although it arises or connected with the subject of the complaint, is treated as permissive counterclaim. Thus the inferior court may order the dismissal of the counterclaim for being outside of its jurisdiction. If the amount is beyond the authority of inferior court, the compulsory counterclaim will be treated as permissive counterclaim. But if the court is RTC and the amount of the compulsory counterclaim is below its jurisdictional amount, it may still hear the case with respect to counterclaim.

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     A reply is the disgusto of all the pleadings. It is practically useless, if you read the definition of a reply, particularly the second part of the definition. It provides that even if the reply is not filed by the plaintiff the new matters alleged in the answer are deemed controverted. They are not deemed admitted. Usually, what happens in a complaint, for instance, is that if the allegations in a complaint are not specifically denied or there is nothing mentioned at all in the answer about the truth or falsity of such allegation, then the allegation in the complaint is admitted. That is a judicial admission. We don’t follow that principle when it comes to a new matter that is alleged in an answer filed by the defendant. For instance, the creditor files a complaint against a debtor for the recovery of an unpaid loan. We assume that the allegations in the complaint are adequate, that the creditor has a right to enforce collection against defendant. If the defendant does not specifically deny or does not set up properly affirmative defenses in his answer, the defendant is sanctioned by law. The failure of the defendant to make specific denial or properly set up an affirmative defense will lead the court to conclude that the defendant has admitted all the allegationsin the complaint and therefore the defendant will have no chance of winning the case, if his answer is not amended, should there be a judgment on the pleading. But if the defendant files an answer properly crafted and he introduces a new matter in that answer - the new matter introduced is the assertion that the defendant has paid the debt. Is that a good defense? that is good a defense. In fact it is even a ground for a motion to dismiss, that the debt has been paid with abandoned or otherwise extinguished. So instead of filing a motion to dismiss the defendant chooses to incorporate that in an answer as an affirmative defense,which is also allowed by law. So the new matter introduced is the fact of payment. The plaintiff does not file a reply. Is the plaintiff deemed to have admitted that the obligation has been paid? The answer is no. This time we follow the definition of a reply. The new matter alleged in the answer is deemed controverted even without a reply. So the plaintiff does not have to submit his own pleading in response to that new matter alleged in the answer. It is the law itself which tells the court that the new matter in the allegation is deemed controverted. It will be deemed subject of a trial conducted by the court. If we are going to follow rule 16in our example, the defendant now can ask for a preliminary hearing in order to show that there has been the payment of the debt. But for purposes of reply, there is no need for the plaintiff to controvertthe new matter. So whenever you go to the definition of a reply you must take into acounterclaimount the second sentence.That is the most important part in the definition of a reply. If there is no reply the new matter is deemed controverted. It is deemed denied by operation of law. Because of this definition of a reply, we always consider as the least useful among the pleadings. Are there instances where a party should file a reply not because it is mandated by the rule but in order to protect his interest in the pending case? in the past there were two exceptions expressly recognized by the old rules,where the filing of areply was mandatory because otherwise the plaintiff does not file areply he would suffer serious and adverse consequences. The first was when there was an allegation in answer of the defendant about usury. The second was where the answer of the defendant is founded on an actionable document. In these two instances in the past, the plaintiff was expected to file a reply For the reason that if he fails to file a reply

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     made a specific denial under oath the allegation of usury and the genuineness of the execution of the actionable document are deemed admitted. And that is not good for the plaintiff. Under the present rules, there is only one exception. The first exception -if an allegation of usury in an answer necessitates the following of areply - is no longer applicable because the 1997 rules have introduced a new rule concerning allegations of usury which need specific denial under oath. Under our present rules, an allegation of usury contained in acomplaint or similar pleading is deemed admitted if not specifically denied under oath. So when an allegation of usury for the purpose of recovering the usurious interest is contained in an answer, we don’t follow this requirement that there must be a specific denial under oath. The law is very clear on this. The allegation of usury must be embodied in a complaint. the liberal interpretation of the rules will lead to the conclusion that as long as the allegation of usury is contained in a complaint or a claim pleading like counterclaim or cross claim there is need for a specific denial under oath. But the responsive pleading is not areply. The responsive pleading to that complaint or counterclaim or cross claim will be an answer. A reply is a responsive pleading only to an answer. So if the allegation of usury is contained in acomplaint the denial under oath should be contained in an answer. If the allegation of usury is contained in a counterclaim the responsive pleading of a counterclaim is also an answer. If it is contained in a cross claim, the responsive pleading to a cross claim would still be an answer. If the allegation of usury is contained in the answer then the law will apply the rule which requires specific denial under oath. There’s no such provision now in the rules. It is the second exception that is still applicable up to the present. When the answer is founded on an actionable document,the law says that whenever an actionable offense is founded on an actionable document the adverse party should, if he wants to make a denial of the actionable document, do so specifically and under oath. For instance, if the defendant’s defense again is payment and he alleges in his answer that the fact of payment is supported by receipt issued by the plaintiff himself acknowledging full liquidation of the indebtedness, under law if a claim or demand is founded on an actionable document, it is imperative upon the pleader to allege in the compliant the actionable document. How does the pleading of a defendant allege an actionable document? there are two ways of doing that. in the pleading whether in acomplaint or an answer the substanceof the actionable document should be stated and then a copy of the actionable document should be appended or attached to the pleading, to the complaint or the answer. Or if he does not want to place a summary of the contents of the actionable document, the pleader can simply copy word for word the actionable document. On the part of the adverse party, whether it is plaintiff or defendant who is confronted with an actionable document, the law requires this party to make a specific denial under oath. So if it is the defendant who sets up as his defense an actionable document, it is the duty of the plaintiff to make a specific denial under oath. Otherwise, the genuineness and due execution of the actionable document will be deemed admitted. And again that is judicial admission. If it is the plaintiff who should make a specific denial under oath, so that he is not deemed to have admitted the genuineness and due execution of that receipt, can he not simply file an affidavit? After all he is under oath. The

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     only way by which the plaintiff can make a specific denial under oath of an actionable document incorporatedin an answer is by way of reply because reply is the only pleading available. The only pleading that responds to an answer is a reply. And if the plaintiff makes a reply and he sets up in that reply a specific denial, he should also see to it that that specific denial is under oath. If there is only specific denial without having been verified that is not enough. There is genuineness and due execution of the it will be deemed admitted. We will take note of the exceptions given in the rules with respect to the nonapplicability of this principle on judicial admission on genuineness and due execution if there is no specific denial under oath, if the actionable document is contained in the answer. There are two exceptions in the rule. First, when the adverse party is not a party to that particular document or even if he is party to that document, an order for an inspection of the original issued bythe court is not obeyed by the defendant. In these two instances, we don’t apply the rule on judicial admission of genuineness and due execution of the actionable document contained in the answer. The rule requiring the mode by which an actionable document must be alleged in apleading either to a complaint or an answer is described by the supreme court as ??

. meaning that is mandatory. If the pleader does not follow any of the

modes in the rules for pleading an actionable document. The sc said the plaintiff will not be allowed to present proof of his cause of action. if it is the defendant who fails to do so, He will not be allowed to present proof of his defense. So the attachment of the actionable document or copying the contents of that act doc in the pleading itself is amust. It will adversely affect the pleader if he does not follow either the modes of pleading an act doc. Now we go to the third part of the complaint fourth party complaint or fifth party complaint. We follow literally what the rule say it is third party complaint fourth party complaint etc. meaning to say there is no end To the number of complaint that can be impleaded, third party complaint fourth party sixth party complaint. As long as the allegations in these complaint has something to do with the claim of the plaintiff in the complaint . you will notice that among all these claim pleadings, it is only a third party complaint where their filing requires prior leave of court. We cannot simply file a third aprty complaint without leave of court. There is a need for leave of court. And the 3rd party complaint must allege that the 3rd party defendant is liable to the 3rd party plaintiff. The 3rd party plaintiff is always a defendant. The defendant-3rd party pal is entitled to recover from the 3rd party defendant by reason of contribution,subrogation or any other relief in relation to subject matter of the claim in the complaint. so the 3rd party complaint is always connected with the subject matter of the complaint. If the complaint,for instance,is for the recovery of an unpaid loan,the 3rd party complaint cannot pertain to a recovery of the ownership of a piece of land. If the subject of a3rd party complaint should always be related to the subject matter of that complaint. Why do we need permission from the court before the defendant can file a 3rd party complaint? Because the 3rd party complaint will forcibly bring into the action a stranger to the case. The 3rd party defendant is not at present a litigant to the case. It is a stranger to the case. That is why the rules require that the court should be given discretion whether to allow or not to allow the 3rd party complaint because there may be no need at all in bringing a stranger to the case or even if there be aneed the claim against the stranger is unrelated or unconnected to the subject matter of the complaint. If the court denies the motion for the admission

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     of the 3rd party complaint the remedy of the defendant- 3rd party plaintiff is just to file a separate complaint against the 3rd party defendant. It is in a 3rd party complaint were we can best illustrate the meaning of ancillary jurisdiction of trial courts. Let us say the subject of the complaint is still the recovery of loan, 1m. So the competent court is the rtc. 1m figure is principal obligation. The defendant asks the court permission to file an answer with a 3rd party complaint. In the 3rd party complaint, the defendant asserts that a stranger, juan dela cruz, is bound to pay him in relation to the 1m loan the sum of 250T by reason of contribution, indemnity, subrogation or any other relief. With respect to the complaint, there is no jurisdictional issue because the competent court is really the rtc . It is with respect to the 3rd party complaint were a jurisdictional issue could be raised. The 3rd party complaint is effectively a complaint filed by the defendant against a stranger in a case. And the amount that he seeks to recover is only 250k this amount is not w/in the jurisdiction of a rtc. Can the court upon motion of the 3rd aprty defendant order the dismissal of the 3rd party complainton the ground of lack of jurisdiction? Remember the figure is only 250k. the answer is no. we apply the rule on ancillary jurisdiction of a rtc. If a trial court has jurisdiction over the principal case which is the complaint filed by the plaintiff against the defendant the same court will also exercise ancillary jurisdiction over all collateral pleadings, incidental pleading that are related to the complaint. So the 3rd party complaint to recover 250k should still be cognizable by the rtc. Is it correct to say that a 3rd party complaint, 4th party complaint are the only pleadings which will enable a litigant before the court to bring in by compulsion a stranger in a case? Can a litigant also bring in stranger to the case w/o a pleading or 3rd party complaint. The answer is no. that law does notsay that the 3rd party complaint is the only means available to bring a stranger to a case. What the law tells us only in the filing 3rd pc is that it is the complaint filed by the defendant- 3rd party plaintiff against a stranger with court because the stranger is liable to the defendant for contribution, indemnity subrogation or other relief. the rule does not say that the 3rd party complaint is the only means by w/c a stranger can be compelled to be a [party to the case. canthe defendant compel a stranger to be a party to the case by filing a counterclaim? Can the defendant make use of a cross claim in order to bring in forcibly a stranger to the case. The answer to thesequestions is yes. The law authorizes the defendant to bring in a stranger not by way of a 3rd party complaint but by way of counterclaim either permissiveor compulsory counterclaim.The law also authorizes the defendantto bring in a stranger to an existing case thru the filing of a cross claim. Although the law defines a cross claim as a claim by a defendant against his co-defendant, the law does not say that in filing a cross claim against a co defendant that a 3rd person cannot be impleaded by a cross claim. in the definition of a compulsory counterclaim, if you go again to the definition of a compulsory counterclaim the defendant could set up a COMPULSORY COUNTERCLAIM against the plaintiff and the party who is not a party to the case,as long as the court can acquire jurisdiction over the person of this stranger. That is so allowed in the definition of a compulsory counterclaim. One thing allowed a defendant in bringing a stranger to the case by not using a 3rd party complaint but by using cross claim or counterclaim, preferably a compulsory counterclaim. Because there is another provision in the rules will say that if there is a compulsory counterclaim orcross claimthat is not set up in an answer that compulsory counterclaim

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     or cross claim are barred. So if the defendant decides to set up a cross claimagainst a co defendant, lets say,a case filed by AvsB and C. the defendants are B and C. if defendant b has a claim related to the subject matter of the complaintagainst C, B should file an answer w/ a cross claim. but it could happen that in that cross claimagainst C thereis a necessity to bring x or y or z. so the problem of b when he files a cross claim can I file a cross claimagainst my co-defendant c plus x/y/z. he has to resolve this question right away because if he fails to set up a cross claim in this case he is barred from recovering a cross claim. That is a principle in the rules if compulsory counterclaim and across claim are not set up they are barred. So the best to set up this cross claim otherwise his cross claim will be barred. If there is a need to implead a stranger it will be allowed to implead a stranger although it is not using a 3rd party complaint. If you will read sec 11 of rule 6 it provides that a cross claim or counterclaim it will be the basis of the court to bring in a stranger to the case for the complete determination of the issues. We’ll discuss some aspects of the forms of a pleading – Rule 7. If we just literally follow rule 7, we can arrive at this same principle. A pleading must always be signedbecause a pleading that is not signed according torule 7 will be treated as a sham pleading. It has no legal effect at all. It is deemed not rendered filed. So a pleading must always be signed. If a pleading is unsigned it is asham pleading and the courtmotu proprio can order the striking out of the pleading.Who can sign the pleading? the litigant can sign the plead or if he has a counsel, the counsel can sign the pleading, if anyone or the respective counsels or both of them the counsel and the client can sign the pleading. are there pleadings which will not be admitted by the court if the only signature is that of the lawyer? Is the rules expect the plead to be signed by the party himself, not only by the counsel? by way of exception the answer is yes. In Marriage related cases annulment of marriage or to declare the marriage void, the Sc circular says that the complaint and answer must be signed by the client, by the party himself. if signed alone by the lawyer the court will not accept this pleading for filing. But generally the signature of the counsel will be enough In order to have this pleading accepted by the court. Again if we literally follow rule 7, if the law requires a pleading to be verified but the pleading is not verified or there is insufficient verification, rule 7 says that the absence or inadequacy of a verification meansthat that pleading is effectively an unsigned pleading and therefore it produces no legal effect. With respect to verification, the general rule again is the law requires pleadings to be verified. It is only in instances that the law requires verification that the lawyer should have his pleading verified. And the rule 7 is also very emphatic in telling the lawyer how to verify. The pleading is verified by the verified statement of the affiant that he has read the contents of the pleading, that these allegations are true of his own personal knowledgeor it is an authentic document. if the verification is not according to the tone given in the rules that will be an inadequate or insufficient verification. And under rule 7 the absence or inadequacy of verification carries with it the effect of an unsigned pleading. But the SC keeps on ignoring the provisions of rule 7 with respect to verification.although it would appear in rule 7 that absence of verification or inadequacy of verification would be a fatal defect of apleading. The sc keeps on ruling that absence or inadequacy of verification is only a formal defect. So if you come across a question concerning the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     need to verify a pleading or to determine whether a verification given in the question is adequate or inadequate and then you are asked what is the effect. Then just adopt the rulings of the sc that theabsence of verification in instances required by law that the submission of a pleading with inadequate verification is only a formal defect. In fact it has always been a formal defect. It is only in the 1997 rules that the sc inserted these provisions that lack of verification or inadequacy of verification is equivalent to the submission of an unsigned pleading. but the sc did not change the doctrines and it follows without saying that lack of verification in instances required is only a formal defect. You might be asked whether verification of a pleading is now the general rule given that in rule 7 all initiatory pleadings must carry with them a certification of non forum shopping. a complaint being an initiatory pleading will always carry with it a certification on non forum shopping.Permissivecounterclaim is also initiatory so we need to append to permissivecounterclaim certification on non forum shopping. Same withcross claim, a 3rd party complaint, a 4 party complaintbecause these are all initiatory pleadings.If the rule requires a complaint or other initiatory pleadings to carry with them a certification on non forum shopping, does it not mean to say that these pleadings must also be verified under rule 7? The answer is no. the certification on non forum shopping is different from verification of a pleading. When you speak about verification of a pleading, we refer to the allegations contained in the pleading. That’s why in a verification the verifier tells the court that he has read the pleading and that the allegations are true and correct of his own personal knowledge. The contents of the certification on non forum shopping will not have anything to do with the contents in the allegations in the initiatory pleading. the certification on non forum shopping simply certifies under oath that no same action has been filed Before another tribunal, agency or court. That if later on the one who signs the certification comes across such similar or identical action that he will so inform the court right away. So the contents of the certification on non forum shopping have nothing to do with what is alleged in the initiatory pleading . so we can have a pleading that is not verified but it must contain a certification on non forum shopping. With respect on this rule on non forum shopping, the court appears to have adopted the rule on substantial compliance With the requirements of certification on non forum shopping . In the past the sc was quite strict. The sc will affirm the dismissal of the complaint because the provisions on certification on non forum shopping where not literally followed. In a case decided, there was a complaint where there were 5 plaintiffs. The plaintiffs were all principal plaintiffs. If we follow strictly the rule on certification on non-forum shopping, the certification should be signed by all the 5 principal.Otherwise it would be a defective certification and under rule 7, this defect is not curable by amendment. If we would follow the rule on certification it would lead to the dismissal of the case.In this case, only 2 of the plaintiffs signed the certificationon non-forum shopping. so the defendant challenged the authority of the court. The authority of the court to go ahead to entertain the petition because the rule on non-forum shopping has been violated. the court refused to dismiss the case. The court says that we will go ahead with the case but we will just drop the claim of the non-signing plaintiffs. so the case will go on insofar as the plaintiffs signed the certification on non forum shopping are concerned. The sc said that the signature of the two plaintiffs will be substantial compliance with the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     requirement. With respect to the issue of a lawyer signing the certification on non-forum shopping the general rule is the rules require that the party himself must sign the certification on non forum shopping. If a lawyer signs the certification on non forum shopping he’s not aplaintiff/ defendant. He’s just a lawyer for the plaintiff and he signs the certification non forum shopping he must be able to show a special power of atty authorizing him to sign the certification on non forum shopping. Somebasic principles in rule 8. We have taken up actionable document. The first basic principle of rule 9 is the consequence of the omnibus motion rule. The defense/ objection is deemed waived if it is not set up in pleading or in a motion to dismiss. Another basic principle is because the rules encouraged the joinder of causes or even the joinder of parties, there could be several causes of action that could be alleged in a complaint. there could be several defensesalso set up in an answer and these causes of action that are set up could be set up jointly or in the alternative so that there could be a complaint with joint causes of action. There could be a complaint with alternative causes of actions. There could also be defense with alternative defenses, an answer with alternative defense and answer with joint defenses. Rule 3 in relation to this rule says that since there could be alternative causes or alternative defenses, we can also have in relation to rule 3 alternativedefendant so theaction can be filed and the captionis plantiff vsdefendant 1 or defendant2. in this ex the defendants are impleaded as alternative defendants. since we allow alternative causes, alternative defenses and also alternativedefendant, can the court also tender a decision where the dispositive portion also be in the alternative? That is also allowed. In some special cases, in replevin the last sec in rule 60 authorizes the court to tender a judgment in the alternative. what is not present in our rules is the propriety of a complaint where the plaintiffs are made in the alternative. nothing is mentioned in the rules. But there is no mention at all in the rules concerning complaint filed by plaintiff made in the alternative. so in our rule nothing is mentioned about the propriety of these complaints, plaintiff 1 or plaintiff 2 vs defendant. there could be plaintiff 1 and plaintiff 2 vs defendant. the plaintiffare named jointly. there is nothing mentioned in rules where plaintiffs being named in the alternative. so again the rules expressly authorize the filing of a complaint where the pl 1 or pl 2 vs defendant. But if we follow the gen rule that pleadings should be liberally interpretedto provide for just speedy and inexpensive determination of the case,well if the court issues the sc might allow a complaint where the plaintiffs are named in the alternative, which is a principle that is followed by courts in the US.In federal rules in civil procedure there’s an express provision saying that plaintiffs could benamed in the alternative,defendants could be named in the alternative, causes of action in the alternative.Defenses can also be alleged in the alternative. Unfortunately, that provision on the federal rules on civil procedure were not incorporated in our rules with respect to plaintiffs being named in the alternative. But again we have defendants in the alternative byexpress provision in the rules, causes of action alleged in the alternativedefenses alleged in the alternative. There could also be a judgment where the dispositive portion is written in the alternative, like in the case of replevin. But with respect to the non waivable defnses given in rule 9,it is always better to compare the nonwaivable defenses in civil actions and non-waivable defense in criminal actions. if you go to criminal procedure,

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     there are also 4 non-waivable defenses.They cannot be subject of waiver. They cannot be subject of application of the omnibus motion rule. In rule 9, the rule on non-waivable defenselack of jurisdiction overthe subject matter, litis pendentia prescription andres judicata. if you compare this non-waivable defenses to a criminal case, you will immediately notice that there are similarities, there are also differences. for instance res judicata w/c is nonwaivable defense in civil case. It is also non-waivable defense in criminal case. But of course it is not called res judicata in a criminal case. In acriminal case it is called double jeopardy. There was a question asked in the bar once. Explain the concept of res judicata in treason. That is double jeopardy. so in civil cases, re judicata is the equivalent of double jeopardy in criminal cases.In prescription, prescription in a civil case is alsonon-waivable defense in a criminal case that is also non-waivable extinguishment or prescription of a penalty. so in both prescription is non-waivable defense. The 3rd one where this grounds are similar the absence of jurisdiction over the subject matter that is also non-waivable in a criminal case. It is in the 4th ground that there is distinction bet these non-waivable grounds. In a civil case, the ground of litis pendentia is non-waivable.but in a criminal case, there’s no such thing because in criminalprocedure, the 4thnon-waivable ground is the information does not charge an offense. That is a non-waivable defense. the only difference between the non-waivable defense in civil and criminal actions is with respect to a criminal action where the non-waivable defense is the informationdoes not charge an offense. but in a civil case the equivalent is the failure to state a cause of action. litis pendentia is not really non waivable defense in a criminal case. so there seems to be no litis pendentia that is applicable in a criminal case. but when it comes to that non waivable grounds, theinformation does not charge an offense is equivalent to a civil case if we make use of rule 16 will be failure to state a cause of action. But failure to state cause of action is also a ground for a motion to dismiss under rule 16. That means to say that if the complaint fails to state a cause of action, that it can be remedied even w/o expressly or formally amending the complaint.Thecourt will decide still in favor of the plaintiff although the plaintiff has not at all amended his in order to allege a cause of action. Is that possible in a civil case? That is possible if the complaint does not properly allege a cause of act that defect must be remedied under rule 10 amendment of pleading to conform with the evidence if the complaint does really allege a cause of action the defendant does not raise as an issue in a motion to dismiss or does not raise as affirmative defense in answer if during the trial the plaintiff presents evidence showing that he really has cause of action and this evidenceis admitted in the court the complaint is deemed amended by operation of law. Insofar as the court is concerned that complaint now states a cause of action . that is the remedy if a complaint fails to state a cause of action. so the court cannot consider it as nonwaivable defense it is really a waivable defense in a civ case. Because it can easily be amended or remedied by the principle in rule 10 about amendment to conform w/ evidence. can we not follow this in a criminal case? Lets say that the info does not charge an offense during the trial the prosecutor presents evidence that there is really a crime committed although the information does not accuse thedefendant of committing a particular offense cannot the court apply the rule on amendment to conform w/ evidence? That is not allowed because that will violate constitutional right of the accused to be informed of the charges against him. so the only reason

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     why we don’t allow amendment to conform w/ evidence in criminal case is because it violates constitutional right of the accused. if he is arraigned for an information which does not accuse him of any crime, then he is arraigned for nothing. That is what criminal procedureprovides. In other words, it can apply amendment to conform w/ evidence as long as we don’t violate the constitutional rights of the accused. Unlike in civil case, if the civil action does not state a cause of action but the defendant has not filed motion to dismiss. it participates in the trial and during the plaintiff presents evidence that the he has cause of action. that complaint is deemed amended by operation of law. Another principle is the rule on default. And we have come across certaincases were the court were default is prohibited in summmary procedure, small claims, in amparo cases, in habeas data, default is prohibited. and in rule 9, in marriage related cases default also prohibited. So it is not correct to say that in civil action, if the defendant has not filed his answer or a responsive pleading, he can be declared in default upon motion by the adverse party. That is not an absolute rule.If a complaint is filed,summons is served upon the defendant,defendant does not file an answer during the reglementary period, upon motion by the plaintiff, we can order a default. That is a general rule except in caseswhere the motion to declare the defendant in default is prohibited or even in cases were the law directs the trial court to assign somebody to make an investigation as to whether there is collusion in marriage related cases. So in a complaintgoverned by ordinary procedurelike recovery of an unpaid loan. if the complaint seeks to recover from the debtor an unpaid loan of 1m and interest and then the defendant after summons have been served does not file an answer, can the court now on its own declare the defendant in default? the answer is no. default can be done only by the court if there is a correlative motion filed by the plaintiff. without the correlative motion, the court has no authority to motu proprio declare the non answering defendant in default. We need a motion. If the plaintiff on the,other hand, does not file a motion to declare the defendant in defaultwhen it is very clear from the records of the case that the time to answer has already been expired and the plaintiff does not file a motion, what can the court do now if we prohibit the court from declaring the non-answeringdefendantin default motu proprio? insofar as declaration of the courtis concerned, we need a motion coming from the plaintiff. w/o the motion, the court cannot do anything concerning the declaration of default. if the plaintiff keeps on ignoring that he has a prerogative to file a motion to declare the defendant in default. He does not exercise this prerogative, chances are, the court will lose sympathy with the plaintiff and court might order the dismissal of the case for failure to prosecute for an unreasonable length of time. So the rules expect a plaintiff to be active in filing a case. What happens to the complaint that he has filed? If he does not receive an answer on time, he should avail of this remedy to file a motion to declare the defendant in default. If he does not file a motion, he’ll end up receiving an order from the court dismissing the case for failure to prosecute. That is under rule 17.And under rule 17, the dismissal by reason of failure to prosecute is a dismissal with prejudice. That is certainly adverse to the plaintiff because he can no longer file another complaint for the recovery of his claim against the defendant.

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     Supposing that plaintiff initiates this move to declare the defendant in default, he files a motion. but the motion that he files is called an ex parte motion to declare the defendant in default which usually happens in trials. The theory of the plaintiff when he files a motion to declare the defendant in default ex parte is because the defendant does not even bother to answer. why should he be served with a copy of the motion to declare in default? If he is served with a copy of that motion, the defendant might entertain the idea of filing an answer in order to preempt the granting of that motion. The sc said that it is not the correct argument. In fact rule 9 is very clear. A motion to declare a defendant in default will be served upon the defendant if it is not served upon the defendant that motion is a useless piece of paper. So if the defendant receives a copy of the motion to declare him in default and there may be signs to file an answer and his answer is now received can the court still declare him in default? The answer is yes. If the court follow strictly the rules of court. But as a matter of policy if the answer is already been filed although it is filed out of time it is now part of the rec of the case. Will the trial court still declare him in default? The answer is no. the sc has repeatedly informed the trial court that as much as possible this very technical rule on default should not be applied strictly. Even if the period to answer has already expired, but an answer is filed out of time the court should still admit that answer and deny a motion to declare the defendant in default. The reason why the sc has adopted this policy is because if the defendant is declared in default the court can right away render a judgment of default against defendant without conducting a trial. In rule 9 if defendant is declared in default rule 9 gives the trial court 2 choices. 1st is to render judgment right away based on the allegations contained in the complaint. 2nd is to require the plaintiff to present evidence ex parte in support of his allegations. At least in the 2nd option there will be a reception of evidence. Unlike in the 1st option the trial court will just rely on the allegations in the complaint. And if there is trial ex parte where the defendant is in default, the defendant will not be allowed to participate in the trial unless he is able to secure an order from the court to lift the order of default. So if the defendant is declared in default and then a trial is ordered by the court even if defendant goes to court w/ his answer the court will not entertain the defendant because one of the sanctions of a declaration of default is the defendant inability to participate in the trial. So if the defendant is in default there is 99% chance that he will lose the case because he has not filed an answer at all. And if there’s going to be a trial, it is only the plaintiff who will be allowed to present evidence and appear during the trial because this is a likelihood in default in court cases rule 9 is also very explicit in saying that when the defendant is declared in default although the judgment in default is favorable to the plaintiff the trial court should see to it that the award should not be more or different than that prayed for in the complaint. So in our ex where there is a complaint to recover an unpaid loan, the defendant is in default and the court orders the presentation of evidence ex parte, the plaintiff is the only one present in court and introduce any evidence he wants because nobody is around to object to his evidence. He presents evidence that the indebtedness of the defendant is not only 1M but 3M the court now decides the case if the court believes that there is preponderant evidence that will justify an award of 3m can the court render such judgment? The answer is no. in rule 9, the award in default judgment by the court cannot be more than what is prayed for in the complaint. It could not be

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     different from the relief prayed for on the complaint. It could be less than what is prayed for in the complaint, it could be equal but it could not be more than what is prayed for in the complaint. Even if there is ex parte presentation of evidence. Do we follow this rule whenever the court authorizes the plaintiff to present evidence ex parte? Because of the inability of the defendant to comply with certain rules/ orders of the court. we follow this rule limiting the award only to default cases. A similar case where there could be an ex parte presentation of evidence is found in rule 18 on pre trial. In the rule on pre trial, the parties should present a pre trial brief. And they should also be present during the pre trial conf. if it is the plaintiff who does not appear during the pre trial or does not submit a pre trial brief, the court can order the dismissal of the case. And that is dismissal w/ prejudice. But if it is the defendant who does not appear during a pre trial or he does not submit a pre trail brief the court can authorize the presentation of evidence ex parte by the plaintiff . so whether it is under rule 18 or rule 9, the defendant has violated certain provisions of the rules in rule 9 the violation by the defendant is his not filing of an answer w/in the reglementary period. In rule 18, the violation by the defendant consists of not appearing during pre trial or non-submission of his pre trial brief. In these situation, that the defendant violates the rules governing submission of certain papers and appearance during pre trial then rule 18 authorizes the trial court to allow the presentation of evidence ex parte by the plaintiff. We’ve taken up what is going to happen after an ex parte presentation of evidence under rule 9. The decision of the court cannot be more than what is prayed. The decision of the court cannot be different from what is prayed. How about in rule 18? The complaint is still for the recovery of 1m. there is an ex parte trial allow by the court under rule 18. The plaintiff presentation evidence ex parte. During the ex parte hearing the the plaintiff presentation evidence w/c convinces the court that the entitlement of the plaintiff is not 1m but 2m. can the court later on award to the plaintiff 2m although his complaint prays only for the payment of 1m? if we read carefully that provision in rule 18 the answer will be the court can award 2m because in rule 18 what the court can do is to grant a relief according to the evidence submitted by the plaintiff unlike in rule 9 w/c says that the extent of the relief cannot be more than what has been prayed for. It cannot be different from what has been prayed for. But insofar as rule 18 is concerned, after an ex parte presentation of evidence the relief will be based on what has been proven by the evidence. Although that relief could be more than or different from what has been prayed for in the complaint. Why do we treat the default defendant in rule 9 with more flexibility with more compassion compared to the defendant in rule 18. Well the significant different bet this 2 defendant is that in rule 9 the defendant has not filed an answer the court will take pity on the defendant who can be considered as having surrendered the case to the plaintiff for his failure to file his answer. In rule 18, the defendant has filed an answer that’s why the court holds a pre trial conf. the violation by the defendant in rule 18 is not his failure to answer but his failure to comply with the requirements of rule 18. Remember these 2 different bet rule 9 and rule 18 when it comes to the extent of the award after an ex parte presentation of evidence. Another principle in rule 9 is the rule on partial default. In partial default, the factual antecedents are that there are at least 2 defendant sued under a common cause of action and then one defendant answer and the other

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     does not answer. Can the non-answering defendant be declared in default upon motion of the plaintiff? The answer is yes. He can be declared in default because default is founded on the premise that the defendant has been served w/ summons but does not file an answer w/in the reglementary period. So that is his punishment. He will be declared in default. Can the court also render judgment by default against a non-answering defendant? This time the court cannot do that. Partial default, the most that the court can do is to declare the non-answering defendant in default. The court cannot declare the answer defendant in default. There is no reason to declare him in default. So if there is an answer filed by one of the defendant, the court will be forced to follow the ordinary course of the the court will have to call a pre trial. The court will have trail if necessary. But insofar as the non-answering defendant is concerned, he will be declared in default but there is no separate judgment in default that will be rendered against him. So we follow the normal course. There is now a trial. And during the trial the answering defendant will also be given a chance to present his evidence. Can the answering defendant call the defaulting defendant to be a witness? The answer is yes. The answering defendant can call the defaulting defendant as a witness. There is nothing in the rules according to the court which prohibits a defaulting defendant to testify in the case. Although he will not be allowed to participate as a litigant during the trial. After trial the court finds in favor of the answer defendant will that decision be also in favor of the defaulting defendant? The answer is yes. Whatever happens to that case, if the answer defendant wins the defaulting defendant wins. The answer defendant loses, the defaulting defendant also loses. this is one situation where a defaulting defendant can prevail in the case. The reason is because these 2 defendant are sued under a common cause of action. Because this is the rule that we follow in our system where a defaulting defendant can conceivably win in case of partial default, in one case the creditor who sued 2 defendant where one of the defendant has answer and the other fails to answer. The court has already ordered the non-answering defendant in default, his counsel most likely told him of this principle in rule 9 so the plaintiff-creditor asked himself if I go ahead w/ the trial of the case and this answer defendant puts up a good fight, I might lose the case. Can I just not move for the dismissal of the case so far as the answer defendant is concerned so I will be left fighting a defendant who is already in default, who cannot participate in the trial. Well if you look at it pragmatically, that is a good move. because he avoids fighting a defendant who has already filed an answer. So what the plaintiff did was to move for the dismissal of the complaint against the answer defendant the answer defendant naturally will not object to the dismissal of the case. So the caption of the case was change from plaintiff vs defendant1 and defendant2 to plaintiff vs defendant2. Defendant1 is already out. Can the court now after presentation of evidence ex parte rule against defendant2 who is the only defendant left on the case? Would it be proper for the trial court to . The sc said not necessarily. Even if defendant1 has been dropped from the case upon the initiative of the plaintiff, what the trial court should examine is whether defendant1 is an indispensable party to the case. If defendant1 is an

INDISPENSABLE PARTY to the case, the court should require that defendant1 be

impleaded in the case because if defendant1 is an

INDISPENSABLE PARTY and he is not around the

proceedings taken by the court could be void. So it is useless for the court to try the case. Under the new

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     doctrines enunciated by the sc, if an indispensable party is not impleaded or if he has been impleaded he is dropped from the case the court should compel that the indispensable party be impleaded. There should be an amendment to the complaint. If the plaintiff ignores the order of the court compelling him to amend his complaint and therefore the indispensable party is not yet impleaded the next move of the court is to make use of rule 17 order the dismissal of the case because of the refusal of the plaintiff to obey an order of the court. that is a dismissal similar to dismissal for failure to prosecute, that is failure to obey a lawful order of the court or the refusal to obey the provisions of the roc. So that in our ex what the court should do is to require the plaintiff who has dropped defendant1 to implead defendant1 in the complaint. That should be another amendment to that complaint. If defendant 1 is an indispensable party. We use the new doctrines given out by the court. that if the indispensable party is not made a party to the case what the trial court should do is to require the plaintiff to implead the indispensable party. If the order of the court is ignored what the court should do is to order the dismissal of the complaint. And that is a dismissal w/ prejudice. Since it is not advantageous for a nonanswering defendant to be declared in default because he is disallowed from participating in the trial of the case, what are the remedies for the defaulting defendant? The first one is to file a motion to lift the order of default. That is before judgment based on fraud, accident, mistake or excusable negligence and together w/ this motion he should already submit his proposed answer because rule 9 also requires him to convince the court that he has a good defense. The only way to do that insofar as the defaulting defendant is concerned is to submit a motion with affidavit of merit and append to this motion his proposed answer to the complaint. His answer to the complaint shall be evaluated by the court and the court could be convinced that the defaulting defendant really has a good and substantial defense. And the defaulting defendant if his motion to lift the order is denied cannot appeal. He cannot appeal the denial of his motion to lift the order of default because the denial is only an interlocutory order. That is not appealable. Supposing that the court has already rendered a judgment of default can he appeal the judgment by default? The answer is yes. He can appeal the judgment by default because the judgment by default is an adjudication of the merits of the case. Can he also file a petition for cert under 65 to challenge the judgment by default? He cannot. If appeal is available then rule 65 is automatically not available. But if what is being challenged only is the denial of his motion to lift an order of default because the law does not allow the defendant to appeal he can make use of rule 65. But he has to convince the higher court that the trial court has acted w/o jurisdiction in excess of jurisdiction amounting to lack of jurisdiction. Supposing the defendant simply tells the court pls lift the order of default and just allow me to file an answer can the court give him the opportunity to file an answer although there is already a declaration of default the court should not allow the filing of answer unless the court lifts the order of default if the court orders the lifting the order of default the defendant can now file an answer although the time has already expired. The court as a matter of public policy should not apply strictly the rules on default because the sc said if we allow strictly the rules on default we are depriving a litigant of his opportunity to present his side.

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     Rule 10 on amended and supplemental pleadings let’s say that the plaintiff files an action reinvindicatoria against the defendant in accion reinvindicatoria one of the jurisdictional allegations is the assessed value of the property. This complaint is filed before the rtc but there is no allegation concerning the assessed value of the property. Can the court order the dismissal of the complaint for lack of jurisdiction. The answer is yes. Because by merely reading the complaint the court will be convinced that it has no jurisdiction the court will not be able to determine if it has jurisdiction or not unless the assessed value of the property is alleged. So there is something wrong jurisdictionally in our complaint. The rtc may not have jurisdiction over the case. The plaintiff discovers the error that he has committed. Can he amend his complaint so that he can alleged in the complaint the assessed value of the property and that will now confer upon the rtc the jurisdiction over the case. If we are going to rely on the old doctrines of the sc, the plaintiff will not be allowed to do that. Because the old doctrines are to the effect that if the amendment will cure absence of jurisdiction that will not be allowed but under the liberal interpretation under rule 2. In our problem if the court does not have jurisdiction simply because of failure of the plaintiff to alleged the necessary jurisdictional averment, he should be allowed to amend the complaint. Amendment will be a matter of right. A similar ex has already happened but that case is one of unlawful detainer. Unlawful detainer is of course cognizable by an inferior court not by the rtc and in certain instances of unlawful detainer what terms jurisdictional allegation is the presence of a prior demand to vacate the property it is now settled that in unlawful detainer if there is no prior demand made by the plaintiff upon the defendant for the defendant to vacate the property and pay the rental then that complaint will not come to the jurisdiction of an inferior court so this averment concerning the plaintiff’s prior demand upon the defendant is according to the court jurisdictional w/o that allegation the inferior court will not acquire jurisdiction of the complaint for unlawful detainer. So if that is the defect in our complaint simply that there is no allegation in the complaint for unlawful detainer regarding the presence of a prior demand upon the defendant can the defendant amend his complaint as matter of right by simply inserting this allegation that the plaintiff before the filing of the case. Again under the present rules that is allowed. That is a matter of right. that amendment will give to the inferior court jurisdiction over the case. So if you still use these old principles probably under these ex given you should allow the amendment as matter of right to that complaint even if that amendment will confer jurisdiction upon the trial court. In amendment under rule 10 or even in supplemental pleadings, do not limit the term pleadings only to the complaint. All pleadings can be amended as a matter of right. They can be amended w/ prior permission of the court. complaint can be amended as matter of right answer can be amended as a matter of right. counterclaim, cross claim, 3rd party complaint can be amended as a matter of right. The only limitation is that amendment should only be once. And before a responsive pleading is filed. So you have to be conversant w/ the responsive pleading to w/c pleading it will relate to. Complaint- answer. counterclaim- still an answer, same w/ cross claim and 3rd party complaint. So in case of these claim pleadings, the plaintiff can amend his respective pleading as matter of right once before the answer is filed. Can the plaintiff amend his pleading as a matter of right or even w/ prior permission from the court if he changes his

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     cause of action? the answer is also yes. Under the present rules, and as authorize by the sc a cause of action can be changed in a complaint, in a permissive cc even if it is a matter of right as long as the responsive pleading has not been filed. Right after the efficacy of the there was a case decided by the sc w/c authorize a plaintiff to change his cause of action by simple amending his complaint under rule 10 that decision of the sc was in conflict w/ old doctrines where under the old rules it does not allow the change in the cause of action by simply amending the complaint even if it is a matter of right. The latest case decided by the sc affirmed this 1997 case entitled phil ports authority v ?? decided in 2007. Its relatively the same. The case of ports authority vs ?? the court allowed an amendment to the complaint not as matter of right but as a matter of discretion of the court even if there was already an answer filed by the defendant. Under rule 10, if there is already an answer, the amendment can no longer be a matter of right. It always w/ a leave of court. But this case of ports authority vs gozon, the plaintiff filed a complaint for specific performance after it was answered he filed a motion before the court to change his complaint to a complaint for injunction. There was really a substantial change to the action from specific performance to an action for injunction. But this was thru a motion because an answer was already filed by the defendant the trial court allowed the amendment siting provisions of rule 10, and the court affirmed the ruling of the trial court. So the rule that we follow at present is if it is a matter of right the plaintiff can amend his pleading by changing his cause of action if it is no longer a matter of right but a matter of discretion upon the court the court can still allow the amendment of a pleading by changing the cause of action. It does not matter if an answer has been filed or not. The sc said that we follow this principle in order to give to the parties an opportunity in order to have the court adjudicate on the true dispute bet the parties as long as it does not involve prejudice to substantial justice there is nothing wrong if the trial court allows an amendment to the complaint where the plaintiff will change the cause of action. But the court also said that since the amendment is w/ leave of court then they are going to assume that the defendant has already filed an answer to the 1st cause of action if the court allows the amendment naturally the defendant will be given an opportunity to amend his answer. His answer now to the 2nd cause of action. There’s nothing wrong w/ this procedure. In fact the sc in this case encourage trial court to use liberally the rule on amendment to pleadings whether as a matter of right or as a matter of discretion. On the part of the defendant, if a defendant files an answer w/ a general denial that’s bad for the defendant he’s going to lose the case the responsive pleading to an answer is a reply. If no reply has been filed and the defendant amend his answer as matter of right w/o getting permission to the court by changing a general denial to a specific denial. The answer is yes. We give the same right enjoyed by the plaintiff to the defendant. So the amended answer will now contain a specific denial. But what is important to amendment as a matter of right is that it should be exercised only once before the responsive pleading has been filed. If no responsive pleading is yet filed, but the amendment is already the 2nd amendment, we need permission from the court. amendment is only a matter of right if it is exercised once before the responsive pleading is filed. Can we also amend pleadings if the case is already on appeal to the ca or to the sc? particularly if the amendment is only formal in nature.

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     With respect to substantial amendments appellate courts because that will injure the rights of the party who has not appealed. What can be brought only to appeal are issues that can be raised before the trial courts even if it is only a matter of discretion trial courts are liberal in allowing amendments. there is a particular rule of evidence, in rule 10 w/c is amendment to conform to evidence. in amendment to conform to evidence, if the evidence presented by the plaintiff is not material to the allegations in his complaint then if there is an objection by the defendant, the objection should be sustained. but if the presentation of evidence does not appear to be material and not objected to by the defendant, the court cannot tell on its own the plaintiff not to continue w/ with the presentation of the evidence. For instance the complaint accion reinvindicatoria, a case where the title to or possession of real property, during the trial the plaintiff does not present evidence which shows that he is entitled to the possession of the property subject matter of the proceeding. instead the plaintiff presents evidence which demonstrates that the defendant owes him 3M. if you are the lawyer for the defendant in this case, you stand up and tell the court that the evidence concerning defendant’s liability for 3M is not material to the case because the allegations in the complaint pertain to recovery of ownership of a piece of land. If there is an objection which is raised by the defendant the court will sustain the objection. So the plaintiff will not be allowed to introduce this evidence concerning the defendant’s liability for 3M. But supposing that the plaintiff starts presenting evidence that he is entitled to 3M from the defendant, the defendant does not stand up and does not object. The defendant keeps quiet about the reception of evidence. Can the court refuse to admit the evidence? The court cannot because the court will always admit evidence although irrelevant or immaterial if not objected by the defendant so the court will now receive this evidence showing that the plaintiff is entitled to recover from the defendant the 3M. You remember that the complaint is for the recovery of the title to or possession of real property. When the time comes for the court to render a decision, can the court simply award to the plaintiff the 3M, although the plaintiff has not amended his complaint? The answer is yes and the reason is that the amendment to conform to evidence in rule #10 and this is evidentiary principle. It also states that this is no need for the plaintiff to formally amend his complaint. The amendment will take place by operation of law in order to conform on the evidence submitted by the plaintiff. Even in supplementing pleadings, the principal difference between the supplementing and amended pleadings is that in supplementing pleading we always need permission of the court. There is no supplementing pleading as a matter of right and in supplementing pleading the pleader will not be allowed his cause of action. It is only in amendment the pleader can change his cause of action. In supplementing pleading the antecedent facts that are given in the supplementing pleading have taken place after the original pleading has been filed and it cannot give rise. A supplemental pleading cannot give a new cause of action in favor of the plaintiff. Also for the purposes of evidence, an amended pleading takes the place of the original pleading. So an amended complaint takes the place of the original complaint. An amended answer takes the place if the original answer. Will the court necessarily discard the original pleading, the original answer, the original complaint or can they remain as part of the records of the case? For evidentiary purposes, however, the admissions given in the original

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     complaint or in the original answer, any admission made in an original pleading will not cease to be a judicial admission. In rules in evidence, admissions made in pleadings even in motions for are considered as judicial admissions. They are conclusive upon the admitter. But if there is an amendment, the amended pleading will now take the place of the original pleading. How about the admissions made in the original pleading? Will they remain to be admissions? According to the court, they remain to be admissions but they are no longer judicial; admissions. They could be treated as extrajudicial admissions. For instance, in the example awhile ago, if the original answer contains a general denial, that is judicial admission of the allegations contained in a complaint and that will justify a judgment on the pleadings. If the defendant amends his answer by converting a general denial into a specific denial, then the general denial is construed as an admission will now be converted into an extrajudicial admission by the defendant. will that be beneficial to the defendant? if you tell him that his judicial admission has been converted into an extrajudicial admission simply because he has filed an amended answer? That is so beneficial to the defendant because it will not be considered as an evidence against him by the court. Where as if the admission remains to be a judicial admission, in the study of evidence, a judicial admission is always conclusive upon the pleader. It cannot be the subject of rebuttal evidence.

With respect to the preceding section there's not much discuss except that in the periods for replevin or period for the filing or issuing notice that there is nothing mentioned at all about the period as to when a complaint may be filed the periods begin with the period to file a responsive pleading but nothing speaks in the rules as to when a complaint should be filed. The reason is because the filing of a complaint is solely dependent upon the claim of the plaintiff. We can't force him to file a complaint. It's not possible for the Supreme Court to tell the plaintiff you should file this complaint within this particular period. If the SC does so the SC will be invading the turf of substantive law. The filing of a complaint is dependent solely on the decision of the plaintiff and if there is ever a period fixed as to when that complaint should be filed it will not be determined by the SC it will have to be determined by substantive law. A complaint must be filed so that it can be prosecuted successfully as long as the claim has not prescribed. Prescription is a matter of substantive law. Thats why in the rules it begin with the period of when to file an answer but with respect to the other claim pleadings a cross claim, counterclaim a third party complaint there is a period fixed now in the rules. With respect to a cross claim and a compulsory counterclaim they must be filed within the period fixed for the filing of an answer because even if a crossclaim a counterclaim or third party complaint are claim pleadings the rules do not allow the defending party to file an answer separately from a counterclaim or a crossclaim or a third party complaint. These 3 pleadings must always be added or incorporated in the answer. So if defendant has claims against the plaintiff or against 3rd persons who are not litigants he should file an answer with a counterclaim an answer with a crossclaim or an answer with a third party complaint. The trial court will not allow the defendant to file an answer today and then next week the defendant will file a compulsory counterclaim or even a permissive

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     counterclaim or a crossclaim. He will have to amend his answer and then incorporate in that amended answer a crossclaim or counterclaim or a 3rd party complaint and with respect to a thirdparty complaint you have to file a motion with the court asking for permission to admit this third party. That is the way how these pleadings are submitted by the defending party. Because this is the rule that we follow the filing of a compulsory counterclaim generally should be together with an answer and an answer has to be filed within 15 days or 30 days or 60 days as the case may be. If there is an answer filed without a counterclaim but later on the defendant feels that he should set up a counterclaim he will have to file an amended answer with a counterclaim. With respect to bill of particulars this is one of the mechanisms that are prohibited in small claims procedure even in summary procedure and in our proceedings like amparo or habeas data. If the defendant feels that there is a need for the plaintiff to be more definite in crafting the allegations contained in the complaint the remedy of the defendant is to file a motion for bill of particulars. If the defendant cannot fully comprehend the subject matter of the complaint because there are certain inadequacies or the allegations are not definite enough can the defendant file a motion to dismiss on this ground? The answer is no Rule 16 does not include as a ground for dismissal the inadequacy of the allegations contained in the complaint. May there be an instance where a defendant can rightfully file a motion to dismiss because of the vagueness or inadequacy of the allegations contained in the complaint. that is instead of filing the motion for bill of particulars he should file a motion to dismiss and the court grant dismissal because of the inadequacy or vagueness of the allegations contained in the complaint. The answer is yes. By way of exception, this happens when a RTC acts as a commercial court. When the trial court tries disputes in a corporate dispute or disputes among partners or among members of an association with a juridical personality and if there is indefiniteness or vagueness in the allegations contained in the complaint the remedy of the defendant is to file a motion to dismiss on this ground. The reason given by the court is that in commercial courts applying the procedure outlined by the SC for RTC acting as a commercial court, a motion for bill of particulars is prohibited. So if there is vagueness since motion for bill of particulars is not allowed to be filed by the circular on commercial courts the remedy left for the defendant is to move for the dismissal of the case on this particular ground, vagueness or indefiniteness in the allegations contained in the complaint. In ordinary civil cases where we allow a motion for bill of particulars, the motion is available to both sides the plaintiff and the defendant. If the allegations in the complaint are indefinite or vague the defendants remedy is to move for bill of particulars. If the allegations contained in the answer are likewise vague or indefinite the remedy of the plaintiff is also to move for bill of particulars but they are also in the form of a motion. There is something special about a motion for bill of particulars filed by either party. While that motion should comply with the requisites of a motion under the rules so as not to be considered as a useless piece of paper and there should therefore be service upon the adverse party there should also be a notice of hearing when a motion for a bill of particulars is submitted the court, the court can act upon the motion right away without waiting for the hearing set for that motion. Usually we set a motion for hearing during a motion day which is usually a friday. We wait until that motion day so that we can submit to the court for resolution this

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     motion but not in the case of a motion for bill of particulars if we set the motion day for bill of particulars on a friday and it is received by the court on tuesday prior to this motion day on tuesday can right away resolve the motion it can grant the motion or to deny that motion. This is one of the few motions that can be acted upon right away by the court without waiting for the arrival of the date set for the hearing of the motion. And a motion for bill of particulars by its very nature should be filed by the defendant before he submits an answer. And it should be filed also by the plaintiff before he responds to the answer before he submits his reply. If the defendant has already submitted his answer it is useless for the defendant to be asking for a bill of particulars. The filing of the answer means that the defendant has understood has comprehended fully the allegations contained in the complaint. But if the defendant files a motion for bill of particulars and that is denied then the denial is still an interlocutory order what the defendant should do is to file an answer on time within the remaining period which should not be less than 5 days but if the motion is granted. The order of the court will be directed to the plaintiff ordering him to submit an amended complaint or simply a bill of particulars which will form part of the allegations contained in the complaint. If the plaintiff does not obey the order of the court directing him to submit a bill of particulars what is the remedy of the defendant? Either to move for the striking out of the allegations in the complaint which are vague or indefinite. The second more practical remedy is to move that the whole complaint be stricken out and if that complaint in its entirety is stricken out the case will be dismissed. If it is the plaintiff who is the movant for bill of particulars and the court directs the defendant to submit the bill or to amend his answer but the defendant disobeys the order of the court what are the remedies of the plaintiff? He can ask the court to strike out the allegations in the answer which are vague or indefinite or he can also move that the answer be stricken out as a whole. If the court authorizes or directs that the answer be stricken out although it has been filed on time because of the refusal of the defendant to amend his answer or submit a bill of particulars the situation will be as if the defendant has not filed an answer at all and therefore the next recourse of the plaintiff is to file a motion to declare the defendant in default. So this is one instance recognized in the rules where a defendant can be declared in default although he may have already filed an answer on time. Usually the filing by the defendant of an answer on time will preclude his declaration by the court in default. So it is not always correct to say that declaration in default is predicated on the premise that no answer has been filed by the defendant. This is one case where there could be a declaration of default even if the defendant has filed an answer. The other situation is found in rule 29 the consequences of failure to obey an order of the court related to the statute of discovery the modes of discovery. If you go to rule 29 there is a provision which says that if the defendant disobeys an order by the court relating to the use and availment of the modes of discovery, what the court can do is to strike out the answer filed by the defendant. And if the answer filed by the defendant is stricken out the next move of the plaintiff should be to have that defendant declared in default. With respect to the filing and service of motions pleadings and other papers with the court we should always have in mind the difference between substitute service of pleadings and motions and substitute service of

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     summons. The two are completely different from one another. The substitute service of motions pleadings and other papers refers to a situation where the motion or pleading cannot be served in person or personally there is failure to serve even if it is service by mail by registered mail or ordinary mail. In substitute service of these papers motions and pleadings what the movant should do is is to submit these motion or pleading with the clerk of court with proof that personal service and service by mail has failed and when it is received by the court that is the substituted service of motions and pleadings and other papers is now completed. In the case of substituted service of summons it happens when there is failure on the part of the sheriff to serve in person upon the defendant the summons. If after several attempts the sheriff still could not serve summons in person upon the defendant the next step for the sheriff to do is to substitute service of summons. So what the sheriff does in substitute service of summons is to serve the summons at the residence of the defendant upon a person of sufficient intelligence and discretion or if there is none at the place where the defendant has his office upon a person who is competent and in charge of that office. That is the meaning of substitute service of summons you distinguish it with substitute service of motions and pleadings. With respect to service of pleadings there is always a preference given by the court to personal service compared with the other modes of service and if a movant or a pleader chooses a mode of service different from service in person the law requires that you should submit to the court an explanation. Why this other mode of service by mail has been resulted to instead of personal service. The court in the past has been very strict in this order of preference in the use of the modes of service but recently the court has relaxed somewhat the rule depending on the nature of the motion that will be served in person or by mail as the case may be. In the past if a movant for instance files a motion but he chooses to serve upon the adverse party by mail and then he has not stated in the motion the reason why he has not observed personal service, usually the court consider that motion as a scrap of paper because it does not comply with the provisions of the rules but as we said this rule has been relaxed by the court. It all depends on the importance of the motion that will be filed with the court and that will have to be resolved by the court. And one such important motion is a motion to dismiss. Courts are very strict with respect to a motion to dismiss. The adverse party the plaintiff must be served with a copy by personal service if he is not served by personal service but by mail what the trial court usually requires the defendant to do is to submit proof that the plaintiff has indeed received through the mail the motion to dismiss and this can be done by submitting to the court the registry return and unless the registry return is submitted the court will not act on that motion to dismiss for failure to observe the requirements for service of this important motion. Now we go to summons. Summons is the writ available to the trial court in order to enable the court to acquire jurisdiction over the person of the defendant. Is it the only writ or process which will enable the court to acquire jurisdiction over the person of the defendant? Not so. Summons is the usual writ which enables the court to acquire jurisdiction over the person of the defending party but the court can still acquire jurisdiction over the person of the defendant by compulsion even if the court does not issue the summons. For example is the special

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     civil action in Rule 65 certiorari prohibition and mandamus. They are special civil actions distinct from the case from which that order or decision has originated but in rule 65 the rules does not allow the certiorari court or prohibition court to issue a summons addressed to the defendant. What rule 65 authorizes the court to do is to issue a notice addressed to the defendant requiring them to submit their comment before the court. That order to comment if served upon the respondents will enable the court to acquire jurisdiction. So it is not correct to say that summons is the only mechanism or process available to the court which will enable the court to acquire jurisdiction over the person of the defendant forcibly that is by compulsion. We don't have to talk about these writs or the notice if the defendant voluntarily submits to the jurisdiction of the court, in this case the court will acquire jurisdiction over the person of the defendant. You should also take note of the entity level notification given by a circular of the court concerning service of summons upon a foreign corporation which has transacted business in the philippines but it is not registered as a foreign corporation or it has no resident agent in the philippines. In this 2011 circular the summons to be served upon this foreign private corporation may be done in four ways but always with the approval of the trial court. First is personal service of summons upon the foreign private corporation not doing business in the philippines. But with the assistance of the department of foreign affairs and also the court of the country where this foreign corporation has its office. The second mode is which can also be authorized by a domestic trial court is the publication of the summons. It is not the one found in rule 14. The summons will be published in the place in the country where this foreign corporation has its office. So if the foreign corporation has its office in taiwan the publication should be in a newspaper in taiwan. The third mode given by this 2011 circular is by fax message or any electronic device authorized by the trial court for the service of summons upon this foreign private corporation or entity. The fourth mode is a combination of any of the three as authorized by the court. With respect to domestic private corporations do not forget the rule on acquiring jurisdiction through the service of summons as explained in that old case of Villarosa vs UNECO. If you are going to sue a domestic corporation you should see to it that summons is served upon the officers of that corporation or a domestic association with juridical entity upon the officers enumerated in the rules of court but the decision of Villarosa vs UNECO has not been changed it has not been relaxed at all. So you have to know who these officers are they are enumerated in the rules of court the president the managing partner the general manager the treasurer the corporate secretary or in house counsel of the corporation. Remember that in the case of Villarosa the summons was served upon a branch manager of the defendant and the rules do not include a branch manager as one of the officer upon whom summons can be served and the court ruled that the trial court did not acquire jurisdiction over the person of this corporation because the summons was served not upon anyone of the officers mentioned in the rules of court. Again the doctrine in Villarosa has been affirmed by cases subsequently decided by the SC involving corporations and partnership. But in the case of a partnership there could be a revision. When the association with juridical entity is a partnership what the rules require is that summons must be served upon the managing partner or a general manager as the case may be. So if the defendant is a partnership duly registered

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     with the securities and exchange commission 31:22 and the partnership is composed of four partners service upon anyone of the partners will be a valid service of summons. Because under the civil code in a partnership the presumption is that all the partners are managing partners so we apply certain provisions of the civil code. Since all partners under the civil code are presumed to be managing partners service of summons upon anyone of the parties will be a sufficient compliance with the law. It is in service of summons upon a natural person there is a conflict of decisions rendered by the court insofar as the decision of jurisdiction over this natural person is concerned. In one case decided in 2006 a defendant was sued a natural person for the recovery of money. The defendant stayed in a gated subdivision according to the court it means that not anybody can enter the subdivision without obtaining the permission of the guards on the gate or the owner of the house living within the subdivision. This defendant resided in this gated subdivision so everytime that the sheriff would go to the residence of this defendant to serve summons the guards would not let the sheriff enter the property. The guards always told the sheriff that that person is not around he cannot be served with summons personally. So we will not allow you to enter the subdivision. After so many attempts the sheriff got fed up and what the sheriff did is to leave a copy of the summons together with a copy of the complaint with the guards of the subdivision. Is that a valid substitute service of summons. Literally that is not a valid service of summons if you will read rule 14 on substitute service of summons. It means that the summons should be served at the residence of the defendant upon a person of sufficient age and discretion then living therein. If the summons and the complaint was left only with the security guards at the gate of the subdivision this will not comply with the rules on substitute service because the guards do not reside at the place of residence of the defendant. And then the court also said that the meaning of the phrase of sufficient age and discretion does not mean that the person to be served by substitute service could be a minor residing in the residence of the defendant. The court said that this person of sufficient age and discretion means that this person is at least 18 years he is no longer a minor and that a provision there is a relationship of confidence between this person and the defendant himself. So if the person served is simply a visitor of the residence that will not be sufficient service of summons. But in this 2006 case the SC became very liberal. Although it was clear that the sheriff did not satisfy the requirements of a substitute service of summons the court ruled that the trial court acquired jurisdiction over the person of the defendant so it would seem that in this case we did not follow strictly the substitute service of summons. But in 2009 another case was decided by the court involving the validity of a substitute service of summons that is not made in accordance with the provisions of the rules. And this time the court said if substitute service of summons is not in accordance with section 7 or Rule 14 the service is not valid the court will not acquire jurisdiction over the person of the defendant and therefore if the court does not acquire jurisdiction over the person of the defendant the proceedings taken thereafter by the court may be invalidated the proceedings may be void for lack of jurisdiction over the person of the defendant. In summons you concentrate your study in section 14 15 and 16. These are the sections in summons which has been the subject of decisions of the supreme court that are really in conflict with one another. Before 1997 it was

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     firmly established that if an action is filed against the defendant that is purely in personam and also personal at the same time like recovery of an unpaid loan and the defendant cannot be served by summons either in person or by substitute service the doctrine then which we follow was that the court cannot simply authorize publication of the summons and after publication of that summons as directed by the court the court will now have jurisdiction to try the case. This is restricted by that old 1960s or 1970s decision of citizen surety vs herrera. This was the generally prevailing doctrine in this case a case was filed for the recovery of a deficiency arising from a foreclosure of real estate mortgage. So that action was in personam it was also personal in character. Although previously the collateral owned by the mortgagor who is now the defendant in this complaint have a known address when this complaint for deficiency was filed and a summons was issued the sheriff reported to the court that it can no longer locate the defendant in the residence or in any other address given to him by the plaintiff so service in person of the summons could not be had substitute service also could not be had because the residence of the defendant was unknown. What the plaintiff did was to file a motion to court where he sought authority from the court to publish these summons of course this was in the form of an ex parte motion because summons has not yet been served upon the defendant the court has not yet acquired jurisdiction over the person of the defendant. During the hearing of the motion it was only the plaintiff who was present and the lawyer explained to the court that several attempts were made but the sheriff have failed to serve these summons in accordance with these modes so the plaintiff asked with the court for authority to publish the summons which the court readily granted. There was no opposition. After receiving the order of the court authorizing the publication of the summons the plaintiff transacted with a newspaper of general circulation and caused the summons to be published. The newspaper of course gave to the plaintiffs lawyer the affidavit of publication so that it can be presented with the court as evidence that the order of the court to publish the summons has been complied with. After 60 days from the publication of the summons the court has not received any responsive pleading any answer coming from the defendant. So what the plaintiff did was to file a motion to declare the defendant in default. In rule 14 the period within which to answer a complaint after publication ordered by the court is a period of 60 days so what the plaintiff did there was in accordance with the rules. Since there was no answer filed the plaintiff thought to file a motion to declare the defendant in default. During the hearing of the motion the plaintiff presented to the court a copy of the order authorizing publication, the proof that the summons was indeed published and the affidavit of the publisher of the newspaper saying that there was indeed publication of the summons. The plaintiff obviously was expecting the court to grant his motion to declare the defendant in default but much to the surprise of the plaintiff the trial court which was presided by judge Sereno who became chief justice of the SC she was then a trial court judge asked the plaintiff after presentation of evidence by the plaintiff to explain to me why your complaint should not be dismissed. So the lawyer was taken aback he told the judge your honor we moved for authority to publish the summons because the summons cannot be served in person or by substitute service. You allowed us to publish the summons and we spent money for the publication of the summons we have done our part and now you are

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     asking us to explain why this case should not be dismissed is there anything wrong with our case in the first place? And the judge told the plaintiff even if you publish the summons that publication did not enable the court to acquire jurisdiction over the person you should have complied with the requirements of the rules of court so the lawyer asked himself what parts of the rules of court did I fail to comply with? And then it came up to the decision that the requirement which appears not therein satisfied was what the SC calls the constitutional requirement of due process that the action should have been converted into one that is in personam into in rem or quasi in rem. And the means by which an action in personam and also personal at the same time could be converted from in personam is to apply to the court for the preliminary attachment of the properties belonging to the defendant and of course after the court has granted the writ of preliminary attachment that there should be an actual attachment on personal properties of the defendant. The cases for this conclusion by the plaintiff aside from Rule 14 section 15 where there is a mention of the issuance of a preliminary attachment over properties of the defendant the other rule that supports this argument is rule 57 on preliminary attachment. If you read section 1 of rule 57 on preliminary attachment. The last situation enumerated instance where preliminary attachment could be issued by the trial court when the defendant is not a resident of the philippines and he is not found in the philippines and he could be served with summons by publication. The court interpreted these provisions to mean that if there is publication of the summons there should be a preceding or accompanying preliminary attachment over personal properties of the defendant. Without this actual preliminary attachment of the personal properties of the defendant the court cannot acquire jurisdiction over the person of the defendant. In other words if we are not able to convert the action in personam to one that is in rem or quasi in rem the court will not be able to acquire jurisdiction over the person of the defendant and therefore the court will have no authority at all to entertain that case. This ruling of the SC in citizens surety vs herrera was issued in the 1960s or early 70s and that has been the rule that was always followed when it comes to actions in personam that are also personal at the same time. The innovation introduced by the citizen surety was that if no preliminary attachment of properties belonging to the defendant could be had, it is not right also to order the dismissal of the case. The court said instead of ordering the dismissal of the case what the trial court should do is to order the archiving of the case. So there will be no dismissal of the case simply archiving of the case. The court explained that if we simply archive the case if we dont order the dismissal of the case then the law on prescription will not start to run and therefore it is not possible for the defendant later on to setup the defense of prescription which is one of the non waivable defenses. The defendant cannot possibly setup the defense of prescription if the complaint is archived not dismissed because under the civil code if there is a judicial demand for the payment of an indebtedness prescription will not start to run. And the court complaint that is archived will constitute always as a judicial demand for the performance of the obligation. From that time on we followed this procedure whenever a defendant in an action in personam that is also personal cannot be served with summons in person or by substitute service. Until the 2008 this case of PNOC vs Santos was decided by the court and if you're not familiar with that case I suggest that you read. Because it is a case that has all

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     revised or changed the principles applicable to this situation where an action in personam can be filed by the court even if there is no conversion into in rem or quasi in rem. PNOC vs Santos a 2008 case involved practically the same claim it was a claim for money arising in fact from a sale. The defendant could not be located anymore. So his whereabouts are unknown. And therefore summons cannot be served in person or by substitute service. Instead of following the steps taken by the lawyer in citizens surety vs herrera the lawyer in pnoc did not move for the publication of summons. What the lawyer filed was a motion to allow him to present evidence ex parte because no answer has been filed by the defendant and the trial court allowed it. Evidence was presented ex parte and later on the judge rendered a decision in favor of the plaintiff directing the defendant to pay. When the defendant learned of the decision he presented himself before the court and he asked the court for reconsideration of the decision. That was a mistake of the defendant. Because the court said that when he filed a motion for reconsideration he admitted the jurisdiction of the court over his person. So there was no more issue on absence of jurisdiction. The filing of a motion for reconsideration was voluntary appearance on the part of the defendant he's admitted himself to the jurisdiction of the court. From that time on since 2008 lawyers have made use of PNOC vs Santos as the authority to convince a court the trial court that there is no more need for publication and for the issuance of a writ of preliminary attachment before the court could acquire jurisdiction over the person of the defendant. In 2010 there was another case which the court resolved Padua vs Galvez. This case practically reiterates the ruling in PNOC vs Santos. There is no need for the conversion of an action in personam to in rem or quasi in rem before the court could acquire jurisdiction over the person of the defendant. In this case of Padua the court explained that we should apply literally what the rules provide. If you go to rule 16 if the defendant is a resident of the philippines but is temporarily out of the philippines in relation to section 14 if the whereabouts of the defendant are unknown there could be publication of summons and that will enable the court to acquire jurisdiction over the person of the defendant. So it would seem that the principles which were adhered before as enunciated in citizens surety vs herrera are no longer binding upon plaintiffs they can ignore the requirement of prior preliminary attachment of properties of the defendant before there could be publication of summons to enable the court to acquire jurisdiction over the person of the defendant. So 14 15 and 16 are the sections involved in the case of PNOC vs Santos and Padua vs Galvez. There is really no need for the plaintiff under 14 15 and 16 to make a conversion of an in personam action into in rem or quasi in rem through the process of a writ of preliminary attachment that is actually carried out by the court. But what is the advantage of using this principle in citizens surety vs Herrera. Is there any advantage if the plaintiff first moves for preliminary attachment over the properties of the defendant and thereafter ask the court for publication of summons. Compared to just the plaintiff asking for publication of summons without an accompanying writ of preliminary attachment. The advantage in the mechanism given in citizen surety is that there is a security that is enjoyed by the plaintiff when the property of the defendant is attached through a writ of preliminary attachment. If you read rule 57 that is precisely the purpose of preliminary attachment over the property of the defendant to provide security in favor of the applicant for whatever judgment the court may

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     render in favor of the plaintiff. But again the present stand of the court is not to apply anymore that principle in citizens surety vs herrera insofar as publication of summons is concerned. There is no more need for converting an action in personam into one that is in rem or quasi in rem. Again the court explained that if there is a preliminary attachment of a property belonging to the defendant the act of actual attachment of the property is the act which converts the in personam action into in rem or quasi in rem. Because a property belonging to the defendant is now within the jurisdiction of the trial court. Now we go to motions. In motions the general rule is that if a motion is not made in open court it must be reduced into writing and it must satisfy all the requirements given in the rules for the motion. There must be a service upon the adverse and that motion should be set for hearing. That is always the general rule with respect to motions. So if there is a motion that is reduced into writing but it is entitled ex parte motion that motion on its face already violates the rules. Because an ex parte motion is not served upon the adverse party and usually it is not set for hearing in accordance with the provisions of the rules on motion. When it comes to the notice of hearing of motions what some lawyers do is to address the notice of hearing to the clerk of court. So in the notice of hearing it is provided the transfer of court RTC Manila the transferee and then the pleadings this include the foregoing motion and your schedule of motions for hearing on motion day and then particular day for that motion day and then signed by the movant. And of course at the bottom there is proof of service either in person or by registered mail. The SC said that is not the notice of hearing that we require in motion. The notice of hearing must be addressed to the adverse party. It should not be addressed to the branch clerk of court so the proper way of presenting a notice of hearing of any motion in general is to make the adverse party or the lawyer of the adverse party as an addressee. Mr Juan Dela Cruz lawyer for the defendant please take note that the foregoing motion will be heard with the RTC on particular motion day at 830 etc. That is a proper way of preparing a notice of hearing the notice should be sent to the adverse counsel and then at the bottom there must be proof of service by registered mail or by personal service as the case may be. Remember that the SC has repeatedly held that if a motion is submitted to court and the motion does not emit the requirements the formalities the mechanisms and the rule as to service and notice of hearing that motion is a scrap of paper. The court does not have to entertain that motion. So we should not expect the court to consider by granting or denying the motion the court will simply ignore the scrap of paper that has been filed with the court. And then we have this omnibus motion rule which again emphasizes the non waivable defenses in civil action. In any civil proceeding if there is an objection to a pleading or to any claim it should be contained in the motion or in another pleading and if the objections are not setup these objections are deemed omitted except for the non waivable defenses. Now we go to a motion to dismiss. Which is always a litigated motion. A motion to dismiss is prohibited in certain procedures and circulars of the court. In small claims, even in summary procedure and in some special proceeding amparo and habeas data like that they are also prohibited. But in regular procedure a motion to dismiss is of course allowed in civil cases. And a motion to dismiss under rule 16 should be filed as a matter of

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     general practice before the defendant submits an answer. Can the defendant properly file an answer and a motion to dismiss at the same time? in Rule 16 that is also allowed but the motion to dismiss will simply be incorporated in the answer we note that under rule 16 if the defendant does not have in mind filing a separate motion to dismiss but the defendant has in mind submitting his responsive pleading right away he can file an answer effecting the motion to dismiss by incorporating in his answer the grounds in rule 16 as affirmative defenses. In other words if the defendant files an answer with affirmative defenses these affirmative defenses are those that are enumerated in rule 16 the grounds for a motion to dismiss. He is allowed to do that. And once the answer is filed with the court the defendant can ask the court to conduct a preliminary hearing on this affirmative defenses and the court can grant it as if the defendant has previously filed a motion to dismiss. So there could be an answer together with a motion to dismiss. But these are not separate submissions. The answer is not separate from the motion to dismiss. There is just one answer and then in that answer affirmative defenses are set up and possibly negative defenses but with respect to the affirmative defenses they are those that are mentioned in rule 16 as grounds for a motion to dismiss. In this case there will be a preliminary hearing as if a motion to dismiss has been filed by the defendant. But in the case of a non waivable defense since they are non waivable if you give effect to this effect of non waivable defense it is possible it is proper for the defendant to file motions to dismiss one after another without violating the omnibus motion rule if these motions to dismiss are founded on these non waivable defenses. The defendant can fila a motion to dismiss based on prescription. If that is denied do we allow the defendant to file a second motion to dismiss based on litis pendentia? yes if the second motion to dismiss is filed do we allow the defendant to file a third motion to dismiss? This time on lack of jurisdiction over the subject matter? The answer is yes again and then if the third motion to dismiss is denied can the defendant again can file a fourth motion to dismiss founded this time on res judicata? The answer again is yes because of the application of these non waivable defenses. It is conceivable and it is proper for the defendant to file successive motions to dismiss that contain of course distinct non waivable defenses and we do not make use of the omnibus motion rule. So a motion to dismiss founded on lack of jurisdiction over the person only will be a waiver of the other grounds in rule 16 except litis pendentia lack of jurisdiction or res judicata. There will be waiver of course of the other grounds in rule 16 but not those contained in letters f and h except in unenforceability under the statute of fraud which is a waivable defense. IN the resolution of a motion to dismiss rule 16 gives to the court 3 choices. Grant or deny the motion or order amendment of the pleadings. A fourth option now given to the trial court by virtue of these laws on Alternative Dispute Resolution that is if these grounds are available what the court can do as a fourth choice is to refer the matter into mediation or arbitration as the case may be and suspend further hearings. So as of now there are 4 options available to a trial court in resolving a motion to dismiss under rule 16. Grant the motion deny the motion order an amendment to the pleadings and then refer the matter to conciliation or mediation as the case may be. Is there any tactical advantage or procedural advantage if the defendant instead of filing a motion to dismiss under rule 16 will simply answer the complaint but in his answer he will set up affirmative defenses those

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     enumerated in rule 16? Is there a procedural advantage? Yes there is. There is a procedural advantage. If the defendant files an answer with an affirmative defense and these affirmative defenses are the grounds enumerated in rule 16 for a motion to dismiss and after preliminary pleading on this affirmative defenses the court orders the dismissal of the case. The defendant will be given an opportunity to recover his claim for damages if in his answer there are counterclaims permissive or compulsory together with the affirmative defenses. So if the answer of the defendant is an answer with a negative defense with affirmative defenses and compulsory or permissive counterclaim and the defendant asks the court to conduct a preliminary hearing on the affirmative defenses and the court orders the dismissal of the complaint because the affirmative defenses are properly demonstrated by evidence the complaint will be dismissed but the defendant will have an opportunity to recover damages or whatever relief he has sought in his permissive or compulsory counterclaim. We note that in rule 16 the dismissal of the case will not affect any counterclaim or crossclaim or any other claim that has been submitted by the defendant before the court and this can only be done if the defendant files an answer. The defendant cannot file a motion to dismiss with a counterclaim impossible. He cannot file a motion to dismiss with a crossclaim because a motion to dismiss is not a pleading it is only in an answer where we can have a crossclaim or a counterclaim a counterclaim against the plaintiff as the case may be. So that is the procedural advantage if the defendant is advised by his counsel not to file a motion to dismiss as a separate motion but simply file an answer with a counterclaim and setting up negative and affirmative defenses. In a motion to dismiss of course we can make use of any of the grounds mentioned in rule 16 but again with the exception of non waivable defenses if there is a motion to dismiss founded on grounds other than the non waivable defenses the grounds not cited are deemed omitted. So if there is a motion to dismiss founded on lack jurisdiction over the person of the defendant which is a waivable defense and then that is the only ground that is setup in the motion to dismiss and that motion to dismiss is denied, the defendant will be precluded from filing a second motion to dismiss on the ground of improper venue because these are waivable defenses. What we said earlier there could be a second motion to dismiss if the second motion to dismiss or the succeeding motions to dismiss are founded on the non waivable defenses. With respect to lack of jurisdiction over the subject matter or over the nature of the case, this ground it is the topic in our case of Tijam vs Sibonghanoy. I assume all of us are familiar with this case. If the trial court does not have jurisdiction over the subject matter of the case normally the conclusion is that the judgment of the court is void because the court must have jurisdiction over the subject matter before it can properly try the case. If the court on the other hand does not have jurisdiction over the subject matter of the case but the defendant kept silent about this issue about this absence of jurisdiction and then the defendant allows the court to conduct a hearing on the case he allows the court to decide the case and the defendant thereafter appeals let us say to the Court of Appeals and before the court of appeals the defendant also does not raise the issue of lack of jurisdiction and then the CA renders its own decision affirming the decision of the RTC and after receiving the decision of the CA the defendant asks for an extension of the period to file a motion for reconsideration which at

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     that time is allowed. And instead of filing a motion for reconsideration the defendant this time challenges the validity of the decision of the trial court as well as the decision of the court of appeals on the ground that the trial court did not have jurisdiction from the very start . And lastly that case has been pending before the courts for 15 years. In Tijam the SC refused to resolve the issue of validity of the judgment. In the case of Tijam the court simply said it is true that lack of jurisdiction over the subject matter can be raised at anytime even for the first time on appeal but in this case we have to make use of the rule on estoppel by laches. The case has been pending for 15 years and during this 15 year period the defendant did not challenge the jurisdiction of the court in fact the parties litigated by filing submissions to the court of appeals. So it is not fair and just according to the court to declare the judgment as void and then to remand the case to the lower court to the proper court to try it all over again. The SC observed it might take another 15 years for the trial court to eventually decide the case. So overall the SC observed we have a case that seeks to recover only 1900 pesos pending before the courts of justice possibly for 30 years. It is not just according to the SC. The SC said that while the decision really may be challenged because of the absence of jurisdiction over the subject matter the defendant is estopped by laches by his act of negligence in failing to raise this issue as soon as possible. He is guilty of estoppel by laches he can no longer challenge the validity of the decision of the court. The case of Tijam was decided in 1968 its really an old case. Our rules that we have now took effect in 1997 but under the rules that we are discussing we still have non waivable defenses like lack of jurisdiction over the subject matter. And in rule 9 there is no exception as to this non waivable defenses there is just an enumeration of these non waivable defenses and the first one is lack of jurisdiction over the subject matter. Rule 9 does not even mention the case of Tijam vs Sibonghanoy even by way of exception to its character of a non waivable defense. So we argue that under the 1997 rules Tijam should be considered abandoned. We should forget about Tijam vs Sibonghanoy. That is not a good argument because in rule 47 in annulment of judgment the doctrine in Tijam was incorporated as part of the rules of court. If you go to rule 47 one of the grounds for annulment of judgment is lack of jurisdiction over the subject matter. In rule 47 there is an exception, except when there is estoppel by laches. That is an express recognition of the 1997 rules about the applicability of the case of Tijam vs Sibonghanoy. So we still have laches by estoppel as a good defense against this non waivable defense of lack of jurisdiction over the subject matter. In other cases that are factually different from Tijam the SC also used another kind of estoppel in order to bar a party from raising the issue of jurisdiction although the trial court really does not have jurisdiction. A good example is the 2004 case of Soliven vs Fastforms. In the case of soliven vs fastforms a case was filed before an RTC after the effectivity of BP 129 and after the effectivity of the 1997 rules. The amounts to be recovered in that complaint was almost 800 thousand pesos. The court before which the complaint was filed was a regional trial court in Makati. So if we apply BP 129 in determining the jurisdiction of the court simply because the amount sought to be recovered was in the aggregate sum of 800 thousand should not lead us to the conclusion that the RTC really was the competent court. That is not what BP 129 tells us. In BP 129, in order to determine the competent court in complaints for money we should exclude items like interests damages cost and attorneys

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     fees. And the remainder will be the basis in ascertaining the competent court. Obviously in this case at the start the issue of jurisdiction was not raised at all. So the defendant instead of filing a motion to dismiss which was not expected of him because he also thought that the trial court really have jurisdiction over the case. He simply filed an answer and in that answer incorporated a counterclaim. So there was an answer by the defendant together with a counterclaim. The judge unfortunately also did not study the complaint well so the court also was not aware that it did not have jurisdiction over the case. Because if the court read the complaint, the court could have discovered that the amount sought to be recovered by the plaintiff as principal amount was less than 300 thousand pesos. So that case is cognizable only by an inferior court. So nobody brought the issue of jurisdiction with the regional trial court. Then later the court rendered a judgment in favor of the plaintiff this time the defendants lawyer studied thoroughly the records of the case. The lawyer arrived at the conclusion that there is something wrong with the complaint. That the court did not have jurisdiction over the case and he can easily prove to the court that the court did not have jurisdiction because the amount sought to be recovered as principal was less than 400 thousand pesos. What the defendant did was to file a motion for reconsideration before the trial court and he raised the issue of lack of jurisdiction. So he asked the trial court to reconsider the decision and order the dismissal of the case. On the ground of lack of jurisdiction over the subject matter. The trial court denied the motion and said you participated in the case you did not challenged the jurisdiction of the court and you presented evidence for the court in support of your counterclaim and now that you have lost the case you return to the court and tell the court that it does not have jurisdiction over the case. That is not fair said the RTC. So the RTC stood up to its evaluation that there is nothing wrong with the decision. The case eventually reached the SC and the SC said the defendant will no longer be allowed to challenge the jurisdiction of the court. Remember that the factual setting of this case Soliven is not similar to Tijam. The case in soliven was only about 3 years old at the time it was decided by the RTC so we cannot make use of the 15 year period that was capitalized by the SC in using estoppel by laches. We cannot make use of that concept of estoppel by laches because the period was not similar to Tijam. But what the supreme court did here was to introduce another kind of estoppel. The court said there may be no estoppel by laches but there is estoppel in pais that is estoppel by deed. The act of the defendant in participating actively during the trial of the case and in seeking an affirmative relief through a counterclaim contained in his answer makes the defendant in estoppel in pais. he can no longer challenge the validity of the decision rendered by the court although the court may not have jurisdiction over the case. So another kind of estoppel was now set by the SC in order to prevent a party from challenging jurisdiction the first is estoppel by laches in Tijam and then the second one is estoppel in pais estoppel by deed. We of course lawyers were contented with the explanation given by the court in these two cases. Which decisions were really fair its not good to allow a party to participate in the trial and then if he loses the case he challenges all that the judge has done in rendering a decision. He should have set up these issues even before the case is decided or even through a motion to dismiss. But in 2009 another case which was a criminal case

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     Figueroa vs People this was a criminal case. In Figueroa there was a criminal case filed against the accused for reckless imprudence resulting to homicide. If you recall under BP 129 these criminal cases of reckless negligence are cognizable by an inferior court under BP 129. But unfortunately in Figueroa the information was filed by the prosecutor before the RTC. Just like in Soliven vs Fastforms the prosecutor was unaware that the RTC did not have jurisdiction. When the appeals was taken in the custody of the court. His lawyer the defense counsel also assumed that there was nothing wrong with the jurisdiction of the trial court although in truth again the RTC did not have jurisdiction over the case. So just like in Soliven vs Fastforms the judge also did not know because nobody raised the issue of jurisdiction. He must have made use of the presumption in evidence that there is regularity in the performance of the duty of the prosecutor and then his presumption that a court has jurisdiction over a case that has been filed before it. Really under the rules of evidence the courts can make use of these presumptions that it has jurisdiction over the case. There was trial where the court the prosecution and the accused presented their respective evidence. The trial court convicted the accused. the accused appealed to the CA and then in the CA the accused moved for the dismissal of the information of the criminal case on the ground of lack of jurisdiction. The solicitor general who is the lawyer of the people of the philippines cited this doctrine in soliven vs fastforms that when a party participates in the litigation before the trial court and does not challenge the validity of the orders of the trial court he should be estopped from questioning the proceedings taken by a trial court or even the validity of the judgment that is estoppel in pais. So active participation means that the litigant who participates is estopped from challenging the validity of the proceedings where there is direct participation. The CA agreed with the Solicitor General because the arguments presented by the sol gen is applying the rule on estoppel in pais. The case reached the SC. The SC said the judgment is void because we cannot apply the rule of estoppel in pais in this case. So even if there wasactive participation by the accused in a criminal case he still can challenge the validity of the information against him if the court really has no jurisdiction over the case. Since this case of Figueroa is a criminal case but the case of Soliven is a civil case does it really matter? I'm not saying that you follow Figueroa or you follow soliven vs fastforms but if you are confronted with a problem on lack of jurisdiction and it is a civil case you apply soliven vs fastforms but if the problem involves a criminal case then you follow Figueroa. There is reason really for the SC to adopt a different path in Figueroa because Figueroa was a criminal case and of course the liberty of the accused was to be considered. In 2010 again there was another similar case which involved also estoppel in pais. NAPOCOR vs the province of Quezon. The SC adopted the doctrine in Soliven vs fastforms so there is a continuity of decisions in civil cases where the SC applies the principle of estoppel in pais in order to prevent the party from raising the issue of jurisdiction if the party has already participated during the hearing of the case. The principle is we still have estoppel by laches and estoppel in pais that will preclude the party from raising the issue of jurisdiction. We continue tomorrow.

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     Motion to dismiss (Rule 16) Another ground for motion to dismiss is lack of jurisdiction over the person of the defendant. This will take place if the defendant is not properly served by summons, in accordance with rule 14 either service in person or substituted service. The problem of the defendant if he contends before the court that the court has not acquired jurisdiction over his person is that he has to file a motion before that same court. So he will then file a motion to dismiss based on that ground, lack of jurisdiction over his person. If the defendant files a motion to dismiss before the court on the ground of absence of jurisdiction over his person does not the defendant admit that the court already has jurisdiction over his person? The answer is NO. The filing by the defendant of a motion to dismiss on that ground is the only mechanism available to him to manifest to the court that the court has not acquired jurisdiction over his person. In old cases what the defendant did so that he can avoid that argument, that by filing of motion to dismiss he in fact recognizes that the court acquires jurisdiction is to tell the court right away that his appearance before the court in filling a motion to dismiss is considered only as a special appearance. Only for that purpose of telling the court, that the court has no jurisdiction over his person. This special appearance rule, extend to another principle in the past, that when a defendant files a motion to dismiss on the ground that the court has not acquired jurisdiction over his person and then he has another ground in Rule 16, by virtue of the application of the Omnibus Motion Rule, the decisions of the court then, will have to the effect that if he adds to a motion to dismiss another ground mentioned in Rule 16, he may not use this ground of lack of jurisdiction. That has been changed by the present rules of court. A defendant who files a motion to dismiss based on lack of jurisdiction over his person and another ground, is not deemed to have admitted jurisdiction of the court over his person. That is the present rule that we follow. In other words, a defendant is free to file a motion to dismiss citing a s to one of the grounds lack of jurisdiction over his person and other grounds in Rule 16. He is not deemed to have waived his argument that the court has no jurisdiction over his person. Let us say that the defendant who claims that the court has not acquired jurisdiction over his person does not respond on the summons, on the belief that the filing of an answer will in effect make himself liable for the claim in the complaint. Then he is declared in default. He receives the order of the court and then following the rules., the defendant files a motion to lift the order of default. The filing of a defendant of a motion to lift the order of default is acceptance of the defendant of the jurisdiction over his person. Or on other instances, where the defaulting defendant has received a judgment of the order of default, and he files a motion for reconsideration or a new trial, the filing of the motion for reconsideration or the new trial in effect is submission of the defendant of the jurisdiction of the court over his person. This is the reason why in case cited Padua vs Galvez, the Supreme Court said that if the defendant claims that the court has not acquired jurisdiction over his person and then he moves for reconsideration or new trial, he should in that motion specify to the court that the filing of the motion

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     for new trial or reconsideration, is not to be treated as voluntary submission of his person to the jurisdiction of the court. He must always qualify the filing of such motion. One the grounds is failure to state a cause of action. The Supreme Court has emphasize the difference between failure to state a cause of action and lack of cause of action. Lack of cause of action is not a ground for motion to dismiss. It is failure of the complaint to state the cause of action. The difference according to the court is that if the plaintiff has no cause of action at all, that is he does not allege a right, or even if he alleges a right there is no further that his right has been violated, there is really no reason for the plaintiff to go to court. In this situation, the complain will be dismissed for prematurity. The court will not acquire jurisdiction over the compliant. In Rule 16 failure to state a cause of action assumes that the plaintiff really has a cause of action and the failure to state will solely be the fault of the lawyer who prepared the complaint. For instance, in accion reinvindicatoria, let us assume that there is really a plaintiffs right and entitlement to the ownership and possession to the land, and the defendant has failed to comply with his obligation, there is now a cause of action. But in the complaint prepared by the lawyer, the lawyer neglects to allege the assessed value of the property which is the factor which ascertain the jurisdiction of the court. There could be now a motion on the part of the defendant to dismiss the case for failure to state a cause of action. If there is an action reinvindicatoria filed before the RTC and there is no allegation as to the assessed value, the RTC will not acquire jurisdiction over the case. The reason is under BP 129 there are two courts which are given jurisdiction, RTC and inferior court. Let us say that there is accion reinvidicatoria before the RTC but there is no allegation as to the assessed value of the property, the defendant files a motion to dismiss for lack of jurisdiction, the plaintiff of course will be given a copy of such motion, the plaintiff’s counsel analyzes the motions but the counsel is self-centered and the counsel thinks that he could not commit such error, so the court hears the motion. But in hearing of a motion to dismiss founded on lack of jurisdiction over the subject matter, the court will not allow the parties to present evidence in support of the opposition. The reason is because lack of jurisdiction over the subject matter is purely a legal question and the only evidence to be taken into account by the court is the complaint itself. Applying the principle that a court acquires jurisdiction based simply on the allegations of the complaint. In the hearing of a motion there will be presentation of evidence only if the question that will be raised is a factual issue, like if the ground is the obligation has been waived or paid or abandoned. But if the issue is lack of jurisdiction over the subject matter, the only paper to be examined is the complaint itself. The court can easily resolved by merely reading the contents of the complaint. So the parties submit this motion to dismiss. The court concludes that it really has no jurisdiction. The court grants the motion. So the case is dismissed. The lawyer of the plaintiff will receive the order of dismissal from the court, he will be bothered this time. He will convert himself as a self-centered lawyer to a more humble lawyer, so he accepts his defeat. Can the lawyer for the plaintiff amend his complaint although the court order the dismissal based on the defendants motion to dismiss? The answer is YES. Why do we allow amendment?

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     Because the order of dismissal will not be entered until the lapse of 15 days. The case is still pending before the court. The plaintiff may still amend the complaint. He can rectify the error that he committed by inserting the assessed value. He may do so as a matter of right, no need for the permission of the court. Because according to SC, a motion to dismiss is not a responsive pleading, and under rule 10, amendment of a complaint is a matter of right as long as it is the first amendment and no responsive pleading has been filed. The responsive pleading in Rule 10 is an answer. In this situation, what is the effect of dismissal, if the order is eventually entered, it can no longer be challenged and has become final and executory order. Does the plaintiff have any other recourse? If we are going to apply Section 5 of Rule 16, you notice that the rule implicitly makes a distinction between an order under rule 16 which is founded on letters f, h and i compared to other grounds. If dismissal is based on f, h, i and the order has not been entered, the remedy of the plaintiff is to appeal. But if order of dismissal is founded on other grounds, nothing is mentioned. What is the remedy of the plaintiff? The answer is provided by Rule 41, section 1. In analyzing rule 16, 17, 18, and 33 must relate to rule 41. If you will go through the provisions of rule 41 section 1. There is an enumeration of orders, which according to the rules, these final orders are not appealable, although final in character. If we relate rule 16 to 41, the dismissal that is closely related to rule 16 in rule 41 will be the last enumerated item, that is dismissal without remedies. In rule 16, a dismissal under f, h, i is subject to appeal, such dismissal is with prejudice because rule 16 expressly say that remedy of the plaintiff is to appeal. But if the dismissal is founded not f, h, I implicitly the dismissal is without prejudice. Rule 41 tells the plaintiff one of his recourse, if his complaint is dismissed is without prejudice. By simply reading rule 41, the plaintiff may immediately conclude that if his compliant is dismissed by reason of Rule 16 or any other rule which talks about dismissal without prejudice, appeal is not a remedy available. The plaintiff should not appeal. So if the order of dismissal is without prejudice and cannot be appealed. It is very likely that the 15 day period will lapse without any action from the plaintiff. Can the plaintiff challenge the order of dismissal even after the lapse of 15 days? The answer is YES. Under Rule 41, although appeal is not allowed, the last paragraph tells the plaintiff what to do. The remedy is to file an appropriate petition under Rule 65, certiorati or prohibition. Why do we allow the plaintiff to allow petition for certiorari although the 15 day period has lapsed? Under Rule 65, the filing of the petition is 60 days not 15 days. Thus even after 15 days, he still have 45 days. But because the dismissal is without prejudice, the plaintiff may forget to file to a higher court, he may opt to file a new complaint against the defendant. We can easily understand why f, h and i is dismissal appealable. It is right a way a judgment on the merits. If the claim of the plaintiff allege in the complaint has really been extinguished. That means he really has no claim to the defendant. Therefore, it should be dismissed with prejudice. The motion will present a factual issue. During the hearing of the motion, the defendant can prove that the obligation has been paid, waived or otherwise

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     abandoned. The hearing is as if the court is trying the case. They may present witnesses and evidences to prove their allegations. The enumeration in h is not exclusive. Laches may be included. Remember that there is difference procedurally in a hearing on a motion to dismiss founded purely on a question of law compared to a hearing on a motion to dismiss founded of a factual issue. If founded on a legal issue the court will not allow presentation of evidence. The court will simply read the allegations in the complaint. If the issue raised is factual the court will be forced to conduct a hearing s if it were a hearing on the merits. Let us say that the motion to dismiss is founded in letter h, during the hearing the defendant presents evidence and tells the court that he has no further evidence to produce so the motion is now submitted for resolution, the court denies the motion. What is the next move of the defendant? Rule 16 tells him that he should file an answer within the remaining period which shall not be less than 5 days. The defendant files an answer, in that answer can we incorporate as an affirmative defense the same grounds in the motion to dismiss? YES, he can still make use it. Is that not repeating? He is merely repeating but it is allowed. This is because according to the rules, if there are grounds not raised in the pleading, these grounds will be deemed waived. He does not want that to apply to him. Can the defendant after filing the answer with the affirmative defense, move the court to allow a preliminary hearing with this affirmative defense? The court will not allow it because there was already a hearing on the same ground. During the trial, he may be allowed to present additional evidence. Going back to Rule 41 in relation to Rule 16, in a dismissal with or without prejudice, that is the court in Rule 41 in order for the party to determine whether his remedy is appeal or rule 65. If the court orders the dismissal of a complaint, do we consider the dismissal as a final order? YES. Any dismissal by the court is a final order. But what matters is whether the order is with or without prejudice so that we can ascertain the remedy available. And the plaintiff should be able to determine correctly. Supposing that the plaintiff committed error. His complaint was dismissed due to f,h, I but he concludes that the dismissal is without prejudice. So he has in mind to use rule 65. He reads that rule 65 may be availed of for 60 days. On day 40 he files a petition for certiorari, such will be dismissed. The court tells him that the proper remedy is an appeal. Can he make use if the remedy of appeal? The answer is NO, because the period to appeal, for 15 day has already expired. The order of dismissal has been entered. Can he file another complaint? NO, since the dismissal is with prejudice. If the dismissal is founded on Rule 17, we follow the same principle. In Rule 17, there are several dismissals. It also speaks dismissal with and without prejudice. There is also a dismissal in Rule 18, during the pretrial, the dismissal is with prejudice. The remedy of the plaintiff is to appeal. The plaintiff failure to submit a pretrial brief or failure to attend the preliminary conference. There is also another which is found in Rule 33, judgment on demurrer of evidence. The dismissal is again with prejudice. That is an adjudication of the merits. Rule 17

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     Another rule for dismissal of actions. If you will recall, rule 17 is connected with an order that can be issued by the court in relation to a motion to dismiss. If the defendant alleges that an indispensable party has not been impleaded. The defendant can file a motion to dismiss, not on the ground of failure to implead an indispensable party but on the ground that the complaint has failed to state a cause of action. If that is the ground used by the defendant on the ground on the theory that an indispensable party must be impleaded so that the court can have a final determination of the case, that motion to dismiss will be resolved by the court using Rule 16 but availing of the other option given in rule 16. Remember that in Rule 16, if there is a motion to dismiss filed by the defendant, the law gives the court 3 options. The first is to grant the motion, the second is to deny and the third is to order amendment. In our example where an indispensable party has not been impleaded, the court will not grant or deny the motion, but will simply order the plaintiff to amend his complaint. So that the indispensable party will be impleaded. There court can now have the final determination of the case. If the court orders the plaintiff to amend his complaint so as to include an indispensable party, if the plaintiff follows the order of the court, then he can just submit an amended complaint. But if the plaintiff does not obey the order of the court, and not amend his complaint, can the court now order the dismissal of the compliant? Yes. Under rule 17, that is a dismissal with prejudice. Failure to comply with the order of the court. Therefore the remedy of the plaintiff is to appeal. There are 3 sections concerning dismissal in Rule 17, Sections 1,2 and 3. The section provides for grounds and its consequences of the dismissal. The dismissal contemplated in section 1 is the dismissal of a complaint upon the initiative of the plaintiff itself. If the plaintiff files a complaint today and changes his mind next week, the summons has not been serve upon the defendant, he can go to the court and file a notice of dismissal for the complaint, not a motion.

Is there a difference between the motion filed by the plaintiff than a notice of

dismissal? There is a big difference. If the plaintiff files a motion, that means to say that the court is given the prerogative to grant or deny. But if simply a notice, the court is left without any discretion except to confer. That dismissal is without prejudice unless the plaintiff tells the court that the notice should be considered as an adjudication upon the merits. If the dismissal of the complaint is confirmed by the court and he receives the notice of confirmation and the plaintiff again change his mind, can he file another complaint? NO. because the confirmation of the dismissal will be entered only after the lapse of fifteen days. Within the 15 day period, the plaintiff can change his mind. He will just ask the court to revive his complaint, he does not need to file another complaint. no need to pay another set of docket fees. Supposing that the defendant files a motion to dismiss under rule 16, and subsequently the plaintiff files a notice of dismissal, which of the two submission should be resolved by the court? This issue was resolved by the SC, what the court should do is to confirm the notice of dismissal by the plaintiff. Section 1 also give a concept of two dismissal rule. The creditor files a complaint against the debtor for the recovery of an obligation for P500,000. A week after the filing of the complaint, and upon receipt of the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     defendant of the summons, the defendant visits the plaintiff, and the defendant cries on the plaintiff and pleaded and says that he promises to pay just don’t proceed with the complaint. so the plaintiff files a notice of dismissal. The case confirmed the dismissal. The court has a ministerial duty to conform with the notice. The defendant does not still pay. Can the plaintiff file a second complaint? YES the notice of dismissal is without prejudice. The plaintiff then files a second complaint. the defendant again pleaded. The plaintiff files a second notice of dismissal. The court again confirms. That dismissal will now be considered with prejudice. So that if the plaintiff files a third complaint, such complaint will be dismissed on the ground of res judicata. Can the court in the second notice of dismissal, confirm the dismissal and say that te dismissal is without prejudice? NO it is the rule that tells that the second dismissal is with prejudice, the court is not given discretion. But there could be a situation that the second dismissal will not be considered with prejudice. The two dismissal rule refers to a situation where the cases have been filed before a competent court. If one of the cases has not been file before a competent court, that dismissal will not be with prejudice. In section 2,involve another dismissal. This time not by mere notice of the plaintiff but upon motion. The plaintiff after defendant files an answer is not given a prerogative to file a notice of dismissal but must file a motion. In the ordinary course, if the plaintiff files a motion, the likelihood is that the defendant will not object. But section 2 gives the defendant a chance to object. Why would a defendant oppose the dismissal of the case upon motion of the plaintiff if it is favorable to him? Section 2 is clear in saying that the dismissal is without prejudice. in other words, if the defendant does not object and the court grants the dismissal, the plaintiff is later on allowed to file another a complaint founded on the same cause. The defendant can insist that the dismissal should be considered with prejudice. In section 2 the defendant also might have another good reason. If the defendant has already filed an answer and has set up a counterclaim. He could insist on the dismissal but the court should continue with his counterclaim. Dismissal of the complaint does not dismiss the counterclaim, although it is a compulsory counterclaim. In effect section 2 gives us a very rare situation where a compulsory counterclaim could survive without the principal action. Section 3 presents an instance where the case is dismissed but this time the case could be dismissed on the initiative of the defendant or the court itself. Dismissal for failure to prosecute, failure to attend trial in presenting his evidence in chief, failure to comply with the lawful order of the court or to obey the provisions of the Rules of Court. How can a court order a dismissal of the complaint upon the ground that the plaintiff failed to obey the provisions of the Rules? A good example is Rule 18. It is provided expressly that it is the duty of the plaintiff to set his complaint for pre-trial. Once the last pleading is filed. If the plaintiff fails to do so for a reasonable length of time, the case may be dismissed. The dismissal is with prejudice unless the court makes a qualification. In most courts, if the court calls the case for trial in the merits and the plaintiff does nit appear. The defendant may take advantage of the absence of the plaintiff. The lawyer for the defendant may ask the court for the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     dismissal of the case on the ground of failure to prosecute or failure to appear during presentation of evidence of chief. Usually the trial court in most instances accommodates. The dismissal is upon the adjudication of the merits. In order to be valid the order of dismissal should comply with the essentials requirements of a valid judgment under Rule 36 and also under the Constitution. What are the requirements? Under Rule 36, one of the essential requisite of a valid judgment of any court, is first there must be factual findings, conclusions of law. If it decision does not have factual findings and conclusion of law applicable, that decision is null and void. So if the court simply says for failure of the plaintiff to prosecute for unreasonable length of time, that is not a factual finding of the court, it is a conclusion of the court. The SC said for a trial court to render a valid judgment the court should explain why and how it come to a conclusion that the plaintiff failed to prosecute. The court should give circumstances based on the record of the case which convince the court to conclude that the plaintiff indeed is guilty of failure to prosecute, without such explanation, the judgment is null and void. Therefore it can be subject to a challenged at anytime. It can be collaterally attack. Remember that if there is adjudication upon the merits according to the rules, the order is simply an order of dismissal under Rule 16 or 17. For the validity of such dismissal the court should explain. An order for dismissal with prejudice should comply strictly with the requirements of Rule 36. If no compliance, it is not considered a valid judgment. It is a void judgment. RULE 18 Pre-trial is mandatory in all cases, civil or criminal. Even in summary procedure,we have compulsory pre-trial, though it is called preliminary conference. Also in small claims there is a semblance of a pre-trial because the small claims court will call the parties to a preliminary conference wherein the court will make use the JDR rule, Judicial Dispute Resolution. In all civil actions a pre-trial is mandatory. In fact it is the duty of the plaintiff to schedule his complaint for pretrial after the last pleading has been filed. And if he fails to do so, that could be a ground for the dismissal of the case. The dismissal will be with prejudice. This rule on pre trial has been modified by certain circulars of the SC, applying the principles of mediation and conciliation. Usually if the trial court calls the parties to a pretrial and the parties present themselves to the court for pretrial conference, what trial courts usually do now is to tell the parties that they should first attend mediation and conciliation by SC accredited mediators or conciliators. After the mediation or conciliation process is terminated without an agreement. Then the parties are required to go back to court to attend the formal the pretrial conference. During the mediation and conciliation process, the mediator or conciliator will issue a notice to the litigants on the date scheduled for the mediation and conciliation. If the plaintiff does not appear he ignores the notice sent by the mediator or conciliator for the mediation or conciliation conference and repeatedly ignores such notice, the mediator will submit a report to the trial court telling the court on what has transpired in the mediation or conciliation proceeding. If the conciliator submits the report saying that plaintiff has absented himself, then that is a ground for order of dismissal. And could be a dismissal with prejudice. So if the court issues a notice requiring the parties to attend a pretrial conference and during that conference the court

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     also instructs the parties to attend mediation or conciliation proceedings, that mediation or conciliation proceeding are part of the pretrial to be conducted by the court. If the party absents himself in the mediation or conciliation, it is as if the party absents himself in the pretrial conference. There can be a order of dismissal if it is the plaintiff or the court may order the plaintiff to present evidence ex parte if it is the defendant. If the conciliator or mediator fails in his attempt to convince the parties to arrive at an amicable settlement, he will simply submit his report to the court and the record will be return to the court for a pretrial conference. If we based it purely in Rule 18, the parties have the common duty. The first is to submit a pretrial brief and the second is to attend the pretrial conference. If the fail to submit a pretrial brief there are serious sanctions that may be imposed by the court. Even if they were able to submit a pretrial brief on time but they failed to attend the pretrial conference there could also be serious sanctions and consequences. In case of the plaintiff, the sanction is dismissal of his complaint with prejudice. In case of a defendant, the sanction is for the plaintiff to present his evidence ex parte. In other words, we do not observe anymore the principle that if the defendant does not attend the pretrial conference or fails to submit a pretrial brief on time, the court cannot anymore issue and order telling that the defendant as in default. The decision of the court will be based on the evidence presented by the plaintiff. If a defendant is in default under Rule 9, the court may order the plaintiff to present evidence ex parte, in the absence of the defendant. The same is true with Rule 18 , if the defendant has filed an answer but neglects to submit a pretrial brief or fails to attend the pretrial conference or even send a representative armed with SPA, what the court will order the plaintiff to do is to present evidence ex parte. In rule 9 when the defendant is in default and there is an ex parte presentation of evidence, the court may only award what the plaintiff has prayed for in the complaint. But in rule 18, the court may make an award in accordance with the evidence presented by the plaintiff. In other words, we apply the amendment in pleading to conform to evidence in rule 18,in ex parte presentation of evidence. But not applicable in rule 9. The reason is because the defendant is not in default in rule 18, there is already in an answer. Please also take note the difference of a pretrial conference in a civil and criminal case., particularly in the stipulations of fact. In a civil case, the parties can stipulate on facts even without a pretrial conference, in fact the parties can simply submit to the court joint stipulation of facts but during the pretrial conference, the parties are present together with the lawyer for one of the principal purposes is to enable to parties to agree on a the existence of certain facts and that will be treated as a judicial admission on the part of the parties. These facts stipulated will be a part of the record of the case. They can be even made verbally. There is no rule that the facts stipulated should be reduced in writing. But in a criminal case, the rules are stringent. There could also be stipulations but procedure is very strict with regard to the admissibility and enforceability of the stipulation of facts. In Criminal procedure if the prosecution and defense stipulate on certain facts that stipulation must be reduced in writing, and must be signed by the counsel for the accused and the accused himself and such must be approved by the court.

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     After the pretrial conference is terminated, a trial court is required to issue a pretrial order. That is a requirement for all courts. The last section of pretrial pertains that the pretrial order will control the proceedings later on. In that pretrial order the court is required to specify the issues that had not been stipulated upon and the issues that should be the object of the trial. It is the pretrial order that will be followed by the court, when the court finds it necessary to conduct a trial. The pretrial order is a very important document. If we follow decisions of the SC, the issues specified in the pretrial order in a civil case since they control the proceeding taken after by the court. The court can even disregard the pleadings submitted by the parties. For instance, the plaintiff files a complaint against the defendant for the recovery of an unpaid loan. The defendant files an answer and the issue that is raised by the pleadings is whether or not the plaintiff is entitled to recover P 1 million from the defendant. The case is scheduled for pretrial. The parties attended the pretrial and during the conference the plaintiff and the defendant agree that the issue to be tried is not the right of the plaintiff to recover P 1M but the entitlement of the plaintiff to recover from the defendant a piece of land. So we start with a civil action but during the conference, the parties can tell the court that the issue is whether or not the plaintiff is entitled to recover apiece of land from the defendant. And that is the issue that is embodied in the pretrial order. Is that pretrial order valid? YES, although it is in conflict with the pleadings raised by the parties. It is because Rule 18 is very clear, it is the pretrial order that will govern the course of the proceeding. Even there is no amendment in the pleadings. The issue as to recover the sum of money will simply be disregarded by the court. The prevailing order will be the pretrial order issued by the court. Why do we allow the trial court to change the issues without changing the pleadings? Remember that in a pretrial conference both parties are present. Both parties must come into an agreement themselves. The court will simply be following the desire of the litigants. However such procedure is not proper in a criminal case. Let us say that the court strictly follows its pretrial order and then it schedules the case for trial. The court reminds the parties to present evidence limited to the issue on whether the plaintiff is entitled to the piece of land. During the trial the plaintiff presents evidence that he is entitled to recover the piece of land. There is nothing wrong with that. But what if the plaintiff also presents evidence that he is entitled to recover P 1M. Can the plaintiff so present evidence on such issue? He cannot if the defendant objects but if the defendant does not object, the plaintiff will be able to present an issue not raised in the pretrial order. So in our example, the plaintiff presents 2 evidence, one of which is specified in the pretrial order, the other is not specified but has been raised in the pleadings. Why do we allow the plaintiff to present evidence on an issue not raised in the pretrial order? It is because on the rule on amendment to conform to evidence. In other words with respect to issues in the civil case, we can jump from one issue to another as long as the parties agreed. And the court will render a judgment based on the evidence presented.

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     We go now to the remedies to appeal a judgement. If we are going to compare the remedies available to the defeated party in a civil case, you must have noticed that the remedies mentioned in civil procedure are also mentioned in criminal procedure but there are certain instances where the consequences could be different from one another. There are also remedied in a criminal case to appeal a judgment which may not be available in a civil case or available in a civil case but not available in a criminal case. For a civil case, the remedies available to the aggrieved party would depend primarily on whether the judgment has been entered or not. If the judgement has not been entered, following the provisions of Rule 36, that is to say the period to appeal is not yet expired, the 15-day period is still running, and the remedies available to the aggrieved party in this instance would be Rule 37, motion for new trial, motion for reconsideration and of course, the last is appeal. But if the judgement has already been entered, it has become final and executory, we can no longer make use of appeal, new trial or reconsideration. We can make use of other remedies beginning with 38, that is relief from judgement, then we can have annulment of judgment in Rule 47 and in certain instances, Rule 65. If you compare these remedies available in a civil case depending on whether the judgment has been entered or not, and we jump to a criminal case, you will notice that in a criminal case, before the judgment of conviction becomes final, we have the same remedies-- new trial, reconsideration, appeal but there is a fourth remedy, that is reopening of the case. Notice that reopening is available by express provision even after a judgement by conviction has been rendered. But in a civil case, there is no mention of the availability of reopening in order to challenge a judgment that has been rendered in a civil case. It does not mean to say, however, that reopening of a civil case is not available in a civil case. It is still available in a civil case but before the judgment is rendered. If there is already a judgement rendered by the trial court, reopening is no longer available to the aggrieved party. The SC said that we also have reopening in a civil case as a remedy but since jurisprudence requires that there must be no judgment yet rendered by the court, the time frame for the remedy of reopening in a civil case will be a short period, that is from the termination of the trial which is after the parties presented their evidence and before thr judgement is rendered by the trial court. That could be a long period depending on whether the trial court renders judgment promptly. But as long as the judgement has not yet been rendered by the trial court in a civil case, any one of the parties can move fore reopening of the case. Because reopening as a remedy in a civil case should be held before a judgement is rendered, of course we cannot make use of the grounds mentioned in Rule 37 on newly-discovered evidence, judgement is contrary to law, we cannot make use of these grounds to justify a reopening of a civil case. The SC said that there are no grounds specifically mentioned in the Rules, in fact, reopening a civil case is not expressly recognized. It is just a remedy accepted by jurisprudence. And usually, reopening is a remedy availed of in a civil case after trial has ended but before judgement for the purpose of allowing the movant to offer evidence which he may have forgotten to present during trial or additional evidence. So reopening is available also in a civil case but the time frame is before judgment is rendere but after trial is terminated. If you compare that to a criminal case, you will immediately notice the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     difference. In a criminal case, reopening as a remedy is expressly recognized in criminal procedure. And reopening can be had by the accused even if there is already a judgment of conviction as long as that judgement has not yet become final and executory. So in a criminal case, you also have new trial, reconsideration, appeal and reopening. But after the judgement of conviction has been entered, you will also notice that in criminal procedure, there is nothing mentioned about petition for relief from judgement. It is not applicable. Also, there is nothing mentioned about annulment of judgement. And so the accused cannot make use of relief from judgement and annulment of judgement. The remedies available to the accused if his conviction becomes final and executory could either be habeas corpus or a petition for certiorari in the exercise by the court of its equity jurisdiction. If the accused only feels that his detention in prison is unlawful, his remedy is habeas corpus. The SC has made this very clear already. Rule 47 applies only to a civil case. It cannot apply to a criminal case. The SC in the exercise of its equity jurisdiction could also entertain a petition for certiorari even if the judgement of conviction has become final and executory. There is a case where the SC exercised this equity jurisdiction involving a criminal case. It was a capital offense tried by the RTC, the accused was represented by counsel, there was a judgement of conviction but at that time, death penalty was still allowed. The case eventually reached the SC because of the penalty imposed, death penalty. The SC analyzed the records of the case and was convinced that there was nothing wrong about the judgement of conviction. So the judgement became final and executory. After the entry of that decision by the SC, the Executive Department started the process of putting to death the convict. And then, there came a time when the date of execution was approaching. A journalist went to the hometown of the accused and found overwhelming evidence that the accused was insane. When this story came out, the Executive Department, the DOJ and the SC sent investigators to find out the truth and their report was to the effect that the court may have committed an error in convicting the accused because the accused should not have been charged of a capital offense in the first place. The SC allowed petition for certiorati to be filed which eventually resulted in the release of the accused. When questions were raised as to propriety of a petition for certiorari long after the judgement has become final and executory, the SC said that certiorari as remedy is part of its equity jurisdiction. So certiorari is available both in civil and criminal cases to challenge a final and executory judgement if the situation calls for the SC's exercise of its equity jurisdiction. Now, with respect to new trial and reconsideration in a criminal case, nothing is mentioned about a pro forma motion for new trial or pro forma motion for reconsideration. If you read Rule 37 for civil cases, the Rule is very explicit in requiring that a motion for new trial or reconsideration must strictly comply with the requirements of a motion so that that motion will not fall under the concept of a pro forma motion. A pro forma motion will always be denied and it could result to an instance where the losing party could lose all the remedies because he has filed a pro forma motion. This is possible in a civil case because if the aggrieved party files a pro forma motion, the pro forma motion will not stop the running of the reglementary period to appeal. And if the denial comes after the expiration of the 15-day period, then the aggrieved party would have lost the remedy of appeal.

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     Entry of judgement takes place by operation of law. He would only be left with the remedies of petition for relief from judgement, annulment of judgement and certiorari under 65. In a criminal case, the SC said there is no such thing as a pro forma motion in a criminal case. So in a criminal case, the filing of motion for new trial or reconsideration will always stop the running of the period to appeal, even if it is pro forma. Another distinguishing feature of a new trial or reconsideration in a criminal case is that the idea for the accused to file a motion for new trial or reconsideration could come from the court or the court could even initiate a new trial or reconsideration as long as the accused gives his consent. In a civil case, we always need a motion for new trial or reconsideration initiated by the aggrieved party. In Rule 37, the grounds for new trial are completely different from those of reconsideration. This is the reason why these two motions are distinct and independent of one another. Supposing that a defendant in a civil case is advised while the period to appeal is running, we have three remedies--- motion for new trial, motion for reconsideration and appeal. Then the counsel avails of these three remedies. What happens? The SC said that if the losing party files an appeal during the pendency of a motion for new trial or motion for reconsideration, the motions are deemed abandoned. It is the appeal that will prevail. It is inconsistent for an aggrieved party to file a motion for new trial and while waiting for the resolution, he would perfect an appeal. That will render the motion academic. Upon perfection of the appeal, the trial court loses jurisdiction, what would be left is residual jurisdiction. In another case, the winning party filed a motion for execution pending appeal under Rule 39. Then the losing party filed a motion for new trial. The issue raised before the SC was can the court act on the motion for execution pending appeal without first resolving the motion for new trial. The SC said it is not proper. The trial court should first resolve the motion for new trial. The court should always give preference to a motion for new trial or motion for reconsideration. In a motion for new trial founded on fraud, accident, mistake and excusable negligence (FAME) which ordinary prudence could not have prevented and which probably impair the rights of the movant, we need an affidavit of merit. The affidavit of merit should be executed by persons who have personal knowledge of the circumstances surrounding these acts of FAME. So it is not correct to say that in a motion for new trial, we always need an affidavit of merit. We only need an affidavit of merit if thr grounds relied upon are FAME. If the ground relied upon is newly-discovered evidence (NDE), we don't need affidavit of merit. What we need is an affidavit of the witness who is going to give testimony if the motion is granted. But if the evidence to be presented is documentary, an authentic copy should be attached to the motion for new trial. You are also familiar with the principle in new trial that the fraud contemplated in 37 is always extrinsic fraud. If the fraud that is alleged in a motion for new trial in intrinsic fraud, that motion will be denied. Rule 37 speaks of fraud that could not have been prevented with the exercise of ordinary prudence. The phrase "that could not have been prevented with the exercise of ordinary prudence" will really imply the type of fraud that could be a ground for new trial which is extrinsic fraud. So lawyers are allowed to cheat one another as long as it is confined to intrinsic fraud that could be avoided through the use of ordinary prudence. For instance, the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     presentation of a forged document will not be a ground for new trial because the presentation of a forged document by the plaintiff could be easily avoided by the defendant through the use of ordinary prudence. He could have called witnesses to testify that that document was forged. Another instance of dishonesty which the court did not consider extrinsic fraud is when the plaintiff presented witnesses who were perjured. Extrinsic fraud is that which deprived a party of his day in court. If we allow every act of dishonesty to be a ground for new trial, there will never be an end to litigation. With respect to mistake, the mistake of the lawyer is the mistake of the client. The SC is just applying the rule on agency, the act of the agent is the act of the principal. But there is one situation when the SC relaxed the application of this principle. The SC said that if the mistake of the lawyer amounts to bad faith, that there is an insinuation that the lawyer committed the mistake to cause the defeat of his client, then that will be a ground for new trial. If it can be proven that a lawyer sold out his client, that will be also be a ground for new trial. In newly-discovered evidence, because of the requirement that if admitted by the court, it will probably alter the result of the case, we cannot consider corroborating evidence as NDE. This will not alter the result of the case. The recantation of a witness is not NDE. The testimony of a witness given in open court reflects the truth. In a motion for reconsideration under Rule 37, there are only 3 grounds. There is also a rule that only one motion for reconsideration will be allowed to the aggrieved party. A second MR will not be allowed even if based on another ground. This rule is absolute, there is no exception unlike a motion for new trial where rule 37 expressly allows the movant to file a second motion for new trial provided the second motion is founded on a different ground. But whether it is a motion for new trial or motion for reconsideration, the court will not allow an extension of time to file these motions. The party must observe the 15-day or 30-day period. If the MR is favorably acted upon, what the court will do is to render an amended judgement. If the motion for new trial is granted and it is not a partial motion for new trial, the judgement will be vacated but the evidence presented during the trial of the case will not be disturbed. But if that motion for new trial is granted in a criminal case, judgement will also be vacated and the evidence presented during trial must be retaken. Because the grounds for new trial in a criminal case are serious irregularities or errors committed by the trial court. In Rule 37, it is clearly provided that if a motion for new trial or motion for reconsideration is denied, the denial cannot be appealed. What should be appealed is the decision itself rendered by the court. It cannot even be the subject of Rule 65. The only remedy of the aggrieved party is to appeal from the judgement in the merits that is the subject of new trial or reconsideration. In appealing the judgement, the aggrieved party can assign as error the denial of the motion for new trial or reconsideration. Relief from judgement, that's rule 38. Relief from judgement is a remedy available to the aggrieved party after the entry of judgement. In Rule 38, there are two periods to be reckoned. The second period, the 6-month period is counted from entry of judgement. There was one case where the aggrieved party before the entry of judgement filed before the trial court a petition for relief from judgement. The filing of that petition was really improper because a judgement has not been entered. The SC said that the trial court should not have dismissed

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     the petition but instead, it should have treated the petition for relief from judgement as a motion for new trial because the grounds for motion for new trial are similar to those of petition for relief from judgement which is a very liberal attitude adopted by the SC. So even if a lawyer commits an error, he files a petition for relief from judgement founded on FAME but the judgement has not yet been entered, the court will consider the petition as a motion for new trial provided that the petition carries with it the requirements in 37, that is an affidavit of merit that will prove that there was FAME. Is a petition for relief from judgement considered similar to annulment of judgement? It is not. A petition for relief from judgement is not an independent action. In fact, it is just a continuation of the original case. If it were an independent action, a petition for relief from judgement should always be filed with the RTC because it is incapable of pecuniary estimation. But since it is not considered an independent action, Rule 38 provides that a petition for relief from judgement should be filed with the same court that decided the case. In fact, in a petition for relief from judgement, we use the old docket number of the case. Rule 38 is also very specific, a petition for relief from judgement should be filed in the same court. What is important is the time frame provided in Rule 38. Because the judgement has already been entered, the winning party may have already filed a motion for execution under Rule 39. Should the court grant the motion for execution? The answer is yes because that is a ministerial duty of the court under Rule 39. If the court grants the motion for execution, will it not render academic the relief from judgement filed by the aggrieved party? The answer is no. If you read Rule 38, it says that the executing court that granted the motion for execution can issue a TRO or a preliminary injunction against the enforcement of the writ of execution. This is an exception to the principle in injunction that to enjoin a court, the injunctive relief should come from a higher court. Here it is the same court that issues the writ of execution that will issue an injunctive writ against its own order to carry out the execution. If petition for relief from judgement is granted, can the winning party appeal from the granting of the petition for relief from judgement? The answer is no because the granting of the petition is only interlocutory. If a petition for relief from judgement is denied, is the denial a final order? Yes. Can it be appealed? The answer is no. You refer to Section 1 of Rule 41, it is a final order which is not appealable. The remedy of the petitioner is to file a petition under Rule 65. Now we go to the third remedy when the judgement has not yet been entered, that is appeal. Appeal as a remedy could be a matter of right or a matter of discretion. When we say that the aggrieved party has the right to appeal, it means to say that when he is able to perfect the appeal, the appellate court has no choice but to render a decision as an appellate tribunal. When we say that appeal is a matter of discretion, we are giving to the appellate court the discretion on whether or not to entertain the appeal. For a civil case, there are only 3 modes of appeal, that is ordinary appeal, appeal by petition for review with the CA and appeal by petition for review on certiorari under Rule 45. If the case originates from an inferior court, the only mode of appeal available is the first one, ordinary appeal, even if the questions raised are purely questions of law. The Constitution does not give to the SC exlusive appellate jurisdiction to entertain appeals involving purely questions of law. The

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     procedure is provided in Rule 40. The aggrieved party will file a notice of appeal and of course pay the appellate court docket fees. In some instances, the aggrieved party is required to file a record of appeal. The payment of appellate court docket fees is jurisdictional. Let us say that the case pending before the inferior court is unlawful detainer which is exclusively cognizable by an inferior court, the inferior court is presented with a motion to dismiss, is that allowed in Summary Procedure? No, unless the ground is lack of jurisdiction or absence of prior barangay conciliation. The defendant files a motion to dismiss based on lack of jurisdiction which the inferior court grants. In Rule 16, if the dismissal is founded on lack of jurisdiction over the dubject matter, the dismissal is without prejudice. If the aggrieved party wants to bring the matter to a RTC, will he appeal the order of dismissal or should he file a petition for certiorari? If he is going to follow Rule 41 and the dismissal is a dismissal without prejudice, he should not appeal. The remedy is a petition under 65. But in Rule 40, if an inferior court dismisses a case which is within its exclusive jurisdiction on the ground of lack of jurisdiction, the remedy of the plaintiff is to appeal, ordinary appeal, not Rule 41. Why don't we just follow Rule 41? Because there is a provision in Rule 40 which says that if the matter is brought to the RTC and RTC affirms the dismissal made by the inferior court, it is the duty of the RTC to assume jurisdiction over the case. In unlawful detainer decided by an inferior court, there could be an appeal to the RTC on both factual and legal questions. Whenever the mode of appeal used is ordinary appeal, the appeal is a matter of right. Before the RTC as an appellate court, since the appeal by the losing party is a matter of right, can the RTC also order the dismissal of the appeal because the appellant has violated certain orders or provisions of the Rules of Court? The answer is yes. Although it is the right of the losing party to appeal to the RTC, the losing party as an appellant should also obey the orders of the RTC. One such order is given in Rule 41, that is the appellate court can require the appellant to submit an appeal memorandum. If he does not submit an appeal memorandum, that could be a ground for the dismissal of the appeal by the RTC. If the RTC renders its own decision, can there be a second appeal? The answer is yes. This time to the CA via petition for review. A second appeal is generally a matter of discretion. The first appeal is generally a matter of right as long as the mode of appeal is ordinary appeal but if the mode of appeal is Rule 45, that is always a matter of discretion on the part of the SC. In the appeal from the RTC to the CA via petition for review, only questions of law could be raised. From the CA, do we allow a third appeal? There could be a third appeal to the SC, but this is always a matter of discretion in a civil case.

Before we push through with the discussion on appeal, I suggest that you should first familiarize yourselves with some terms that are relevant to appeal which are usually found in the decisions of the Supreme Court resolving propriety or impropriety of appeals. The first of course is a final order compared to an interlocutory order. You know the concept of these. Another one is the question of fact compared to question of law. The third would be the material data rule in appeals. And then we have improper appeal and erroneous appeal, a

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     memorandum decision on appeal and rule on harmless errors. A memorandum decision is found in Rule 51. The harmless error rule is also found in Rule 51. The opposite of harmless error is of course harmful error. With respect to material data rule, the material data rule is always an essential component of any mode of appeal whether it is ordinary appeal or petition for review or petition for review on certiorari. The material data rule simply tells the appellant that regardless of the mode of appeal chosen by him he should see to it that in this appeal he should inform the court about the dates that when he received the decision, the date when he received a denial of his motion for new trial or reconsideration so that the court can immediately ascertain if the appeal is perfected on time. So the material data rule will consists of dates when the decision is received or when there is a motion for reconsideration when it is filed or when it is denied, if there is motion for new trial when it is filed or when it is denied so that on the face of the mode of appeal used, the court can readily ascertain whether the appeal is timely perfected. This is always important in the appellate court because when the appeal is not perfected on time, the appellate court has not acquired jurisdiction over the appealed case, it has something to do with the authority or jurisdiction of the Supreme Court or the Court of Appeals or even the Regional Trial Court. This is not a new rule introduced in the 1997 Rules, this is an old doctrine we have been observing this even before 1997 Rules. But there was a time, before 1997 when the Supreme Court dispensed the material data rule. Then in 1997, the Supreme Court decided to re-impose this as an essential so that an appeal can be entertained by an appellate court. Again, the reason why we have the material the data rule is the question of jurisdiction of the appellate court is a judgment has been entered then it is obvious that this issue can no longer be appealed so the only recourse for the court usually is to deny the appeal, to disallow the appeal. With respect to the concept of erroneous appeal and improper appeal, this is also mention in the rules. There is an improper appeal when the mode of appeal used by the applicant is the correct mode but the issues or the questions raised in that appeal should not be raised during the appeal. So it has something to do with question of fact and question of law. So that for instance, if the trial court is a Regional Trial Court, from the decision of the Regional Trial Court there could be an appeal to the Court of Appeals, the mode of appeal is still ordinary appeal, a notice of appeal. So the notice of appeal is filed with the Regional Trial Court and eventually the records are transmitted to the Court of Appeals. Under the rules, when there is an appeal by ordinary appeal to the Court of Appeals from a decision of the Regional Trial Court of questions of fact and of law could be raised. But the Rules says that if the only issue raised in that appeal is purely question of law, the Court of Appeals has no jurisdiction. So the Court of Appeals will only dismiss the appeal. That is the importance of knowing the meaning of improper appeal. Erroneous appeal, on the other hand, refers to a situation where the mode of appeal used is not the correct mode. For instance, under the rules, the correct mode is ordinary appeal but the mode used by the appellant is

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     petition for review. That is an example of erroneous appeal. But as we go on, we will conclude that unlike improper appeal where it could lead to dismissal of the appeal there are certain instances where even if the appeal is erroneous the error committed by the appellant will not lead to the dismissal of the case. Yesterday, we said that if the court of origin is an inferior court, there could be an appeal to the Regional Trial Court. The mode of appeal is ordinary appeal just file the notice of appeal or notice of appeal plus a record on appeal in certain instances where the law requires the submission of a record on appeal. From the Regional Trial Court as an appellate court we said that there could be a further appeal, a second appeal to the Court of Appeals but this time the mode of appeal is by petition for review. So we go back to the inferior court. From the inferior court the mode of appeal is a notice of appeal, which is ordinary appeal. Supposing the aggrieved party chooses the second mode which is a petition for review, which is the wrong mode. So immediately you will notice that there is something wrong with the way by which the appeal has been perfected. Can the Regional Trial Court dismiss the appeal on the ground that the appellant has chosen a wrong mode of appeal? The Supreme Court said no. Even if the appellate court is a Regional Trial Court, and the appellant has chosen wrong mode of appeal, which is a petition for review, the Regional Trial Court cannot dismiss the petition, he should disregard the error committed by the appellant the reason given by the Supreme Court, if you compare the contents of a notice appeal to that of a petition for review, the contents of the petition for review more than satisfied the requirements of notice of appeal. If you have seen how the petition for review is drafted, it is a very lengthy document. In that petition for review there is also an application of the material data rule and then there are errors that are assigned by the appellant and there are arguments also that are embodied in that petition for review whereas in the notice of appeal, the appellant simply tells the court in one paragraph, “I am appealing from the decision rendered by the court dated such and such and together with this notice of appeal, I have paid the appellate court docket fee of so much”. That is what a notice of appeal simply contains so if the appellant hopefully chooses a petition for review, the Supreme Court said the Regional Trial Court should entertain the appeal because the essential of notice of appeal are already contained in the petition for review. But if it is the other way around such as where the Regional Trial Court is an appellate court exercising its appellate jurisdiction from its decision under the rules, the right mode is as we said petition for review, the appellant instead of filing a petition for review with the Court of Appeals and serving a copy upon the Regional Trial Court files simply a notice of appeal that appeal will be dismissed because the mode of appeal used is erroneous and it will not conferred jurisdiction anymore upon the Regional Trial Court. In other words there are instances where a wrong choice in the mode of appeal will lead to dismissal of appeal. There also instances where the wrong choice will be disregarded by the appellate court. Also under the rules, the only mode of appeal that is allowed in civil cases with the Supreme Court is Rule 45 that is petition for review on certiorari or appeal by certiorari. The case is decided by the Regional Trial Court

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     exercising original jurisdiction, from the decision of the Regional Trial Court, there could be an appeal either to the Court of Appeals or to the Supreme Court depending on the choice of the appellant. The appellant decides to go to the Supreme Court directly but instead of filing a petition for review on certiorari or appeal on certiorari under Rule 45, he simply files a notice of appeal. The Supreme Court will dismiss the appeal because the choice of mode of appeal is erroneous. Under the rules, if there is erroneous appeal, the Supreme Court will dismiss that appeal. A notice of appeal will never be able to satisfy the contents of petition for review on certiorari under Rule 45. On the other hand, even if the rules are very keen in saying that in civil cases, the mode of appeal to the Supreme Court is only through Rule 45, using the petition for review on certiorari or appeal by certiorari. If the appellant in avertedly calls his petition simply a petition for certiorari under Rule 65, the Supreme Court has also been very liberal in considering a petition for certiorari under Rule 65 as a petition for review under Rule 45. The Supreme Court said, after all the contents of a petition for certiorari under Rule 65 are exactly the same as the contents of petition for review on certiorari under Rule 45. But the Supreme Court cautioned parties that petition for certiorari although in fact it should be a petition for review on certiorari should be filed within the time given for appeal that is within a period of 15 days. If you will recall, in a petition for certiorari under Rule 65 the period provided is 60 days but in Rule 45 the petition for review on certiorari should be filed within 15 days. As long as it is timely filed even if the appellant wrongly calls his petition for review on certiorari simply petition for certiorari the court shall just disregard the error committed by the appealing party. In the Court of Appeals, the decisions that could be appealed to the Court of Appeals do not necessarily come from the courts of justice. The decision that could be appealed in the Court of Appeals could be penned by quasi-judicial bodies. But whether the decision is issued by quasi-judicial body or a decision rendered by the Regional Trial Court in the exercise of its appellate jurisdiction, there is just a common mode of appeal that is petition for review. Is there any difference procedurally between petition for review filed before the Court of Appeals if the appealed decision comes from the Regional Trial Court and when the appealed decision comes from the quasi-judicial bodies? As to the contents of the petition for review, there is no significant difference. But as to the enforcement of the decision appealed from, there is a great difference. If the decision appealed comes from the Regional Trial Court in the exercise of its appellate jurisdiction, the decision of the Regional Trial Court cannot be executed there could be no execution. There could be an execution but it has to be an execution pending appeal. A motion should be filed before the Court of Appeals and that motion must be supported by special reasons to convince the Court of Appeals to order execution of judgment. So generally, when there is an appeal to the Court of Appeals from a decision of a court of justice like a Regional Trial Court the appealed decision cannot be the subject of execution. But when the decision appealed by way of petition for review to the Court of Appeals is a decision rendered by a quasi-judicial body, the appeal will not stay the execution of the decision. The decision of the quasi-judicial will have to be enforced during the pendency of the appeal. There is only one way by which we can stop the execution of the judgment rendered by a quasi judicial body from being enforced during the pendency of the appeal that is to ask the Court of Appeals to issue a writ of preliminary injunction. Why do we

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     allow execution of a judgment that is being reviewed by the Court of Appeals when the judgment is rendered by quasi-judicial bodies but we do not allow that when the judgment is rendered by the Regional Trial Court? One reason given in the Rules is that in quasi-judicial bodies the quantum of evidence is only substantial evidence whereas in the Regional Trial Court the quantum of evidence is preponderance of evidence. If we compare also the remedies available to the defeated party before the trial court and before the appellate courts, like the Regional Trial Court, the Court of Appeals and Supreme Courts we will also notice that if the appellate court becomes higher and higher, the remedies available to the defeated party on that appeal is considerably lessen. Yesterday we said that before the court of origin whether it is an inferior court or a Regional Trial Court, the aggrieved party can file a motion for new trial, he can file a motion for recon and he can also appeal, so there can be three remedies before judgment is entered. From the inferior court we go to the Regional Trial Court. The Regional Trial Court also renders its own decision. Can a defeated party can still file motion for reconsideration? Yes. There could still be motion for reconsideration; there could still be motion for new trial before the Regional Trial Court, even if the Regional Trial has decided the case in the exercise of its appellate jurisdiction. There could be another appeal to the Court of Appeals in fact this will now be the second appeal. If the Court of Appeals has rendered its own decision, can the defeated party make use of the remedies that we mentioned? Can he file a motion for reconsideration? The answer is also yes. There could be motion for reconsideration before the Court of Appeals. Can there be a motion for new trial before the Court of Appeals? Yes there is still a motion for new trial before the Court of Appeals. But this time, there is only one ground for new trial before the Court of Appeals. The new trial in the can be founded only newly discovered evidence. We cannot anymore use fraud, accidents, mistakes and excusable negligence. And if you read carefully the provisions of the rules on appeals to the Court of Appeals, you will notice that while a motion for new trial could still be availed of in the Court of Appeals it is not necessary to wait for the Court of Appeals to decide the case. Even if the case has not yet been decided by the Court of Appeals, the movant can already file a motion for new trial based on newly discovered evidence that is not possible when the case is before an inferior court or even before the Regional Trial Court acting as an appellate court, in the Regional Trial Court we have to wait for the Regional Trial Court to render a decision before we can file a motion for reconsideration or motion for new trial. With respect to the Court of Appeals, we should also wait for the decision of the Court of Appeals before we can move for reconsideration but when it comes to a motion for new trial we do not have to wait for Court of Appeals to render a decision before we can make use of a motion for new trial founded on newly discovered evidence that is clearly spelled out in the rules. The availability of a motion for new trial before the Court of Appeals as long as the case is within the jurisdiction of Court of Appeals. Even if the Court of Appeals has not yet decided the case, there could be a motion for new trial founded on newly discovered evidence and that is the only ground for new trial in the Court of Appeals.

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     We don’t make use fraud, accident, mistake or excusable negligence. But when the case finally reaches the Supreme Court and the Supreme Court has decided the case, then the only remedy available, among the motions that we mentioned will be a motion for reconsideration. The Supreme Court does not entertain a motion for new trial regardless of the merit of that motion for new trial. The reason given by the Supreme Court is that the Supreme Court generally is not a trier of facts and a motion for new trial, will always involved a question of fact based on newly discovered evidence. So this remedy of motion for new trial will end to the Court of Appeals as an appellate court but remember the new trial with the Court of Appeals is limited to only one ground and it is newly discovered evidence. While a new trial filed before the Regional Trial Court can involve newly discovered evidence, it can involve fraud, accident, mistakes and excusable negligence. With respect to Rule 45, this is appeal by certiorari to the Supreme Court, in civil cases this is the only mode used. In other words, we cannot use notice of appeal we cannot use a petition for review the Supreme Court strictly applies this rule on appeal. It does not mean to say however that we cannot go up to the Supreme Court by simply filing a notice of appeal or ordinary appeal, what the rules prohibit is ordinary appeal to the Supreme Court that is notice of appeal if it is a civil case if the case is a criminal case, there could be a notice of appeal to the Supreme Court such as when the penalty imposed is life imprisonment or reclusion perpetua by the Court of Appeals, the appeal from that criminal case will be by notice of appeal, it will not be an appeal by petition for review on certiorari. In a petition for review on certiorari filed before the Court of Appeals, it is axiomatic that only question of law can be raised. So if we raised question of law and also a question of fact before the Supreme Court, the Supreme Court will not necessarily disallow the appeal, the rules say that if the issues raised in an appeal under Rule 45 are both factual and legal, the Supreme Court has the discretion to remand the case to the Court of Appeals but that is always a matter of discretion. And when the Supreme Court sends the case to the Court of Appeals because the issues raised are both factual and legal the Court of Appeals will have the duty now to review the case and renders its own decision. But the opposite does not apply such as when the Court of Appeal is the appellate court let us say there is an appeal to the Court of Appeals through ordinary appeal, the court of origin being a Regional Trial Court. The mode of appeal as we said is ordinary appeal he simply file a notice of appeal with the Regional Trial Court and pay the appellate court a docket fee. It is in this kind of appeal, that the Court of Appeals where the rules require the appellant to submit his brief on appeal that is why sometimes in court’s decisions you will meet the term brief for the appellant and brief for the appellee, these submissions are required only if the appeal is by ordinary appeal the trial court is the Regional Trial Court and the appellate court is the Court of Appeals. If the trial court is an inferior court and there is an appeal to the Regional Trial Court and from the Regional Trial Court we go up to the Court of Appeals we don’t use ordinary appeal, the mode is petition for review. If the court of origin is a Regional Trial Court exercising original jurisdiction, the mode of appeal is by ordinary appeal, notice of appeal to the Court of Appeals. During the pendency of the appeal, the Court of Appeals will require the appellant to submit a brief, called a brief for the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     appellant. Then the rules also provide for the contents of that brief for the appellant. If the appellant does not submit his brief on time, that will be enough reason to dismiss the appeal. Even if the submits his brief on time, the appeal could still be dismissed if the brief submitted by the appellant does not contain the essentials mentioned in the Rules of Court. If you will read the provisions of the rules as to the contents of the brief for the appellant, you will noticed that the brief for the appellant will be divided into several chapters, there is this subject index there is this statement of the case there is this statement of facts, arguments and errors assigned by the appellant. If the brief for the appellant does not contain an assignment of errors, that is fatal, the court will dismiss the appeal even if there is a brief submitted by the appellant if the brief does not contain assignment of errors. Why is the Court of Appeals is very much interested in that chapter in a brief that is the assignment of errors, without which the appeal will be dismissed? The assignment of errors is essential in an appeal to the Court of Appeals by ordinary appeal because in so far as the Court of Appeals that decision appealed from, that is the decision rendered by the Regional Trial Court is a correct decision. Remember that in our Rules on Evidence there is disputable presumption that a decision rendered by any court is a correct decision, a presumption of regularity in the performance of official duty. So if the court decides a case there is a presumption of regularity so there is a presumption that the decision rendered by the court is a correct decision. The Court of Appeals will always be applying that disputable presumption whenever there is an appeal in a civil case to the Court of Appeals. In fact that same attitude will be adopted by the Supreme Court whenever there is an appeal brought to the Supreme Court under Rule 45, that disputable presumption as to the correctness of the decision appealed from. Since the Court of Appeals will look at the decision of the Regional Trial Court as a correct decision, the only means by which the appellant can destroy or overturn such presumption is by convincing the Court of Appeals that serious errors have been committed by the Regional Trial Court. And the problem of the appellant is that he is not allowed to introduce evidence to show that errors are have been committed by the Regional Trial Court, the appellant will have to rely on the records that have already been submitted before the Regional Trial Court. So the only way by which he can possibly convince the Court of Appeals that errors have been committed by the Regional Trial Court is to make an assignment of errors. If the appellant cannot make an assignment of errors in his brief that means to say that the appellant finds nothing wrong with the decision rendered by the Regional Trial Court, therefore the disputable presumption stays, it will still be used by the Court of Appeals. That is why this chapter in a brief for the appellant about assignment of error is always essential. Its absence will be fatal in appeal. The appeal can be dismissed if there is no assignment of errors in the brief submitted by the appellant. Can the appellant let us say in his brief assign as an error first and only error assigned “the Regional Trial Court committed an error deciding the case against the appellant”? That is not the assignment of error that is expected by the Court of Appeals. The errors should be specified particular facts, conduct, orders issued by the court, which could have affected his substantial rights which brings us now to the concept of harmless errors in appeal. In Rule 51 Section 6 that is the section on harmless errors with respect to appeals. In any litigation we could expect that the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     trial court must have committed errors during the proceedings. After all the judge is also a part of humanity so he could commit errors just like lawyers who represented their clients they could commit errors also. But in that principle of harmless error in given in Rule 51, it is expressly provided that only errors committed by the court in admission of evidence, in issuing orders that affects substantial rights of the appellant will be considered by the appellate court. So if the error committed by court does not really affect the substantial rights of the appellant, the error will be disregarded by the court even if it is made part of the assignment of errors. This requirement on assignment of errors gives the message that in civil cases that are brought on appeal the appellate court will only resolve the issues raised in the assignment of errors no other issues generally will be resolved by the court only the errors assigned by the appellant in his brief. The only exception when the appellate court or Court of Appeals will resolve other issues not raised in the assignment is when the Court of Appeals sees that an issue is closely related to one of the issues raised by the appellant in his brief. That is why we have also rule on appeals that the authority of the appellate court is only to resolve issues in the assignment of errors made by the appellant. But again this rule applies only to a civil case it does not apply to a criminal case. In a criminal case if there is an error committed by the trial court whether it is assigned as an error or not assigned as an error the Court of Appeals or even the Supreme Court can take that into consideration in resolving the case. The appellate courts are very flexible in a criminal case that are brought before them from a decision of a trial court unlike in a civil case where there is a provision which limits the authority of the appellate court to resolve only the errors or issues that are connected with the assignment of errors made in the brief for the appellant. If it is the appellant who does not submit a brief, the appeal will be dismissed. If it is the appellee who does not submit his brief, the appeal will not be dismissed. The appellee can choose not to submit a brief at all. If the appellee does not submit a brief, then the court will simply decide the case without a brief coming from the appellee. It is the brief for the appellant whose non-submission could lead to the dismissal of an appeal. In the Supreme Court under Rule 45 although Rule 45 is very clear in saying that only questions of law could be raised in petition for review on certiorari the Supreme Court has recognized a number of exceptions. As of last count, there are about 14 exceptional issues where the Supreme Court has allowed an appeal although factual issues were raised in that petition for review on certiorari. I suggest that you memorize about five of them and that will probably be enough for you to answer problems on appeals concerning Rule 45. In fact you can immediately point three exceptions which are not a product of jurisprudence but a product of the circulars of the Supreme Court where factual issues can be raised in a petition under Rule 45. The first one is kalikasan cases, the second one is amparo and the third is habeas data. Under circulars of the Supreme Court on these three proceedings, kalikasan, amparo and habeas data, the appeal to the Supreme Court should also be by petition for review on certiorari and the circulars also provide that both factual and legal questions can be raised before Court of Appeals under Rule 45.

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)    

Rule 39 is described by the decisions of Supreme Court as the rule that which gives life to the law. It gives life to the law in a sense that the winning party will be able to recover the award given in his favor through the use of Rule 39. So if the civil case is for the recovery of money and the court awards let us say 2 million in favor of the judgment creditor, the creditor of course will not be satisfied unless the 2 million is delivered to him. It is not correct to assume that in order to satisfy the judgment we should always make use Rule 39. Satisfaction of judgment as conceived in Rule 39 is a forcible satisfaction of judgment. So if the award in favor of the judgment creditor is for the payment by the judgment debtor of 2 million pesos, the judgment creditor does not even have to think about Rule 39 as long as he receives 2 million pesos from the judgment debtor. In other words, the judgment debtor can voluntarily pay 2 million pesos to the creditor. It is only in that situation where the judgment debtor refuses to pay where the only remedy of the judgment creditor to enforce payment is to make use of Rule 39, that is to force the debtor to pay 2 million pesos by making a levy on his properties and by selling this levied properties at public auction. That is the function of Rule 39 that is a forcible satisfaction of a final and executory judgment. In the ordinary course of things, if there is an appeal from the decision rendered by the trial court and it has reached the Supreme Court even if the decision has been affirmed by the Supreme Court and the decision of the Supreme Court has been entered, it is not correct for the judgment creditor to ask for execution from the Supreme Court. The matter of execution is a duty of the court of origin, if it is the inferior court that originated the case it is the inferior court that will have the duty to enforce satisfaction of the claim. The higher courts usually do not issue an order for the execution of judgment. What the lawyer for the judgment creditor should do is to wait for the records to be returned to the court of origin. It could take time before the records simply return to the court of origin. So if the records have not yet been received by the inferior court and the judgment creditor files a motion for execution there is likelihood that the inferior court will tell him we have not yet received the record so we cannot act on your motion although the issuance of execution, the granting the motion for execution is already a ministerial duty of the court. Rule 39 has provided for the remedy in this situation. If there is an appeal that has reached the Supreme Court or Court of Appeals as the case may be, the appellate court will simply issue a certified true copy of the entry of judgment and that certified true copy will be submitted immediately to the court of origin that could be the basis of the granting of a motion for execution that is enough proof that there is really a final and executory judgment. Is there a need for the judgment creditor to file a motion for execution? Of course there is always a need, if the judgment creditor does not file a motion for execution the court has no business issuing a writ of execution because the court will not know whether there has been voluntary satisfaction of the judgment so there has to be a motion for execution filed by the judgment creditor. Since the judgment has become final and executory and it is now the ministerial duty of the court to grant the motion and to issue a writ of execution, can the motion for execution can be heard ex parte? This is without notifying the judgment debtor, without giving him a copy even with the motion. This issue which is the subject of conflicting decisions of the Court the latest that I know of says that a motion for execution

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     of a final and executory judgment can be heard ex parte by the trial court but previous decisions are to the effect that the judgment debtor should also be given a copy of the motion for execution because the judgment debtor may have grounds to oppose the issuance of the writ of execution. You adopt that old doctrine that the motion for execution of a final and executory judgment should always be furnished upon the judgment debtor and that the motion cannot be heard ex parte. In the Rules, there is a period fixed within which the court can grant a motion for execution as a ministerial duty. It is 5 years from entry of judgment. Then after the end of 5 years there could be revival of judgment, no longer a motion but an independent action to revive the judgment but the independent action to revive the judgment must be filed within the second five year period. The rules assume that the period of prescription for the enforcement of a judgment is a ten year period. Is this a correct assumption? The answer is yes because that is so provided in the Civil Code. The prescriptive period for the enforcement of a final and executory judgment is really a period of ten years under the Civil Code. But what Rule 39 has provided is to divide the ten year period into two parts. First five year and the second five year period, within the first five years you can execute the judgment through a mere motion, a motion for execution. After the lapse of the first five year period, can the judgment creditor still file a motion for execution? Not anymore. If he files a motion for execution, let us say on the 7th year of the 10 year period, the court will deny the motion because the court does no longer have the authority to order execution through the granting of a motion for execution. The second five year period is designed to force the judgment creditor to file a separate complaint, an independent action for the revival of that judgment. So the motion for execution should be filed within the first 5 year period of this 10 year period. Is the first 5 year period strictly implemented by the Rules? It is not. Can it be extended? It can be extended according to the Rules. The Supreme Court has decided that if the execution of the judgment within the first 5 year is delayed and delay is attributable to the conduct or act that is traceable solely to the judgment debtor again the 5 year period is correspondingly extended that is equal to the period of delay caused by the conduct of the judgment debtor. For example, within the first 5 years from entry of judgment, the judgment creditor files a motion for execution. Let us say that the motion was filed on the 3rd year of the 5 year period. The judgment debtor is given a copy of the motion, after receiving a copy of that motion for execution the judgment debtor files a petition for the annulment of the judgment before the Court of Appeals. We assume that the execution court is the Regional Trial Court. There is now a petition to annul the judgment under Rule 47, filed with the Court of Appeals. And the Court of Appeals grants a preliminary injunction which is a relief sought by the judgment debtor in his petition of annulment of judgment. Because of this preliminary injunction issued by the Court of Appeals we cannot expect the Regional Trial Court to order the enforcement of that decision. So it will take let us say the Court of Appeals a period of 2 years within in which to finally decide the case. At the end, the Court of Appeals orders the dismissal for petition for annulment of judgment. So there is a delay by 2 years. If the 5 year period has already lapsed then we are going to add another 2 years with that 5 year period. So the 5

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     year period will be deemed automatically extended up to 7 years within which to execute the judgment to the filing of a mere motion. That is how the Supreme Court describes how this first 5 year and second 5 year period should be interpreted. It is not a fixed period. It could be extended by circumstances that could arise for each and every case where there is a delay in execution arising from the conduct of the judgment debtor. It simply means that the judgment debtor can really delay the execution of judgment. In fact he is given at least 2 remedies under the Rules even if the judgment has already become final and executory. As we said yesterday, Rule 38 is one means of delaying the execution of judgment. In Rule 38, the court that has decided the case can issue an injunction against the enforcement of its own decision. Rule 47 is another remedy available to the judgment debtor in order to delay the enforcement of a final and executory judgment. As long as in that petition to annul a judgment there is a corresponding provisional remedy of preliminary injunction that is issued by the higher court. In annulment of judgment, the court where we file the case will always be a court higher than the trial court. If the trial is Regional Trial Court, the annulment court will be the Court of Appeals. If the deciding court is an inferior court, the annulment court will be a Regional Trial Court. So there is no way by which the trial court can disobey the writ of preliminary injunction issued by this higher court. If the motion for execution is granted, which is expected because the judgment has become final and executory, can the judgment debtor appeal from the order granting the motion for execution? The answer is in Rule 41 section 1, an order granting execution is not appealable. Although it will be treated as a final order, the only remedy of the judgment debtor is to file a petition under Rule 65. Supposing the trial court denies a motion for execution of a judgment that has already been entered. Is appeal the remedy of the judgment creditor? The answer is no. The remedy of the judgment creditor is to appeal. That will be disadvantageous to the judgment creditor. The creditor should also resort to Rule 65 but the petition that he should file is a petition for mandamus because mandamus is a writ that will compel respondent to perform a ministerial duty and in Rule 39, as long as the judgment has been entered it becomes the ministerial duty of the trial court to grant the motion for execution. So that is an act that is compellable by a writ of mandamus. So that is the remedy of judgment creditor. Can the trial court rightfully deny a motion for execution although the judgment has been entered or can the trial court rightfully quash a writ of execution that is issued because the judgment has become final and executory? The general rule, the trial court cannot quash or rightfully deny a motion for execution if the judgment has been entered but there are certain exceptions recognized by the court. First, when the judgment sought to be enforced has been novated or the judgment has already become dormant. The five 5 year period has already stared and no motion for execution has been filed by the judgment creditor. When the only remedy left in so far as the judgment creditor is concern is an independent action to revive the judgment he cannot substitute by a mere filing of a motion for execution. He should avail of this independent action to revive a dormant judgment. Can the parties, the judgment debtor and judgment creditor enter into a compromise agreement after the judgment has become final and executory? The answer is yes. What happens to the judgment if there is a comprise agreement signed by both debtor and creditor and whose terms are not consistent with the award given; the effect is the compromise

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     agreement will novate the judgment. So if the judgment awards to the judgment creditor a 2 million pesos but because the debtor and the creditor are long-time friends and they agree to enter into a compromise agreement where they provide that the entitlement of the judgment creditor is reduced from 2 million to P1.5 million and that the debtor will have a period of 1 year within which to mitigate fully the obligation. That compromise agreement is the law between the creditor and the debtor and that will have the effect of novating the judgment. So if the debtor does not still pay, the court will no longer grant a motion for execution of the award that has been given in the dispositive portion of the duly entered judgment. So the parties can novate by the act of the parties the terms of a judgment that has been duly entered, it can still be changed that is an application of the rule on novation in the Civil Code. Novation is a means in which an obligation is extinguished. Supposing that within the first five year period the court grants a motion for execution and the court issues the writ of execution. The writ of execution is carried out by virtue of a levy on execution on the properties of the judgment debtor but the properties levied upon were not sold within the first five year period so at the end of the first five year period there is a writ of execution, there is levy on execution of properties of judgment debtor but these properties were not been sold at public auction we are now in the 6th year or 7th year of the 10 year period. Can the properties levied upon within the first 5 year period be sold at public auction on year six or seven? The answer is yes. According to the court, the first five year period does not require that the execution, the actual levy and sale of property must be done within the first five year period. It is enough that there is a motion for execution filed, the motion is granted by the court, and there is an actual levy of properties of the judgment debtor. It does not matter if the actual sale of the levied property takes place after the end of 5 years. So what is important in so far as the first 5 year period is concern is that there must be an actual levy on the properties of the judgment debtor. So that the levy that carried out of the judgment can be enforced even beyond the five year period. There was another case involving again this first 5 year period and second 5 year period where in year 7 of the 10 year period the judgment creditor whom elected to file a motion for execution filed a motion of execution on year 7 and then the judgment creditor furnish the judgment debtor of this motion and the judgment creditor convinced the judgment debtor not to oppose the granting of the motion so the judgment debtor will accommodate the judgment creditor even filed his written position that he is not objecting to the granting of the motion for execution. Because there is a manifestation by the judgment debtor that he is not opposing the granting of the motion for execution although it was already year 7 the court granted the motion for execution and then the writ was issued and properties of the judgment debtor were levied upon. When the judgment debtor saw that his properties were levied upon he changed his mind. He challenged the validity of the writ of execution issued on year 7 of the 10 year period. And the court sustained this stand of the judgment debtor. The court said that after the end of the first 5 year period the court losses jurisdiction to execute a judgment by a mere motion. And the fact that the judgment debtor did not oppose the issuance of the writ does not matter because the issue is now one of the jurisdictions. The jurisdiction cannot be vested upon in court simply by inaction on the part of the parties. So it is settled that when there is a writ of execution issued by the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     court after the first 5 year period because the motion was filed also after the first 5 year period the proceedings taken by the court will be irrelevant and will be void. The issuance of writ of execution is void and therefore the writ can still be quashed for lack of jurisdiction. With the respect to revival mentioned in the rules pertaining to the second 5 year period. This is an independent action. Since it is an independent action, if the original action was a real action for the recovery of title to or possession of a property, can we consider the petition to revive the judgment still as a real action? The Supreme Court said yes. If the original action is a real action, the action to revive that judgment will also be a real action and therefore the venue in Rule 4 still apply. If the action is a real action the venue is the place where the property is situated. So the action to revive that judgment should also be the place where the property is situated. An action to revive the judgment since it is an independent action will always be cognizable by the Regional Trial Court because it is not capable of pecuniary estimation. So if the decision sought to be revived is a decision rendered by an inferior court we do not file the petition to revive the judgment before an inferior court. We always file the petition to revive the judgment with the Regional Trial Court because we have to determine for purposes of jurisdiction whether the revival of a judgment is capable or incapable of pecuniary estimation. It is incapable of pecuniary estimation and it is cognizable therefore by the Regional Trial Court under BP 129. There is another section in Rule 39, section 34. It is more specific than section 6 when it comes to the use of term “revival of judgment”. If you read carefully section 34, there is a mention of “revival of judgment”. The revival of judgment in section 34 is not the revival of a judgment that has become dormant. The revival of judgment that is carried out after the end of the first five year period refers to a judgment that has become dormant. It is a dormant judgment so we have to revive it. The term revival of judgment in section 34 does not refer to a dormant judgment. In fact, section 34 refers to a judgment that has already been executed so it could not be a dormant judgment. It must be an executed judgment. But why does Rule 39 provide as a remedy revival of judgment although it has been previously executed? The situation contemplated in section 34 is that judgment is executed, properties are levied upon, and these properties had been sold in public auction but the highest bidder or anybody who thereafter acquires the property is not able to get possession of the property because of opposition or because of legal obligations that are related to the execution of judgment. So there is a difference between revival contemplated in section 34 that a judgment has been executed and revival of a dormant judgment wherein there is no execution that has taken place within the first 5 year of the prescriptive period of 10 years. Take note if these differences between revival mentioned in section 6 and revival mentioned in section 34. The improvement given by Rule 39 in the 1997 Rules, in so far as the judgment creditor is concerned is that under the present rules, the writ of execution issued by the court by virtue of a motion for execution has a life of 5 years. So judgment creditor does not have to keep on filing one motion for execution after another, which was the practice in the past. Because in the past the life of the writ of execution was a very short period, I think it is only 60 days. But at present, it is has a period of 5 years. So at any time within the five year period, the sheriff

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     could enforce the writ. The sheriff could make a levy on the properties of the judgment debtor at any time within the 5 year period. The only limitation enforced by the rules is that the sheriff must make a periodic report to the court as to the progress of the process of execution. So the life of the legal execution under Rule 39, at present, is a very long period of 5 years. How does the court enforce a duly entered judgment through the granting a writ of execution and the issuance a writ of execution? It all depends on the tenor of the judgment. If the judgment awards money, there will be a levy on execution of properties. If the judgment is on delivery of property or delivery documents, then there will be no levy on execution of properties. The property ordered to be delivered will be seized by the sheriff and then there is delivery of possession with the judgment creditor. If the judgment directs the judgment debtor to sign a deed of conveyance or a deed of sale in favor of judgment creditor and the judgment debtor refuses to sign the document, the court can appoint another person usually the clerk of the court to sign the document on behalf of the judgment debtor. If the judgment directs the debtor, the defendant to vacate a piece of land or building and he refuses to vacate building the court through the sheriff will forcibly oust him from the building, the court will throw out the things belonging to the occupant from that building. Can the court cite the judgment debtor in contempt for refusing to obey an order of the court which directs him to pay let us say 2 million pesos? In a deed of execution to be issued by the court in this case in a money award, the writ will be directed to the sheriff but the writ will contain word for word the dispositive portion of the decision. So if the sheriff of the court goes to the debtor, the debtor can refuse to pay and the debtor can even go to court and tell the court that I have money but I don’t want to pay, I will get sick of pneumonia if I pay judgment creditor. Can the court cite him in contempt? No, the court cannot cite him in contempt. This was a question in the bar examination four years ago. Citation for contempt is not a remedy in Rule 39 generally to enforce a judgment because Rule 39 contemplates enforcement of a judgment by the sheriff of the court making use of the processes in Rule 39 which is levy on execution of properties so if a judgment debtor refuses to pay the creditor cannot go to court and ask the court to cite the debtor in contempt of court that is not contempt of court because the according to the court the writ is not addressed to the judgment debtor, the writ is addressed to the sheriff of the court so it is the duty of the sheriff to carry out the dispositive portion of the judgment. May there be citation for contempt if there is an award of money by way of exception? There is seems to be, that is in support cases. If the respondent is ordered to pay support, he does not pay support, it is not only contempt that he will be facing but he will be facing a criminal case for failure to give support. But generally, we don’t use the power of a court to cite a person in contempt simply because the judgment debtor has refused to obey a writ of execution issued by the court. There are other and more effective remedies under Rule 39 in order to carry out a forcible satisfaction of the judgment and the more effective remedy under Rule 39 is to levy on properties of the judgment debtor, seized the properties of the debtor and sell them at public auction. In the levy of the properties under Rule 39, the levy does not automatically mean that possession of the levied properties will be in the hands of the sheriff or in the physical

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     possession of the court. If the properties of the debtor levied upon are real properties, the debtor will continue to be in possession of the real properties, he will not be ousted from the properties. What the court will do is simply to submit to the registry of property a copy of the levy on execution and ask the registry of property to annotate the fact that this piece of land is already been a subject of levy on execution and this levy in execution will serve now as lien over the real property of the judgment debtor. But when the property levied upon is a personal property that is when the physical possession of the personal property will be turned over to the sheriff. The personal property will be literally in custodia legis. It is now under the control of the court. What happens after the levy has been implemented by the court? A levy on properties under Rule 39 should always be followed by a sale at public auction of the properties. We cannot have an execution process where we will stop at levying of the properties. The levy must always be accompanied by a sale at public auction. If there is only a levy without a sale at public auction then that levy can be considered as nullified later on by the court. It is the duty of the court to see to it that actual levy on the properties must be followed by public auction sale of the properties. Under Rule 39 and some special laws, there certain properties of the judgment debtor which cannot be the subject of a levy. If a property of the debtor is exempt from execution and it is levied upon the levy is void and since the levy is void the sale is also void. The validity of a sale at public auction of levied properties will always stem from the validity of a prior levy. If the levy is void the sale is also void. If the levy is valid, however, it does not follow that the sale is also valid because under the rules there are some certain requirements that must be complied with before a sale of a levied property could take place. For instance, if the property levied upon is real property it cannot be simply be sold later on by the sheriff, there certain formalities to be followed, there could be a requirement on publication of the sale of the properties. So even if there is a valid actual levy on real property if later on the property is sold but there is no compliance with the requirement of publication the sale will be void, the buyer of the property will not acquire any title to that property. So if the levy is void, the sale is also void. If the levy is valid, the sale could still be void if the requirements for its valid sale under Rule 39 are not complied with.

We continue with rule 39, we talked about terceria-third party claim. The rule on terceria in rule 39 is also contained in rule 57 in relation to writ of preliminary attachment. The principles in rule 39 and 57 governing third party claim are practically identical. Terceria is predicated on the premise that the property levied upon by the sheriff for purpose of executing the duly entered judgment does not belong to the judgment debtor. In rule 39 for the validity of a levy, the property levied upon must belong to the judgment debtor. If the property levied upon belongs to another person, the levy is not valid. If the sheriff sells the property, nonetheless, the sale is not valid. Rule 39 expects that the properties levied upon and eventually sold all belong to the judgment debtor because rule 39 is the satisfaction of judgment against the judgment debtor. If the sheriff makes a levy on properties which does not belong to the judgment debtor, you can expect the true owner to complain- he can

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     even take an action by commencing a complaint for the recovery of the property from the sheriff. The remedy mentioned in rule 39 available to the owner is just one of the several remedies which the owner can avail of. In rule 39, the remedy of the real owner is to file a third party complaint. The other remedies which are expressly acknowledged by Rule 39 is the commencement of a separate and independent action for the recovery of the property that has been levied upon. If the property levied upon is personal property, capable of manual delivery, the true owner can file a complaint for replevin against the sheriff who has seized the personal property. If the property levied upon is real property, he can file a complaint to prevent the sheriff from selling the property and to compel the return of the property to the true owner. And rule 39 does not tell the true owner that he only has these remedies in the alternative.The owner can make use of these remedies successively. If he files a third party claim and he does not succeed in recovering the property by reason of the 3rd party claim, he can avail of the remedy to file a complaint for the recovery of the real or personal property, as the case maybe. But the easiest and most practical remedy available right away to the third party claimant is this third party claim. A third party claim does not require the filing of a pleading, it is just an affidavit filed by the third party claimant to the sheriff or to the court… In the affidavit, one should also append supporting documents and papers that will justify his claim to the property. What will the court do with this 3rd party claim? Can the execution court study and evaluate this third party claim and eventually render a decision determining if the 3rd party claim is a proper or just claim? Can the court render a judgment that will tell the sheriff that the true owner of the property is not the 3rd party claimant but the judgment debtor? The court has no such authority because we are already at the stage of execution of judgment. In so far as the court is concerned, the case is already completed, it has been terminated. The third party claim will just be an incident to the execution process that is being followed by the court.Therefore, the court has no authority to resolve an issue of ownership involving the property that has been levied upon. The issue of ownership should be threshed out in a different and separate proceeding. So if the execution court issues an order saying that the owner of the property is not the third party claimant but the judgment debtor and the third party claimant does not assail the decision, that order will not be entered because such decision is not rendered on the merits, it is not a final order. It will not constitute res judicata in so far as the third party claimant is concerned. Regardless of the finding of the execution court that the true owner of the property is the judgment debtor, that will not be binding on the third party claimant. If at all, the consequence of that finding of the court is that the sheriff can proceed with the public auction sale of the property. If the sheriff schedules the property subject to a third party claim to a public auction sale, the remedy of the third party claimant is to file an independent action in order to prevent the sheriff from selling the property (complaint for injunction and damages, for instance). That is one of the remedies available to the third party claimant. You do not file that complaint in the execution court. If it is a complaint for injunction, you should file it in the Regional Trial Court which has jurisdiction over the case and the venue will depend on the residence of the third party claimant or

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     the sheriff or the judgment debtor. And it is the third party claimant who will have the right to choose the venue of the action. If the property levied upon, on the other hand, is a personal property, say a car in the possession of the judgment debtor but is really owned by the third party claimant, can the third party claimant file a complaint for replevin to recover the car from the sheriff? Of course, in that complaint for replevin, the defendants would be the sheriff and also the judgment creditor because the levy was a result of a motion for execution that was filed by the judgment creditor. If the execution court is RTC and the third party claimant decides to file a complaint for replevin, can he file the complaint before an inferior court? Yes, because a complaint for replevin is cognizable by the inferior courts depending upon the value of the personal property. So if the execution court is the RTC, but the car is valued at only 250,000 pesos and the true owner, the third party claimant files a complaint for replevin, the complaint will have to be filed with the inferior courts. That inferior court, in the complaint for replevin can issue a writ of replevin or a warrant of seizure before the sheriff and the judgment creditor could file an answer. We would have a complicated situation where the sheriff has seized a property by virtue of a levy on execution in fact the sheriff has scheduled a public auction sale for the car but at the same time there is a warrant of seizure or a writ of replevin issued by an inferior court which directs he sheriff of that inferior court to seize the car from the sheriff and the judgment creditor. Can the judgment creditor and the sheriff argue before the inferior court that the inferior court does not have the authority to issue the writ of replevin or warrant of seizure because that is interfering with the processes issued by the Regional Trial Court? The answer is no. The sheriff of the inferior court can enforce the replevin. He can seize the car from the sheriff. Although the sheriff is in possession of the car, by virtue of a levy on execution, can not the sheriff or the judgment creditor capitalize on the provisions of rule 60 that a writ of replevin cannot be enforced when the property is already subject to attachment or the property is under distraint by reason of non-payment of taxes. If you go to rule 60 on replevin, that is really a requisite, an essential requisite in the issuance of a writ of replevin. The replevin court can issue a writ of replevin validly if the property to be seized by the writ of replevin is not under custodia legis, either levy on attachment or levy on execution. If that car is subject to levy on execution, then that car is under custodia legis. But notwithstanding that provision in Rule 60, the court said that the writ of replevin issued by the inferior court will prevail over the levy on execution made by the sheriff because such levy on execution is a void execution. The requirement in 60 which states that property under custodia legis cannot be the subject of a writ of replevin assumes that the levy on execution is a valid levy on execution. We said a while ago, that for levy on execution to be valid, the property levied upon must be a property of the judgment debtor. If the judgment debtor is not the owner of the property levied upon, that levy is void and therefore there could be a seizure or confiscation by another sheriff in compliance with the writ of replevin issued by another court or even an inferior court. In our example, it is also proper for the inferior court to issue a writ of preliminary mandatory injunction against the sheriff so that the sheriff will be prevented from going ahead with the sale. So this could be a situation, an instance, where a process issued by an inferior court can be

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     enforced in order to defeat a process issued by a higher court. The levy court is a RTC but the injunction court is an inferior court. But the injunction will not be directed against the RTC, it will be directed against the sheriff of the RTC to prevent him from selling the property which is the subject of a void levy on execution. In Rule 39, if a property of the judgment debtor has been subjected to a levy on execution, can it be made the subject of another or further levy on execution? Yes. There could be several levy on execution over the same property of the judgment debtor. So if the judgment debtor owns a piece of land, there could be a first levy, a second levy or a third levy on that piece of land. The rule does not prohibit the enforcement of several levies on execution over the same piece of land owned by judgment debtor because a vendee does not immediately obtain ownership of the property. Notwithstanding a levy on a land owned by the judgment debtor, the debtor remains to be the owner of the land. Under rule 39, a levy only creates a lien over the property similar to a mortgage lien. Under civil law, we learned that the same property can be the subject of a first mortgage, second and so forth. We apply that same principle to levy on execution. If we have three levies on execution, they are all annotated at the back of the title, then we just follow the rule on seniority that we follow in mortgages and other encumbrances. The first levy will be superior to the second and third levy. The second and third are inferior to the first levy on execution. In fact the SC has also held that if a property of a debtor, a piece of land owned by the debtor, is the subject of different levies and the judgment debtor sells the property, the buyer will have to respect the annotation of levies at the back of the title. If the property is later on sold at public auction as a result of levy on execution, then the buyer of the property could lose his title to the property. He cannot say that he bought it in good faith because the fact of the levy is annotated at the back of the title of the judgment debtor. If this property of the judgment debtor is already mortgaged for instance with the PNB, if the mortgage in favour of PNB is still uncancelled or existing, can the sheriff levy on a mortgaged property of judgment debtor? Yes, because levy under Rule 39 does not affect ownership of the property. Levy only creates a lien. When the property of the judgment debtor is levied upon, he does not lose ownership of the property. He could lose ownership of the property if there is a public auction sale of the property and even if there is a public auction sale of the property later on, the public auction sale does not necessarily mean that he will automatically lose ownership of that levied and sold property especially if that property is a piece of land. Under rule 39, the judgment debtor can still exercise right of redemption so that he will still keep his title to the property. In cases where there are two different levies over the same piece of land owned by the jd, usually the property will be sold as a result of the first levy of property. If the property is later on sold at public auction, and the law gives the jd a right of redemption, this right of redemption will also be enjoyed by the second levy owner. Rule 39, in its definition of a redemptioner, names the jd and his successors-in-interest and any creditor who holds another levy or lien subsequent to that of the levying creditor who has caused the sale of the property. So in our example, if this piece of land belonging to the jdis sold as a result of the first levy, the judgment debtor can redeem and the second levy holder can also redeem. The right of the jd to redeem is distinct from the right of the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     second levy holder to redeem the property. If it is the second levy holder who redeems the property, the jd can make a further redemption of the property. There could be another redemption by the jd. But if it is the jd who redeems the property, then the second levy holder can no longer exercise the right of redemption. In the rule of successive redemption in Rule 39, when it is the jd who redeems the property from the highet bidder, further rights of redemption are cut off by virtue of the redemption made by the jd. We can speak of successive redemption if the redemptioner is not the jd himself. If ht one who redeems is a redemptioner or another levy or lien holder, we can apply the rule on successive redemption which says that another redemption could take place within 60 days from the efficacy of the first redemption even if the period of redemption has already expired. For instance, if there are two redemptioners and if we include the jd, meaning to say there are three persons who can redeem the property. If the redemption is carried out by the jd, the other redemptioners will lose their right to redeem. The period of redemption for all of them is 1 year from the registration of the certificate of sale. We are going to assume a redemption made should be within 1 year from the registration of the certificate of sale. If the second levy holder redeems then the third levy holder can also further redeem from him within 60 days from the date of the last redemption. But in any event, within that 1-year period, the jd can always exercise his right of redemption. And if it is the jd who indeed exercises redemption, the right of redemption given to others will be cut-off. Will it not prejudice these other levy holders if we cut off the right of redemption? It could not prejudice the other levy holders. Since they are other levy holders if the jd redeems the property, they can still enforce their levy, they can have another public auction sale of that levied property. In civil law as well as in rule 39, the SC has accepted the principle that whenever there is a doubt in the interpretation of redemption rules and laws, the interpretation should always be in favor of the jd or the redemptioner. But rule 39 is also very clear in saying that right of redemption will exist only when the property sold at public auction is a real property. When the property levied upon and sold at public auction is personal property, there is no ror. Because of these distinctions given in the rules, the SC has also come out with principles that are applicable to redemption of real property and principles applicable because there is no redemption as to real property. One of these principles is that when the properties levied upon and sold at public auction is personal property and the price is inequitably low at public auction sale, the sale is void. There has to be another sale of the property. The personal property is a car owned by the jd, the market value of the car is 800,000. At the public auction sale, the highest bid is only 50,000. Here, the highest bidder can acquire a car worth 800,000 for only 50,000. If we apply the principles given by the SC, the same is void. The highest bidder does not acquire ownership over the property, the court can issue an order declaring the same as ineffectual and that the same is void because the price is inequitably low. So the sheriff must schedule another public auction sale until the price that will not fall within the classification of an inequitably low price. But when the property sold at public auction is real property, it does not matter whether the highest bid is high or low or even if the price generated

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     is inequitably low. In fact the SC said we cannot use this concept of inequitably low price when the property sold is a real property because of the principle of redemption- the right of redemption given to the jd. And the court explained that even if the piece of land owned by the jd is worth 700,000 and highest bid is only 50,000, the sale is valid. The highest bidder can acquire ownership over the property if redemption is not exercised by the jd. The SC said if the price is very low and the property is real, that is advantageous to the judgment debtor because if he decides to redeem the property, he will only have to produce 50,000 and then he will get his property that has been sold at public auction. In instances where the judgment debtor has say redeems the property, the redemption will enable the jd to continue possessing the property and not lose ownership over the property. But the public auction sale of this piece of land could also result in a situation where the price generated during the auction sale will not sufficient to pay the claim of jc. For instance, the claim of jc is 1,000,000. A piece of land owned by jd is levied upon and sold at public auction and the price generated is 500,000 which is not enough to pay in full the jc. The 500,000 will of course go to the jc who has caused the sale of the property but the jc has not yet been fully paid, there is still a residue or unpaid balance of another 500,000. When the jd redeems the property, should he deliver to the sheriff 500,000 or 1,000,000? The jd should deliver only 500,000. He need not deliver 1,000,000 because the redemption price is always the highest bid of the property plus interest and other additional cost. So if in our example, the jd is able to redeem the property by producing 500,000 but the jc has not yet been fully paid, the jc will be tempted to have another levy on the same property that has been redeemed by jd. The jc could do so because he has not yet been fully paid and in rule 39, there must be full satisfaction of the award to put an end to the case. If the jc decides to have another levy on the same property that has been previously levied upon as a result of his execution process but this property has been redeemed by the jd, can the same levy creditor impose or carry out another levy in the same property? The SC said, in this situation, the same levying creditor no longer levy on the same property. If the same levying creditor wants to get full satisfaction, he should make another levy on another property of the jd or he can resort to other remedies provided for in rule 39 if he cannot get full satisfaction of the judgment. But the SC also explained that this principle does not prohibit other creditors from making a levy on the property that was already redeemed by the jd. If the jd is able to redeem his property, that same property can be the subject of a levy to be made by his other creditors. But a subsequent levy cannot be made by the same levying creditor or the first levying creditor who has caused the public auction sale of the property. With respect to the issue as to who is entitled to the fruits earned by the property during the pendency of the levy and during the running of the period of redemption, rule 39 has settled that issue. The fruits of the property sold at public auction will still redound to the jd while the period of redemption. The basis is that the jd retains ownership of the property while period of redemption is running. If the jd is unable to redeem the property within the period of redemption, then the title will be consolidated in favour of the highest bidder of the property. During the auction sale of this levied property, anybody can bid even the jc can bid. In fact, it is usually the jc who will offer the highest bid because the jc can give an amount equivalent to the award given to him by the court. If the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     award in favour of jc is 1,000,000, the jc can give a bid as high as 1,000,000 and he does not to turn over the task to the sheriff because he will just tell the sheriff I will consider the 1,000,000 bid as full payment of my claim. If a stranger is the highest bidder and he bids for 1,000,000, this stranger is expected to shell out 1,000,000 and deliver it to the sheriff. Can the jc be forced to shell out cash equivalent to this highest bid even if the highest bid is the exact equivalent of his claim? Generally, no. but if there is terceria or third party claim and the highest bidder is the jc, the jc must still shell out cash in order to be declared by the court and the sheriff as the highest bidder of the property. If the jc is not fully paid, there are other options given in the rules- availment of which could lead eventually to full satisfaction of the claim. First is for the jc to file a motion with the court for the examination of the jd. Another remedy is for the judgment creditor to file a motion with the execution court for the examination of a debtor of the jd. And the third remedy is for the jc to file a motion for the appointment of a receiver of the remaining properties of the jd. We will note that a receiver is one the provisional remedies in the rules of court. And also receivership here is allowed by the court although the case is already terminated, already at the stage of execution of judgment.so this is one instance, where a provisional remedy can still be used even if the case has been decided by the court. Usually our concept of a provisional remedy is that it is a remedy that can be availed of during the pendency of a case before entry of judgment. But receivership contemplated in rule 39, although it is the same receivership in provisional remedy, can still be availed of even if there is no more pending case, meaning the case has already been terminated in fact the judgment has already been entered. The last topic in Rule 39 is of course one of the most important in procedure - the principle of RES JUDICATA. Res judicata n rule 39 is covered by sections 47 and 48. Section 47 is the effect of a local judgment after it is entered and then 48, is about the effect of a foreign judgment that is a judgment rendered by a foreign court. In our study of res judicata, we studied that there are principle requisites of rj: a) identity of parties, b) identity of causes of action and c) identity of subject matter. But the effect of rj under section 47 depends upon the nature of the action whether the action is in rem or in personam. What is the effect of a judgment in rem? This is answered by letter a of Section 47. The effect of a judgment in personam is letter of Section 47. Letter of c of section 47 speaks about the principle of conclusiveness of judgment. If you want to have a clearer view of the difference between the effect of a judgment in rem compared to the effect of a judgment in personam contained in letters a and b, all you have to do is look for conclusive in letter a and letter b. Letters a and b use this word conclusive in both instances and then you analyse the clauses that follow the word conclusive in letter a and the clauses that follow the word conclusive in letter b and you will immediately appreciate between a judgment in rem and a judgment in personam. In letter a, the law says the judgment is conclusive upon the title to the thing, upon the will or administration, upon the personal, political or legal condition of the person. Whereas in letter b, the word conclusive is followed by the phrase upon the parties and their successors-in-interest litigation for the same thing under the same title and in the same capacity. So that right away, when the judgment is a judgment in rem, the judgment is conclusive not upon the parties, it is conclusive upon the title to a thing, upon the personal

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     political or legal condition of a person. This is the reason why a land registration or a cadastral proceeding is considered as an action in rem because the judgment in these proceedings is conclusive upon the title, it is not considered conclusive upon the plaintiff or defendant. If the judgment is conclusive upon the title to the thing, that judgment will be binding upon the litigants or anybody who might have an interest to the title of the thing although these persons might not have been involved in the litigation process. In the probate of a will which is another proceeding in rem, where there is a decision by the court admitting the will to probate, it is conclusive upon the will or administration therefore anybody who might have an interest in the will will have to respect that decision by the court. The personal condition of a person, if a person has in his favour a decree of adoption, he is the adoptee of Juan Dela Cruz, the decree is conclusive upon the personal status of that adoptee and therefore, anybody who transacts with the adoptee will be bound by the decree of adoption issued by the adoption court. But you will notice, there is a caveat in letter a when it comes to probate of a will. The probate of a will is not conclusive upon the fact that the testator is dead. It is only prima facie. If at all, it can serve only not as a conclusive proof of the death of the testator but it could convince the court that the testator really is dead. The reason for the caveat is because in civil law, as well as in rules of court, a probate of will can be commenced even if the testator is still alive. Ordinarily, we conceive a proceeding for the probate of a will as one wherein the testator is already dead, that is not so, under the civil code and the rules of court. There could be a proceeding for the probate of a will even if the testator is still alive provided that it is the testator himself who will commence the petition for the probate of his own will. That is the reason for the caveat in letter a of sec. 47. The probate of a will in so far as the common requirements of a will are concerned but in so far as the issue as to whether the testator is dead or alive, it is not conclusive. In letter b, when the rule says that the judgment is conclusive upon their parties and their successors-in-interest as to matters directly ajudged or as to matters which could have been ajudged, that phrase as to matters that could have been decided or litigated in relation thereto, will refer for instance to a compulsory counterclaim or a cross-claim. Because we learned that a compulsory counterclaim or a cross-claim that is not set up in the same action will be barred. The reason for them being barred is that because they are matters which could have been raised in relation to the principal action. In a judgment in personam, the judgment is conclusive between the parties only as to the matters directly ajudged or any matter that could have been ajudged. An example of an action in personam could be an action involving title to property by reconveyance of property. Plaintiff vs. defendant, the action for reconveyance of property, this is not in rem but in personam. Not all actions involving real property is in rem. There are only very few actions involving real property that are considered by the law as in rem like cadastral or land registration proceedings but if the action is only for reconveyance or accion reinvindicatoria, although what is involved is real property, that action is still in personam. The judgment is in favour of the plaintiff. The judgment is entered. In so far as that case is concerned, the plaintiff is the owner of the property. Later on, can X as stranger file his own complaint against the plaintiff in the first case for the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     recovery of real property? Can the plaintiff in the first case set up the defense of res judicata? He cannot. Because the parties in the second case are not the same in the first case. There is no identity in the parties between the first and second case. There is even no identity of causes of action but the subject matter is the same piece of land. If there is already an identity of subject matter, does it not follow that there will be identity of causes of action? This is not a correct assumption. There could identity of subject matter but the causes of action could be still different. For instance, in accion reinvindicatoria, the subject matter is of course a piece of land, it involves title to a piece of land. There could be another complaint filed involving the same piece of land but because of an action different but referring to the same land. For instance, unlawful detainer involving the same piece of land. But although there is identity of subject matter, the causes of action will be different- the first, accion reinvindicatoria, the cause is for recovery of title to property, in unlawful detainer, the cause is physical possession of property. So if the second case is unlawful detainer, the second case cannot be dismissed by reason of res judicata. There is no identity of causes of action. When the judgment is entered as contemplated in sec. 47, there is a judgment on the merits that is rendered by a court of competent jurisdiction is as provided-judgment in rem and judgment in personam. The collateral principle we adopt on this rule on res judicata is that the judgment that has been entered becomes immutable-it can no longer be change or modified even by the SC itself. So even if the judgment entered is a judgment of an inferior court and that judgment has been entered, everybody will have to respect res judicata applicable to this judgment. That entered judgment cannot be modified or changedby the inferior court, by the Regional Trial Court or even by the Supreme Court. That is the general rule when it comes to res judicata-the final and executory judgment enjoys now immunity from challenge or from being assailed by parties to the original case. But it does not mean to say that the judgment that has become final and executory can no longer be challenged, it can still be challenged by way of exception to the general rule. We have learned the propriety of filing a petition to annul a judgment under rule 47. Annulment of judgment is a challenge, an attempt to change or modify a final and executory judgment. One of the requisites of res judicata is missing, the element that is missing could be that the court which decided the case is not a competent court because in rule 47, one of the grounds to annul a judgment is because the court has no jurisdiction over the subject matter or over the person of the parties. Another remedy that could modify a final and executory judgment and which does not follow res judicata is Rule 38 or petition for relief from judgment on the ground of fraud, accident, mistake or excusable negligence. I suggest that you read the case in March 2011, F.G.U. Insurance. In that case the SC summarized four instances where a final and executory judgment can be modified, challenged or even set aside. The first instance is when there is modification of clerical errors of a final and executory judgment. The second instance is when the judgment is what we call a nunc pro tunc judgment. The third is when the judgment is void. And the fourth is when circumstances intervened after the final entry of judgment which makes the execution of judgment unjust and inequitable. That is usually the reason applied by the courts when it entertains a petition for setting aside a

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     final and executory judgment. But in 2007, the SC also came out with another decision which says that the SC has the inherent power to change or modify a final and executory judgment if substantial justice so requires. So you can consider that as the fifth exception. The SC is simply telling that us that we are the author of the Rules of Court so we can disregard it at anytime we want to. It seems easy to appreciate because the Rules of Court is a product of the Supreme Court. So the Supreme Court will be allowed to disregard the application of res judicata in any event where it sees that disregard of res judicata will yield to substantial justice. So there are five known exceptions now where a final and executory judgment can be modified, assailed or set aside notwithstanding application of res judicata. Letter c of sec. 47 is about conclusiveness of judgment. It is a type of res judicata but with limited application. There could be identity of parties and identity of subject matter but there is no identity of causes of action. That’s why the subsequent cases can prosper. They will not dismissed by reason of res judicata. The usual example that is given in textbooks about the application of conclusiveness of judgment involves a monetary obligation that by stipulation of parties will be subject to periodic payments-obligation to pay money on instalments. If there is a 1,000,000 indebtedness payable in two instalments of 500,000 each, we learned that each instalment, if violated or if defaulted, will give rise to one cause of action. So if there are two instalments, it is possible that two causes of actions will accrue from the same promissory note because each instalment will give rise to a cause of action. We now apply this to sec. 47. If the debtor defaults in the payment of the first instalment, the creditor can file a complaint to recover 500,000-only the first instalment that is due and unpaid. That is one cause of action. Let us say that the court, the RTC, will try the case and then it will hear evidence to be submitted by the creditor and debtor. A defense set up by the debtor in his answer is that the promissory note upon which the complaint is based is a forged promissory note, it does not contain the genuine signature of the debtor. After the trial, the court decides in favour of the creditor. So the court, in effect, says that the document is not a spurious document, it is not a forged promissory note. The signature is a genuine signature. Then the judgment is entered. After the entry of judgment, the second instalment also becomes due. Can the creditor file a second complaint for the recovery of the second instalment? The answer is yes, because our principle is that each instalment if unpaid will give rise to a separate cause of action so if the second instalment becomes due and unpaid, the creditor can file a separate complaint against the debtor. The second complaint can prosper. The debtor will again raise the issue that the promissory note contains his false signature-it is a spurious promissory note. Will the court still make adjudication as to whether that note is a forged promissory note or a genuine promissory note? Not anymore, the finding in the first case by the court that the promissory note is genuine will be conclusive in so far as the creditor and debtor is concerned in another case. That’s why in conclusiveness of judgment, the subsequent case will not be dismissed, it will prosper but what the court cannot do is to make an adjudication on the issue that has already been decided in the first case. That is a conclusiveness of judgment in so far as the genuineness of the promissory note is concerned. That is the rule of conclusiveness in the last paragraph of sec. 47.

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     In sec. 48 which, as we said, refers to a foreign judgment, this section also refers to a foreign judgment in rem and foreign judgment in personam if you read the first two paragraphs of sec. 48. In sec. 48, it is provided that the judgment of foreign court is conclusive upon the title to the thing and a judgment against a person is a presumptive evidence of the rights between parties. So the first part speaks also about a judgment in rem that is adjudicated by a foreign court, the judgment in rem is conclusive also upon the title to the thing. But when the judgment is in personam , the judgment of the foreign court is only a presumptive evidence of the rights between the parties in the complaint. An illustration of that judgment in personam rendered by a foreign court, there is a creditor and debtor suit in a foreign country, say, before a Japanese court. The relief which the creditor seeks before the Japanese court is for the recovery of an unpaid loan. The Japanese court in favour the creditor. So the debtor is required to pay the said sum of 100,000 US dollars. The Japanese court has not executed the judgment but somehow the creditor and debtor live in the Philippines, they are now in the Philippines. The jd has accumulated certain properties in the Philippines. Can the jc in that Japan case file a motion for execution before a Philippine court? The answer is no. you cannot file a motion before a Philippine court. The Philippine court knows nothing about the Japan case. There is no basis for the Philippine court to issue a writ of execution. Is there a remedy available to the creditor in order to enforce the decision of the Japan court in the Philippines? The remedy is the second paragraph of Rule 48 which says that the judgment of the Japan court is a presumptive evidence of the rights between the parties. How does the jc make use of the rule that the decision of the Japan court is a presumptive evidence of the rights between the parties to the case? The creditor should file an independent or separate complaint for the enforcement of the decision of the Japan court and the only evidence that he needs in order to convince the court that there is preponderance of evidence in his favor is a certified true copy of the decision rendered by the Japan court. If he is able to present a certified true copy of the decision of the Japan court, the local court will now apply the presumption given in sec. 48 that the decision of the Japan court is a presumptive evidence of the rights between the parties. That is enough to convince the courts that the creditor is really entitled to recover some amount from the defendant. But you will also notice that in sec. 48, there is a last paragraph which speaks about repelling a judgment by a foreign court whether it is a judgment in rem or a judgment in personam, the judgment of a foreign court can be repelled by evidence of want of jurisdiction, want of notice, collusion, fraud or clear mistake of law or fact. In other words, if we have before a Philippine court, a separate action for the enforcement of a decision rendered by a foreign court, the defendant in this petition for the enforcement of foreign judgment can set up the defences given in the last paragraph of sec. 48. The decision of the Japan court can be defeated or repelled by evidence of want of jurisdiction, want of notice, collusion, fraud or clear mistake of law or fact. The defendant can set up properly the affirmative defense that the Japan court did not have jurisdiction over the case or jurisdiction over his person because of want of notice or that the decision the Japan court is void because of collusion or fraud or that the decision of Japan court cannot be enforced because there is clear mistake of law or fact by the Japan court. Can we make use of these grounds mentioned in Sec. 48 to repel a local judgment? Can we repel the execution of a local judgment, say

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     there is a motion for execution filed before a trial court because the judgment has become final and executory, the jc has now filed a motion for execution, can the jd oppose the execution by claiming that the judgment entered by the court cannot be executed because the judgment is void by reason of absence of jurisdiction? It cannot be done if the judgment is rendered by local courts. The motion for execution cannot be defeated by setting up defense that the judgment is void because of want of jurisdiction over the person of the defendant, it cannot also be done. Why cannot the defendant in this local judgment oppose the execution by setting up the defences that the judgment sought to be enforced under rule 39 and that judgment is rendered by a local court? Why can we not the same defences that are available when the case involves a foreign judgment? We do not allow a motion for execution to be opposes or to be denied on the argument that the court did not have jurisdiction over the subject matter or jurisdiction over the person of the defendant, because that will be a collateral attack on the judgment. That is not a direct attack on the judgment. We can directly attack the judgment by filing a petition to annul the said judgment and the ground to be used is lack of jurisdiction over the person or over the subject matter. But if we attack the judgment collaterally, not directly, we do not allow that in our system. We can only directly attack the judgment on these grounds- lack of jurisdiction over the subject matter, over the person and extrinsic fraud. We cannot use these to collaterally attack judgment. When we say collaterally, the person attacking the judgment does not file a separate complaint for the purpose of having the judgment set aside. If he only opposes the motion for execution and the ground of his opposition is that the court did not have jurisdiction over the case, that is not a direct attack, it is collaterally attacking the judgment because he is only setting up that defense in order to avoid execution of judgment. In a foreign judgment sought to be enforced in the Philippines, sec. 48 appears to allow a collateral attack on that foreign judgment which is not allowed in so far as a domestic judgment is concerned. With respect to the other grounds, collusion and fraud, they are also grounds to directly attack judgment under Rule 47 even under Rule 38-petitio for relief from judgment. But what cannot be done our system is a collateral of final and executory judgment. But there is one occasion, according to the Supreme Court, where we could collaterally attack a judgment. If the judgment is on its face a void judgment, for instance, a judgment rendered by a court contains only a dispositive portion, it does not contain findings of fact or conclusions of law, that judgment is, on its face, a void judgment. It does not with the constitutional requirements of a valid judgment. That can be attached collaterally. So if there is a motion for execution for that judgment, an opposition can be set up attacking the validity of the judgment because it does not with the constitutional requirements of a valid judgment. so in the matter of attacking a local judgment, as long as the judgment, on its face, appears to be a valid judgment, in writing, there are findings of fact and conclusions of law, there is the signature of judge, there is presumption of correctness of judgment. The only way to have it set aside is to file an action directly for the purpose of declaring that judgment null and void - annulment of judgment. You cannot do it by simply opposing a motion for execution. You cannot even do it in order to oppose the petition for a revival a judgment. A petition to revive a judgment is an independent action available to a jc who has failed a judgment within the first 5 years from the entry of judgment. If the jc files a

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     petition to revive the judgment, the defendant will not be allowed to set up the defense that the judgment sought to be revived is not valid because of lack of jurisdiction, that is another example of a collateral attack on the judgment.If the argument that the judgment is void is only used as a defense in a separate proceeding other than annulment of judgment, that is always a collateral attack of judgment and that is not allowed in our system. The term Provisional Remedies is considered synonymous to two other terms as per the circulars of the Supreme Court. And these two other terms are interim reliefs and provisional order. So the terms provisional remedy, interim relief and provisional order refer to one and the same provisional concept-a provisional remedy. So that we can rightfully conclude that the enumeration of provisional remedies in the Rules of Court beginning with Rule 57 up to support pendent lite in Rule 61 is not an exclusive enumeration of provisional remedies. We have to include the enumeration of interim reliefs in other circulars of the Supreme Court or the enumeration of provisional orders in a separate circular of the Supreme Court. The enumeration of interim relief could be found in the circular in amparo. There are four interim reliefs in amparo- protection order, production order, inspection order, witness protection order. There are four interim reliefs in the circular on amparo. And the circular on amparo itself says that amparo could be a provisional remedy under certain instances. Habeas data could also be a provisional remedy under certain instances. So we can add in the enumeration the interim relief in the circular on amparo, the four interim reliefs plus amparo itself and habeas data. There is another circular issued by the Supreme Court which enumerates several provisional orders and this circular refers to provisional orders in marriage-related cases. There are seven provisional orders contained in this circularspousal support, child support, visitation rights, custody of a minor, protection order, hold-departure order and appointment of administrator of the co-owned properties of the spouses. These are provisional orders in marriage-related cases. They are also treated just like a provisional remedy in the Rules of Court. And then in the latest circular issued by the Supreme Court, the Kalikasan, we also find some provisional remedies like temporary environmental protection order, this is a provisional remedy under the writ of kalikasan. And in the writ of kalikasan, if you have gone over the circular, there is a separate section on discovery measures and the kalikasan circular appears to consider the discovery measures also as provisional remedies or interim relief like inspection order, production order which are interim reliefs in the writ of amparo. They should also be considered interim reliefs in kalikasan cases. So there could be 3 or 4 additional provisional remedies if we include discovery measures that are specified in the writ of kalikasan. Whether they are treated as interim relief or provisional remedy or provisional order, their common element is that there must be a pending principal action. You cannot use of these interim relief or provisional remedy or provisional order unless there is a pending principal action except in those instances when the provisional remedy or provisional order can be treated as the principal action. For instance, replevin is a provisional remedy but it can also be a principal action. As we said earlier, amparo is a principal action by itself but it can also be treated as a provisional remedy. Just like habeas data, it is a principal action by itself but it can also be treated as a provisional remedy. Since we

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     always require an independent principal action before we can make use of these provisional remedies, it follows that we cannot an independent action solely for the purpose of obtaining as a principal relief any of these provisional remedies. For instance, a creditor cannot file a complaint for the issuance solely of preliminary attachment, that will completely be dismissed. The application for preliminary attachment should be always made to depend upon a principal action that is included in the enumeration of cases in sec. 1 of Rule 57. That’s why in Rule 57, that’s preliminary attachment, we immediately find actions that should be filed in court where we can properly ask for the issuance of preliminary attachment. You should also be careful in ascertaining whether attachment is provisional or it is not a provisional remedy. Rule 57 is a provisional remedy because of the word preliminary. Attachment is a provisional remedy if it is a preliminary attachment. But if the attachment is a final attachment, it is no longer a provisional remedy. It is now part of the execution process under Rule 39. We kept on mentioning levy on execution in order to describe the process in Rule 39 to execute a judgment. Levy on execution is just another term for levy on final attachment. But we use the term levy on execution to differentiate it from levy on attachment. When we talk about levy on attachment, we refer to a preliminary attachment. But when we talk about levy on execution, we are referring to a final attachment- an attachment that is promulgated under Rule 39. The enumeration of provisional remedies in the rules of court is no longer exclusive. The various circulars of the Supreme Court have introduced provisional remedies but in a different way. Instead provisional remedies in marriage related cases, the term used by the Supreme Court is provisional order. In the circular on Amparo, there are also provisional remedies but the term used is interim relief, and in the Kalikasan circular there are also provisional remedies but the terms used are either provisional order or provisional remedy. But they are all provisional in character because they cannot be the principal action itself. These remedies are all incidents of the principal case just like the provisional remedies that we have in the rules of court. When we say that provisional remedies cannot be the principal action itself, there is no such principal action for issuance of preliminary attachment. There can be no principal action of issuance of preliminary injunction. But in the case of replevin, as a matter of fact, this replevin has been treated by the court as a main action, but the provisional remedy is an action for the issuance of writ of replevin or a warrant of seizure. Support pendente lite is also conducted in the principal action, the principal action could be an action support with an application for support pendente lite. Although the term used in the other circulars are now different from provisional remedy, still the concept of provisional remedy will apply in the provisional order or interim relief as the case may be. In the case of marriage related cases, the following are the provisional orders. Spousal support, child support, visitational rights, the custody of the minors, and the hold departure order, protection order or the appointment of administrator of the common property only common or those belonging to the conjugal partnership of gains.

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     Under the writ of Amparo, and also the circular on Habeas Data, Amparo and Habeas Data although principally they are considered as actions in special proceeding, they are treated at the same time as provisional remedies. If you read the circulars on Habeas Data and Amparo, if there is already a criminal case instituted in the court, involving the disappearance of a person or extra legal killing of a person, that criminal action will be the principal case. In that principal action, a party could move or apply for the issuance of the Writ of Amparo or Habeas Data as the case maybe. So there are four interim reliefs in Amparo, protection order, inspection order, production order and witness protection order. We include now the four interim reliefs, Amparo and Habeas Data. In the circular of Kalikasan, the provisional orders or interim reliefs are temporary environmental protection order and preliminary attachment. And the circular also speaks of an optional protection order, cease and desist order, and production and inspection order. If you will notice in these two circulars of the Supreme Court appears to detail certain modes of discovery like the production of documents, inspections of things. They are the subject in the modes of discovery as enumerated in the rules. They are now treated as provisional remedies. In the Kalikasan court can issue a production order or inspection order. The same is true with the Amparo circular there is a production order, and inspection order, although they are substantially of the same nature in that we have taken in modes of discovery. Although we have now several provisional remedies and interim reliefs or provisional orders, it is not correct to assume that they follow common rules. These different circulars have not adopted the rules that are existing in the rules of court. That is 57 up to 61. If you analyze the provisional remedies, found in the rules of court, one of the common elements is the requirement for the applicant to post a bond. So we have an attachment bond, an injunction bond, a receivers bond, and replevin bond. The only provisional remedy which does not require the posting of a bond is support pendente lite. But in the circular on marriage related cases, the premise is that the family court can grant these provisional orders with or without bond. It all depends on the discretion of the family court. And then, on the same circular, the law also provides that the family court can grant these provisional orders with or without a hearing. Which can also be present in the rules of court, there are some provisional remedies that can be granted ex parte, there are also provisional remedies which need a summary hearing before they can be issued by the court. In the Amparo circular, when it comes to the interim relief of production and inspection order, there must be a motion filed by the applicant and there must be a hearing conducted by the court. In respect to protection order and witness protection order, these provisional remedies can be issued by the court without a hearing, ex parte. In the Amparo circular, there is nothing mentioned about the posting of a bond by the applicant, so it would seem that just like the circular on marriage related cases the court do not need a bond before the court can validly issue this interim relief. In the writ of Kalikasan, the usual provisional remedy that is issued by the court is of temporary environment protection order. The applicant is not required to post a bond in the matter of issuance of temporary

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     environmental protection order, and just like the preliminary injunction, there can be an ex parte issuance good for 72 hours, but the Kalikasan court can extend that until the case is finally decided. So if you compare that temporary environmental protection order to the temporary restraining order, In TRO there is a definite time, and it is called a stag, it cannot be extended by the court, but in Kalikasan cases the temporary environmental protection order can be extended by the court until the case is finally decided. There is also no need for a bond. What is original in this Kalikasan circular is the party who will be required to post a bond in the TEPO is not the applicant, it is the adverse party, who will file a motion for the victim of the TEPO. In most instances of provisional remedies where there is a need for the filing of a bond, like attachment, preliminary injunction, or replevin or receiver, this can be defeated by the filing of a counter-bond. The same is true with the environmental protection order, but the difference is that the applicant is not required to post a bond, but the adverse party moves for the victim of that environmental protection order, he will need to require to post a bond to protect the interest of the adverse party. Another rule that applies provisional remedy that is in common, the issuance of these interim reliefs is always interlocutory, the order is not the final order because it has nothing to do with the merits of the case. And since the granting of the provisional remedy is interlocutory therefore it is not applicable. The accepted remedy to challenge an order granting the provisional remedy is rule 65. But in some circulars that has also been changed substantially. For instance, in summary procedure if in the cases that are cognizable by the inferior court, where the inferior court is governed by the summary procedure if the inferior court grants a provisional remedy it is interlocutory, it is not appealable but the adverse party cannot file a petitioner under rule 65. In other words there is no remedy available to the adverse party. The reason is in summary procedure the application of availment of rule 65 in order to challenge this interlocutory order issued by the inferior court is prohibited. That is one of the prohibited pleadings in summary procedure, the availment of rule 65 to challenge the interlocutory order issued by the inferior court. In Amparo likewise, there is a section on prohibited pleadings, there is a similar provision in Amparo circular that if the Amparo court grants a provisional order or an interim relief and therefore that order is interlocutory, rule 65 is also not applicable. Because rule 65 is a prohibited pleading in order to challenge interlocutory order issued by the Amparo court. In the circular on Kalikasan the issuance of the TEPO is of course interlocutory can be challenged by the granting of this TEPO. Yes, it is allowed, the problem is, the challenge in the TEPO is that can only be filed in the Supreme Court. In other words, if we avail of rule 65 in Kalikasan case we cannot file the petitioner with the RTC, CA, it is only in the SC that can entertain a petition assailing the issuance of TEPO. So, do not get the impression that all of these remedies are provisional in character, they are governed by the same set of rules. They are governed by different set of rules depending on the circular of the Supreme Court that is applicable in each one of them.

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     In respect to the authority of the inferior court to grant the provisional remedy, this matter has now been issued by BP 129. In the past, before BP 129, there was the question as to the totality or the authority of the inferior court to grant provisional remedy. But this was settled by BP 129. If you read section 33 of BP 129, it is now clearly provided that the inferior court has the authority to grant provisional remedy as long as it has jurisdiction over the action. So there is no question at all that the inferior court can grant preliminary attachment, preliminary injunction, replevin, receivership, as a provisional remedy. But the problem is now with support because the support as a principal action is exclusively cognizable by the family court. There could be instances where the inferior court can grant support pendente lite but we have to look for a principal action cognizable by inferior court, and one of the incidentals or collateral relief is support pendente lite, as long as the inferior court has jurisdiction over the principal case the inferior court has the authority to grant this provisional remedies as long as the requirements given in the rules and in the circulars are complied with. Going to rule 57, in section 1 there are 6 instances where the court can properly grant an application for preliminary attachment. In respect to the first 5 instances, there is a common requisite, that there is an intention on the part of the adverse party to defraud the applicant. It is only in the last instance where there is no such requirement that must be shown that the adverse party has intention to defraud the applicant. The only requirement is that the defendant is a non resident and not found in the Philippines and summons can be served upon him by publication. So even if there is no allegation that the adverse party have intention to defraud, there could still be a preliminary attachment issued by the court. The fact that the defendant is a non-resident and is not found in the Philippines, is closely related to the provision in rule 14 when the party can properly apply for publication of the summons in order for the court to acquire jurisdiction to try and decide when a property of the absent defendant is a non-resident and is not found in the Philippines is the subject of attachment that action in personam against the defendant will be converted into quasi rem by virtue of the preliminary attachment issued by the court implemented by the sheriff of the court. So instead of this last instance, the sole purpose of the applicant in moving for the issuance of PA is to enable to obtain a security for any judgment that may be rendered later on by the court. So if you envision a case that is pending in the trial court, there is a plaintiff who filed a complaint for money, there is no security that has been given to him and then the debtor according to the applicant is a dishonest person and intends to leave the Philippines with the intention to defraud the applicant, or he may not actually defraud the applicant. If you will note in the cases mention in Section 1 the conduct of the adverse party will be criminal in character, embezzlement, misappropriation or property entrusted to him. That is why it is a common saying in preliminary attachment, that the fraud committed by the adverse party could be a criminal fraud, that is a crime under RPC or only a civil fraud, it is an act of fraud but it has not reached the level of a crime. And that will justify the issuance of a writ of PA. So it is called a civil and criminal fraud, it will be sufficient for the issuance of the preliminary attachment. But the conduct should fall within anyone of the instances mentioned in section 1. So if the debtor instance draws a check and delivers the check in payment of his obligation to the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     creditor and the check bounces, can the creditor file a complaint and ask for the granting of PA? The answer is yes, according to the court, because the issuance of a bouncing check is covered by section 1, that is fraud in the performance of the obligation. In section 1, when there is fraud in contracting the obligation, PA can be issued. If there is fraud in performance that is fraud in contractum, that is dolo causante in civil law. When there is fraud in performance, there is dolo incidente in civil law. And in both instances that is a justification for the issuance of a writ of PA. Supposing that the plaintiff as a creditor holds a collateral given by the debtor, there is already an existing of security. If there is default in the payment, and the creditor files a complaint. And that debtor has committed an act of dishonesty with the intention to defraud the creditor. Can the secured creditor properly move for the issuance of PA? The answer is yes. The Supreme Court has ruled in a judicial foreclosure in a real estate mortgage when the mortgagee holds a security for the payment of liability the mortgagee can ask for the issuance of PA and the court can grant the application. Although the applicant admits to the court that he holds a security. The reason is that if you read the section and contents of the verified application in section 2 one of the matters that is incorporated in the verified application for preliminary attachment aside from the statement that the applicant cause of action, the third averment in the application is that the applicant does not hold a sufficient security for the payment of his claim. So even if there is a security held by the creditor, if he can prove to the court that the security is not sufficient, he can also ask for a preliminary attachment. So that if the court grants the PA, the creditor will now look for the other properties of the creditor that could be the subject of attachment. So if he holds only land by virtue of agreement, that security is not sufficient for the indebtedness of the party, the court grants its application for preliminary attachment, he may have to look for other property to be attached. He should not be attaching the same property he already holds a collateral security. So instead one piece of land, he can attach another piece of land so the creditor now as security of payment of his claim. In PA, there is a rule that is applicable to PA and other provisional remedies where these provisional remedies are granted ex parte. The first one or first principle that you should always remember in PA this is applicable to other provisional remedies, this could be granted ex parte is the rule on prior or contemporaneous service of summons. The situation contemplated in rule 57 where it says that the court can grant ex parte an application of PA, is that there is an application that is filed after the filing of complaint. And even before the court acquires jurisdiction over the person of the defendant through the service of summons, the court may already have approved the application for PA. Without notice, there is serious irregularity if rule 57 authorizes the court to grant the PA ex parte that is without notifying the defendant without giving him a notice and even before the court has acquired jurisdiction over the person of the defendant through the service of the summons. That is irregular procedurally. Because we learned in procedure that before the court can act validly, the court must have jurisdiction over the nature of the action, and also the person of the plaintiff and defendant. If the court does not have jurisdiction over the person of the defendant, the proceedings stated are void. So in rule 57 the rule authorizes the court to approve PA even if the defendant has not been served with summons, because the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     motion is ex parte without notifying the defendant. Since there is a strong possibility that the defendant later on might challenge the writ, the rules introduced the concept of prior and contemporaneous service of summons. And the court explained, the issuance of PA is at 3 stage proceeding. First is the filing of the verified application, the court will ex-parte grant it, and then the court will require the attachment which is always essential before the court can issue the writ of PA. So that after the issuance of the court of a writ PA, as long as all the conditions have already been met, the only problem is the implementation or the carrying out of the writ of PA. If the writ is already in hands of the Sheriff, the sheriff will not carry out by simply attaching the properties of the defendant. If that is what he is going to do, the attachment of the properties of the adverse party will be void because the court has not acquired jurisdiction over the person of the defendant. So what rule 57 requires is to observed the rule on prior and contemporaneous service of summons. If summons has not yet been served previously, at least the summons should be served contemporaneous with the actual attachment of the property. So if the properties of the adverse party have been attached, the sheriff should see to it that the summons have been served upon the defendant today and if the summons is served upon the defendant today that will remedy the irregularity of lack of jurisdiction. If the summons is served today, the court automatically acquire jurisdiction over the person of the defendant. That is the reason why the Supreme Court introduced the principle of prior or contemporaneous service of summons. And as we said earlier, this rule on prior or contemporaneous service of summons applies to all provisional remedies which can be issued granted by the court ex parte even before the court has acquired jurisdiction over the person of the defendant. So we can apply it in injunction, where the court issues ex parte a TRO or PI. Because in the pleading, the provisional remedy is granted by the court even if before the defendant answers meaning to say even if summons has not yet been served upon the defendant. Since PA is carried out, it is derogation upon the defendants right of ownership over his properties, the Supreme Court has also said that the rule on attachment should be strictly construed that is in order to protect the rights of ownership of the adverse party. If the properties of the defendant are now the subject of the PA and the properties are personal properties capable of manual delivery, that could be prejudicial to the right of ownership of the defendant if the personal property that is subject to PA is a car, that car may no longer be in the possession of the defendant, it will be seized by the sheriff. It will be in custody of the court as long the preliminary attachment is not lifted. But the car will not be delivered to the applicant, it will be in the custody of the court. So if the court will finally decide the case after 3 years, during that 3 year period, the defendant will not be able to use it, it will be used by the sheriff or of the court. That is why preliminary attachment is really derogation to the rights of ownership. If the property seized or attached is a piece of land, the defendant’s possession will not be affected. But only inconvenience to be suffered by the owner is that in the registry of the property, the property is subject of preliminary attachment. It does not affect his title, there is only a lien, an encumbrance by the PA. SO if he does not loose ownership, it means to say that he can still sell the property, but the buyer of the property must also recognized the fact that the writ of PA can be later on sold on a public auction in which case the owner or the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     buyer of the property could be conceivable loose his title later on. In other words, the buyer of the land that is the subject of the PA cannot complain later on that he is a buyer in good faith. He has notice of the existence of preliminary attachment. If the defendant owns a sizeable bank account, the sheriff could issue a writ of garnishment and served it upon the bank. And when the bank received the writ of garnishment, the bank will freeze the account up to the amount of the claim. The defendant could no longer use his fund anymore, if the defendant tries, the bank will not allow him to withdraw. If it is a checking account, and he has issued checks to a current account, the checks will be dishonoured upon presentment because the accounts are now frozen. That’s why PA is really a serious derogation of the rights of ownership. In that writ of garnishment which is also applicable in execution, that writ of garnishment will create a new relationship as an incident of the case called a force intervention. The debtor of the defendant, whether he likes it or not will now be the subject to PA. So when the bank is garnished, whether he likes it or not, the bank will be forced to intervene. In the sense that the bank will have to follow now the orders to be issued by the court after the order of garnishment. The remedies in 57 so that the defendant will get his rights of ownership in full, no longer subject to PA, are the following: First, He can simply defeat the PA by putting up a cash deposit in the court equivalent to the amount of the attachment bond. So if the attachment bond is 100k, the defendant has another 100k in his pocket, he must deposit it in court. And that will compel the court to lift the writ on preliminary attachment. If he does not have that much cash, he can just file a counter-bond, issued by a surety authorized by the Supreme Court also up to the 100k. The filing or a bond or payment of cash deposit will make it a ministerial duty of the court to lift the PA and that will enable to get back his properties. If the car has been seized the car will be returned. His bank account will now be unfrozen. Cash deposit or put up a counter-bond. The other remedy is to file a motion the lifting of the PA on the ground of the issuance is improper or irregular. That is always a remedy in order to challenge the provisional remedy. The granting of the attachment is improper or irregular. But this needs a motion filed by the defendant. He has to file a motion. And that motion should be heard. When he files a motion he must give notice to the applicant. One question that was raised before the Supreme Court is if the defendant has already posted a counter bond, and therefore the preliminary attachment has already been lifted, can the defendant still make use of the 3rd remedy. Otherwise, can he file a motion for the lifting of PA or reversal of the order granting the PA. Considering that the properties previously have been attached have only been returned to the defendant? The Supreme Court answered yes. In other words, even if the defendant has caused the lifting of the PA, by virtue of cash deposit or counter-bond, he can still make use of his 3rd remedy, to file a motion for the lifting of the preliminary attachment. The reason given is that instead of his properties acting now as a security for the claim of the applicant, he has put up a counter-bond or a deposit. So there is still a security that is involved by the applicant. If the order granting the PA is lifted, the applicant will be left without security because the counterbond liability will be lifted, the cash deposit will have to be returned. So that the applicant will now be a debtor

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     without any security at all if the court gives an order of PA, although the attached properties have been returned, by virtue of the bond or the deposit. Another principle mentioned in rule 57 which is applicable to other provisional remedies where there is a requirement of a bond is the principle in section 20 that is the extent of liability of the applicant when it turns out the granting of the remedy of the court is improper or irregular. Section 20 defines the procedure to be followed. In an action where the PA is issued by the court, the writ will only be lifted if there is a counter-bond, deposit or the court withdraws the order or reverses it. But ultimately the court will have to decide the merits of the case, whether or not the plaintiff is entitle to recover. If there is judgment in favour of the applicant, can the adverse party move for the recovery of the damages even if he lost the case? Yes, if the applicant wins the case on the merits, he can still be held liable for damages because the issuance of the PA is improper or irregular. It was explained that if the applicant eventually wins the case it means the applicant has a cause of action. To which the allegations contained in the verified application for preliminary attachment as stated in section 5. That verified allegations contains some serious allegations. First one is that the applicant has a cause of action, but if the applicant wins. It does not necessarily follow that he has complained with the second allegations in the verified application which is the applicant has a cause of action and that cause of action falls under anyone of the cases mentioned in section 1 or rule 57. So if the applicant wins, definitely he has a cause of action. But it does not mean to say that his cause falls under anyone of the cases in section 1. He may not be able to prove that the existence of dishonesty or the intention of the defendant to defraud the applicant. So if the applicant is not able to demonstrate that his case falls under the any of the cases in section 1, that means to say that the issuance of the PA is improper and irregular. The only instances where the court can grant PA are the instances mentioned in section 1. If the defendant wins the case on the other hand, it means to say that the applicant does not even have a cause of action, because the complaint is going to be dismissed. The liability of the applicant for damages will come as a matter of course, but section 20 provides the procedure to be followed in rendering the applicant liable for damages for the wrongful or improper issuance of PA. The first principles in section 20, is that the recovery of damages should be had in the same case, not in a separate or independent civil action. So in that complaint filed by the applicant, the adverse party must have already submit an application for the recovery of damages arising from the wrongful improper issuance of PA. The most practical way or informing the court that the adverse party has a claim for damages is to set up in the answer a compulsory counter claim, for the recovery of damages. If he sets up a compulsory counterclaim, for the recovery of damages, and then he eventually wins, he will just have to ask the court to motion for the court to conduct a hearing to the extent of likability to which the adverse party is entitled. What rule 57 tells us then is that it is not possible for the defendant who has won the case to file a separate complaint for the recovery of damages arising from the wrongful attachment. If he asks so that action will be dismissed even if there is no motion to dismiss filed in that second complaint because the ground for dismissal is res judicata which is a nonwaivable defense.

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     And section 20 also is now very clear that the extent of damages to be recovered by the adverse party is not equivalent to the attachment bond. In the past if the attachment bond is fixed by the court at 100k, there is an assumption that if the adverse party will ask for damages, the amount of damages will be limited to 100k that is the value of the attachment bond. In section 20, there is nothing stated that the liability of the attaching creditor will be limited to the value of the attachment bond by the court, there is nothing mentioned. What section 20 provides is that if the attachment bond is insufficient to answer for the liability of the applicant to answer for damages then there could be an availment of writ of execution under rule 39. In other words if the attachment bond is 100k, the court can fixed the liability of the applicant to 500k pesos, the liability of the bond will of course be 100k but the 400k can be satisfied by making use of rule 39. We ask the court for the issuance of writ of execution, there could now be a levy on execution of the properties belonging to the applicant. Remember that in the section 20 is that it is followed in other provisional remedies like PI, Receiver and replevin. Well there is a bond required before the court will grant this provisional remedy. The manner of collecting the damages on the part of the applicant if it turns out later that the issuance of provisional remedy is wrongful or improper. The next provisional remedy is preliminary injunction. And that the principal action could be any civil case like a principal action of injunction coupled with the application for TRO or writ of PI. A petitioner of certiorari under Rule 65 is usually accompanied by verified application of TRO or writ of PI. Because one of the principal relief, that is asked by the petitioner in rule 65, is to prevent or prohibit the respondent to proceed with the case that is pending in the court, in the case of certiorari, to set aside a decision or interlocutory order of the respondent court. PI and TRO could be availed of in any civil action where the relief or principal relief sought is to prevent the defendant from performing an act in the case of mandatory injunction to compel a performance of an act. So we will not limit the principal action in preliminary injunction to civil action, we can also make use of them in criminal case, even in a special proceedings. As long as the principal is to prevent or prohibit a party from performing an act or to compel him to perform an act. In PI, there are in fact 2 provisional remedies that are contemplated. The first one is a TRO and the writ of Preliminary injunction itself. Both now require an injunction bond. So even if the TRO in exceptional cases can be granted ex parte, the injunction court should always require a bond. It is not correct to say that it is only in preliminary injunction where you need a bond, even if the case of the TRO, there is always a need for a bond fixed by the court. And the general rule which we follow is that a court cannot grant a TRO and PI without a hearing, unlike a PA. We should always expect a hearing conducted by the court even in cases of the TRO. If TRO is granted ex-parte, it is only by way of exception. The general rule is that we need a hearing. Although it is a summary hearing with notice to both party in case of TRO. There is an exception however given in the rules, when there is grave and irreparable injury. The court if it is a one sala court can grant a TRO that will not go beyond 20 days, not extendible. But the court will fix a TRO bond. During the 20 day period, the court will conduct now a new hearing for the purpose of

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     determining whether or not the court will issue a PI. With respect to PI, the presence of summary hearing is absolute. A court cannot grant a PI, without a hearing, there is no exception. There must always be a hearing to be conducted. It is only in TRO where there is an exception to the general rule, there can be an issuance of TRO ex parte as an exception. AN in the multi-sala court, that is where courts consists of different branches, there is an executive branch, the executive branch can issue a TRO ex parte, but the TRO ex-parte is good only for 72 hours that is 3 days. And then, in a multi-sala court, what the petitioner usually files in the court is a motion of special raffle and then if the motion is granted by the raffle. In the meantime the executive judge will issue exparte TRO good for 3 days and after the raffle is completed, the sala before which the action has been assigned will now conduct a summary hearing to determine whether or not it will issue a writ of PI. Do not forget the modification in rule 58 by the 2007 circular of the SC. It has something to do with the court that has issued a writ of PI. The modification in 2007 is that if a court issues a writ of PI which has no term anymore, that is it is good until it is lifted or until the case has finally decide, unlike the TRO. That that court that issued the writ of PI must decide the PI within a period of 6 months that is the modification introduced by 20067 circular. The idea of course is very easy to understand, if the court does not raised a need of 6 months to which the principal action could be decided, the PI will be perpetual injunction, because it is good until the case has been finally decided. So if the court grants a PI today, it has only a period of 6 months within which to decide the principal case. And in deciding the principal case, the court would either rule in favour of the applicant or defendant. If the court rules in favor of the defendant, the PI is automatically lifted. That means to say that plaintiff has no right at all. Although the power of the court to enjoin the performance of the act is broad there are certain instances given in substantive law that is mentioned in the circulars of the Supreme Court where the court cannot properly grant the PI, even in some cases a TRO. The first situation wherein the court cannot grant a TRO or PI is in the enforcement of Kalikasan statutes. A court cannot prevent the enforcement of Kalikasan statutes decided by the Supreme Court, the court of appeals and RTC cannot prevent the enforcement of Kalikasan statues. Number two, if there is a TEPO issued by any court, it is only the SC that can prevent the carrying out of the TEPO. In the case of infrastructure projects of the national government, only the SC can issue an injunctive relief against the carrying out of infrastructure. When it is a government owned bank that forecloses a mortgage like DBP, it is only the Supreme Court that can stop the government bank from proceeding with the foreclosure of the mortgage, whether judicial or extra. And in jurisprudence, the court has no injunctive relief against the bureau of customs because the BOC is an agency that is tasked with collecting revenues, we cannot give a court the authority to enjoin the bureau of customs from performing its task to collect revenues for the government. Although the court cannot grant injunctive relief against the bureau of immigration, against deportation proceedings. That is already beyond the authority of the injunctive relief. If we are going to compare the remedies available to the defendant against whom an injunctive writ is issued to that of a defendant in PA, we will notice right away that in rule 57, in the case of preliminary attachment, if the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     adverse party posts or files a counter-bond, it is a ministerial duty of the court to lift the PA, and therefore the properties will be returned to him. But in PI, if the defendant posts a counter bond which he is entitled, it does not mean to say that the injunctive court will have a ministerial duty to lift that PI. The court still has to study the merit of the lifting of the injunction bond. The court cannot simply relief of the presence of the counter-bond for the lifting of PI. So it is not a matter of right to expect the court to will lift because he has filed a bond. There will be a motion for hearing and the court will determine the merit. The reason where the rules do not make it a ministerial duty to the lift the PI simply because there is an injunction bond is the ground that is grave and irreparable injury. And the meaning of irreparable injury according to the court is that injury cannot be measured exactly in terms of pesos and centavos that is no mathematical formula in determining the liability or damages that could be suffered by the applicant in injunction. In PI and PMI, we should always relate this to the situation stated earlier. That is in summary procedure. A case that is exclusively cognisable by an inferior court that is following the summary procedure is unlawful detainer or forcible entry. The civil code contains some articles about procedure when there is a complaint pending before an inferior court involving an unlawful detainer and forcible entry. And in the civil code, it is provided that the court may grant PI or PMI in cases of ejectment. If it is an inferior court that grants a PI or PMI, that cannot be appealed that cannot be challenged under rule 65. In summary procedure rule 65 is a prohibited pleading. If rule 65 is used in order to challenge an interlocutory order, and the granting of PI or PMI is always an interlocutory order that is the rule that we follow, as well as in civil code. In PI or PMI granted by an inferior court in ejectment cases cannot be appealed, cannot also be challenged by petitioner under rule 65. But when that ejectment case is appealed to RTC, that has jurisdiction in appellate jurisdiction, the civil code provides that the RTC as an appeal court can also grant a PI or PMI if applied by plaintiff. The PMI or PI granted by the RTC is still not appealable because it remains interlocutory but it can now be challenged by Rule 65. While we cannot challenged an interlocutory order granted by an inferior court, in summary procedure, if the same interlocutory order is granted by the RTC as an appeal court, but rule 65 is a remedy. So we can challenged a PI or PMI granted by the RTC in ejectment cases. The reason is that in ejectment cases. Summary procedure governs the case if it is still pending with the inferior court. But once it is appealed to RTC, the RTC will no longer observe the summary procedure. It will now follow the regular procedure given in the rules of court as an appellate court. The third provisional remedy is the receiver which is one provisional remedy that has future not present in other provisional remedy. Provisional remedies are contemplated to be used by litigants during pendency of the case, that there is a need, we must have an independent action where we can give to the applicant a venue for the use of the provisional remedies. In receivers, the court can appoint a receiver during the pendency of the case if no judgement has been rendered but under the rules, the receivership court could appoint a receiver after the case has been finally decided and the receivership court can still appoint a receiver even if there is a process of execution under rule 39. So if the judgement of the court has been entered, in fact if it now in the process of

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     execution and satisfaction of judgement, a court can still appoint a receiver as provided under rule 39. After a case has been finally decided, there is no more reason for the court to grant a PI, PMI, if at all, the attachment will be converted into a final attachment but that will simply be a levy on execution. The PI will be converted into a permanent injunction. It ceases to be a provisional remedy, but in the case of receivers even if the case has been finally decided by the court on the merits, the decision has become final and executor, we are now in the process of execution, the court can still appoint a receiver under the procedures or Rule 39, the court can still order the same. So there is no fix time in which the court can appoint a receiver. If the case is still pending a receiver can be appointed, if the case has been decided a receiver can still be appointed. If we are now in the process of execution, a receiver can still be appointed. We should relate this to the remedies of a judgment creditor in rule 39 when the judgment creditor is not able to recover full satisfaction of his account. Under rule 39, one of the remedies granted by the court is for the creditor to ask for the satisfaction and for examination of the debtor, and the third is for judgement creditor to ask for appointment of a receiver of the properties of a judgement debtor. So it is very clear, a receiver can be appointed even if the cases are finally decided or undergoing execution. A receiver cannot be appointed by the court ex-parte, there has to be a summary hearing. You will also notice that the ground for the appointment of a receiver is quite broad. Whenever the court feels that there is a need to appoint a receiver for the purpose of preserving of the property under litigation. So there must be a property in litigation. And the rules also provided that in foreclosure of mortgage, again the foreclosure of mortgage assumes that there are collateral, the mortgagee can move for the appointment of a receiver of the property that is mortgaged. Even if there is no proof that the collateral will be loss or deteriorate, the foreclosing mortgagee can file a petitioner for the appointment of a receiver, simply because in the deed of mortgage there is a written stipulation authorizing the mortgagee to move for the appointment of a receiver. But generally the purpose of a receivership is simply to preserve the property from deterioration. So that the court does not consider the receiver as a representative of the parties, the SC has classified a receiver as a representative of a court, an officer of a court. He represents the court, he is an officer of a court. Because he is an officer of a court, the receiver cannot file a case as a receiver without the consent of the receivership court. If he decides to file a complaint, on recovery of certain properties under receivership, he needs permission from the receivership court. On the other hand, if the third person has a grievance against a receiver in his capacity as a receiver, the third person must also get the permission of the receivership court. So we find in a situation where the commencement of the action, will need permission from the court who has appointed a receiver. If a permission is not granted, that action will fail, because it is deemed filed in violation under the rules given in receivership., We also notice that in the appointment of a receiver, the practically the issue is left at the discretion of the court. The qualification of a receiver, how many receivers will be appointed, how much will be paid to the receiver, it all depends upon the receivership court because, of this broad

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     authority of the court it follows that since it is the court that appoints a receiver, it can also fire and appoint a new one, as a receiver whenever there is a need for the preservation of the property. It is with respect to the bond where there is feature of receivership which is not followed in other provisional remedies. We have an attachment bond, a PI/PMI bond. In receivership, there are two bonds that are filed. The first is required of the applicant for the appointment of the receiver. And if the court eventually grants the application, and the court appoints a receiver, the receiver will also be required to post a bond. So there is an applicant’s bond and there is a receiver’s bond. The receiver bond is designed to protect the parties from litigation from being abused and mislead by the receiver in the performance of his duties. We go to replevin. As we said earlier, replevin is accepted as a main action or as a provisional remedy at the same time. SO the recovery of the possession of personal property capable of manual delivery is usually referred even in the cases decided by the Supreme Court a complaint for replevin. Although the proper role of replevin is that of provisional remedy, the principal action is action for recovery possession of personal property. Since that is the principal action, it automatic rules out real action. In a real action we cannot make use of a writ of replevin. In a personal action for the recovery of possession of personal property, the proper provisional remedy to enable of the applicant to immediately recover possession is by applying a writ of replevin or a warrant of seizure. So in replevin cases, it is always for the recovery of possession of personal property, without this writ of replevin as a provisional remedy, the plaintiff will be able to recover the personal property only after the court has finally decided the case and judgment is in favor of the plaintiff so that if he files a complaint for the recovery of a car, versus the defendant, if he files a complaint today, if he does not use of replevin as a provisional remedy there is no way by which he can obtain a possession of the car. While it the case is pending. The only time when the plaintiff can get back the car is when the court has finally decided the case and the decision is in favor of the plaintiff. So that if the proper court will take 5 years to finally decide the case, during period of 5 years, the car subject of the litigation will be in the hands of the defendant. Chances are by the time the case is decided, since it is in the hands of the defendant who expect probably to lose the case, when he turns the car, the car would have already been junk. That is the role made by a writ of replevin. So if the plaintiff files a complaint today for the recovery of a personal property or car, which according to the plaintiff belongs to him or at least entitled to possess the car. If he wants to get the car right away, he should also submit a verified application for writ of replevin. And we will notice that in the rules, the principles governing replevin are treated always in favor of the applicant. Why do we say that the rules are treated in favor of the applicant? He files a complaint today, he moves for the issuance of writ of replevin today, can the court grant the motion today or tomorrow although the defendant has not yet been served with summons? In other words can the court grant the application for replevin ex-parte. And the answer is yes. In fact this is one provisional remedy which cannot be granted by the higher court. In PA,PI,PMI or receiver, the court of original jurisdiction or appellate jurisdiction could grant

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     these remedies except replevin. It could only be granted by the trial court because it can be granted only before the defendant answers. If the defendant has already answered, then it would be improper for the trial court to grant this writ of replevin. So if file a complaint today for the recovery of a car, and then submit an application for a writ of replevin also filed today, and the court grants it today, the sheriff will look for the car. And if the sheriff finds the car in the possession of the defendant, the sheriff will seize the car from the defendant, but following again the rule on prior or contemporaneous service of summons in order to cure any defect on jurisdiction. But as we said earlier, the rule on prior and contemporaneous service of summons found in rule 57, equally applies to other provisional remedies that are granted ex parte. So the sheriff will seize the car, and then after seizing the car, the sheriff will take it for 5 days, that is five day holding period. If within that holding period, there is no counter bond and there is no challenge to the court as to the sufficiency of the replevin, at the 6th day, the sheriff will give the car to the plaintiff. So if the trial court will take 5 years to ultimately decide on the merits, the plaintiff will not suffer any harm at all because within the period it is the plaintiff who will be in the possession of the car, not the defendant. That is the advantage given by the provisional remedy of replevin. It enables the plaintiff to immediately recover the possession of the personal property that is the subject of litigation. But there could be some problems, concerning the service of the writ of replevin. One of the problems is as follows, the court not always the RTC but may be an inferior court, because if it is a personal property, the jurisdiction depending upon the value of the personal property alleged in the complaint. So if the complaint is worth 250k, it will be filed in the inferior court, if it is worth 600k, it will be filed in the RTC. But as long as it has jurisdiction, these courts have the authority to grant in our complaint to recover possession of the car with a writ of replevin. The bond required is also different form the usual bond, in other provisional remedies. The bond required is always double the value of the personal property. In other words, unlike in PA PI where the court has the discretion to fix the amount of the bond, in replevin, the court has no discretion, the replevin bond will always, be in double of the value of the property as alleged in the complaint. So if the complaint alleged that the value of the car is 700k the replevin bond will be 1.4 million. The court has no authority to further decrease or increase the bond, it will be based on the value of the property according to the allegations contained in the complaint. If all these requisites are met, the sheriff will seize the property from the defendant, or from any person who claims to be entitled to its possession because of the authority given by the defendant. The problem arises when the sheriff seized the car, that the car is not in possession of the defendant, the one in possession of the car, claims that he is the owner of the car, he is entitled to the possession of the car, he does not even know who the defendant is. If that is the situation, the sheriff will not seize the car. Because the authority of the sheriff to seize the car in replevin is very clear, he will seize the car if it is possession of the defendant or some other person claiming under the authority of the defendant. If it is in the hands of a third person, who does not raised his interest from the defendant, the sheriff will be committing a crime if he seizes the car from the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     third person. So that is always a likelihood, that a writ of replevin even if granted by the court, can easily be defeated if the sheriff submits a return to the court, informing the court that he could not seize the car because it is in possession of a third person who is not a litigant in the case. In order to remedy this situation, lawyers have always advised the clients who are plaintiff that if they file a complaint should always implead the defendant, the first defendant should be a known defendants. A person who according to the plaintiff is in possession of the car and the other defendant to be impleaded is an unknown defendant, so we have a complaint where the caption is plaintiff vs. Juan dela Cruz and john doe, an unknown defendant, we also make use of that. So that when the sheriff looks for the car, he does not find in possession of Juan de la Cruz, he finds it in the possession of a third person, that third person will be John Doe. So the sheriff can rightfully seize the car from anybody who might be in possession of the car. That solves the problem of the sheriff in enforcing the writ of replevin. You know the rule in unknown defendant, we have to give him name in the complaint itself. John Doe... anybody who might be in possession of the car, who might be an unknown defendant. If the car is seized, there is a holding period of a 5 days, within that 5 days period, the defendant should do something if wants to recover the car. The defendant should file a motion to challenge the sufficiency of the bond, although it is double the property. He can say that the complaint is undervalued in order that the replevin bond became smaller. That could be an issue raised. Or if there is a third party claim filed, if a third person claims to be the true owner of the car, then he can file a third party claim just like in 39 and 57. But the difference in 60 is that the third party claim in rule 60 must be filed within the 5 day period, if it is not filed within the 5 day period, it becomes a useless third party claim. After the end of 5 days, the sheriff has the duty to deliver the car to the plaintiff so while the case is going on it is the plaintiff in possession and enjoying the car. There was another case decided by the Supreme Court whose facts are as follows. A complaint for replevin was filed by applicant for recovery of personal property capable of manual delivery. The court included that the writ that the sheriff cannot enforced the writ because the car can no longer be found, it seems that the property simply disappeared. What the plaintiff did after receiving the writ of return was to file another application this time for preliminary attachment of the properties of the defendant. So based on the same complaint, he moved for replevin which cannot be carried about, he moved for the PA on the ground that the defendant has gotten old of the property and that he has hidden by the car because the car cannot be found at all. If we go back to 57, that could be a ground for the issuance of PA. The SC said that the conversion of application for PA could be properly filed so that the new provisional remedy from replevin could be done founded on the same allegation in that complaint. The court said it is not proper. That if the plaintiff does not succeed the writ of replevin issued by the court, he cannot simply file another application for the issuance of PA over the same property or different property. If the plaintiff decides to move for PA because of failure to carry out the replevin, he should overhaul the complaint filed. The allegations contained in the complaint for the PA are different from the allegations contained in the issuance of writ of replevin. In a complaint for replevin, the plaintiff tells the court that he is owner of the car or entitled to the possession, whereas in the complaint for PI, the property to be attached by the

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     plaintiff should not be the property belonging to the plaintiff. It should be a property belonging to the defendant because attachment will be a security in favor of the plaintiff. So if we need a security, we should have in the hands of the plaintiff a property belonging to the defendant not the property of the plaintiff. So it could not be done unless, the complaint is amended so that the amended of complaint change the substantial allegations contained in that complaint. Another feature of replevin as a provisional remedy is found in last 2 sections of 60, that is in the complaint of replevin the decision of the court could be in alternative. The alternative in replevin, that the property will be delivered to the property or the value that the property that could not be delivered. It is only the replevin that the court is given an express authority to render alternative judgment. The last provisional remedy under the rules as I said is also mentioned in the circular of the SC on provisional orders in marriage related cases. In fact the circular are more expansive because it does not mention only support pendente lite there is a classification in fact of support, spousal support and child support. Although again in that circular, the family court which has the exclusive jurisdiction over complaint a support can grant spousal or child support even without hearing or without a bond, which is also a provision in provisional remedy in support pendente lite. In support pendente lite, it is one of the provisional remedy which does not require the posting of a bond. We follow that principle in that circular, child support and spousal support could be granted by the family court with or without a hearing, with or without a bond. That is a principal difference between the provision on circular on marriage related cases pending in the family court and support pendente lite that is tried and pending by the court which is not the family court. Because in the rules of court, it is not proper for a court to grant an order or application for support pendente lite without conducting a hearing. In the rules, the support pendente lite can only be allowed after conducting a hearing where the parties are given the change to explain, the reason why this is required in the rules of court under support pendente lite is that a court cannot conceivable issue an order granting support unless the court is able to determine whether the petitioner really needs a support and even if he really needs support, whether or not the respondent has the financial ability to grant support. Because if the court simply grants the application without examining the financial ability of respondent, the provisional remedy will be useless. It will only end up with the respondent who has no means of support to go to jail. This is one action where we can imprison a respondent if he does not comply with the court to issue support although he may not have really the ability to do so. In support proceedings, there are three remedies given by substantive law which is certainly very unfavourable to us men. We can be imprisoned for citation of contempt, there could be execution of our properties under rule 39 and the third, we can be sent to jail not because of contempt but because we have committed a crime. So that in most cases, before a family court where the defendant admits that even if he wants to give support and that he is not financially able to do so and the court usually asks the petitioner. Are you willing that your husband go to jail? And invariably he does not him to go to jail. And the court that the provision on substantive law violates

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     probably the constitutional provision on equal protection of laws. But in the rules of court on support pendente lite, you will notice that the principle in section 20 rule 57, rule 57 is not followed at all. We said earlier that the remedy in order to recover damages in a wrongful issuance of attachment, PI, replevin should be in the same case. It could not be held in an independent or separate action for damages. But if you read provision on support pendente lite, it is expressly provided that there could be an independent action for the recovery of money that has been given as support in compliance with the order of the court. So we do not have to file a claim in the principal action, the one who gave support following the order of the court for him to give support can file a separate complaint for the recovery of the amount that is needed in compliance with the order of the court. Going back to the circular of the SC in marriage related cases, this is trial can only be made by the family court. If you were ask why the family court can order child or spousal support without a hearing the side of the parties, you will just there is no need for the family court to determine the needs of the spouse, or the child, or the financial ability of the defendant. Because it is in these family related cases, one of the requirements is that there must be inventory of properties submitted to the family court to the petitioner. So if the family court analyzes that the property owned in common by the parties, the family court can determine how much the spouse is entitled to every month or how much given to the minors. So there is also good reason why family court is not required to conduct hearing on the application of spousal or child support. Also in respect to the provisional orders granted by the family court in marriage related cases, although the provisional orders are called by some other name, these provisional orders partake of the nature of the injunction, an example is a protection order. A protection order in family related cases is effectively a prohibitory and mandatory injunction at the same time because in the protection order, the family court prohibits the respondents from performing an act. The family court can tell the respondent that “don’t ever visit your child in school”, that is effectively a prohibitory injunction. It could also be in form of mandatory injunction, the court can tell the respondent “do not enter the conjugal house, you just remove the clothing and don’t ever show your face”. Effectively the protection order in the marriage related cases partakes of a prohibitory injunction and the mandatory injunction. We have also this concept of receiver in marriage related cases, instead of appointment in the family court to appoint a receiver, the co-owned of property or common property, what the court can do is to appoint an administrator. So the administrator is effectively a receiver of this property under litigation in charge of solving the property owned in common by the husband and wife. With respect to the interim reliefs in Amparo, we said four of them, protection order, witness protection, inspection and production order, and if we add in Amparo and Habeas Data. In effect we have six interim reliefs available in Amparo. The circular does not mention anything of the filing of a bond before the Amparo court can issue these interim reliefs, with respect to the Kalikasan circular, when the court issues a TEPO the applicant is not required to post a bond, it is the adverse party who will be required to post a bond if he files an application

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     for lifting or dissolution of writ of Kalikasan. And as a security to protect the interest of the applicant, it is the adverse party who will be required to file a bond before the court will issue an order lifting or desolving the TEPO. I suggest that you read the circulars, but do not centre your attention on these provisional remedies or interim reliefs. Its better off if you centre your attention to the procedures in the civil cases and criminal cases given in this different circulars. For instance in Kalikasan case, the procedure in civil case that we have learned is not applicable in some cases and they are applicable only partially in other cases. For instance in the circular of Kalikasan which can be filed before a RTC, an Inferior court. But the special civil action of Kalikasan and continuing mandamus are cognizable only by CA and SC. In filing the complaint involving the enforcement of Kalikasan case, it is not enough to file a complaint, of course the law requires the filing of a bond. Together with that complaint, the circular requires the party already to append to his complaint the evidence available. The same is true with the defendant, when he files an answer, he can already attach the evidence in support of his defences. And in Kalikasan cases, civil action, if the defendant does not file an answer, we do not require rule 9 that is the motion to declare defendant in default, a motion to declare defendant in default is also prohibited in Kalikasan cases. If the defendant does not file an answer and the plaintiff is prohibited from filing a motion to declare the defendant in default, do we expect the court to render a judgment just like in summary procedure according to the tenor of complaint? The Kalikasan circular provides that if the defendant does not answer, it is the duty of the court to declare the defendant in default, so there is default without the corresponding motion of the plaintiff in Kalikasan cases, it becomes the duty of the court to issue an order declaring the defendant in default, and thereafter receives evidence ex parte. And in Kalikasan cases, while the court’s totally used the state policy which encourages the compromise agreement of settling the civil action. If there is a compromise agreement based in a Kalikasan civil case, the judgement is not called a judgement based upon compromise, the circular has another term that is a consent decree. That is just a judgement based on a compromise. I suggest you read the circulars, the procedure that should be read. You will also notice that the rules on evidence are not necessarily followed in Kalikasan cases. Although the action maybe a special proceeding, the quantum that usually apply could be near substantial evidence. Which is also the same principle in Amparo. If you read the circular, the quantum of evidence is only substantial evidence, same in quasi judicial proceeding although Amparo is a judicial proceeding. So there is no problem if the Supreme Court changes the quantum of evidence to be followed as in Amparo. But there is something irregular, if a quasi judicial body will adopt a rule that quasi judicial body must support his stand with preponderance of evidence. That act of is void, the rule on quantum of evidence is the turf of Supreme Court. The administrative bodies cannot change the quantum of evidence.

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     We start with 63: Declaratory relief and other Similar Remedies. Rule 63 enumerates four SPECIAL CIVIL ACTIONS.

The first is DECLARATORY RELIEF and OTHER

SIMILAR REMEDIES encompasses three special civil actions enumerated in the Rules: 1. Reformation of Instrument; 2.Quieting of Title and; 3. Consolidation of Title under 1607 of the Civil Code. Although they are contained in the same Rule, they are governed by different rules, by different procedures. So the procedure in declaratory relief is different from the procedure in the other similar relief. The requirements of declaratory relief are not the requirements of other similar remedies. With respect to DECLARATORY RELEIF, the obvious nature of declaratory relief which makes it a special civil action is that the petition must be filed must be filed before a breach or violation is committed. In other words, if we are going to apply the principles governing ordinary civil actions, petition for declaratory relief will be dismissed outright; because at the time of the filing of the petition, the petitioner does not have a cause of action. There is no allegation in the petition for declaratory relief that there is a right that has been violated by the act or omission of another. If there is an allegation, the petition ceases to be a declaratory relief. It becomes an ordinary civil action. In short, a petition for declaratory relief is a preventive mechanism in order to prevent contracting parties from getting involved later on in an ordinary civil action which could be tedious. Because, in declaratory relief, the petitioner does not allege that he has a right or even if he has a right, it has not been violated. And therefore, having no cause of action, the only relief which the petitioner seeks from the Court is for the Court to determine what his rights are under a written instrument, deed or contract. The petitioner is not absolutely certain if he has rights under a certain deed or instrument; and he is asking the Court to declare what his rights are. So after the Court has declared what his rights are, that is the end. So we cannot have a petition for declaratory relief with a prayer for damages. A prayer for damages in a declaratory relief will defeat the nature of declaratory relief. Damages are awarded by the Court if there is already a breach of a right belonging to the plaintiff. You will notice that there is an enumeration in 63 about the instruments which can be subject of declaratory relief; deed, will, contract, statute or an ordinance. With respect to statute or ordinance, the same principle applies. So we cannot file a petition for declaratory relief involving a statute or ordinance if there has been a violation of the statute or ordinance. So before the effectivity of the statute or ordinance, the usual prayer for a petition for declaratory relief is to declare the statute or ordinance void or unconstitutional. So, you will notice in some instances after the Congress enacted law, and the President has signed it into law, there is always a date of effectivity given to that statute. If somebody wants to challenge the validity or constitutionality of that statute, he must do so before the law takes effect and before the violation and before a violation of the law is committed, solely for the purpose of determining if the statute or ordinance is unconstitutional or constitutional. So you will meet decisions of the Court in certain declaratory relief to the effect that we cannot file a motion for execution in order to carry out the declaratory judgment. The judgment in declaratory relief is usually called a DECLARATORY JUDGMENT in order to differentiate it from what the Court usually renders after a judgment

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     has been entered in order to clarify a judgment. In the latter phase, we usually call the latter judgment as CLARIFICATORY JUDGMENT. In Clarificatory Judgment, there is already a judgment rendered by the Court, it has become final and executory but there are certain ambiguities which will make it hard for the Court of origin to execute that judgment. The remedy of the interested party is to file a motion for a rendition of a Clarificatory Judgment. In Declaratory Judgment, the Court will only tell the petitioner what is rights are, what his duties are under a certain will, deed or contract. Or in the case of a statute or ordinance, the Court will tell the petitioner whether a statute or ordinance is constitutional or unconstitutional. So after the Court has done its duty, there is more need for the prevailing party to move for execution. We don’t apply Rule 39 to a petition for declaratory. So that is the first nature of Declaratory Relief which makes it a special civil action. So there is really no cause of action as contemplated in ordinary civil action, where there is a right that has been violated by the defendant. The second procedural rule that we apply to declaratory relief, which is not followed in other special civil actions or ordinary civil action, is the authority of the Court not to entertain the petition for declaratory relief. The Court can outright tell the petitioner, I am not inclined to entertain your petition. The Court can refuse to declare the rights and duties of the petitioner or respondent under a deed, will or contract on the ground for instance that the judgment of the Court will not bind parties who have not been impleaded a petition for declaratory relief, which shows that a declaratory relief is not in rem but purely a petition in personam, it cannot bind parties who have not been impleaded. Although, these parties who have not been so impleaded may be contracting parties of the contract, subject matter of the litigation. What is the competent Court in Rule 63? If the petition is for declaratory relief, it is the Regional Trial Court because a petition for declaratory relief is not one capable of pecuniary estimation. But if we are going to look for the competent court for other similar remedies, it is not always the RTC, we have to take into account in the provisions of BP 129. For instance, reformation of instruments, is that cognizable solely by the RTC? Yes, because reformation of instruments is not one capable of pecuniary estimation. What is the competent court for Quieting of Title? It is not necessarily the RTC. It is because Quieting of Title involved title to or possession of real property and under the standard provided by BP 19, actions involving title to or possession of real property could be cognizable by the RTC or an inferior court depending on the assessed value of that property. So, quieting of title could be cognizable by an Inferior Court if the assessed value of the property is only P5000 or P10000. We apply the standard provided in the provisions under BP 129. The third special civil action is Consolidation of Title. The competent Court is also decided by the assessed value of the property involved, because consolidation of title always involves a real property. Using the standard applied by the Court in Quieting of Title, we have to allege the assessed value of the property in order to give to the trial court jurisdiction over the case. Why do we need to file a special action for Consolidation of Title? Does not Consolidation of Title come a matter of course if the period of redemption has expired and the redemption-er has failed to exercise his right of

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     redemption? That is in fact the principle that we follow in Rule 39. In execution of judgment, if a real property is sold in a public auction by virtue of a levy or execution, the highest bidder will not get automatically a title in his own name. Rule 39 provides for a period of redemption, which is usually one (1) year from the registration of the certificate of sale. After the lapse of one year, if the sheriff is not informed by the highest bidder whether or not there has been a redemption that is carried out, what the sheriff will do is to issue a FINAL DEED OF SALE. Initially, what the Sheriff issued in Rule 39 is a Certificate of Sale,that is the one that is recorded in the Register of Deeds. So the Register of Deed can easily determine if the period of redemption has already expired. It is just a matter of counting from the registration of the Certificate of Sale. If there is no redemption, the highest bidder will naturally be interested in getting a title in his own name. The title of the judgment debtor will have to be cancelled and a new title should be issued by the Registry of Deeds in the name of the highest bidder. The highest bidder does not have file an action for the consolidation of title. The highest bidder will only secure from the Sheriff or the Court this Final Deed of Sale and when he records this Final Deed of Sale, the Registry of Deeds will simply cancel the title of the judgment debtor and issue a new one in the name of the highest bidder. So the highest bidder now has in his hands Torrens Title in his own name. So in Rule 39 there is no such thing as Consolidation of Title under Rule 63 as a Special Civil Action. This is also the procedure that is followed when a Real Mortgaged in foreclosed. The mortgage is foreclosed, it is sold at a public auction and there is a highest bidder. The sheriff will execute a Certificate of Sale and will be recorded and from that time on we count the one year of redemption. If there is no redemption, the Sheriff will again issue a Final Deed of Sale and on the basis of that Final Deed of Sale, the Registry of Deeds will cancel the title of the Mortgagor and issue a new title in the name of the highest bidder. So you will notice under special laws, The Mortgage Law and even under Rule 39, in order to consolidate title we do not require an action to Consolidate Title. The only public officer who is going to deal with the interested party is the Register of Deeds, who has a ministerial duty to issue a title, a final deed of sale. Why do we require an action to consolidate title under 1607 under the Civil Code? If you read the Civil Code, 1607 also refers redemption rights, there is sale with a right redeem. It is a voluntary sale; it is not a forced sale not like the sale in Rule 39. But it is a voluntary sale if you compare it in a sale in a foreclosure of mortgage. Because in a foreclosure of mortgage, the mortgagee is given a special authority by the mortgagor to sell the property. But suddenly 1607, the Rules of Court require an action, a special civil action for the Consolidation of Title although the factual antecedents are the same. There is a right of redemption for a certain period, but the right holder fails or does not exercise his right of redemption. Why do we require the adverse party to go to court in order to obtain from the court a decision directing the Register of Deed to Consolidate the Title of the buyer with right to redeem? The fact that is present in 1607 is that right of redemption is what is called is CONVNETIONAL REDEMPTION; but in Rule 39 and Foreclosure of Mortgage is LEGAL REDEMPTION. It is that classification of redemption into conventional which makes the distinction under the Civil Code. In the Civil Code, when there is a sale with right of redemption, that redemption is called Conventional Redemption. It is not Legal Redemption. When the period expires, the period for Conventional Redemption is also one year,

   

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SAN  BEDA  COLLEGE  OF  LAW  MENDIOLA   JARA  NOTES  2013  (CIVIL  PROCEDURE)     the buyer of the property cannot go directly to the Registry of Deeds although he can convince the Registry of Property that the period has already expired, there is no need to go to Court for the Registry of Deeds to compute if the period has already expired, anybody can do that. So the buyer in Conventional Redemption should be allowed to deal with the Registry of Deeds without requiring him to file an action in Court. The reason why we suddenly provide a different remedy in a Conventional redemption is because under the Civil Code when a sale with a right to repurchase, is not a sale but an equitable mortgage. The Civil Code assumes, a disputable presumption, that the contract entered into is not a sale but an equitable mortgage. So in so far as the Civil Code is concerned, the seller is not a genuine seller but is only a mortgagee. And the buyer is not a true buyer, but is really a mortgagee, notwithstanding the designation as buyers and sellers in a Contract of Sale. Also, the Register of Deeds has to observe this disputable presumption that a dead of sale with right of redemption is presumably an equitable mortgage. So the party need to go to the Court to declare that his Contract Sale, in so far as consolidation of title is concerned is a genuine Contract of Sale. This is the special feature with regard to consolidation of title under Artcile 1607 of the Civil Code, to give the buyer the chance to present evidence to defeat that disputable presumption under the Civil Code. If the plaintiff, who is the buyer In that Sale, fails to defeat that disputable presumption, he can still obtain consolidation f title but he will be forced to file another special civil action, this time Foreclosure of Mortgage. Hence, if he is not able to obtain a decision under Rule 63 in a Special Civil Action to consolidate an Action under 1607, because he is a mortgagee in an equitable mortgage, he has the right to foreclose the mortgage. And the only mean to foreclose the mortgage is to avail another Civil Action which is a foreclosure of a Real Estate Mortgage. But the procedure is quite lengthy. The Court is obligated to render three decisions. NOTE: Although the Court can outright refuse to entertain a petition for Declaratory relief, it cannot outright refuse to entertain Reformation of Instrument; .Quieting of Title and; Consolidation of Title.

   

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