Comprehensive Notes PART 1 -Luciano UP Law

LUCIANO, NOEL CHRISTIAN O. UP LAW 2015

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TABLE OF CONTENTS rule INTRODUCTION

page 4

Rule 1

16

General Provisions

Rule 2

24

Cause of Action

Rule 3

34

Parties to Civil Actions

Rule 4

47

Venue of Actions

Rule 5

53

Uniform Procedure in Trial Courts

Rule 6

59

Kinds of Pleadings

Rule 7

70

Parts of a Pleading

Rule 8

78

Manner of Making Allegations in Pleadings

Rule 9

87

Effect of Failure to Plead

Rule 10

94

Amended and Supplemental Pleadings

Rule 11

102

When to File Responsive Pleadings

Rule 12

107

Bill of Particulars

Rule 13

111

Filing and Service of Pleadings, Judgments, and other Papers

Rule 14

120

Summons

Rule 15

133

Motions

Rule 16

137

Motion to Dismiss

Rule 17

147

Dismissal of Actions

Rule 18

153

Pre-Trial

Rule 19

163

Intervention

Rule 20

167

Calendar of Cases

Rule 21

170

Subpoena

Rule 22

174

Computation of Time

Rule 23

177

Depositions Pending Action

Rule 24

188

Depositions Before Action or Pending Appeal

Rule 25

191

Interrogatories to Parties

Rule 26

194

Admission by Adverse Party

Rule 27

198

Production or Inspection of Documents of Things

Rule 28

201

Physical and Mental Examination of Persons

Rule 29

203

Refusal to Comply with Modes of Discovery

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INTRODUCTION

Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court

GENERAL PRINCIPLES Remedial Law is that branch of law which prescribes the method of enforcing rights or obtaining redress for their invasion

POWER OF THE SUPREME COURT TO AMEND AND SUSPEND PROCEDURAL RULES

Substantive Law as Distinguished from Remedial Law A. Substantive Law – creates, defines and regulates rights and duties regarding life, liberty or property which when violated gives rise to a cause of action B. Remedial Law – prescribes the methods of enforcing those rights and obligations created by substantive law by providing a procedural system for obtaining redress for the invasion of rights and violations of duties and by prescribing rules as to how suits are filed, tried and decided by the courts SUBSTANTIVE LAW It is that part of the law which creates, defines, or regulates rights, concerning life, liberty or property or the powers of agencies or instrumentalities for the administration of public affairs It makes vested rights possible It is prospective in application It cannot be enacted by the SC

When compelling reasons so warrant or when the purpose of justice requires it Discretionary upon courts. Reasons that would warrant the suspension: 1. The existence of special or compelling circumstances; 2. Merits of the case; 3. Cause not entirely attributable to the fault or negligence of The party favored by the suspension of rules 4. A lack of showing that the review sought is merely frivolous and dilatory; 5. The other party will not be unjustly prejudiced thereby.

REMEDIAL LAW It refers to the legislation providing means or methods whereby causes of action may be effectuated, wrongs redressed, and relief obtained It is also called Adjective Law

Other reasons 1. Where substantial and important issues await resolution. 2. When transcendental matters of life, liberty or state security are involved.

It has no vested rights It governs acts and transactions which took place (retroactive) The SC is expressly empowered to promulgate procedural rules

The constitutional power of the Supreme Court to promulgate rules of practice and procedure necessarily carries with it the power to overturn judicial precedents on points of remedial law through the amendment of the Rules of Court.

RULE MAKING POWER OF THE SUPREME COURT

NATURE OF PHILIPPINE COURTS

Judicial Power includes the duty of the courts of justice to settle actual controversies involving rights, which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government (Sec. 1, Art. VIII, 1987 Constitution)

Philippine courts are both courts of law and equity. Hence, both legal and equitable jurisdiction is dispensed with in the same tribunal. What is a Court: a. It is an organ of government belonging to the judicial department the function of which is the application of the laws to the controversies brought before it as well as the public administration of justice. b. It is a governmental body officially assembled under authority of law at the appropriate time and place for the administration of justice through which the State enforces its sovereign rights and powers. c. It is a board or tribunal which decides a litigation or contest.

The power of judicial review is the SC’s power to declare a law, treaty, international or executive agreement, presidential decree, proclamation, order, instruction, ordinance, or regulation unconstitutional Sec. 5(5), Art. VIII, of the 1987 Constitution provides that that the Supreme Court shall have the power to: a. promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts; b. admission to the practice of law; c. the Integrated Bar; d. and legal assistance to the underprivileged

COURT DISTINGUISHED FROM A JUDGE COURT A tribunal officially assembled under authority of law An organ of the government with a personality separate from the person or judge A being in imagination comparable to a corporation May be considered an office

LIMITATIONS OF THE RULE-MAKING POWER OF THE SUPREME COURT 1) 2) 3)

The power to admit attorneys to the Bar is not an arbitrary and despotic one but is the duty of the court to exercise and regulate it by a sound and judicial discretion.

The rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases They shall be uniform for all courts of the same grade They shall not diminish, increase, or modify substantive rights.

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JUDGE An officer of such tribunal The judge is the one who “sits” in court A physical and natural person A public officer

CLASSIFICATION OF PHILIPPINE COURTS

COURTS OF ORIGINAL AND APPELLATE JURISDICTION

Regular courts engaged in the administration of justice are organized into 4 levels:

A court is one with ORIGINAL jurisdiction when actions or proceedings are originally filed with it A court is one with APPELLATE jurisdiction when it has the power of review over the decisions of a lower court

A.

FIRST LEVEL (MTCs, MeTCs, MCTCs) – which try and decide: 1. Criminal actions involving: a. Violations of city or municipal ordinances committed within their respective territorial jurisdiction; and b. Offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine and regardless of other imposable accessory or other penalties, and 2. Civil actions including: a. Ejectment Cases (Feud) b. Recovery of personal property with a value of not more than P300,000 outside Metro Manila (MM) or does not exceed P400,000 in MM

B.

SECOND LEVEL (RTCs, Family Courts) 1. Courts of general jurisdiction – among the civil actions assigned to them by law are those in which the subject of litigation is: a. Actions incapable of pecuniary estimation b. Actions involving title to or possession of real property where the assessed value of the property exceeds P20,000 outside MM or exceeds P50,000 in MM c. Where the demand exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and cost, or the value of the personal property or controversy exceeds P300,000 outside MM or exceeds P400,000 in MM 2. Exercise appellate jurisdiction – review cases appealed from courts of the first level

C.

THIRD LEVEL (CA, Sandiganbayan) 1. CA is an appellate court a. Reviewing cases appealed to it from the RTC on questions of fact or mixed questions of fact and law b. Decisions of the RTC in the exercise of its original jurisdiction (1) As a matter of right (2) As a matter of discretion c. Occasionally, CA may act as a trial court, as in actions praying for the annulment of final and executory judgments of RTCs on the ground of extrinsic fraud subsequently discovered, against which no other remedies lies 2. Sandiganbayan has jurisdiction: a. Over all criminal cases involving: (1) Graft and corrupt practices act (2) Such other offenses committed by public officers and employees including those in GOCCs in relation to their office b. It also has exclusive appellate jurisdiction over final judgments, resolutions, or orders of RTCs whether in the exercise of their own original or appellate jurisdiction over criminal and civil cases committed by public officers or employees including those in GOCCs in relation to their office

D.

Discussion on the different courts: 1. MeTCs, MCTCs and MTCs are courts of original jurisdiction without appellate jurisdiction 2. RTCs (see Sec. 22, BP129) a. Court of original jurisdiction with respect to cases originally filed with it b. Court of appellate jurisdiction with respect to cases decided by MTCs within its territorial jurisdiction. 3. CAs (See Sec. 9, BP 129) a. Primarily a court of appellate jurisdiction with competence to review judgments of the RTCs and specified quasi-judicial agencies b. It is also a court of original jurisdiction with respect to cases filed before it involving issuance of writs of certiorari, mandamus, quo warranto, habeas corpus, and prohibition c. It is also a court of original and exclusive jurisdiction over actions for annulment of judgments of RTCs 4. SC a. Fundamentally a court of appellate jurisdiction b. But it may also be a court of original jurisdiction over cases affecting ambassadors, public ministers and consuls, and in cases involving petitions for certiorari, prohibition and mandamus c. Note that the SC en banc is not an appellate court to which decisions or resolutions of a division of the Supreme Court may be appealed SUPERIOR AND INFERIOR COURTS Superior courts refer to those courts which have the power of review or supervision over another lower court Inferior courts are those which, in relation to another, are lower in rank and subject to review and supervision of the latter COURTS OF RECORD Those whose proceedings are enrolled and which are bound to keep a written record of all trials and proceedings handled by them RA 6031 mandates all MTCs to be courts of record COURTS OF GENERAL AND SPECIAL JURISDICTION Courts of GENERAL JURISDICION are those with competence to decide on their own jurisdiction and to take cognizance of all cases, civil and criminal, of a particular nature Courts of SPECIAL (LIMITED) JURISDICTION are those which have only a special jurisdiction for a particular purpose or are clothed with special powers for the performance of specified duties beyond which they have no authority of any kind Note: A court may also be considered general if it has the competence to exercise jurisdiction over cases not falling within the jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions. It is in the context that the RTC is considered a court of general jurisdiction

FOURTH LEVEL – Supreme Court

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CONSTITUTIONAL AND STATUTORY COURTS

DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF JUDICIAL STABILITY

A CONSTITUTIONAL court is one created by a direct Constitutional provision. Cannot be abolished by Congress without amending the Constitution E.g. – SC which owes its creation from the Constitution Only the SC is a constitutional court

Courts of equal and coordinate jurisdiction cannot interfere with each other’s orders. Thus, the RTC has no power to nullify or enjoin the enforcement of a writ of possession issued by another RTC. The principle also bars a court from reviewing or interfering with the judgment of a co-equal court over which it has no appellate jurisdiction or power of review.

A STATUTORY court is one created by law other than the Constitution. May be abolished by Congress by just simply repealing the law which created those courts All courts except the SC are statutory The SB was not directly created by the Constitution but by law pursuant to a constitutional mandate

This doctrine applies with equal force to administrative bodies. When the law provides for an appeal from the decision of an administrative body to the SC or CA, it means that such body is coequal with the RTC and logically beyond the control of the latter. General Rule: No court has the authority to interfere by injunction with the judgment of another court of coordinate jurisdiction or to pass upon or scrutinize and much less declare as unjust a judgment of another court

COURTS OF LAW AND COURTS OF EQUITY Courts of Law – a court of law decides a case according to the existing laws Courts of Equity – a court of equity adjudicates a controversy according to the common precepts of what is right and just without inquiring into the terms of the statutes

Exception: The doctrine of judicial stability does not apply where a third party claimant is involved DOCTRINE OF ADHERENCE TO JURISDICTION Or CONTINUITY OF JURISDICTION

Note: In the Philippines, every court both original and appellate, exercise both the legal and equitable jurisdiction (US v. Tamparong)

Once jurisdiction has been acquired the court retains it until the final termination of the case General Rule: Law enacted during the pendency of a case which transfers jurisdiction to another court does not affect cases prior to its enactment.

PRINCIPLES AND DOCTRINES PRINCIPLE OF JUDICIAL HIERARCHY

Exceptions: 1. When the new law expressly provides for a retroactive application 2. When the change of jurisdiction is curative in character

This is an ordained sequence of recourse to courts vested with concurrent jurisdiction, beginning from the lowest, on to the next highest and ultimately to the highest. This hierarchy is determinative of the venue of appeals, and is likewise determinative of the proper forum for petitions for extraordinary writs. This is an established policy necessary to avoid inordinate demands upon the Court’s time and attention which are better devoted to those matters within its exclusive jurisdiction, and to preclude the further clogging of the Court’s docket (Sec. 9[1], BP 129; Sec. 5[1], Art. VIII, Constitution of the Philippines).

EXCLUSIONARY PRINCIPLE The court first acquiring jurisdiction excludes all others DOCTRINE OF PRIMARY JURISDICTION Under this doctrine, courts will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal. Especially where the question demands the exercise of sound administrative discretion requiring the special knowledge and experience of said tribunal in determining technical and intricate matters of fact

A higher court will not entertain direct resort to it unless the redress cannot be obtained in the appropriate courts The SC is a court of last resort. It cannot and should not be burdened with the task of deciding cases in the first instances. Its jurisdiction to issue extraordinary writs should be exercised only where absolutely necessary or where serious and important reasons exist

DOCTRINE OF ANCILLARY JURISDICTION

The doctrine of hierarchy of courts may be disregarded if warranted by the nature and importance of the issues raised in the interest of speedy justice and to avoid future litigations, or in cases of national interest and of serious implications. Under the principle of liberal interpretations, for example, it may take cognizance of a petition for certiorari directly filed before it.

It involves the inherent or implied powers of the court to determine issues incidental to the exercise of its primary jurisdiction. Under its ancillary jurisdiction, a court may determine all questions relative to the matters brought before it, regulate the manner in which a trial shall be conducted, determine the hours at which the witnesses and lawyers may be heard, direct the disposition of money deposited in court in the course of the proceedings, appoint a receiver and grant an injunction, attachment or garnishment.

While it is true that the SC, CA, and RTC have concurrent original jurisdiction to issue writs of Certiorari, Prohibition, and Mandamus, Such concurrence does not accord litigants unrestrained freedom of choice of the court to which the application for the writ may be directed. Application should be filed with the court of lower level. Unless the importance of the issue involved deserves the action of the court of higher level.

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2.

JURISDICTION Jurisdiction Latin: ‘juris’ and ‘dico’ – I speak of the law Is the power and authority of a court to try, hear, and decide a case and to carry its judgment into effect

C.

As to nature and extent of exercise 1. Exclusive jurisdiction – confined to a particular court to the exclusion of other courts 2. Concurrent jurisdiction – pertaining to different courts over the same subject matter at the same time and place. When 2 or more courts have concurrent jurisdiction over the case, the court which has first validly acquired jurisdiction takes it to the exclusion of the others (confluent or coordinate jurisdiction)

D.

As to situs 1. Territorial jurisdiction – exercised within the limits of the place where the court is located 2. Extra-territorial jurisdiction – exercised beyond the confines of the territory where the court is located

REQUISITES FOR THE VALID EXERCISE OF JURISDICTION 1.

2.

3.

4.

That it must have jurisdiction over the persons of the parties a. Jurisdiction over the person of the plaintiff – it is acquired the moment he files his complaint, petition, or initiatory pleading b. Jurisdiction over the person of the defendant – it is acquired either by: (1) Voluntary appearance in court and his submission to its authority, or (2) By service of summons or other coercive process upon him

JURISDICTION OVER THE PARTIES

That it must have jurisdiction over the subject matter of the controversy a. Jurisdiction over the subject matter is determined by the allegations made in the complaint b. It is conferred by law and not by the voluntary act or agreement of the parties c. GENERAL RULE: lack of jurisdiction over the subject matter of an action cannot be waived by the parties and may be raised at any stage of the proceeding, the court being authorized to dismiss the case motu proprio d. EXCEPTIONS: (1) Estoppel by laches (2) Estoppel in pais – where defendant actively participated in all stages of the proceedings before the trial court and invoked its authority by asking for an affirmative relief e. Note that jurisdiction is governed by the law at the time the action is commenced

Notes: -

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Jurisdiction over the defendant – required only in an action in personam; it is not a prerequisite in an action in rem and quasi in rem In an action in personam, jurisdiction over the person is necessary for the court to validly try and decide the case, While in a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court, provided the latter has jurisdiction over the res

That it must have jurisdiction over the issues a. As raised in the pleadings or by their agreement in a pretrial order or those tried by the implied consent of the parties

By voluntary appearance of the defendant, without service of summons or despite a defective service of summons The defendant’s voluntary appearance in the action shall be equivalent to service of summons

CLASSIFICATION OF JURISDICTION As to cases tried 1. General jurisdiction – exercised over all kinds of cases, except those withheld from the plenary powers of the court 2. Limited jurisdiction – exercised over and extends only to particular or specified cases

B.

As to nature of the cause: 1. Original jurisdiction – exercised by courts in the first instance

The manner by which the court acquires jurisdiction over the parties depends on whether the party is the plaintiff or the defendant Jurisdiction over the plaintiff is acquired by his filing of the complaint or petition. By doing so, he submits himself to the jurisdiction of the court. Jurisdiction over the person of the defendant is obtained either by a valid service of summons upon him or by his voluntary submission to the court’s authority. The mode of acquisition of jurisdiction over the plaintiff and the defendant applies to both ordinary and special civil actions like mandamus or unlawful detainer case

Jurisdiction over the plaintiff – acquired when the action is commenced by the filing of the complaint. This presupposes payment of the docket fees

That it must have jurisdiction over the res (thing or property under litigation) a. It is acquired either by: (1) The seizure of the property under legal process or (2) As a result of the institution of legal proceedings, in which the power of the court is recognized and made effective

A.

Appellate jurisdiction – exercised by a superior court to review and decide cases previously decided by a lower court now elevated for judicial review

Instances when appearance of defendant is not tantamount to voluntary submission to the jurisdiction of the court: 1. When defendant files the necessary pleading; 2. When defendant files motion for reconsideration of the judgment by default; 3. When defendant files a petition to set aside the judgment of default; 4. When the parties jointly submit a compromise agreement for approval of the court;

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5. 6.

When defendant files an answer to the contempt charge; When defendant files a petition for certiorari without questioning the court’s jurisdiction over his person.

HOW JURISDICTION IS CONFERRED AND DETERMINED Notes: -

JURISDICTION OVER THE SUBJECT MATTER

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It is the power to deal with the general subject involved in the action, and means not simply jurisdiction of the particular case then occupying the attention of the court but jurisdiction of the class of cases to which the particular case belongs. It is the power or authority to hear and determine cases to which the proceeding is question belongs.

The test of jurisdiction is whether the court has the power to enter into the inquiry and not whether the decision is right or wrong It is the duty of the court to consider the question of jurisdiction before it looks at other matters involved in the case. If the court finds that it has jurisdiction, it is the duty of the court to exercise the jurisdiction conferred upon it by law and to render a decision in a case properly submitted to it. It cannot decline to exercise its jurisdiction. Failure to do so may be enforced by way of mandamus proceeding.

When a complaint is filed in court, the basic questions that ipso facto are to be immediately resolved by the court on its own: a. What is the subject matter of their complaint filed before the court? b. Does the court have jurisdiction over the said subject matter of the complaint before it?

Note: Jurisdiction over the subject matter is conferred by substantive law which may either be a Constitution or statute; while jurisdiction over the subject matter is determined by the allegations of the complaint regardless of whether or not the plaintiff is entitled to the claims asserted therein.

Answering these questions inevitably requires looking into the applicable laws conferring jurisdiction. JURISDICTION v. EXERCISE OF JURISDICTION

Applicable doctrines: 1. Doctrine of Primary Jurisdiction – Courts will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact 2. Doctrine of Adherence of Jurisdiction – Once a court has acquired jurisdiction, that jurisdiction continues until the court has done all that it can do in the exercise of that jurisdiction. This principle also means that once jurisdiction has attached, it cannot be ousted by subsequent happenings or events and retains that jurisdiction until it finally disposes of the case

Jurisdiction is the power or authority of the court. The exercise of this power is the exercise of jurisdiction. The exercise includes the court’s decision and its consequences ERROR OF JURISDICTION v. ERROR OF JUDGMENT Error of Jurisdiction -- One where the act complained of was issued by the court without or in excess of jurisdiction; it occurs when: 1. The court exercises a jurisdiction not conferred upon it by law; or 2. When the court or tribunal although with jurisdiction, acts in excess of its jurisdiction or with grave abuse of discretion amounting to lack or jurisdiction Error of Judgment – One which the court may commit in the exercise of its jurisdiction As long as the court acts within its jurisdiction, any alleged errors committed in the exercise of its discretion will amount to nothing more than mere errors of judgment. Errors of judgment include errors of procedure or mistakes in the court‘s findings

OBJECTION TO JURISDICTION OVER THE SUBJECT MATTER When it appears from the pleadings or evidence on record that the court has no jurisdiction over the subject matter, the court shall dismiss the same. (Sec. 1, Rule 9) The court may on its OWN INITIATIVE object to an erroneous jurisdiction and may ex mero motu take cognizance of lack of jurisdiction at any point in the case and has a clearly recognized right to determine its own jurisdiction

Errors of judgment are correctible by appeal; errors of jurisdiction are correctible only by the extraordinary writ of certiorari. Any judgment rendered without jurisdiction is a total nullity and may be struck down at any time, even on appeal; the only exception is when the party raising the issue is barred by estoppel ERROR OF JURISDICTION One where the court, officer, or quasi-judicial body acts without or in excess of jurisdiction, or with grave abuse of discretion It renders judgment void or at least voidable Correctible by certiorari

“Jurisdiction is a matter of substantive law because it is conferred by law” – refers only to jurisdiction over the subject matter Jurisdiction over the parties, the issues, and the res, are matters of procedure

Jurisdiction over the subject matter may be raised at any stage of the proceedings, even for the first time on appeal. When the court dismisses the complaint for lack of jurisdiction over the subject matter, it is common reason that the court cannot remand the case to another court with the proper jurisdiction. Its only power is to dismiss and not to make any other order.

ERROR OF JUDGMENT One that the court may commit in the exercise of its jurisdiction, it includes error of procedure or mistakes in the court’s findings Such an error does not make the court’s decision void Correctible by appeal

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EFFECT OF ESTOPPEL ON OBJECTION TO JURISDICTION

JURISDICTION OF THE METROPOLITAN TRIAL COURTS and MUNICIPAL TRIAL COURTS

The active participation of a party in a case is tantamount to recognition of that court’s jurisdiction and will bar a party from impugning the court’s jurisdiction. The general rule remains: a court’s lack of jurisdiction may be raised at any stage of the proceedings even on appeal. The Sibonghanoy applies only to exceptional circumstances.

JURISDICTION OF THE MTCs IN CIVIL CASES EXCLUSIVE ORIGINAL JURISDICTION 1)

Doctrine of estoppels by laches (in relation to objections to jurisdiction) = the SC barred a belated objection to jurisdiction that was raised only after an adverse decision was rendered by the court against the party raising the issue of jurisdiction and after seeking affirmative relief from the court and after participating in all stages of the proceedings.

If the amount involved does not exceed P300,000 outside MM or does not exceed P400,000 in MM in the following cases: a) b) c) d) 

The SC frowns upon the undesirable practice of submitting one’s case for decision, and then accepting the judgment only if favorable, but attacking it for lack of jurisdiction if it is not. JURISDICTION OVER THE ISSUES

Actions involving personal property Probate Proceeding (testate and intestate) based on gross value of the estate Admiralty and maritime cases Demand for money Note: Do not include Interest, Damages of whatever kind, Attorney’s fees, Litigation Expenses, and Costs (IDALEC). However, in cases where the claim or damages is the main cause of action, or one of the causes of action, the amount of such claim shall be considered in determining the jurisdiction of the court.

It is the power of the court to try and decide issues raised in the pleadings of the parties.

2)

An issue is a disputed point or question to which parties to an action have narrowed down their several allegations and upon which they are desirous of obtaining a decision. Where there is no disputed point, there is no issue.

Actions involving title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not exceed P20,000 outside MM or does not exceed P50,000 in MM

3)

Inclusion and exclusion of voters

4)

Those governed by the Rules on Summary Procedure

Generally, jurisdiction over the issues is conferred and determined by the pleadings of the parties. The pleadings present the issues to be tried and determine whether or not the issues are of fact or law. a) may also be determined and conferred by stipulation of the parties as when in the pre-trial, the parties enter into stipulations of facts and documents or enter into agreement simplifying the issues of the case. b) may also be conferred by waiver or failure to object to the presentation of evidence on a matter not raised in the pleadings. Here the parties try with their express or implied consent or issues not raised by the pleadings. The issues tried shall be treated in all respects as if they had been raised in the pleadings.

a)

b)

Forcible entry and unlawful detainer (FEUD)  With jurisdiction to resolve issue of ownership to determine ONLY issue of possession (provisional only)  Irrespective of the amount of damages or unpaid rentals sought to be recover  Where attorney’s fees are awarded, the same shall not exceed P20,000 Other civil cases, except probate proceeding, where the total amount of the plaintiff’s claim does not exceed P200,000 in MM, exclusive of interests and costs.

SPECIAL JURISDICTION over petition for writ of habeas corpus OR application for bail in criminal cases in the absence of all RTC judges in the province or city

JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION Jurisdiction over the res refers to the court’s jurisdiction over the thing or the property which is the subject of the action.

DELEGATED JURISDICTION to hear and decide cadastral and land registration cases where there is no controversy over the land or in case of contested lands, the value does not exceed P100, 000 = appealable to the CA

Jurisdiction over the res may be acquired by the court 1) by placing the property or thing under its custody (custodia legis) (the seizure of the thing under legal process whereby it is brought into actual custody of law). Example: attachment of property. 2) through statutory authority conferring upon it the power to deal with the property or thing within the court’s territorial jurisdiction (institution of a legal proceeding wherein the power of the court over the thing is recognized and made effective). Example: suits involving the status of the parties or suits involving the property in the Philippines of non-resident defendants.

1st level courts: a. Metropolitan Trial Court – Metro Manila; b. Municipal Trial Courts in Cities – situated in cities c. Municipal Circuit Trial Court – composed of multi-sala d. Municipal Trial Courts – in one municipality

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7)

Such other classes of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice 8) Any complaint by or against corporations, partnerships, or juridical entities. The reason is that only individuals shall be parties to barangay conciliation proceedings either as complainants or respondents 9) Disputes where urgent legal action is necessary to prevent injustice from being committed or further continued, specifically: a) A criminal case where the accused is under police custody or detention b) A petition for habeas corpus by a person illegally detained or deprived of his liberty or one acting in his behalf c) Actions coupled with provisional remedies, such as preliminary injunction, attachment, replevin and support pendente lite d) Where the action may be barred by statute of limitation 10) Labor disputes or controversies arising from employeremployee relationship 11) Where the dispute arises from the CARL 12) Actions to annul judgment upon a compromise which can be directly filed in court.

JURISDICTION OVER SMALL CLAIMS, SUMMARY PROCEDURE, AND BARANGAY CONCILIATION JURISDICTION OVER SMALL CLAIMS 1)

2)

MTCs, MeTCs and MCTCs shall have jurisdiction over actions for payment of money where the value of the claim does not exceed P100,000 exclusive of interest and costs (Sec. 2, AM 08-8-7-SC, Oct. 27, 2009). Actions covered are a) purely civil in nature where the claim or relief prayed for by the plaintiff is solely for payment or reimbursement of sum of money, and b) the civil aspect of criminal actions, either filed before the institution of the criminal action, or reserved upon the filing of the criminal action in court, pursuant to Rule 111 (Sec. 4, AM 08-8-7-SC).

These claims may be: a) For money owed under the contracts of lease, loan, services, sale, or mortgage; b) For damages arising from fault or negligence, quasicontract, or contract; and c) The enforcement of a barangay amicable settlement or an arbitration award involving a money claim pursuant to Sec. 417 of RA 7160 (LGC).

Note: It is a condition precedent under Rule 16; can be dismissed but without prejudice

CASES COVERED BY RULES ON SUMMARY PROCEDURE IN CIVIL CASES 1)

2)

JURISDICTION OF THE REGIONAL TRIAL COURTS, FAMILY COURTS, AND SHAR’IAH COURTS

All cases of forcible entry and unlawful detainer (FEUD), irrespective of the amount of damages or unpaid rentals sought to be recovered. Where attorney‘s fees are awarded, the same shall not exceed P20,000; All other cases, except probate proceedings where the total amount of the plaintiff‘s claim does not exceed P100,000 (outside MM) or P200,000 (in MM), exclusive of interest and costs.

JURISDICTION OF THE REGIONAL TRIAL COURT IN CIVIL CASES EXCLUSIVE ORIGINAL JURISDICTION 1)

The action is incapable of pecuniary estimation (such as rescission of contract, action to revive judgment, declaratory relief (1st part), support, expropriation)

2)

Title to, possession of, or interest in, real property with assessed value exceeding P20,000 outside Metro Manila, or exceeds P50,000 in Metro Manila

3)

If the amount involved exceeds P300,000 outside MM or exceeds P400,000 in MM in the following cases: a) Admiralty and maritime cases b) Matters of Probate (testate and intestate) c) Other actions involving personal property d) Demand for money

4)

Cases not falling within the jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions (general jurisdiction of RTC)

5)

All actions involving the contract of marriage and family relations

CASES COVERED BY THE RULES ON BARANGAY CONCILIATION The Lupon of each barangay shall have the authority to bring together the parties actually residing in the same municipality or city for amicable settlement of all disputes except: 1) Where one party is the government or any subdivision or instrumentality thereof 2) Where one party is a public officer or employee, and the dispute relates to the performance of his official functions 3) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding P5,000 4) Offenses where there is no private offended party 5) Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon 6) Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon

JURISDICTION OF FAMILY COURTS (RA 8369) a) Petitions for guardianship, custody of children and habeas corpus involving children

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b) c)

d) e) f)

g)

Petitions for adoption of children and the revocation thereof Complaints for annulment of marriage, declaration of nullity of marriage and those relating to status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership of gains Petitions for support and/or acknowledgment Summary judicial proceedings brought under the provisions of EO 209 (Family Code) Petitions for declaration of status of children as abandoned, dependent or neglected children, petitions for voluntary or involuntary commitment of children, the suspension, termination or restoration of parental authority and other cases cognizable under PD 603, EO 56 (1986) and other related laws Petitions for the constitution of the family home

SPECIAL JURISDICTION – SC may designate certain branches of RTC to try exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban land reform cases not falling within the jurisdiction of any quasi-judicial body and other special cases in the interest of justice. JURISDICTION OF THE SHAR’IAH COURTS EXCLUSIVE JURISDICTION 1) All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim Personal Laws; 2) All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of wills, issuance of letters of administration of appointment administrators or executors regardless of the nature or aggregate value of the property; 3) Petitions for the declaration of absence and death for the cancellation and correction of entries in the Muslim Registries; 4) All actions arising from the customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations; and 5) All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus and all other auxiliary writs and processes in aid of its appellate jurisdiction

In areas where there are no Family Courts, the aboveenumerated cases shall be adjudicated by the RTC (RA 8369) 6) To hear and decide intra-corporate controversies Sec. 52, Securities and Regulations Code): a) Cases involving devises or schemes employed by or any acts, of the board of directors, business associates, its officers or partnership, amounting to fraud and misrepresentation which may be detrimental to the interest of the public and/or of the stockholders, partners, members of associations or organizations registered with the SEC b) Controversies arising out of intra-corporate or partnership relations, between and among stockholders, members or associates; between any or all of them and the corporation, partnership or association of which they are stockholders, members or associates, respectively; and between such corporation , partnership or association and the state insofar as it concerns their individual franchise or right to exist as such entity c) Controversies in the election or appointments of directors, trustees, officers or managers of such corporations, partnerships or associations d) Petitions of corporations, partnerships or associations to be declared in the state of suspension of payments in cases where the corporation, partnership of association possesses sufficient property to cover all its debts but foresees the impossibility of meeting them when they respectively fall due or in cases where the corporation, partnership of association has no sufficient assets to cover its liabilities, but is under the management of a Rehabilitation Receiver or Management Committee.

CONCURRENT JURISDICTION 1) Petitions of Muslim for the constitution of the family home, change of name and commitment of an insane person to an asylum 2) All other personal and legal actions not mentioned in par 1 (d) wherein the parties involved are Muslims except those for forcible entry and unlawful detainer, which shall fall under the exclusive jurisdiction of the MTC. 3) All special civil actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims Cases that can be filed: 1) Offenses defined and punished under PD 1083 2) Disputes relating to: a. Marriage b. Divorce c. Betrothal or breach of contract to marry d. Customary dowry (mahr) e. Disposition and distribution of property upon divorce f. Maintenance and support and consolatory gifts (mut’a) g. Restitution of marital rights 3) Disputes relative to communal properties

CONCURRENT JURISDICTION 1) with the Supreme Court in actions affecting ambassadors, other public ministers and consuls 2) with the SC and CA in petitions for certiorari, prohibition and mandamus against lower courts and bodies in petitions for quo warranto, habeas corpus, and writ of continuing mandamus on environmental cases 3) with the SC, CA and Sandigabayan in petitions for writs of habeas data and amparo 4) With Insurance Commissioner – claims not exceeding P100,000 APPELLATE JURISDICTION over cases decided by lower courts in their respective territorial jurisdictions except decisions of lower courts in the exercise of delegated jurisdiction.

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JURISDICTION OF THE SANDIGANBAYAN

3)

JURISDICTION OF THE SANDIGANBAYAN

4)

ORIGINAL JURISDICTION in all cases involving 1) Violations of RA 3019 (Anti-Graft and Corrupt Practices Act) 2) Violations of RA 1379 (Anti-Ill-Gotten Wealth Act) 3) Sequestration cases (E.O. Nos. 1,2,14,14-A) 4) Bribery (Chapter II, Sec. 2, Title VII, Book II, RPC) where one or more of the principal accused are occupying the following positions in the government, whether in permanent, acting or interim capacity at the time of the commission of the offense: a) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 (RA 6758) b) Members of Congress and officials thereof classified as G27 and up under RA 6758 c) Members of the Judiciary without prejudice to the provisions of the Constitution d) Chairmen and Members of the Constitutional Commissions without prejudice to the provisions of the Constitution e) All other national and local officials classified as Grade 27 and higher under RA 6758 f) Other offenses or felonies committed by the public officials and employees mentioned in Sec. 4(a) of RA 7975 as amended by RA 8249 in relation to their office g) Civil and criminal cases filed pursuant to and in connection with EO Nos. 1, 2, 14-A (Sec. 4, RA 8249)

5)

6)

7)

Decisions, orders or resolutions of the RTCs in local taxes originally decided or resolved by them in the exercise of their original or appellate jurisdiction; Decisions of the Commissioner of Customs a. in cases involving liability for customs duties, fees or other charges, seizure, detention or release of property affected, fines, forfeitures or other penalties in relation thereto, or b. other matters arising under the Customs law or other laws, part of laws or special laws administered by BOC; Decisions of the Central Board of Assessment Appeals in the exercise of its appellate jurisdiction over cases involving the assessment and taxation of real property originally decided by the provincial or city board of assessment appeals; Decision of the secretary of Finance on customs cases elevated to him automatically for review from decisions of the Commissioner of Customs which are adverse to the government under Sec. 2315 of the Tariff and Customs Code; Decisions of Secretary of Trade and Industry in the case of non-agricultural product, commodity or article, and the Secretary of Agriculture in the case of agricultural product, commodity or article, involving dumping duties and counterveiling duties under Secs. 301 and 302, respectively, of the Tariff and Customs Code, and safeguard measures under RA 8800, where either party may appeal the decision to impose or not to impose said duties.

EXCLUSIVE ORIGINAL JURISDICTION 1) Over all criminal cases arising from violation of the NIRC and the TCC and other laws, part of laws, or special laws administered by the BIR or the BOC where the principal amount of taxes and fees, exclusive of charges and penalties claimed is less than P1M or where there is no specified amount claimed (the offenses or penalties shall be tried by the regular courts and the jurisdiction of the CTA shall be appellate); 2) In tax collection cases involving final and executory assessments for taxes, fees, charges and penalties where the principal amount of taxes and fees, exclusive of charges and penalties claimed is less than P1M tried by the proper MTC, MeTC and RTC.

Note: Without the office, the crime cannot be committed. APPELLATE JURISDICTION - from the RTC in cases under PD 1606, as amended by PD 1861, whether or not the cases were decided b them in the exercise of their original or appellate jurisdictions. CONCURRENT ORIGINAL JURISDICTION WITH SC, CA AND RTC for petitions for writs of habeas data and amparo The requisites that the offender the offender occupies salary Grade 27 and the offense must be intimately connected with the official function must concur for the SB to have jurisdiction – Justice Magdangal De Leon

EXCLUSIVE APPELLATE JURISDICTION 1) In criminal offenses a) over appeals from the judgment, resolutions or orders of the RTC in tax cases originally decided by them, in their respective territorial jurisdiction, and b) over petitions for review of the judgments, resolutions or orders of the RTC in the exercise of their appellate jurisdiction over tax cases originally decided by the MeTCs, MTCs, and MCTCs in their respective jurisdiction. 2) In tax collection cases a) over appeals from the judgments, resolutions or orders of the RTC in tax collection cases originally decided by them in their respective territorial jurisdiction; and b) over petitions for review of the judgments, resolutions or orders of the RTC in the exercise of their appellate jurisdiction over tax collection cases originally decided by the MeTCs, MTCs and MCTCs in their respective jurisdiction.

JURISDICTION OF THE COURT OF TAX APPEALS UNDER RA 9282 and RULE 5, AM 05-11-07 CTA EXCLUSIVE ORIGINAL OR APPELLATE JURISDICTION TO REVIEW BY APPEAL 1) Decisions of CIR in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the NIRC or other laws administered by BIR; 2) Inaction by CIR in cases involving disputed assessments, refunds of IR taxes, fees or other charges, penalties in relation thereto, or other matters arising under the NIRC or other laws administered by BIR, where the NIRC or other applicable law provides a specific period of action, in which case the inaction shall be deemed an implied denial;

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APPELLATE JURISDICTION 1) by way of petition for review on certiorari (appeal by certiorari under Rule 45) against CA, Sandiganbayan, RTC on pure questions of law and CTA in its decisions rendered en banc. 2) in cases involving the constitutionality or validity of a law or treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation, legality of a tax, impost, assessment, toll or penalty, jurisdiction of a lower court; and 3) all cases in which the jurisdiction of any court is in issue; 4) all cases in which an error or question of law is involved

JURISDICTION OF THE COURT OF APPEALS JURISDICTION OF THE COURT OF APPEALS IN CIVIL CASES EXCLUSIVE ORIGINAL JURISDICTION in actions for the annulment of the judgments of the RTC. CONCURRENT ORIGINAL JURISDICTION 1) With SC to issue writs of certiorari, prohibition and mandamus against the RTC, CSC, CBAA, other quasijudicial agencies mentioned in Rule 43, and the NLRC (however, this should be filed first with the CA as per St. Martin Funeral Home case), and writ of kalikasan. 2) With the SC and RTC to issue writs of certiorari, prohibition and mandamus (CPM) against lower courts and bodies and writs of quo warranto, habeas corpus, whether or not in aid of its appellate jurisdiction, and writ of continuing mandamus on environmental cases. 3) With SC, RTC and Sandiganbayan for petitions for writs of amparo and habeas data where the action involves public data or government office

Exceptions in which factual issues may be resolved by the Supreme Court: a) When the findings are grounded entirely on speculation, surmises or conjectures; b) When the inference made is manifestly mistaken, absurd or impossible; c) When there is grave abuse of discretion; d) When the judgment is based on misapprehension of facts; e) When the findings of facts are conflicting; f) When in making its findings the CA went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; g) When the findings are contrary to the trial court; h) When the findings are conclusions without citation of specific evidence on which they are based; i) When the facts set forth in the petition as well as in the petitioner‘s main and reply briefs are not disputed by the respondent; j) When the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and k) When the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, could justify a different conclusion.

EXCLUSIVE APPELLATE JURISDICTION 1) by way of ordinary appeal from the RTC and the Family Courts. 2) by way of petition for review from the RTC rendered by the RTC in the exercise of its appellate jurisdiction. 3) by way of petition for review from the decisions, resolutions, orders or awards of the CSC, CBAA and other bodies mentioned in Rule 43 and of the Office of the Ombudsman in administrative disciplinary cases. 4) over decisions of MTCs in cadastral or land registration cases pursuant to its delegated jurisdiction; this is because decisions of MTCs in these cases are appealable in the same manner as decisions of RTCs. Note: There is no action to annul the decision of the CA.

JURISDICTION OF THE SUPREME COURT

TOTALITY RULE

JURISDICTION OF THE SUPREME COURT IN CIVIL CASES

Where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the claims of action, irrespective of whether the causes of action arose out of the same or different transactions (Sec. 33[1], BP 129).

EXCLUSIVE ORIGINAL JURISDICTION in petitions for certiorari, prohibition and mandamus against the CA, COMELEC, COA, CTA, Sandiganbayan CONCURRENT JURISDICTION 1) With Court of Appeals in petitions for certiorari, prohibition and mandamus against the RTC, CSC, Central Board of Assessment Appeals, NLRC, Quasi-judicial agencies, and writ of kalikasan, all subject to the doctrine of hierarchy of courts. 2) With the CA and RTC in petitions for certiorari, prohibition and mandamus against lower courts and bodies and in petitions for quo warranto, and writs of habeas corpus, all subject to the doctrine of hierarchy of courts. 3) With CA, RTC and Sandiganbayan for petitions for writs of amparo and habeas data 4) Concurrent original jurisdiction with the RTC in cases affecting ambassadors, public ministers and consuls.

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NOTES ON INTRODUCTION

14

NOTES ON INTRODUCTION

15

2.

RULE 1 GENERAL PROVISIONS SECTION 1 - Title of the Rules.—These Rules shall be known and cited as the Rules of Court. The Rules of Court do not have retroactive effect  But they can be made applicable to pending cases at the time of their passage and therefore are retroactive in that sense

Examples: a. When a party litigant seeks to recover property from another, remedy is to file an action b. If his purpose is to seek an appointment of a guardian for an insane, remedy is a special proceeding to establish insanity c. A petition for liquidation of an insolvent incorporation should be classified as a special proceeding, not as an ordinary action

Action v. Claim ACTION An ordinary suit in a court of justice One party prosecutes another for the enforcement or protection of aright or the prevention or redress of a wrong

The rule making power of the SC has the following limitations: 1. Simplified and inexpensive procedure for the speedy disposition of cases; 2. Uniform for all courts of the same grade; and 3. Shall not diminish, increase, or modify substantive rights (Art. VIII, Sec. 5(5), 1987 Constitution) In the interest of just and expeditious proceedings, the SC may suspend the application of the rules and except a case from its operation because the rules were precisely adopted with the primary objective of enhancing fair trial and expeditious justice.

CLAIM A right possessed by one against another The moment said claim is filed before a court, claim is converted into an action or suit

CLASSIFICATION OF ACTIONS As to Nature ORDINARY CIVIL ACTION

SECTION 2 - In what courts applicable.—These rules shall apply in all courts, except as otherwise provided by the Supreme Court.

Governed by the ordinary rules Formal demand or one’s legal rights in a court of justice in the manner prescribed by court or by law

Sec. 2 provides for the scope of the applicability of the rules SECTION 3 - Cases governed.—These Rules shall govern the procedure to be observed in actions, civil or criminal, and special proceedings. (a) A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. (1a, R2) A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions, subject to the specific rules prescribed for a special civil action. (n) (b) A criminal action is one by which the State prosecutes a person for an act or omission punishable by law. (n) (c) A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. (2a, R2)

SPECIAL CIVIL ACTION Also governed by ordinary rules but subject to specific rules prescribed Special features not found in ordinary civil actions

As to Object

An action is a formal demand of one’s legal rights in a court of justice in the manner prescribed by the court or by the law a. Determinative fact which converts a claim into an action or suit --- the filing of the same with a court of justice 1. If filed elsewhere, claim may not be categorized under either term 2. E.g. Extra-judicial foreclosure of real estate mortgage – it is initiated by filing a petition with the office of the sheriff, not in a court of justice; it is not a judicial proceeding, action, or suit b. Distinguished from Special Proceeding 1. Special proceeding – an application or proceeding to establish the status or right of a party, or a particular fact a. No formal pleadings are required, unless expressly provided by statute b. Remedy is granted generally upon an application or motion

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ACTION IN REM

ACTION IN PERSONAM

Directed against the thing itself

Directed against particular persons

Jurisdiction over the person of the defendant not required

Jurisdiction over the person of defendant required

Proceeding to determine the state or condition of a thing

Action to impose a responsibility or liability upon a person directly

Judgment is binding on the whole world

Judgment is binging only upon impleaded parties or their successors in interest

E.g. Probate proceeding, cadastral proceeding

E.g. Specific performance, action for breach of contract

ACTION QUASI IN REM Directed against particular persons Jurisdiction over the person of defendant is not required as long as jurisdiction over the res is required Proceeding to subject the interest of a named defendant over a particular property to an obligation or lien burdening it Judgment binging upon particular persons E.g. Action for partition; foreclosure of real estate mortgage

The distinction is important in determining the following: 1. Whether or not jurisdiction over the person of the defendant is required; and 2. Persons upon whom judgment is binding

Exception: The Rules are applicable to the above cases only by analogy or suppletory whenever applicable and convenient SECTION 5 - Commencement of action.—A civil action is commenced by the filing of the original complaint in court. If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court. (6a)

As to Cause: REAL ACTION Ownership or possession of real property is involved Founded on privity of real estate Filed in the court were property or any part thereof is situated E.g. Accion reinvindicatoria Note: -

PERSONAL ACTION Personal property is sought to be recovered or where damages for breach of contract are sought Founded on privity of contract Filed in court where plaintiff or any of defendant resides, at the option of plaintiff E.g. Action for a sum of money

MIXED ACTION Both real and personal properties are involved

Commencement of Action 1. By the filing of the original complaint in court a. If additional defendant is impleaded in later pleading (1) Action is commenced, with regard to him, on the date of the filing of the amended complaint joining additional defendant (2) If amended complaint is filed after the answer to the original complaint has been served on plaintiff: (a) Motion for its admission now becomes necessary (b) If amended complaint is attached to the motion for its admission, date of filing thereof is the date of commencement with regard to additional defendant, irrespective of the action of the court thereon 2. And the payment of docket fees a. Determined not only by the amount of the claim but also by the amount of damages

Founded on both Rules on venue of real actions shall govern E.g. Accion publiciana with a claim for damages

An action could be real as to cause and in personam as to object (e.g. action to recover a piece of land). An action could also be personal as to cause and in rem as to object (e.g. action for annulment of marriage) The distinction is significant in determining the venue of action

An action capable of pecuniary estimation is one where the action is brought primarily for the recovery of a sum of money; and the amount of the claim shall determine where the jurisdiction lies.

As to Place of Filing LOCAL ACTION Must be brought in a particular place where the subject property or a portion thereof is located, unless there is an agreement to the contrary E.g. Action to recover real property Note: -

TRANSITORY ACTION Dependent on the place where party resides regardless of where the cause of action arose

An action incapable of pecuniary estimation is one wherein the basic issue is something other than the right to recover a sum of money or where the money claim is purely incidental to, or a consequence of, the principal relief sought and are cognizable exclusively by the RTC.

E.g. Action to recover sum of money

PAYMENT OF DOCKET FEES General Principles Sec. 1, Rule 141 (AM No. 04-2-04 SC) provides that “Upon filing of the pleading or other application which initiates an action or proceeding, the fees prescribed thereafter shall be paid in full. “The court does not acquire jurisdiction and the action is not deemed commenced unless the correct docket fee is paid.”

If action is founded on privity of contract between parties, then the action is transitory But if there is no privity of contract and the action is founded on privity of estate only, such as a covenant that runs with the land in the hands of remote grantees, then the action is local and must be brought in the place where the land lies

The Manchester Rule (as held in Manchester Development Corp. v. CA) All complaints, petitions, answers, and other similar pleadings, should specify the amount of damages being prayed for not only in the body of the pleading but also in the prayer Said damages shall be considered in the assessment of filing fees Any pleading that fails to comply shall not be accepted or admitted Court acquires jurisdiction over any case only upon the payment of the prescribed docket fee Amendment of the complaint or similar pleading will not vest jurisdiction in the court, much less the payment of the docket fee based on the amount sought in the amended pleading

SECTION 4 - In what cases not applicable.—These Rules shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient. (R143a) Where rules not applicable: 1. Election cases 2. Land Registration 3. Cadastral 4. Naturalization 5. Insolvency Proceedings 6. Other cases not herein provided for

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The Manchester Rule is embodied in SC Circ No. 7 of March 24, 1988 Court acquires jurisdiction over any case only upon the payment of the prescribed docket fees Sun Insurance Office, Ltd. v. Asuncion – it is not the filing of the complaint or appropriate initiatory pleading, but the payment of the prescribed docket fee that vests in a trial court with jurisdiction over the subject matter or nature of the action Action is not deemed commenced and will not interrupt the running of the period of prescription, unless and until docket and other court fees are fully paid

New Docket Fee to be Paid for the Filing of the Same Case that was Dismissed for Improper Venue Suson v. CA – where the same case was filed after it was dismissed for improper venue, another filing fee must be paid within the prescriptive period as a condition precedent for further hearing of the case Plaintiff must not rely on the filing fee paid in the first case First case was dismissed for improper venue and did not interrupt the running of the prescriptive period Mathematical Precision Not Required; Amount Not Stated in Complaint It is not necessary that the amounts be stated with mathematical precision. Ng Soon v. Alday: While it may be that the body of the complaint was silent as to the exact amount of damages, the prayer did specify an estimate Said amounts were definite enough and enabled the Clerk to compute the docket fees payable Failure to state the rate of interest demanded was not fatal: a. It is the courts which ultimately fix the same b. Rule 141, Sec. 5(a), itemizing the filing fees, speaks of the sum claimed, exclusive of interest

Relaxation of the Manchester Rule Rule in Manchester that a complaint may not be amended if the prescribed docket fee has not been paid upon the filing of the initiatory pleading was relaxed in Sun Insurance Office, Ltd. v. Asuncion In Sun Life and unlike in Manchester, respondent demonstrated his willingness to abide by the rules by paying the additional fees as required The SC laid down the following rules: 1. It is not simply the filing of the complaint or appropriate initiatory pleading, but also the payment of the prescribed docket fee that vests a trial court with jurisdiction over the subject matter or nature of the action a. Where filing of the initiatory pleading is not accompanied by payment of docket fee: b. Court may allow payment of the fee within a reasonable time c. But in no case beyond the applicable prescriptive or reglementary period. 2. Same rule applies to permissive counterclaims, third-party claims and similar pleadings, which shall not be considered filed until and unless the filing fee prescribed therefor is paid a. Court may also allow payment of said fee within a reasonable time b. But also in no case beyond the applicable prescriptive or reglementary period 3. Where trial court acquires jurisdiction over a claim by the filing of the appropriate pleading and payment of the prescribed filing fee but, subsequently. Judgment awards a claim not specified in the pleading, or if specified, same has been left for the determination by the court, additional filing fee shall constitute a lien on the judgment a. It is the responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien and assess and collect the additional fee

A final determination is still to be made by the Court Fees ultimately found to be payable will either be additionally paid or refunded Rule allows an initial payment of the filing fees corresponding to the estimated amount of the claim subject to adjustment as to what later may be proved Circular No. 7 Applies Only where the Amount of Value of Property Sought to be Recovered is Determinative of Jurisdiction As held in Tacay v. RTC of Tagum: Circ. No. 7 does not apply where the amount of damages or value of property is immaterial to the court’s jurisdiction Where the action is principally in the nature of an accion publiciana, failure to state the amounts claimed as damages is not a ground for dismissal Docket Fee as Determined by Nature of Action There are actions or proceedings involving real property, in which the value of the property is immaterial to the court’s jurisdiction There are actions or proceedings involving personal property for the recovery of money and/or damages, in which the value of the property or amount is decisive of trial court’s competence Note that in RA 7691, MTCs now have jurisdiction over real actions depending on the assessed value of the real property Where the action is purely for the recovery of money or damages, docket fees are assessed on the basis of the aggregate amount claimed, exclusive only of interests and costs

Central Bank v. CA – The docket fee must be paid before the lapse of the prescriptive period Gochan v. Gochan – The Sun Insurance rule allowing payment of deficiency does not apply where plaintiff never demonstrated any willingness to abide by the rules to pay the docket fee but stubbornly insisted that the case filed was one for specific performance and damages.

Two Situations: 1. Where complaint or similar pleading sets out a claim purely for money or damages and there is no precise statement of the amounts being claimed a. Rule: pleading will not be accepted nor admitted, or shall otherwise be expunged from records b. Complaint or pleading may be dismissed or claims may be expunged

Filing Fee for Counter-claim or Cross-claim Effective Aug. 16, 2004, Rules required the payment of filing fees for compulsory counterclaim or cross-claim Sec. 7(a), Rule 141, AM No. 14-2-04 SC

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c. 2.

Although court may, on motion, permit the amendment of the complaint and payment of the fees (1) Provided that claim has not prescribed Where pleading does specify the amount of every claim, but fees paid were insufficient a. Court may allow a reasonable time for payment of prescribed fees or balance b. Upon such payment, defect is cured and court may take cognizance of the action (1) Unless prescription has set in

Docket fee may be based on: 1. Nature of the action 2. Value of the property involved, or 3. Value of the demand Deficiency in Payment of Docket Fee or Failure to Specify Amount upon Filing of Complaint Considered Merely as a Lien. Estoppel or Laches also applied. 1. In assessing docket fee for filing of an action for rescission of contract, nature of the action is one for rescission and is incapable of pecuniary estimation (De Leon v. CA) 2. Original Dev’t Corp. v. CA – the fact that the main action or principal relief sought is for specific performance and/or rescission is only determinative of jurisdiction in the sense that regardless of the amount of damages claimed, case is within the exclusive jurisdiction of the RTC a. But this does not mean that the separate claims for damages are exempted from payment of docket fees 3. Where the action for specific performance is for recovery of property, docket fees should be based on the value of property sought to be recovered (National Steel Corp v. CA) 4. In Ruiz v. JM Tuason and Co., an action to execute a deed of sale in his favor is an action to recover real property and not for specific performance since the primary objective is to regain ownership and possession of the land 5. An action for specific performance to execute a deed of assignment was considered as an action to recover property rather than for specific performance in National Steel Corp v. CA so the docket fee was based on the value of the property sought to be recovered 6. A complaint for cancellation and assignment of sale is an action to ultimately give plaintiff possession and ownership of assets and should be the basis of the filing fee

Actions for Annulment or Rescission of Contract Involving Real Property Where the action involves real property and a related claim for damages as well, legal fees shall be assessed on the basis of both: a. Value of the property; and b. Total amount of related damages sought Where the fees prescribed for an action involving real property have been paid, but amounts of certain related damages being demanded are unspecified: a. Action may not be dismissed; court immediately has jurisdiction b. It is not divested with jurisdiction by the circumstance that it may not have jurisdiction over the accompanying claims for damages for lack of specification c. What should be done? (1) To expunge those claims for damages to which no amounts are stated (2) Or allow a reasonable time for the amendment of the complaints so as to allege the precise amount of each Determination of Nature of Action is Essential to Determine the Amount of the Docket Fee It is necessary to determine the true nature of the complaint in order to resolve the issue of whether the correct fees were paid Nature of an action is determined by the allegations in the body of the pleading or complaint itself Amount of docket fee is not determinative of the jurisdiction of the court; but non-payment or insufficient payment pay prevent courts from acquiring jurisdiction Rule 2, Sec. 5(d) – where the claims in all such joined causes of action are principally for the recovery of money, the aggregate amount claimed shall be the test of jurisdiction Whether or not the different claims for damages are based on a single cause of action or different causes, it is the total amount thereof

When the corresponding docket fee for damages in the original complaint was properly paid, court does not lose jurisdiction over amended complaint increasing the amount of damages even if corresponding docket fee for increase was not paid Unpaid docket fee is considered a lien on judgment Effect of Failure to Specify Sum of Exemplary Damages Where Action is Not Purely for Damages Sps. Belen Gregorio v. Angeles – an action for sum of money; failure of complaint to specify the sum of exemplary damages does not warrant dismissal of complaint Ayala Corporation v. Judge Madayag – action for specific performance with damages; plaintiff did not pay docket fee and did not specify amount of exemplary damages both in the body and prayer a. Motion to dismiss on the ground of jurisdiction was denied b. The RTC was directed either to expunge from the records the claim for exemplary damages or, upon motion, give reasonable time to amend pleading and pay (within the reglementary and prescriptive period) In PAL v. CA – entitlement to moral damages having been established, exemplary damages may be awarded even though not expressly pleaded

Jurisdiction may not necessarily be determined by the subject matter of the action but by the nature of the action In ejectment cases, jurisdiction is with the MTC even if the amount of real property may reach millions In eminent domain cases, regardless of the value of the land, jurisdiction is with the RTC Yusingco v. Ong Jurisdiction over the subject matter means jurisdiction to hear and determine the general class of cases to which the proceedings in question belong It is the nature of the cause of action and of the relief sought

Sec. 3(1), RA 7691, amending Sec. 33 of BP 129 defining the exclusive original jurisdiction of the MTC over civil actions, interest, damages of whatever kind, attorney’s fees litigation expenses, and

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costs must be specifically alleged and shall be included in the determination of the filing fees

-

Under RA 7691, incidental damages of whatever kind are not included in the determination of the jurisdiction of the court, but the law requires that the amount thereof be specified in the complaint

Judgment awards which may be proved during trial would still be subject to additional filing fees which shall constitute a lien on the judgment

Applicable Rule Sec. 5(a), Rule 141 defines two kinds of claims: 1. Those which are immediately ascertainable 2. Those which cannot be immediately ascertained as to the exact amount The 2nd class of claims, where exact amount still has to be finally determined by the courts, falls under 3 rd par. Of Sec. 5(a) An initial payment of docket fees based on an estimated amount must be paid simultaneous with the filing of the complaint

Payment of Docket Fee is Required even if Motion for Attorney’s Fees is filed as an Incident in Special Proceedings A motion for attorney’s fees is in the nature of an action commenced by a lawyer against his clients for attorney’s fees Lacson v. Reyes – it may be true that the claim for attorney’s fees was but an incident in the main case still, it is not an escape from the payment of docket fees a. In all actions, whether separate or as an offshoot, payment of docket fees is mandatory Pascual v. CA – no docket fee is required where claim for attorney’s fees was not in the nature of an action commenced by a lawyer against his client, but in the form of a claim against the estate

Payment of Docket Fee to Acquire Jurisdiction The court in Ballatan v. CA summarized different principles for the court to acquire jurisdiction upon payment of docket fee: 1. When an action is filed in court, complaint must be accompanied by the payment of the requisite docket and filing fees 2. In real actions, docket and filing fees are based on the value of the property and the amount of damages claimed, if any 3. If complaint is filed but the fees are not paid at the time of filing, court acquires jurisdiction upon full payment of fees within a reasonable time as the court may grant, barring prescription 4. Where fees prescribed for real action have been paid but the fees of certain related damages are not, the court, although having jurisdiction over the real action, may not have acquired jurisdiction over the accompanying claim for damages 5. Accordingly, the court may expunge those claims for damages, or allow, on motion, a reasonable time for amendment of the complaint so as to allege the precise amount of damages and accept payment of the requisite legal fees 6. If there are unspecified claims, the determination of which may arise after the filing of the complaint or similar pleading, the additional filing fee thereon shall constitute a lien on the judgment award. The same rule applies to 3rd party claims and other similar pleadings

Defense of Good Faith Timely filing of correct docket fees is jurisdictional Pronouncements of the court on the matter have always been influenced by the peculiar legal and equitable circumstances surrounding each case (Yuchengco v. Republic) Payment of docket fees is required in civil actions filed in the Sandiganbayan (Yuchencgo v. Republic) but no docket fee is required for a counter-petition (San Miguel Corp. v. Sandiganbayan) Estoppel to Question Jurisdiction for Non-Payment of Docket Fee In Maersk Tabacalera Shipping v. CA An action for damages; SC refused to apply Manchester In Manchester, the jurisdictional issue arising from insufficiency of docket fees paid was seasonably raised in the answer of the defendant in the trial court In this case, issue of jurisdiction was being raised for the first time in the SC A party who voluntarily participates in the trial court cannot later on raise the issue of the court’s lack of jurisdiction Since this is a case where some of the claims for moral and exemplary damages were not specified in the plaintiff’s pleading, the applicable rule is the 3rd rule set out in Sun Insurance

Election Protests; Payment of Full Amount of Filing Fees Before, it was held that election laws and rules are to be interpreted and applied in a liberal manner so as to give effect, not to frustrate, the will of the electorate But in Gonzales v. COMELEC - the complaint was dismissed on grounds of prescription since the fees were belatedly paid In Pahilab v. Tabalba, court reverted to the previous doctrine and held en banc that there are strong and compelling reasons to rule that the doctrine established in Manchester cannot be made to apply to election cases But in Miranda v. Castillo – Court in an en banc decision reiterated the caveat in Loyola v. COMELEC that the court would no longer tolerate any mistake in the payment of the full amount of the filing fees for election cases filed after the promulgation of the Loyola decision on March 25, 1997

Significance of Absence of Intent to Defraud In the determination of whether or not plaintiff may be permitted to amend his complaint to specify the amounts claimed and pay the unpaid balance of the prescribed docket fee, absence of intent to defraud the Government in payment of filing fees plays a significant role Sps. Belen Gregorio v. Angeles – Manchester involved clearly an effort to defraud the government, and so resort to its ruling must be justified by a showing of a prior attempt to cheat the court Additional Filing Fee as Lien on the Judgment Fees as lien = see Sec. 2, Rule 141 Filing fees for damages and awards that cannot be estimated constitute liens on the awards finally granted by the court

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Impairment of Vested Rights Rule does not apply where the statute itself expressly or by necessary implication provides that pending actions are excepted from its operation or where to apply it to pending actions would impair vested rights

SECTION 6 - Construction.—These Rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. Liberal Construction Rules of procedure should be viewed as mere tools designed to aid Courts in the speedy, just and inexpensive determination of cases before them Liberal construction of the rules and the pleadings is the controlling principle to effect substantial justice Departures from procedure may be forgiven where they do not appear to have impaired substantial rights of parties There are reasonable delays which are necessary in a good administration of justice It is well settled that litigation should, as much as possible, be decided on their merits and not on technicalities

END OF RULE 1

GENERAL RULE: Liberal construction EXCEPTIONS: 1. Reglementary periods 2. Rule on forum shopping 3. Service of summons Reasons which would warrant the suspension of the rules: 1. The existence of special or compelling circumstances 2. The merits of the case 3. A cause not entirely attributable to the fault or negligence of a party favored by the suspension of rules 4. A lack of any showing that the review sought is merely frivolous and dilatory 5. The other party will not be unjustly prejudiced thereby Liberal Interpretation of Pleadings – To avoid possible denial of substantive justice due to legal technicalities, pleadings as well as remedial laws should be liberally construed so that the litigants may have ample opportunity to prove their respective claims Rules of Procedure are not Mere Technicalities Rules of procedure are tools designed to promote efficiency and orderliness as well as to facilitate attainment of justice, such that strict adherence thereto is required Application of the rules may be relaxed only when rigidity would result in a defeat of equity and substantial justice Rules of Procedure Generally Cannot be Changed by Parties Rules of procedure are matters of public interest and cannot be changed by agreements of the parties (Banco Espanol-Filipino v. Palanca) On the other hand, there are matters of procedure which may be waived if public interest is not affected thereby Retroactive Application of Rules Retroactive application of procedural laws is allowed to actions pending and undetermined at the time of their passage Procedural laws are retrospective in that sense and to that extent Amendatory Acts The general rule is that an amendatory act, every case of doubt must be resolved against its retroactive effect Since retroactive application of a law usually divests rights already vested

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NOTES ON RULE 1

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NOTES ON RULE 1

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b.

Action in Personam Technical object of the suit is to establish a claim against some particular person With a judgment which generally, in theory, binds his body, or to bar some individual claim or objection, so that only certain persons are entitled to be heard in defense

RULE 2 CAUSE OF ACTION SECTION 1 - Ordinary civil actions, basis of.—Every ordinary civil action must be based on a cause of action. (n)

Action in Rem Object is to bar indifferently all who might be minded to make an objection of any sort against the right sought to be established If anyone in the world has a right to be heard on the strength of alleging facts, which if true, show an inconsistent interest, proceedings is in rem

NOTE: The law on jurisdiction, rules on venue, prescription, defenses against the action, payment of the docket fee and service of summons depends on the nature of the action KINDS OF ACTION 1.

Civil or Criminal a. Civil – one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong b. Criminal – one by which the State prosecutes a person for an act or omission punishable by law

2.

Ordinary or Special – both are governed by the rules of ordinary civil actions, subject to the specific rules prescribed for a special civil action a. Special b. Ordinary – may be classified as: (1) As to place (a) Transitory – action founded on privity of contract between parties; brought in the place where the party resides (b) Local – action founded on privity of estate only and there is no privity of contract; brought in a particular place (2) As to object – or against which the action is directed, actions may be classified as: (a) In personam; (b) In rem; or (c) Quasi in rem (3) As to cause or foundation (a) Real, or (b) Personal

Jurisdiction depends on the value and location of the property

Action Quasi in Rem Proceedings which not strictly and purely in rem But are brought against a defendant personally Although the real object is to deal with a particular property or subject it to discharge of claim asserted therein Jurisdiction over person of defendant is not necessary; summons is required only for due process Notes: -

Aim and object of the action determines its character Whether a proceeding is in rem, in personam, or quas in rem, is determined by its nature and purpose Only a complaint for forcible entry is a real action and in personam (Domagas v. Jensen)

Illustrations: 1. Proceedings having for their sole object the sale of property of defendant (e.g. foreclosure or attachment) a. These are actions quasi in rem b. Judgment is conclusive only between parties 2. Action for partition under Rule 69 a. It is a real action b. It is in the nature of an action quasi in rem c. Action is essentially for the purpose of affecting the defendant’s interest in a specific property 3. Action intended to exclude a non-resident defendant from any right or interest in property a. Action quasi in rem 4. Annulment of marriage a. Action affecting civil status – action in rem b. Status affects or binds the whole world c. The res is the relation between the parties or their marriage 5. Action to review the decision of a Secretary a. An action in personam b. Even if it involves real property 6. Action for enforcement of a maritime lien a. Action quasi in rem 7. Insolvency proceedings a. Similar to the settlement of a decedent’s estate b. Proceeding in rem and is binding against the whole world

Real Action – is that founded on privity of real estate and seeks to recover a specific real property or its possession Personal Action – that founded on privity of a contract or recovery of personal property or damages One brought for the recovery of personal property, enforcement of some contract or recovery of damages A personal action may be: 1. Incapable of pecuniary estimation – jurisdiction lies with the RTC 2. Capable of pecuniary estimation – jurisdiction would depend on the value of the demand or personal property involved Example: 1. Action for breach of covenant of a lease a. It is a personal action b. Although damages to real estate may be sought, such claim is only incidental to the breach 2. Action by lessee of a rice land against buyer to recover possession of real property a. It is a real action

Distinctions Between Actions in Personam, In Rem, Quasi in Rem 1. Action in personam is in an action against a person on the basis of his personal liability 2. Action in rem is an action against the thing itself 3. Real action is not the same as an action in rem; personal action is not the same as an action in personam

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4.

5.

Real action may be at the same time an action in personam and not necessarily an action in rem a. E.g. – action to recover property is a real action but in personam that binds only that particular individual Actions to remove clouds from title to real property a. Governed by Art. 476 to 481 and Rule 64 on Declaratory Relief b. These are quasi in rem c. Judgment in such proceedings is conclusive only between parties d. Since action affects title to or possession of real property, they are real actions

Actions are also classified for purposes of venue Depend on whether or not the action is personal or real Regardless of the value of the property GENERAL RULE: The facts alleged in the complaint as constituting the cause of action and not those averred as defense in defendant’s answer determines the nature of the action and consequently the jurisdiction of the court Even without the prayer for a specific remedy, proper relief may nevertheless be granted if the facts alleged in the complaint and evidence introduced so warrant Nature of an action is determined by the body of the pleading or complaint itself; not the title or caption

Justice Callejo Sr.’s discussion in Domagas v. Jensen A proceeding in personam is a proceeding to enforce personal rights and obligations brought against the person and is based on the jurisdiction of the person Purpose of a proceeding in personam is to impose, through judgment, some responsibility or liability directly upon the person of the defendant An action in personam is said to be one which has for its object a judgment against the person, as distinguished from a judgment against the property -

-

Examples: 1. Prayer for annulment or rescission of sale does not operate to efface the prime objective and nature of the action which is recovery of real property and is thus a real action 2. If it is alleged that contract is breached and the party is asking for rescission and return of the property, the action is an action for recovery of the possession of the land 3. Action for specific performance to execute a deed of assignment transferring stock certificates was considered an action to recover property rather than specific performance

A proceeding quasi in rem is one brought against persons seeking to subject the property of such persons to the discharge of claims assailed In an action quasi in rem, an individual is named as defendant and the purpose of the proceeding is to subject his interests therein to the obligation burdening the property Actions quasi in rem deal with the status, ownership, or liability of a particular property but which are intended to operate on only as between the particular parties

For purposes of Jurisdiction, Actions are classified into actions that are incapable of pecuniary estimation and those that are capable of pecuniary estimation involving real and personal property Ascertain the nature of the principal action or remedy sought: 1. If it is primarily for the recovery of a sum of money, it is capable of pecuniary estimation 2. Where the basic issue is something other than the right to recover a sum of money or is purely incidental to or as a consequence of the principal relief sought like specific performance, action for support or for annulment of judgment, it is not capable of pecuniary estimation

Nature of Action Determines Jurisdiction For purposes of jurisdiction, actions are classified as to whether or not the case is capable of pecuniary estimation If it is incapable, it falls under the exclusive original jurisdiction of the RTC In such case, the docket fee is a flat rate

SECTION 2 - Cause of action, defined.—A cause of action is the act or omission by which a party violates a right of another.

WHEN CAPABLE OF PECUNIARY ESTIMATION

CAUSE OF ACTION, RIGHT OF ACTION

From BP 129, as amended by RA 7961, what must be determined to be capable or incapable of pecuniary estimation is not the cause of action, but the subject matter of the action The subject matter of the action is the physical facts, the thing real or personal, the money, lands, chattels, and the like, in relation to which the suit is prosecuted, and not the delict or wrong committed by defendant

Cause of Action Defined Sec. 2, Rule 2 provides for the statutory definition Rebollido v. CA – a cause of action is defined as an act or omission of one party in violation of the legal right of the other which causes the latter injury Elements: 1. Existence of a legal right in plaintiff 2. A correlative legal duty of defendant to respect one’s right; and 3. An act of omission of the defendant in violation of plaintiff’s right with a consequential injury or damage to the plaintiff for which he may maintain an action for the recovery of damages or other appropriate relief

Example: Action for damages based on quasi-delicts This is primarily and effectively an action for recovery of the sum of money for damages suffered Damages claimed is the principal relief sought and is not merely incidental thereof If it is capable of pecuniary estimation, jurisdiction will depend on the value of the demand exclusive of interests, damages of whatever kind, attorney’s fees, litigation expenses and costs, or value of the property in controversy. Other form of damages even if not essential for purposes of jurisdiction must be specified in the filing fees Amount of docket fee is not determinative of jurisdiction; But non-payment or insufficiency of payment may prevent courts from acquiring jurisdiction

Note: there must be damnum et injuria Damnum absque injuria: Custodio v. CA – the mere fact that plaintiff suffered losses does not give rise to a right to recover damages wrong without damages, or damage without wrong, does not constitute a cause of action

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-

in order that the law will give redress for an act causing damage, that act must not only be hurtful, but wrongful A cause of action does not accrue until the party obligated refuses, expressly or impliedly, to comply with his duty (Summit Guaranty and Insurance v. De Guzman) This will determine the reckoning date of the period of prescription (Texton Manufacturing v. Millena)

CONDITIONS PRECEDENT Failure to comply with a condition precedent is a ground for a motion to dismiss (Rule 16, Sec. 1(j)) EXHAUSTION OF ADMINISTRATIVE REMEDIES -

Cause of Action or Lack of it Does Not Affect Jurisdiction A cause of action or the lack of it does not affect the authority of the court to hear and decide a given case, if the court has jurisdiction over its subject matter, over the parties therein, and in an action in rem, over the res.

-

Right of Action – right to commence and prosecute an action to obtain the relief sought Right of Action Distinguished from Cause of Action they have been held to be synonymous but in Code Pleading, one is distinguished from the other: a. Right of action – remedial right belonging to some person; a matter of right and depends on substantive law b. Cause of action – formal statement of the operative facts that give rise to such remedial right; a matter of statement and is governed by procedural law Right of action springs from the cause of action a. But it does not accrue until all facts which constitute the cause of action have occurred b. There can be no right of action until there has been a wrong – a violation of a legal right

When Exhaustion of Administrative Remedies is Required If a remedy within the administrative machinery can still he had by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be priorly exhausted before the court’s judicial power is invoked Reason for principle: a. Sound practice and policy b. Ensures an orderly procedure which favors a preliminary sifting process c. Avoidance of interference with functions of the administrative agency d. Prevention of attempts to swamp the courts by a resort to them in the first instance

Elements of a Right of Action 1. The existence of a cause of action 2. The performance of all conditions precedent to the bringing of the action 3. The right to bring and maintain the action must be in the person instituting it

Note: Exhaustion of Administrative Remedies refers ONLY to quasijudicial functions It does not apply to a resolution issued by an administrative body in the exercise of its rule-making or legislative power Only judicial review of decisions of administrative agencies made in the exercise of their quasi-judicial function is subject to the exhaustion doctrine E.g. – in questioning the validity or constitutionality of a rule or regulation issued by an administrative agency, a party need not exhaust administrative remedies before going to court

Note: All valid conditions precedent to the institution of a particular action, whether prescribed by statute, fixed by agreement of the parties, or implied by law must be performed or complied with before commencing the action Unless the conduct of the adverse party has been such as to prevent or waive performance or excuse non-performance of the condition Cause of Action v. Right of Action CAUSE OF ACTION Delict or wrongful act or omission committed by defendant in violation of the primary rights of plaintiff The reason for the action The formal statement of the operative facts that give rise to a remedial right A matter of procedure and depends on the pleadings filed by the parties Not affected by affirmative defenses

Exhaustion of administrative remedies stands as a bar to a judicial review of administrative agencies made in the exercise of their quasi-judicial function Failure to do so results in the absence of a cause of action Non-exhaustion is not jurisdictional a. It only renders the action premature (claimed cause of action is not ripe for judicial determination) b. The motion to dismiss must then be understood to be based on: (1) Lack of jurisdiction, and (2) Lack of cause of action for failure to exhaust administrative remedies

When Exhaustion of Administrative Remedies not Necessary The doctrine is a relative one and its flexibility is called upon by the peculiarity and uniqueness of the factual and circumstantial setting of the case (Paat v. CA) Exhaustion of remedies are not necessary: 1. Where the questions involved are purely judicial or a legal one (Limoco v. PVA) 2. When the controverted act is patently illegal or was performed without jurisdiction or in excess of jurisdiction (Brett v. IAC) 3. Where respondent official acted in utter disregard of due process (Triste v. Leyte State College Board) 4. When it does not provide a plain, speedy, and adequate remedy (Laganapan v. Elpidio Asedillo) 5. When its application may cause great and irreplaceable damage (Tesorero v. Mathay) 6. When the insistence in its observance would result in the nullification of the claim being asserted 7. When the respondent is a Department Secretary, whose acts as an alter ego of the President bears the implied or

RIGHT OF ACTION Remedial right or right to relief granted by law to a party to institute an action against a person who has committed a delict or a wrong against him The remedy or means afforded or the consequent relief The remedial right given to a person because of the occurrence of the alleged facts A matter of right and depends on substantive law Affected by affirmative defenses

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assumed approval of the latter unless actually disapproved by him (Demaisip v. CA) 8. Where there are circumstances indicating the urgency of judicial intervention (Cuevas v. Pineda) 9. When there is estoppel on the part of the administrative agency concerned (Vda. De Tan v. Veterans Backpay Division) 10. When to require administrative remedies would be unreasonable (Cipriano v. Marcelino) 11. When the subject matter is a private land in land case proceedings (Soto v. Jareno) 12. Exhaustion of administrative remedies may also be considered waived if there is a failure to assert it for an unreasonable length of time (Republic v. Sandiganbayan) 13. A civil action for damages may, however, proceed notwithstanding the pendency of an administrative action (Esuerte v. CA) 14. When the claim involved is small 15. When strong public interest is involved; and 16. In quo warranto proceedings (Castro v. Gloria) Failure to exhaust administrative remedies does not affect jurisdiction of the court Failure to observe this doctrine only deprives the complaint of a cause of action which is a ground for a motion to dismiss If not invoked in proper time, ground is deemed waived and court can take cognizance of the case and try it

2.

3.

Where Arbitration Clause Not Applicable 1. Even if there is an arbitration clause, there are instances when referral to arbitration does not appear to be the most prudent action 2. Where the panel of arbitrators is bereft of jurisdiction over the complaint because the issue is judicial (e.g. issues on the validity of the contract) Barangay Conciliation (Katarangung Pambarangay) Source: Local Government Code of 1991 The lupon of each barangay shall have authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all disputes, except: 1. Where one party is the government or any subdivision or instrumentality thereof 2. Where one party is a public officer or employee, and the dispute relates to the performance of his official functions 3. Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5,000 4. Offenses where there is no private offended party 5. Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon 6. Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon 7. Such other classes of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice

OTHER CONDITIONS PRECEDENT 1. 2.

subject of an action, or the parties to any contract may in such contract agree to settle by arbitration a controversy thereafter arising between them Construction Industry Arbitration Commission a. Has exclusive and original jurisdiction over construction disputes pursuant to Sec. 49, EO 1008 b. Sec. 1, Art III, of the new Rules of Procedure Governing Construction Arbitration has dispensed with the requirement of request c. Recourse to the CIAC may now be availed of whenever a contract contains a clause for the submission of future controversy to arbitration d. There is no more need to file a request with the CIAC in order to vest it with jurisdiction RA 9285 “Alternative Dispute Resolution Act of 2004”

Investigation by a fiscal is a prerequisite to annulment of marriage when defendant defaults (Tolentino v. Villanueva) No suit shall be filed or maintained between members of the same family unless it should appear that earnest efforts at compromise have been made but that the same have failed. (Art. 222; Versoza v. Versoza)

ARBITRATION AS CONDITION PRECEDENT Rule: Where there is an agreement to arbitrate as a condition precedent to court of action and one party puts up a claim which the other disputes, the need to arbitrate is imperative Arbitration agreements are valid, binding, enforceable, and not contrary to public policy such that when there obtains a written provision for arbitration which is not complied with, trial court should suspend the proceedings and order the parties to proceed to arbitration in accordance with the terms of the agreement Advantages of Arbitration 1. Expeditious determination of a dispute 2. Lawyer’s fees can be saved or lessened as arbitration proceedings are shorter than court trials 3. Private arbitration costs the public nothing, and parties and witnesses become less tense and nervous as proceedings are conducted in private 4. Arbitration being private and more informal than court trials, there is more possibility of amicable settlement 5. There is a quick determination of the dispute, thus avoiding the situation of an award that has less purchasing power than the amount due him because of inflation

Note: no complaint, petition, action, or proceeding involving any matter within any matter within the authority of the lupon shall be filed or instituted directly in court or any other government office for adjudication, unless there has been a confrontation between the parties before the lupon chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the lupon secretary or pangkat secretary as attested to by the lupon chairman or pangkat chairman or unless the settlement has been repudiated by the parties thereto. Parties may go directly to court in the following instances: 1. Where the accused is under detention 2. Where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings 3. Where actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendent lite; and

Some Laws on Arbitration 1. RA 876 “The Arbitration Law” – under this law two or more persons or parties may submit to the arbitration of one or more arbitrators any controversy existing between them at the time of the submission and which may be the

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4.

Where the action may otherwise be barred by the statute of limitations

Nemo debet bis vexare pro una et eadem causa (no man shall be twice vexed for one and the same cause) Re-statement of Principle: Where there is only one delict or wrong, there is but a single cause of action regardless of the number of rights violated belonging to one person

Conciliation among Members of Indigenous Cultural Communities Customs and traditions of indigenous cultural communities shall be applied in settling disputes between members of cultural communities The NCIP, through its regional offices, shall have jurisdiction over all claims and disputes involving the rights of the ICCs/IPs Provided, however, that no such dispute shall be brought to the NCIP unless the parties have exhausted all remedies under their customary laws

What is Prohibited Note that a single right might give rise to more than one relief It is the filing of separate complaints for those several reliefs that constitutes splitting up of the cause of action The other case may be dismissed either on the ground: 1. Of litis pendentia (Sec. 1(e), Rule 16); or 2. Of res judicata (Sec. 1(f), Rule 16)

RELIEF, REMEDY, SUBJECT MATTER

Test of Singleness of Action The test of singleness of cause of action lies in the singleness of the delict or wrong violating the rights of one person. A single delict or wrong may consist of a single act or series of acts of a single transaction or series As held in City of Bacolod v. San Miguel Brewery: 1. A single act or omission can be violative of various rights at the same time a. As when the act constitutes juridically a violation of several separate and distinct legal obligations b. Violation of each of these rights is a cause of action in itself 2. Several acts or omissions may violate one right a. In this case, there would be only one cause of action 3. A violation of a single right may give rise to more than one relief a. So for a single cause of action or violation of a right, the plaintiff may be entitled to several reliefs b. It is the filing of separate complaints for these several reliefs that constitutes splitting up of the cause of action

Relief – The redress. Protection, award or coercive measure which the plaintiff prays the court to render in his favor as consequence of the delict committed by defendant Remedy – The procedure or appropriate legal form of relief of action which may be availed of by the plaintiff as the means to obtain desired relief Subject Matter – The thing, wrongful act, contract, or property which is directly involved in the action, concerning which the wrong has been done and with respect to which the controversy has arisen SECTION 3 - One suit for a single cause of action.—A party may not institute more than one suit for a single cause of action. SECTION 4 - Splitting a single cause of action; effect of.—If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others. SPLITTING OF CAUSE OF ACTION Splitting a Cause of Action – the act of dividing a single cause of action, claim, or demand into two or more parts, and bringing suit for one of such parts only, intending to reserve the rest for another separate action

Rules on Actions Ex-Contractu 1. For a single and indivisible contract a. Only one cause of action arises from a single breach or several breaches of a single and indivisible contract b. All damages claimed by reason thereof must be secured in a single action 2. For contracts providing for several obligations a. A contract providing for several obligations to be performed at different times gives rise to a single and independent cause of action for each obligation that is not performed at the proper time b. If upon the filing, several obligations have already matured, all of them shall be considered as integrating into a single cause of action and must be included in the complaint, otherwise, those not included are barred forever

Remedy: Where a single cause of action has been split, the remedy of defendant is to: 1. Move to dismiss under Rule 16 on the grounds of: a. Litis pendentia – when there is another action pending between the same parties for the same cause b. Res judicata – if the first action has already been finally terminated 2. An answer alleging either of the aforementioned grounds as affirmative defense Scope of Rule – The rule against splitting a single cause of action applies not only to complaints but also to counterclaims and crossclaims. This may be set up either by motion to dismiss or by affirmative defense on the ground of pendency of another action between the same parties for the same cause or bar by prior judgment

Other Cases 1. Separate contracts to be performed on separate occasions gives rise to several causes of action 2. Non-payment of a note secured by a mortgage, creditor has a single cause of action against debtor a. Single cause of action is the recovery of credit with the execution of the security b. Creditor may make his demands of payment and foreclosure but both arise from the same cause which is the non-payment of debt

Purpose – it is intended: 1. To prevent repeated litigation between the same parties in regard to the same subject of controversy; 2. To protect defendant from unnecessary vexation 3. To avoid the costs and expenses incident to numerous suits

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3. 4.

5.

Only one cause of action for a single breach of an obligation which cannot be split into 2 separate actions A mortgage creditor may not institute against the mortgage debtor either a personal action for debt or a real action to foreclose a. He may pursue either of the two but not both Caltex Phils. Inc. v. IAC – plaintiff cannot split his single cause of action by filing a complaint for payment of debt and thereafter a complaint for foreclosure; this will in effect be authorizing plural redress for a single contractual breach

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Where there is only one delict or wrong, there is but a single cause of action regardless of the number of rights that may have been violated belonging to one person Singleness of a cause of action lies in the singleness of the delict or wrong violating the rights of one person A recovery by petitioner under one remedy necessarily bars recovery under the other This prohibition stems from the fundamental rule against unjust enrichment

Examples: 1. Only one suit for recovery of real property and damages may be filed 2. In ejectment cases: a. Only rentals or reasonable value for the use and occupation of the premises are recoverable b. Other damages must be recovered in a separate action (Felisilda v. Villanueva) 3. Illegally dismissed employees have only one cause of action (Primero v. IAC)

Limitations of the Rule 1. A cause of action is not made different by merely changing the form of action (Marsteel v. Lawin Security Services) 2. The rule against splitting a cause of action applies only where the action lies between the same parties (Itogon Suyoc Mines v. Sangil-Itogon Worker’s Union) 3. Where the nature of relief is cognizable by different tribunals, the rule is not violated GENERAL RULE: A contract embraces only one cause of action even if it contains several stipulations

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

EXCEPTION: A contract to do several things at several times is divisible, and judgment for a single breach of a continuing contract is not a bar to a suit for subsequent breach EXCEPTION TO THE EXCEPTION: All obligations which have matured at the time the suit must be integrated as one cause of action in one complaint, and those not included would be barred DOCTRINE OF ANTICIPATORY BREACH: An unqualified and positive refusal to perform a contract, though performance thereof is not yet due, may, if renunciation goes into the whole contract, be treated as a complete breach which will entitle the injured party to bring his action at once Actions to Recover Real Property In actions to recover real property, one does not necessarily bar the other depending on the nature of the action. 1. A judgment in an accion publiciana is not a bar to an action to compel defendant to execute a deed of sale a. Judgment is only as to who of the parties had a better right to possess 2. In De Luzuriaga v. Adil – where both action to quiet title and forcible entry is anchored on ownership, forcible entry case was dismissed

A joinder of causes of action is the uniting of two or more demands or right of action in a complaint. The rule in Sec. 5 is purely permissive and the plaintiff can always file separate actions for each cause of action (Baldovir v. Sarte) SPLITTING OF CAUSES There is a single cause of action Prohibited It causes multiplicity of suits and double vexation on part of defendant

Rules in Actions Ex-Delicto 1. A single tort gives rise but to one cause of action no matter how many items of damages may have been caused to one person 2. When by a single delict or wrong, several rights are violated belonging to different persons, several causes arise on behalf of such persons 3. When there are separate tortuous acts resulting in different injuries, separate causes of action arise and several actions may be maintained 4. But if only one injury resulted from several wrongful acts, only one cause of action arises. Double recovery for the same act or omission is prohibited.

JOINDER OF CAUSES Contemplates several causes of action Encouraged It minimizes multiplicity of suits and inconvenience on the parties

Section 5 presupposes: 1. That the different causes of action which are joined accrue in favor of the same plaintiff/s and against the same defendant/s; and 2. That no misjoinder of parties is involved Discussion of Justice Feria in Flores v. Mallare-Philipps The Rule liberalizes the 1964 rule on the requisite of permissive joinder of causes of action by limiting the condition as follows: 1. The first condition is based on the ruling in Flores v. Mallare-Philipps 2. The reason for the 2nd condition is that the special civil action may be governed by a different rule

Rule Against Double Recovery A cause of action is understood to be the delict or wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff

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3.

4.

Under the 3rd condition, if one cause of action falls within the jurisdiction of the RTC and the other with the MTC, the action shall be filed in the RTC a. If the causes of action have different venues, they may be joined in any of the courts of proper venue Under the 4th condition, the totality of the principal claims for money determines which court has jurisdiction

Unity of Problems The absence of unity of problems is no longer a bar to a joinder of causes of action under Sec. 5, Rule 2 The provision removed the restriction of venue, jurisdiction, and causes of action arising from money, the same nature or character or similar transactions The only grounds to refuse joinder of causes of action are: 1. The rules on joinder of parties, which require: a. That the claims arise from the same or series of transactions and b. That there is a common question of law and fact 2. It must not be cognizable by different tribunals 3. Joinder of ordinary and special civil actions But the presence of unity of problems is not by itself a sufficient ground for joinder of causes of action, where the separate causes of action are cognizable by different tribunals

Under Sec. 5(a) It is a requirement that the joinder of causes of action shall comply with the rule on joinder of parties As such, under Sec. 6, Rule 3, it is necessary that the right of relief from said causes of action: 1. Should arise out of the same transaction or series of transactions; and 2. A question of law and fact common to all plaintiffs or defendants may arise in the action Under Sec. 5(b) Only causes of action in ordinary civil actions may be joined since they are subject to the same rules Special civil actions or actions governed by special rules should not be joined with ordinary civil actions so as to avoid confusion: 1. In the conduct of the proceedings 2. As well as in the determination of the presence of the requisite elements of each cause of action

The joinder of causes of action may involve the same person or different parties If the joinder involves different parties, there must be a question of fact or of law common to both parties joined, arising out of the same transaction Joinder of causes is Permissive The rule is permissive, not obligatory There is no positive provision of law or any rule of jurisprudence which compels a party to join all his causes of action and bring them at one and the same time Plaintiff MAY, and not that he MUST

Under Sec. 5(c) and (d) These paragraphs determine which court will have jurisdiction over the action wherein several causes of action have been joined The aggregate or totality rule applies only where: 1. The claims are principally for sums of money 2. Said claims for money must arise out of the same transaction or series of transactions wherein a question of law or fact common to the parties may arise in the action

Totality Rule Under Sec. 33, BP 129 – where there are several claims or causes of action between the same or different parties embodied in the same complaint, the amount of the demand shall be the totality of the claims in all causes of action, irrespective of whether the causes of action arose out of the same or different transactions Application of Totality Rule 1. In actions where the jurisdiction of the court is dependent on the amount involved, test of jurisdiction shall be the aggregate sum of all money demands a. Exclusive only of interest and costs b. Irrespective of whether or not the separate claims are owned by or due to different parties c. If any demand is for damages in a civil action, the amount thereof must be specifically alleged 2. Rule also applies to cases where two or more plaintiffs having separate causes of action against a defendant join in a single complaint 3. Rule applies to cases where a plaintiff has separate causes of action against two or more defendants joined in a single complaint 4. Note however that the causes of action in favor of the 2 or more plaintiffs or against 2 or more defendants should arise out of the same transaction or series of transaction and there should be a common question of law or fact (Sec. 6, Rule 3)

Tests to Determine Joinder of Causes of Action 1. Question of the joinder of causes of action involves in particular cases a preliminary inquiry as to whether two or more causes of action are alleged 2. In declaring whether more than one cause of action is alleged, the main thrust is whether more than one primary right or subject of controversy is present 3. Whether recovery on one ground would bar recovery on the other 4. Whether the same evidence would support the other different counts 5. Whether the same evidence be maintained for separate relief, 6. Whether more than one distinct primary right or subject of controversy is alleged for enforcement or adjudication Note: Distinguish a single cause of action from several causes of action A cause of action may be single although the plaintiff seeks a variety of remedies If the allegations of the complaint show one primary right and one wrong, only one cause of action is alleged even though other matters are incidentally involved When two or more primary rights and wrongs appear, there is a joinder of causes of action

Examples: 1. In a proceeding for the summary settlement of an estate, where two parcels of land were claimed by 2 heirs of the deceased, the probate court had no jurisdiction to try title to said lands a. Issue of title constitutes a separate cause of action which must be decided by a separate suit 2. A special civil action for forcible entry or unlawful detainer cannot be joined with an ordinary civil action for collection

Incidental claims to main action are not separate cause of action

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3. 4.

5.

6. 7. 8.

Neither may a case governed by the Rules on Summary Procedure be joined with an action to b governed by the regular rules of procedure Joinder of an action for ejectment with that of reivindicacion cannot be done a. Proceedings in ejectment cases are summary in nature b. Actions for recovery of ownership require a full blown trial on the merits Joinder of causes which are separate and distinct is permissive a. Cause of action where amount is P20,000 or less may be the subject of a separate complaint filed with the MTC b. That which exceeds P20,000 may be filed with the RTC Action for acknowledgement of a natural child may be joined with an action to compel defendants to a partition of all properties left by deceased natural father Settlement of estates and disposition of property of 2 deceased can lawfully be made in the same proceeding (e.g. conjugal property of deceased spouses) Action based on quasi delict and breach of contract of carrier may be joined

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Joiner of causes of action which is accrued in favor of a party is only permissive  So a party may institute as many actions as he has causes of action  Without prejudice to the provisions of Sec. 1, Rule 31 on joint trial or consolidation of actions

END OF RULE 2

SECTION 6 - Misjoinder of causes of action.—Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined cause of action may, on motion of a party or on the initiative of the court, be severed and proceeded with separately. Discussion of Justice Feria in Flores v. Mallare-Philipps Sec. 6, Rule 2 is similar to the rule on misjoinder and nonjoinder of parties in Sec. 11, Rule 3 Except that court may not order the joinder of causes of action if neither the court nor the adverse party objects to the misjoinder of a cause of action It will be adjudicated together with other causes, provided that the court has jurisdiction Misjoinder of causes of action and parties do not involve a question of jurisdiction They are not grounds for dismissal It involves an implied admission of the court’s jurisdiction It acknowledges the power of the court, acting upon the motion of party or on its own initiative, to: a. Order the severance of the cause of action, to be proceeded with separately (in misjoinder of causes of action) b. To the dropping of a party and the severance of any claim against said misjoined party, also to proceed separately (in misjoinder of parties) Regalado summarizes the following points: In case of misjoinder of causes of action, the cause of action erroneously joined need only be separated and dismissed, without affecting the action with regard to other causes of action Misjoinder of causes of action, like misjoinder of parties, is not a ground for dismissal of an action Party misjoined shall only be dropped by order of the court sua ponte or on motion, and any claim against a party may be severed and proceeded with separately Unlike in non-joinder of parties (regulated by Sec. 9 to 11, Rule 3), there is no provision on or sanction against nonjoinder of separate causes of action  A plaintiff needs only a single cause of action to maintain an action

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NOTES ON RULE 2

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NOTES ON RULE 2

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RULE 3 PARTIES TO CIVIL ACTIONS SECTION 1 - Who may be parties; plaintiff and defendant.—Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term “plaintiff” may refer to the claiming party, the counter-claimant, the cross-claimant, or the third (fourth etc.)—party plaintiff. The term “defendant” may refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.)— party defendant. For a Person to be a Party to a Civil Action: 1. He must be a natural or juridical person or an entity authorized by law 2. He must have legal capacity to sue; and 3. He must be the real party-in-interest

Some cases: a. Litonjua Group of Companies v. Vigan - Sec 4, Rule 8 provides that facts showing the capacity of a party to sue or the legal existence of an organized association of persons that is made a party must be averred; for having failed to show that they are juridical entities, they are deemed to be devoid of legal personality to bring action b. PLACU v. Cuneta – a civic organization together with a real party-in-interest is not disqualified as petitioner because as a non-profit civic and nonpartisan organization like the PHILCONSA, it is merely interested in upholding the rule of law c. Juansing Hardware v. Mendoza – a sole proprietorship not being vested with juridical personality cannot sue or file or defend an action in court

EXCEPTIONS: Entities Authorized by Law 1. Partnership has a juridical personality separate and distinct from that of each of the partners, even in case of failure to comply with the requirements in Art 1772 NCC (Art. 1768 NCC) 2. Labor organizations organized in accordance with law may file a complaint or petition in court in representation of its members (Art 242 LC) 3. As to properties of the Roman Catholic Church, the Archbishop or diocese to which they belong may be a party (Ponce v. Roman Catholic)

Plaintiff – one having an interest in the matter of the action or in obtaining the relief demanded. The term may either refer to the claiming party, counter-claimant, cross-claimant, or third-party plaintiff Defendant – one claiming an interest in the controversy or the subject thereof adverse to the plaintiff. Term may also include: 1. An unwilling co-plaintiff or one who should be joined as plaintiff but refuses to give his consent thereto (Sec. 10, Rule 3) 2. The original plaintiff becoming a defendant to the original counterclaim of defendant; and 3. One necessary to a complete determination or settlement of the questions involved therein

SECOND REQUIREMENT: Legal Capacity to Sue Legal capacity to sue or be sued means that the party is free from general disability (e.g. minority or insanity) or, in case of juridical entities, that it must be duly registered in accordance with law

Distinguish: Real Party-in-Interest, Capacity to Sue and Standing

Under Sec. 4, Rule 8, legal capacity to sue must be averred “lack of legal capacity to sue” means either: a. Plaintiff does not have the necessary qualifications to appear in the case because he is not in full exercise of his civil rights (e.g. minority, incompetent, etc.); or b. When he does not have the character or representation which he claims (e.g. corporation not duly registered)

Real Paty-in-Interest – party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit Capacity to Sue – deals with a situation where a person who may have a cause of action is: 1. Disqualified from bringing suit under applicable law, or 2. Is incompetent to bring a suit, or 3. Is under some legal disability that would prevent him from maintaining an action unless represented by a guardian ad litem

Example: Rights of Heirs to Sue A prior settlement of the estate, or even the appointment of an administrator, is not necessary for any of the heirs to acquire legal capacity to sue (see Art. 777 NCC) Even if administration proceedings have already been commenced, heirs may still bring the suit if an administrator has not yet been appointed Once administrator has been appointed, he brings the suit Even if there is an appointed administrator, jurisprudence recognizes 2 exceptions: a. If the executor or administrator is unwilling or refuses to bring suit b. When the administrator is alleged to have participated in the act complained of and he is made party defendant

Legal Standing – a personal and substantial interest in the case, such that the party has sustained or will sustain direct injury as a result of the challenged act a. Interest – material interest; an interest in issue to be affected by the questioned act as distinguished from mere interest in the question involved or mere incidental interest b. Test in public law – whether the party has a direct and personal interest in the controversy and whether such party has sustained or is in imminent danger of sustaining an injury as a result of the act complained of

Lack of Legal Capacity to Sue is DIFFERENT from Lack of Legal Personality to Sue a. Lack of legal capacity to sue (1) Refers to plaintiff’s general disability to sue (2) May be a ground for a motion to dismiss on the ground of lack of legal capacity to sue

FIRST REQUIREMENT: A party must be a natural or juridical person or an entity authorized by law Only natural and juridical persons may be parties Art. 44 NCC – an association is considered a juridical person if the law grants it a personality separate and distinct from that of its members

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b.

Lack of legal personality to sue (1) Plaintiff does not have the necessary qualification to appear in the case or any other general disqualifications (2) May be a ground for a motion to dismiss on the ground that the complaint states no cause of action

Failure to Name Real Party in Interest a. Effect: a motion to dismiss may be filed on the ground that the complaint states no cause of action (a) If a complaint is filed for and in behalf of a plaintiff who is not authorized to do so, the complaint is not deemed filed b. Remedies: (1) Amendment of pleadings (Alonso v. Villamor); or (2) Complaint may be deemed amended to include the real party-in-interest (Balquidra v. CFI Capiz) c. Exception: A real litigant may be held bound as a party even if not formally impleaded provided he had his day in court (Albert v. University Publishing Co.)

Note: Dilweg v. Philip held that non-resident aliens living abroad may maintain PERSONAL actions against Philippine residents in Philippine courts, even if a counterclaim is brought against said plaintiffs. SECTION 2 - Parties in interest.—A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest.

Illustrations: 1. In Oposa v. Factoran, minors represented by their parents were held as real parties in interest to file an action to annul timber licenses under the following principles: a. Inter-generational responsibility b. Inter-generational justice c. Right of Filipinos to a balanced and healthful ecology d. Minors represent themselves and generations to come 2. In Eminent Domain cases: a. Owner of the fee is not necessarily the only person who is entitled to compensation b. “owner” when employed in statutes relating to eminent domain to designate the persons who are to be made parties to the proceeding, refers, as is the rule in respect of those entitled to compensation, to all those who have lawful interest in the property to be condemned 3. Party to a contract is the real party-in-interest a. Contracts may be violated only by the parties thereto, as against each other, in an action upon the contract, the real parties in interest must be the parties to said contract b. As to contracts with stipulations pour autrui (Art. 1311) (1) Note that there must be a stipulation clearly and deliberately conferring a favor to any third person 4. Those who are not parties, heirs, assignees, or beneficiaries of a stipulation pour autrui, do not, under substantive law, possesses the right they seek to enforce a. So, commission agents are not allowed to sue b. Assignees are allowed to sue – when one has a right of action assigned to him he is then the real party-ininterest and may maintain an action upon such claim or right 5. In insurance contracts, third person can directly sue the insurer a. Direct liability of the insurer under indemnity contracts against TPL does not mean that insurer can be held solidarily liable with the insured and/or other parties at fault (liabilities of insurer and insured are based on different laws) b. See insurance laws 6. In annulment of marriage cases: a. If based on minority, parent who did not give consent is the real party-in-interest b. If based on fraud, force, or intimidation, party himself is a real-party-in-interest without need of a guardian ad litem 7. A validly disinherited heir and not claiming to be a creditor of his father is not a real party-in-interest to question the validity of sale executed by his father

Classification of Parties 1. Indispensable Parties – those without whom no final determination can be held of an action (Sec. 7) 2. Necessary Parties – those who are not indispensable but ought to be parties if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action (Sec. 8) 3. Representative Parties – those referred to in Sec. 3 4. Pro-Forma Parties – Those who are required to be joined as co-parties in suits by or against another party as may be provided by the applicable substantive law or procedural rule 5. Quasi-Parties – Those in whose behalf a class or representative suit is brought (Sec. 17) A real party-in-interest is one who would be benefited or injured by the judgment, or who is entitled to the avails of the suit A decision rendered against a person who is not a real party-in-interest in the case cannot be executed; a complaint filed against such a person should be dismissed for failure to state a cause of action An action shall be prosecuted in the name of the party, who, by the substantive law, has the right sought to be enforced Interest within the meaning of Sec. 2, Rule 3 Material interest; an interest in issue to be affected by the decree As distinguished from mere interest in the question involved, or mere incidental interest The interest of the party must be personal and not one based on a desire to vindicate the rights of a third and unrelated party Substantial interest – such interest of a party in the subject matter of the action as will entitle him, under the substantive law, to recover if the evidence is sufficient or that he has the legal title to the demand and the defendant will be protected in a payment to or recovery by him Note that party-in-interest applies to both Real party-in-interest plaintiff – one who has legal right Real party-in-interest defendant – one who has a correlative obligation whose acts or omissions violate the legal rights of the former

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8. 9.

Children’s rights to parents’ property is merely inchoate and vests only upon the latter’s death In proceedings to set aside an execution sale, the real party-in-interest is the person who has an interest either in the property sold or the proceeds thereof

SECTION 4 - Spouses as parties.—Husband and wife shall sue or be sued jointly, except as provided by law. The general rule is that the husband and wife shall sue or be sued jointly This is inasmuch as both are the co-administrators of the community property as well as the conjugal partnership EXCEPTIONS: 1. A spouse without just cause abandons the other or fails to comply with his or her obligations to the family with respect to marital, parental, or property relations 2. A spouse of age mortgages, encumbers, alienates, or otherwise disposes of his or her exclusive property 3. The regime of separation of property relations of the spouses

SECTION 3 - Representatives as parties. —Where the action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. A representative may be a trustee of an express trust, a guardian, an executor or administrator, or a party authorized by law or these Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal.

Cases: 1.

Comment by Justice Feria This rule makes mandatory the joinder of the beneficiary or the party for whose the benefit the action is brought A public interest suit may be brought provided the class benefited by it is included in the title of the case Party for whom or in whose name a contract has been made for the benefit of another may sue or be sued provided the person benefited by the contract is joined Trusts -

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2. 3. 4.

The provision refers to an express trust and has no application to an implied trust The provision authorizing a trustee to sue in his own name joining the person for whose benefit the action is presented or defended do not ordinarily prevent the real party-in-interest or the beneficiary of the trust, from maintaining an action in his own name Rule is permissive and not mandatory Therefore, beneficiary, being the real party-in-interest may sue or be sued alone or be joined by the trustee

NOTE: The propriety of suits by or against the spouses should now take into account the pertinent provisions of the FC SECTION 5 - Minor or incompetent persons.—A minor or a person alleged to be incompetent, may sue or be sued, with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem.

Guardians – See notes under Sec. 5

Note: “a person alleged to be incompetent” encompasses insane persons and judicially declared incompetents

Executor of Administrator Note that unless there is a pending proceeding for the settlement of the estate of a deceased, the legal heirs may commence an ordinary action arising out of a right belonging to the ancestor without the necessity of a provision and separate judicial declaration of their status as such, and without the necessity of appointing an executor or administrator If deceased has debts, creditors or heirs may initiate a special proceeding a. Once a special proceeding is instituted and an administrator/executor appointed, b. Any action arising out of a right belonging to the deceased may be brought by or against him and not by or against the heirs Agents -

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Peyer v. Martinez – Where the husband abandoned the wife and child, the wife may bring an action to cancel a real estate mortgage executed by the husband in favor of the bank without joining the husband Laperal v. Katigbak – an action against the husband for promissory note signed by the husband alone does not make the wife a necessary party nor personally liable Pacquing v. Marquez – failure to join the husband is not a jurisdictional defect Uy v. CA – non-joinder of the husband does not warrant dismissal as it is merely a formal requirement which may be cured by amendment

JOINDER OF PARTIES Types of Joinder of Parties: a. Permissive – Sec. 6 b. Compulsory – Sec. 7 c. Proper or Necessary – Sec. 8 PERMISSIVE JOINDER OF PARTIES SECTION 6 - Permissive joinder of parties.—All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest.

An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal (See Art. 1883) a. EXCEPTION: when the contract involves things belonging to the principal Note however the ruling in Beamount v. Prieto – although a contract is made in the name of the agent, where the agency is disclosed and the principal appears to be the owner of the thing involved in the suit, action should be brought against both

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Sec. 8 enunciates the rule on Permissive Joinder of Parties They can either be joined in one single complaint or may themselves maintain or be sued in separate suits This rule is also applicable to counterclaims (Go et.al. v. Go et.al.) Note that in the case of indispensable and necessary parties, their joinder is compulsory (Sec. 7 and 8)

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Permissive Joinder Requirements – for a permissive joinder of parties to be allowed, there must be: 1. A right to relief arising out of the same transaction or series of transactions; 2. A question of fact or law common to all plaintiffs or defendants; and 3. Such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction and venue Definitions: a. Transaction – not only a stipulation or agreement but any event resulting in wrong, without regard to whether the wrong has been done by violence, neglect, or breach of contract b. Series of transaction – transactions connected with the same subject of the action

prejudiced by a judgment which does complete justice to the parties in court He is not indispensable if his presence would merely permit complete relief between him and those already parties to the action, or will simply avoid multiple litigation Their differences are summarized as follows: 1. In Indispensable Parties a. Action cannot proceed unless they are joined b. If not impleaded, any judgment would have no effectiveness 2. In Necessary Parties a. Action can proceed even in the absence of some necessary parties b. Even if not impleaded, the case may be finally determined in court; But the judgment therein will not resolve the whole controversy

Joinder is Mandatory Joinder of indispensable parties are mandatory Courts cannot proceed without their presence Without their presence, judgment of the court cannot attain finality Their presence is a sine qua non for the exercise of judicial power (Borlosa v. Polistico)

Distinguished from Joinder of Causes of Action In joinder of causes of action, it is enough if the cause of action arises out of the same contract Unlike permissive joinder of parties, in joinder of causes of action, there is no need for a common question of fact or law

Test of Indispensability – if a party’s interest in the controversy is that a final decree would necessarily affect their rights so that the court cannot proceed without their presence, then the party is indispensable Effect of Absence of Indispensable Parties It is the duty of the court to stop the trial and to order the inclusion of such party (Cortez v. Avila) a. Such an order is unavoidable b. General rule with reference to the making of parties in a civil action requires the joinder of all necessary parties wherever possible, and the joinder of all indispensable parties under any and all conditions Absence of an indispensable party renders all subsequent actuations of the court null and void, for want of authority to act, not only as to the present parties but even as to those present

Illustrations of Permissible Joinder of Parties 1. Four owners of 4 houses burned by spark of locomotive may file a single complaint for damages against the railroad company 2. Several farmers sustaining damages by reason of diversion of water from irrigation system may unite in filing a single complaint 3. Injuries to driver and damages to car of employer. The driver and owner of car may join in a single complaint 4. 25 teachers dismissed by a school may join in suing the school for separation pay

Responsibility of impleading all the indispensable parties rests on the plaintiff It would seem an obvious proposition that a plaintiff has the right to choose which of the several persons to implead as defendants or to drop a. None of the defendants has the right to compel said plaintiff to prosecute the action against a party if he does not wish to do so b. But the plaintiff will have to suffer the consequences of any error in exercising this option The remedy of the co-defendant who is not dropped is not to insist that plaintiff continue to prosecute against the dropped defendant but to: a. Move for the dismissal of the action against himself, or b. To take such appropriate action as might otherwise be proper

COMPULSORY JOINDER OF PARTIES SECTION 7 - Compulsory joinder of indispensable parties.—Parties in interest without whom no final determination can be had of an action shall be joined either s plaintiffs or defendants. Indispensable Party One whose interest will be affected by the court’s action in the litigation, and without whom no final determination of the case can be held His interest in the subject matter and in the relief sought are so inextricable intertwined with the other parties’ that his legal presence as a party to the proceeding is an absolute necessity In his absence, there cannot be a resolution of the dispute of the parties before the court which is effective, complete, or equitable

The court pursuant to Sec. 11, Rule 3 may, however, take the initiative to implead an indispensable party Where court orders the plaintiff to amend its complaint to implead an indispensable, plaintiff’s refusal to comply is ground for dismissal of the complaint

Distinguished from Necessary Party A party is not indispensable if his interest in the controversy or subject matter is distinct and divisible from the interest of the other parties and will not necessarily be

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Examples and Illustrative Cases: 1. In vehicular collisions where driver, registered owners, beneficial owners, and insurer were sued, a. Court ruled that the registered owners are indispensable parties but not the insurer b. Hence, case may proceed without the insurer 2. When defendant alleged in his answer to a complaint for recovery of real property, that he was occupying the property as a tenant of a 3rd person, the latter is an indispensable (Sanedad v. Cabotaje) 3. In an action for recovery of possession of land against a person not in possession for having sold the property to a 3rd person, such 3rd person is indispensable (Laeno v. Laeno) 4. In special civil action for partition, all persons interested in the property are indispensables 5. As to co-owners: a. Co-owners in an action for the security of tenure of a tenant are indispensables (Arcelona v. CA) b. But co-owners are not, however, indispensable to maintain an action for ejectment (clarified in the correction of Arcelona v. CA 6. In an action for rescission of sale, vendee is indispensable 7. Owners of property over which reconveyance is asserted are indispensable parties (Acting Register of Land Titles v. RTC Makati) 8. Action for recovery of the subject party converted into prime residential subdivision would affect proprietary rights of many lot owners and are thus indispensables 9. All heirs of deceased in an action to recover real property are indispensables 10. In an action for recognition of a natural child with claim to share in the property left by deceased natural father, all legitimate heirs or kin of the latter who are entitled to inherit if recognition is denied, are indispensables 11. In an action for recovery of property against a person who purchased it from another who in turn acquired it from someone, predecessors of defendants are indispensables as the transfers, if not voided, may bind plaintiff (Alabang Dev. Corp. v. Valenzuela) 12. In reconstitution of title proceedings, all actual occupants and possessors are indispensables 13. A solidary obligor is not an indispensable party in a suit by the creditor. Any of the solidary creditors may file an action for collection without joining the other creditors 14. A mortgagee is an indispensable in a suit for cancellation of title 15. In an action for quasi-delict against employer under Art. 2180, employee is not indispensable a. But an action based on delict seeking to enforce the subsidiary liability of employer under Art 103, RPC, employee is indispensable

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

Illustrative Examples 1. See Seno v. Mangubat 2. In judicial foreclosure of mortgage, junior encumbrancers are not indispensables but are necessaries to foreclose the equity of redemption in favor of all junior encumbrancers (Nufable v. Nufable) 3. In an action for reformation, all parties claiming an interest in the land purportedly conveyed by the instrument sought to be reformed, and whose interest will be affected by reformation, are necessary parties (Toyota Motor Philippines v. CA) a. But this does not apply where the joinder of third parties in an action for reformation, would in effect be a collateral attack on the Torrens Title SECTION 9 - Non-joinder of necessary parties to be pleaded.— Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party. The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party. The rule specifically points to the consequence of an omission of a necessary party and directs that should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party Sanction: failure to comply without justifiable cause shall be deemed a waiver of the claim against such party Note: the non-inclusion of a necessary party does not prevent the court from proceeding with the action Judgment rendered therein shall be without prejudice to the rights of such necessary party Regalado notes that the non-inclusion of the necessary party may be excused only on meritorious grounds Absent such grounds, the court shall order him to be impleaded if jurisdiction over his person can be obtained  As ordered by par. 1  Plaintiff is ordered to file an amended complaint impleading the necessary party therein as codefendant If plaintiff fails to follow par. 1, the sanction in 2 nd par applies  Plaintiff deemed to have waived his claim against said party  Same rule applies to any pleading asserting a claim against a necessary party If his inclusion cannot be effected for valid reasons, par. 3 applies

SECTION 8 - Necessary party.—A necessary party is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action. Proper or Necessary Parties Those without whom the case may be finally determined between the parties in court, but should be included in order that a final determination may be had in a single action of the whole controversy a. EXCEPT: when it is not permissible to join them; in which event, the case should be heard and determined without prejudice to their rights

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Note also that under Sec. 3, Rule 17 states that where the plaintiff fails without justifiable cause to comply with an order of the court, his complaint may be dismissed This dismissal shall not be ordered where the plaintiff fails to comply with the order for the joinder of a necessary party under Rule 3 Indeed, Sec. 11 provides that non-joinder of parties should not be a ground for dismissal As such, this provision is an exception to the rules on penalties imposed on a disobedient party under Rule 17

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SECTION 10 - Unwilling co-plaintiff.— If the consent of any party who should be joined as plaintiff cannot be obtained , he may be made a defendant and the reason therefor shall be stated in the complaint.

Rule does not comprehend whimsical and irrational dropping or adding of parties It contemplates an erroneous or mistaken non-joinder or misjoinder No one is free to join anybody in a complaint in court only to drop him unceremoniously later at the pleasure of the plaintiff The rule presupposes that the original inclusion was a mistake This is the reason why the rule ordains that the dropping be on such terms as are JUST – just to all Lim Tanhu v. Ramolete – the SC did not allow the dropping of 2 defendants despite motion by plaintiff because the motion was filed after the 2 remaining defendants defaulted

Although both misjoinder of parties and causes of action are not grounds for dismissal, both stand on different premises There can be misjoinder of parties even if there is only one cause of action common to them There can be misjoinder of causes of action even if there is only one plaintiff

SECTION 11 - Misjoinder and non-joinder of parties.—Neither misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately.

CLASS SUITS

A party is MISJOINED when he is made a party to the action although he should not be impleaded

SECTION 12 - Class suit.—When the subject matter of the controversy is one of the common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest.

A party is NOT JOINED when he is supposed to be joined but is not impleaded in the action NON-JOINDER Non-Joinder of Proper Parties Neither a misjoinder nor a non-joinder of parties is a ground for the dismissal of action Parties may be dropped or added, at any stage of the proceedings, by: 1. Order of the court 2. On motion of any party 3. On court’s own initiative

For a class suit to prosper, the following requisites must be present: 1. Subject matter of the controversy that is of common or general interest to many persons 2. Persons are so numerous that it is impracticable to join all as parties 3. Parties actually before the court are sufficiently numerous and representative so that all interests concerned are fully respected 4. The representative sues or defends for the benefit of all

Non-joinder does not warrant dismissal Remedy: Court should order the inclusion of the necessary party BUT if the case is erroneously dismissed on this ground without stating that it is without prejudice, and plaintiff did not appeal, such dismissal bars the filing of another action on the same cause (Rivera v. Luciano)

An action does not become a class suit merely because it is designated as such in the pleadings Whether the suit is or is not a class suit depends upon the attending facts, In order for the court to be able to determine if a class suit is proper under the circumstances: 1. The complaint or other pleading initiating the class action should allege the existence of a subject-matter of common interest; 2. As well as the existence of a class and the number of persons in the alleged class

Objections or defects in the parties impleaded Should be made at the earliest opportunity, the moment such defects become apparent Remedy: Motion to strike the names of parties impleaded If there is a misjoinder: a. A separate action should be brought against the party misjoined b. Objection to misjoinder cannot be raised for the first time on appeal (Garcia v. Chua)

Subject Matter of Action The subject matter of the controversy that must be of common or general interest refers to the physical facts, the things real or personal, the money, lands or chattels and the like, in relation to which the suit is prosecuted, and not the delict or wrong committed by defendant (Mathay v. Consolidated Bank) In Meralco v. Phil Consumers Foundation Inc. involving the issue of whether or not there is identity of subject matter between the 2 cases, the subject matter of an action was referred to include the thing, wrongful act, contract or

MISJOINDER Rules do NOT allow for whimsical dropping In case of misjoinder, remedy has never been to dismiss the entire petition but to dismiss it only as against the party upon whom the tribunal or body cannot acquire jurisdiction (Union Bank of the Phils. v. CA)

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property, which is directly involved in the action, concerning which the wrong has been done and with respect to which the controversy has arisen Interest must be common or general and not separate with each having determinable interest

ALTERNATIVE DEFENDANTS SECTION 13 - Alternative defendants.—Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other.

Class Suit Distinguished from Joinder of Parties What is contemplated in a class suit is that: 1. The subject matter in controversy is of common general interest to many persons, and 2. Those persons are so numerous as to make it impracticable to bring them all before the court (to join them as parties) In joinder of parties: a. There are many persons who have distinct, separate rights against the same party or group of parties b. But those rights arise from the same transaction or series of transactions c. There are common questions of fact or law resulting therefrom In both juridical situations, similar essential factors exist: 1. The same transaction or series of transactions is involved; and 2. Common questions of fact or law are at issue What makes the situation a proper case for a class suit is the circumstance that there is only one right or cause of action pertaining or belonging in common to many persons a. Note that in permissive joinder of parties, there are separate or several rights of action to distinct individuals Basically: a. If there are plural rights of actions – joinder b. If there is a singular right of action – class suit

Example: Where the owner of the goods is not sure whether the same was lost in transit or while it was on deposit in the arrastre warehouse, he may sue the shipper or the operator in the alternative  Although the right against the former is based on admiralty while that against the operator is on contract SECTION 14 - Unknown identity or name of defendant.— Whenever the identity or name of a defendant is unknown, he may be sued as the unknown owner, heir, devisee, or by such other designation as the case may require; when his identity or true name is discovered, the pleading must be amended accordingly. See Sec. 14, Rule 14 on Service upon defendant whose identity or whereabouts are unknown This section presupposes that the plaintiff really does not know the identity and/or address of the defendant or is not in a position to ascertain such identity or whereabouts. SECTION 15 - Entity without juridical personality as defendant.— When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known. In the answer of such defendant the names and addresses of the persons composing said entity must all be revealed.

Rules from Jurisprudence: 1. The complaint must specifically state that the same is being brought in behalf of others with whom the parties share a common interest (Borlosa v. Polistico) 2. If there is a conflict of interest between those sought to be represented and those who filed the action, the class suit will not prosper (Ibanez v. Roman Catholic Church) 3. The party bringing the class suit must have the legal capacity to do so (Chinese Flour Importers Assoc. v. Price Stablization Board) 4. The parties who brought the class suit have control over the case with the right to compromise or even discontinue the same  But a class suit cannot be compromised or dismissed without court approval (Sec. 2, Rule 17)  Member of the class is bound by the judgment in the class suit  As such, the Rules give him the right to intervene if he desires to protect his own individual interests

See Sec. 8, Rule 14 on Service upon entity without juridical personality Requisites: 1. There are two or more persons not organized under a juridical entity 2. They enter into a transaction; and 3. A wrong or delict is committed against a 3rd person in the course of such transaction Comment of Justice Feria Two or more persons transacting as an entity without juridical personality may be sued under the name by which they are generally or commonly known, but they cannot sue under such name Summons may be served upon any one of them, or upon the person in charge of the office or place of business maintained under such name Answer of defendant must reveal the names and addresses of the persons composing said entity so that judgment may be rendered against them under Sec. 6, Rule 36

Illustrative Cases: 1. Class suit is not permissible in action to recover real property against several persons occupying different portions (Sulo ng Bayan v. Gregorio Araneta) 2. Derivate suit brought in behalf of numerous stockholders of a corporation to perpetually enjoin or nullify what is claimed to be a breach of trust or an ultra vires act of the BOD (this is a class suit) a. In such a suit, there is one, single right of action pertaining to numerous stockholders b. Not multiple right belonging separately to several, distinct persons

With respect to judgments to be rendered in this situation: See Sec. 6, Rule 36 Said rule provides that when judgment is rendered against 2 or more persons associated in an entity without juridical personality, judgment shall set out their individual or proper names, if known

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Instances Where Substitution of Parties is Proper: 1. Death of a party – Sec. 16 2. Death or separation of a party- public officer – Sec. 17 3. Incompetency or incapacity – Sec. 18 4. Transfer of interest – Sec. 19

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DEATH OF A PARTY SECTION 16 - Death of party; duty of counsel.—Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice. If no legal representative is named by the counsel for the deceased party or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time, to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs.

Illustrations: 1. If there is already a final decree of legal separation, the action continues with respect to the liquidation of the conjugal property (Macadangdang v. CA) 2. Death of the putative father during the pendency of the action for compulsory recognition is not a bar to the action commenced during his lifetime by one who pretended to be his natural son. It may survive against the executor, administrator or any other legal representative of the estate (Mendoza v. CA) 3. As held in Poe, Jr. v. Macapagal-Arroyo, a public office is personal to the public officer and not a property transmissible to the heirs upon death. As such, the substitution by the widow or heirs in election contests where the protestant dies during the pendency of the protest is not allowed. DUTIES Death of a client divests counsel of authority A dead client has no personality and cannot be represented by an attorney In the absence of a retainer from the heirs or authorized representatives of deceased client, lawyer has no further authority to act save to inform the court of the death and take necessary steps to safeguard the client’s rights

This provision applies: 1. Where the claim survives 2. Regardless of whether either plaintiff or defendant dies 3. Regardless of whether the case is in trial or on appeal

Duty of Lawyer – it is the duty of the attorney to: 1. Inform the court promptly of his client’s death, incapacity, or incompetency during the pendency of action; and 2. To give the name and residence of his executor, administrator, guardian, or other legal representatives

SURVIVAL OR DEATH OF ACTION The question as to whether an action survives or not depends on the nature of the action and the damage sued for A.

B.

However, formal substitution is not necessary when: a. Heirs voluntarily appeared, participated in the case, and presented evidence in defense of deceased defendant (Vda. De Salazar v. CA) b. When parties who claim interest in the estate had already been fully heard and what remained was the evaluation of the evidence and rendition of judgment (Torres Jr. v. CA)

Causes of Action that SURVIVE  The wrong complained of affects primarily and principally property and property rights  Injuries to the person are merely incidental Causes of Action which DO NOT SURVIVE  The injury complained of is to the person  The property and property rights affected are incidental

Duty of Court – in case of death, the court if the action survives, shall order, upon proper notice, the legal representative of the deceased to appear and to be substituted for the deceased within a period of 30 days or within such time as may be granted. If there is notice of death, court should await appointment of legal representative; otherwise, subsequent proceedings are void. Period of filing of brief is suspended. Upon learning of the death of a party The trial court should not order the amendment of the complaint Order for amendment of the complaint before substitution of the deceased party is void (Casenas v. Rosales)

The actions that survive against the decedent’s representatives are: 1. Actions to recover real and personal property against the estate 2. Actions to enforce liens thereon; and 3. Actions to recover for an injury to person or property by reason of tort or delict committed by the deceased

EFFECTS

Claims that are Extinguished – PURELY PERSONAL actions Examples: support, divorce, annulment of marriage, legal separation

Effect of Failure to Notify If there is no notice of death, the case may continue Proceedings are valid and judgment is binding on successors-in-interest Failure of counsel to comply with this duty shall be ground for disciplinary action

General rule: a party having died in an action that survives, the trial held by the court without the appearance of the deceased’s legal representative or substitution of heirs and the judgment rendered after such trial are null and void Court acquired no jurisdiction over the persons of the legal representatives or of the heirs upon whom the trial and judgment would be binding

Proceedings conducted by the trial court after the death of the defendant and without substitution are null and void (Lawas v. CA)

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Discussion in Regoso v. CA Rules operate on the presumption that the attorney for the deceased is in a better position to know about the death of his client and to inform the court of the names and addresses of his legal representatives Were no such notice of death, nor motion for substitution of the deceased was ever made, the trial court could not be expected to know or take judicial notice of the death of defendant without proper manifestation from counsel The supervening death of defendant did not extinguish his wife’s action for partition of conjugal assets, for it is an action that survives a. The trial of the case on merits was finished before the death of defendant b. Since the court was not informed of the death, the trial court may not be faulted for proceeding to render judgment without ordering the substitution of the deceased defendant c. The judgment is valid and binding upon defendant’s legal representatives or successors-in-interest, insofar as his interest in the property is concerned

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No legal representative ever appeared in court to be substituted Complainant never procured the appointment of such legal representative Heirs never asked to be allowed to be substituted

If no valid substitution – court never acquired jurisdiction over the party seeking substitution Effect of failure to notify court of death – the decision rendered shall bind his successors-in-interest Formal substitution is not a jurisdictional but a due process requirement Non-compliance results in the undeniable violation of the right of due process of those who, though not duly notified of the proceedings, are substantially affected by the decision OTHER INSTANCES WHEREIN SUBSTITUTION OF PARTIES IS PROPER (Subject to the conditions therein and whenever the court, upon motion and notice, finds justifiable reason therefor: 1. Sec. 17 on death or separation of public office 2. Sec. 18 on incompetence or incapacity 3. Sec. 19 on transfer of interest

NOTE: The court should not order the amendment but the appearance of the legal representative (Casenas v. Rosales) As to suits concerning spouses Creditor cannot sue the surviving spouse of a decedent in an ordinary proceeding for the collection of sum of money chargeable against the CPG a. Proper remedy: to file a claim in the settlement of the estate of the deceased (Alipio v. CA) When spouses are sued for the enforcement of an obligation, they are being impleaded in their capacity as representatives to the CPG a. They are not being impleaded as independent debtors b. As such, the concept of joint or solidary as between them does not apply However, if they are being sued on the bases of joint or solidary liability, the death of one would not necessarily result against the other

SECTION 17 - Death or separation of a party who is a public officer.—When a public officer is a party in an action in his official capacity and during its pendency dies, resigns, or other wise ceases to hold office, the action may be continued and maintained by or against his successor if, within thirty (30) days after the successor takes office or such time as may be granted by the court, it is satisfactorily shown to the court by any party that there is a substantial need for continuing or maintaining it and that the successor adopts or continues or threatens to adopt or continue the action of his predecessor. Before a substitution is made, the party or officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of the application therefor and accorded an opportunity to be heard. Notes: -

RULES ON SUBSTITUTION

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Note that substitution must be valid in order that the court may acquire jurisdiction over the party substituted.

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No summonses are required to be served on the substitute defendants Instead, the order of substitution shall be served upon the parties substituted in the action Otherwise, the court does not acquire jurisdiction over the substitute party

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The defendant’s legal heirs are his legal representatives if there is no pending proceeding for the settlement of his estate (Magdalera v. Benedicto) In substitution, priority is given to his legal representative (executor or administrator) Court may allow the substitution by the heirs instead IF: 1. There is unreasonable delay in the appointment of an executor or administrator or 2. When the estate was extrajudicially settled

Rule emphasizes that the public officer is a party in an action in his official, not private, capacity The showing to the court of substantial need for continuing and maintaining the action may be made by any party The rule is no longer limited to actions involving an officer in the Philippines  There are permissible instances for maintaining civil suits against public officers of a foreign government  But subject to the nature of the action and considerations of international law It is not required that what the successor in office is continuing or threatens to adopt and continue is an action of his predecessor in enforcing a law alleged to be in violation of the Constitution  The challenged action need not necessarily involve a constitutional issue

Republic v. CFI Lanao del Norte – the officer contemplated in Sec. 17 does not include a judge who issued in connection with the exercise of his judicial functions as any action impugning it is not abated by his cessation from office

There is no valid substitution effected in the following cases: Where there had been no court order for any such legal representative to appear

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Two Important Aspects: 1. The action must primarily be for recovery of money, debt, or interest thereon  Not where the subject matter is primarily for some other relief and collection of money is merely incidental 2. The claim subject of the action arose from a contract, express or implied, entered into by the decedent in his lifetime or the liability for which had been assumed by or is imputable to him

SECTION 18 - Incompetency or incapacity.—If a party becomes incompetent or incapacitated, the court, upon motion with notice, may allow the action to be continued by or against the incompetent or incapacitated person assisted by his legal guardian or guardian ad litem. With this rule, instead of the action being continued by or against the representative of the incompetent, it may now be continued by or against the incompetent or incapacitated assisted by his legal guardian or guardian ad litem.  In line with Sec. 3 and 5, he continues to be the real party in interest although assisted by corresponding guardian

Under the present procedure, if defendant dies before entry of final judgment in the court where it was pending at that time, action shall not be dismissed but shall be allowed to continue until entry of final judgment thereon Such entry may take place in the RTC, where no appeal is taken, or by the appellate court In either case, the former objection against probate court having to review the judgment of another court is eliminated  Since the money claim that shall thereafter be filed in the probate court is based upon a final and executory judgment, former does not have to, and cannot, review said judgment

SECTION 19 - Transfer of interest.—In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. The SC has declared in a number of decisions that a transferee pendente lite stands in the exactly the same position as its predecessor-in-interest, the original defendant, and is bound by the proceedings had in the case before the transfer. It is a proper but not an indispensable party as it would in any event be bound by the judgment against his predecessor Such would follow even if it is not formally included as a defendant through an amendment of the complaint To erase all doubts as to the status of the transferee, the latter may be deemed impleaded in substitution of the original defendant

The death of the defendant does not affect a pending action for money, Whether the death occurs while the case is pending in a municipal, regional, or appellate court. Defendant is substituted by his executor or administrator or legal heirs and the action continues until a final judgment is entered Once a final judgment is entered against the estate, it shall be enforced as a money claim without need of proving the same

Regalado notes the following points: Sec. 19 does not provide that the substitution of parties contemplated therein is mandatory  It is permissible to continue the action by or against the original party in case of transfer of interest pendente lite Since the original party is bound by the decision, his substitution by transferee is not necessary  UNLESS the substitution by or the joinder of the latter is required by court  OTHERWISE failure to do so does not warrant dismissal of case A transferee pendente lite is a proper, not an indispensable, party to the case (Heirs of Francisco v. Guballa Sr.) But where the transfer was effected BEFORE the commencement of the suit  Transferee must necessarily be the defendant or plaintiff  But transferee may file a third-party complaint against and implead the transferor in the action whenever the same is necessary and proper for a complete determination of all rights of parties

If a writ of attachment had been issued and levied, the death of the defendant at whatever stage of the action would not be ground for the dismissal of the action and the dissolution of the writ of attachment. If judgment is entered against the estate, the same shall be enforced as a money claim The writ of attachment obtained by plaintiff which has not been dissolved will entitle him to preference over the other creditors against the estate SECTION 21 - Indigent party.—A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte application and hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. Such authority shall include an exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes which the court may order to be furnished him. The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides. Any adverse party may contest the grant of such authority at any time before judgment is rendered by the trial court. If the court should determine after hearing that the party declared as an indigent is in fact a person with sufficient income or property, the proper docket and other lawful fees shall be assessed and collected by the clerk of court. If the payment is not made within the time fixed by the court, execution shall issue or the payment thereof, without prejudice to such other sanctions as the court may impose.

SECTION 20 - Action on contractual money claims.—When the action is for recovery of money arising from contract, express or implied, and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person.

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Herrera Notes: Under this rule, the application to litigate as a pauper may be filed by either the plaintiff or defendant and hearing to litigate as a pauper may be made ex parte Proof in support of the application need not necessarily be by affidavits and certificates for as long as the court is satisfied that the party is one who has no money or property sufficient and available for food, shelter, and basic necessities for himself and his family See also Sec. 19, Rule 141 Regalado Notes: The term “indigent party” has been substituted for what used to be called a “pauper litigant” For purposes of a suit in forma pauperis, a pauper litigant is not really a pauper but a person who is indigent although not a public charge  This means that he has no property or income sufficient for his support aside from his labor, even if he is self-supporting when able to work and in employment When an application to litigate as an indigent litigant is filed and the court finds that it complies with Sec. 19, Rule 141, authority to litigate as such is automatically granted But if both requirements therein have not been complied, a hearing shall be conducted and the application resolve on the evidence of parties The adverse party may later still contest the grant before judgment and proceed in accordance with the present provisions of Sec. 21 SECTION 22 - Notice to the Solicitor General.—In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules or regulations, the court, in its discretion, may require the appearance of the Solicitor General who may be heard in person or through a representative duly designated by him. This provision is applicable to any court and not limited to a superior court Lucena Grand Central Terminal Inc. v. JAC Liner – failure to notify the SolGen about the petition is not a jurisdictional effect

END OF RULE 3

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NOTES ON RULE 3

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NOTES ON RULE 3

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Under the rule, the rules on venue of the courts of the first and second levels are now uniform

RULE 4 VENUE OF ACTIONS

Venue depends on: 1. The nature of action; or 2. The residence of the parties; or 3. By stipulation; or 4. By law

Venue – the place where an action must be instituted and tried Nature of Venue as Distinguished from Jurisdiction 1. Jurisdiction a. Treats of the power of the court to decide a case on the merits (venue deals with the locality) b. Venue has nothing to do with jurisdiction c. Note that in criminal actions, venue is jurisdictional d. Jurisdiction may not be conferred by consent or waiver upon a court which otherwise would have no jurisdiction over the subject matter e. Rules as to jurisdiction can never be left to the consent or agreement of the parties, whether or not prohibition exists against their alteration 2. Venue a. Question relating to venue are governed by Rule 4 b. Laying of venue is procedural rather than substantive c. Relates to the jurisdiction of the court over the person rather than the subject matter d. Relates to trial, not to jurisdiction and touches more on the convenience of the parties rather e. The venue of an action as fixed by statute may be changed by the consent of the parties f. An objection that the plaintiff brought his suit in the wrong country may be waived by failure to make timely objection g. Failure to allege venue may be cured by amendment

When Venue determined by the Nature of Action 1. Real actions – actions affecting title to or possession of real property, or interest therein 2. Personal actions – all other actions Remember: 1. Action in personam – action against the person on the basis of personal liability 2. Action in rem – action against the thing itself Test to determine real nature of the action: The nature of an action whether real or personal is determined by the allegations of the complaint, not by the title of the complaint, or by the fundamental and prime object and nature of the action (Prime Objective Test) REAL ACTIONS Venue for Real Actions: Sec. 1 Venue shall be in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof is situated This is so because under the amendments by RA 7961 to Sec. 19 and 33 of BP 129, both RTC and lower courts now have jurisdiction over real action, depending on the value of the property  This presupposes that such real action involves the title to or possession of real property or any interest therein

Purpose of Venue – rules on venue are designed to insure a just and orderly administration of justice or the impartial and evenhanded determination of every action and proceeding SECTION 1 - Venue of real actions.—Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated. Forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the municipality or city wherein the real property involved, or a portion thereof, is situated.

Examples: 1. Torres v. JM Tuason – complaint was entitled to be one for specific performance but was asking for a deed of sale to be issued in their favor a. Primary objective and nature of the action was to recover the parcel of land b. As such, there is a need to make a finding of ownership which is a real action c. Action must be commenced in the province where the property is located 2. Dr. Antonio Lizares, Inc. v. Calalang – respondent filed an action to compel petitioner to accept payment for a lot a. Although the remedy sought was to compel acceptance of payment, the relief is merely the first step to establish his title over the lot b. The action was in reality a real action 3. Where action affects, not only the possession but also title to real property, it should be instituted in the court where property is situated 4. If complainant seeks to annul deeds of sale and to obtain a declaration of ownership, action is real action 5. Deudor v. JM Tuason – plaintiffs claimed that their action was one for rescission but they prayed for reconveyance of the land; it was a real action 6. Where the primary object of the action is to nullify defendant’s title to a land, with an alternative prayer for a sum of money, action is a real action

SECTION 2 - Venue of personal actions.—All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff. SECTION 3 - Venue of actions against nonresidents.—If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found. SECTION 4 - When Rule not applicable.—This Rule shall not apply— (a) In those cases where a specific rule or law provides otherwise; or (b) Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof.

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7. 8. 9.

If the plaintiff is primarily interested in establishing his right to recover possession of land, it is a real action Where main relief sought is the delivery of the Torrens Title which is entirely dependent on who has a better right to the land, action is a real action Action to declare a certain lot as conjugal is a real action

Examples of Personal Actions: 1. Actions to compel execution of purchase contracts where there is no issue of title (Adamos v. JM Tuason) 2. Action to annul cancellation of award which does not involve title and ownership over the properties but seeks to compel respondent to recognize that the award is valid and subsisting (Hernandez v. DBP) 3. Action for cancellation of real estate mortgage a. Where the action is primarily to compel the mortgagee to accept payment of the mortgage debt and to release the mortgage, it is a personal action b. However, an action for nullification of the mortgage documents and the foreclosure of the mortgaged properties is a real action that affects title of property 4. Action to recover damages is personal 5. Liquidation of partnership is personal

When an action involves various parcels of land situated in different provinces Venue is determined by the singularity or plurality of the transactions involving said parcels of land: 1. If the parcels are object of one and the same transaction – venue is with the Court which has jurisdiction over any of the provinces wherein a parcel is located  Judgment therein rendered can be executed in the other provinces where the rest of the real estate is located 2. If parcels are subject to separate and distinct transactions – no common venue; separate actions should be laid in the court which has jurisdiction over the province wherein each parcel is situated

VENUE AS TO NON-RESIDENTS Venue of actions against non-residents – if any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found.

PERSONAL ACTIONS Actions Founded on Privity of Contract If action is founded on privity of contract between the parties, then the action whether debt or covenant, is transitory If there is no privity of contract and the action is founded on privity of estate only, then the action is local

Where a personal action is against principal defendants: 1. One is a resident defendant; and 2. The other is a non-resident defendant but who is in the Philippines What is the venue? Venue may be laid either: a. Where the resident defendant resides; or b. Where the non-resident defendant may be found; and, (Sec. 2) c. An additional alternative avenue: Residence of any of the principal plaintiffs (Sec. 2 and 3)

Venue in Personal Actions: at the election of plaintiff: 1. Where the plaintiff or any of the principal plaintiffs reside; or 2. Where the defendant or any of the principal defendants reside; or 3. In case of non-resident defendant where he may be found

OBSERVE: When there is more than one defendant or plaintiff, the residences of the PRINCIPAL parties should be the basis for determining proper venue

Distinguish Residence and Domicile Residence is used to indicate a place of abode, whether permanent or temporary Domicile denotes a fixed permanent residence to which when absent, one has the intention of returning

Where plaintiff is a non-resident but is permitted to sue here Like in the case of foreign corporation with the requisite license under Sec. 123 of the Corp Code Venue is: 1. If PERSONAL -- the place where defendant resides 2. If REAL – where the real property or part thereof is situated The alternative venue granted to plaintiffs is not available to a non-resident

The term “resides” as employed in the rule on venue on personal actions means the place of abode, whether permanent or temporary, of the plaintiff or defendant Rescission of Contracts (as discussed in Cabutihan v. Landcenter Construction and Development Corporation) A breach of contract gives rise to a cause of action for specific performance or for rescission. This would depend on the objective of the action. Actions affecting title to or possession of real property or an interest therein shall be commenced and tried in the proper court that has territorial jurisdiction over the area where the real property is situated. All other actions shall be commenced and tried in the proper courts where the plaintiff/defendant or any of the principal plaintiffs/defendants resides. A case for specific performance with damages is a personal action. In the present case, petitioner seeks payment of her services in accordance with the undertaking the parties signed and is a personal action.

But where it is the defendant who is a non-resident and is not found in the Philippines Civil actions are proper ONLY when the action affects: 1. The personal status of plaintiff, or 2. The property of the defendant In which case, Sec. 2 determines venue VENUE BY AGREEMENT OF PARTIES Venue determined by Stipulation – where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof, agreement prevails whether the action is real or personal

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Stipulations as to Venue may be Permissive or Mandatory Stipulations in a contract which specify a definite place for the institution of an action do not, as a rule, supersede the general rules on the matter set out in Rule 4, but should be construed merely as an agreement on an additional forum. Written stipulations are either mandatory or permissive, so inquiry must be made as to what they are: 1. Agreement is restrictive – the suit may be filed only in the place agreed upon; mandatory 2. Agreement is permissive – parties may file their suits not only in the place agreed upon but also in the places fixed by the rules Look at the language of the stipulation.

2. 3. 4.

To be restrictive, the language or terminology employed in the stipulation must be unequivocal and admit of no contrary or doubtful interpretation In case of irreconcilable doubt, venue provision shall be deemed to be permissive In ascertaining the intent in that provision which reasonably admits of more than one meaning, the construction should be adopted which most conduces to the convenience of the parties

The Court takes caution in contracts of adhesion Greater caution on a case to case basis must be adopted by the courts where such stipulation is contained in a contract of adhesion The rule on restrictive venue stipulations should not apply where it would be violative of a settled and important policy of the State Where the venue stipulation would be contrary to public policy of making courts accessible to all who may have need of their service, the stipulation is void and unenforceable Agreements as to venue is oppressive when venue stipulations work injustice or deny the party concerned access to courts by reason of poverty

Examples: 1. Where it is stipulated that in case of any litigation, the venue of the action shall be in the City of Manila without either party reserving the right to choose the venue a. It can reasonably be inferred that the parties intended to definitely fix the venue at Manila only b. Notwithstanding that neither party is a resident thereof 2. The stipulation that “the parties agree to sue and be sued in the Courts of Manila” a. Does not preclude the filing of suits in the residence of the parties b. Plain meaning of the stipulation is that the parties merely consented to be sued in Manila c. Qualifying or restrictive words which would indicate that Manila alone is the venue are absent d. Stipulation as to venue is permissive

Additional Limitations Exclusive venue stipulation embodied in a contract restricts or confines parties thereto when the suit relates to the breach of the said contract But where the exclusivity clause does not make it necessarily all encompassing, such that even those not related to enforcement of contract should be subject to the exclusive venue, the stipulation designating exclusive venues should be strictly confined to the specific undertaking or agreement

Note, however, the ruling in Zoleta v. Ramillo – where the action is no longer based on the agreement but the tortious act of sending collection telegrams despite the fact that the obligation had already been paid, venue is no longer based on the written stipulation but at the election of the plaintiff as fixed by law.

VENUE AS DETERMINED BY THE LAW

As to Corporations and Sole Proprietorships 1. Corporations – venue is the place of business 2. Sole proprietorship – venue is the residence of plaintiff or defendant and not the place of business

Venue as Determined by Rules - see BP 129 Under Sec. 18, BP 129, the SC shall define the territory over which a branch of the RTC shall exercise its authority Territory thus defined shall be deemed to be the territorial area of the branch concerned for the purpose of determining the venue of all suits, proceedings, actions, civil or criminal, as well as the MTCs over which said branch may exercise appellate jurisdiction

Unimasters Conglomeration, Inc. v. CA upheld the Polytrade principle (Polytrade Corporation v. Blanco): Of the essence is the ascertainment of the parties’ intention in their agreement governing the venue of actions between them Ascertainment must be done keeping in mind that convenience is the foundation of venue regulations Construction should be adopted which most conduces thereto Invariable construction placed on venue stipulations is that they do not negate but merely complement or add to the codal standards of Rule 4 Unless the parties make very clear, by employing categorical and suitably limiting language, that they wish the venue between them to be laid only and exclusively at a definite place, and to disregard the prescriptions of Rule 4m agreements on venue are not to be regarded as mandatory or restrictive, but merely permissive or complementary of Rule 4

Venue in Special Proceedings 1. Settlement of estate of deceased– Sec. 1, Rule 73 a. If deceased is Philippine inhabitant at time of death – RTC in the province in which he resides at time of death b. If inhabitant of foreign country – RTC of any province in which he had estate 2. Escheat proceedings – Sec. 1, Rule 91 a. If resident – RTC of province where he last resided b. If non-resident – RTC of province in which he had estate 3. Guardianship of person or estate of an incompetent – Sec. 1, Rule 92 a. If resident – RTC of province where he resides b. If non-resident – RTC of province wherein his property or part thereof is situated 4. Trustee – Sec. 1, Rule 98 a. If will allowed in the Philippines – RTC in which the will was allowed

Justice Regalado, in his separate concurring opinion, suggested some parametric qualifications on venue stipulations: 1. The agreement on venue shall, in the first instance, be normally considered as merely permissive

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b.

If not – by the RTC of province in which the property or some portion thereof, affected by the trust is situated 5. Inter-Country Adoption – Sec. 10, RA 8043 a. With the RTC having jurisdiction over the child; or b. With the ICA board 6. Proceedings for the hospitalization of the insane – Sec. 1, Rule 101; RTC of province where person alleged to be insane is found 7. Habeas Corpus: a. Sec. 2, Rule 102 – in the SC, CA, RTC, enforceable only within the judge’s region b. Sec. 34, BP129 – in the MTC in the absence of all RTC judges 8. Change of name – Sec. 1, Rule 103, in RTC of province in which person desiring to change his name resides 9. Absentees – Sec. 1, Rule 107; in RTC where the absentee resided before his appearance 10. Cancellation or correction of entries in civil registry – Sec. 1, Rule 108, in RTC where the civil registry is located

child-caring agency to which the child has been voluntarily committed is located or where child may be found c. Petition for commitment of disabled child – family court of place where parent or guardian or where child resides 10. Rules on VAWC a. With the family court where offended party resides b. Application for BPO – rules on venue under Sec. 409 of LGC of 1991 applies 11. Katarungang Pambarangay venue a. Disputes between persons actually residing in the same barangay shall be brought for amicable settlement before the lupon b. Those involving actual residents of different barangays within the same city or municipality shall be brought in the barangay where the respondent or any of the respondents actually resides, at election of complainant c. All disputes involving real property or any interest therein shall be brought in the barangay where the real property or larger portion thereof is situated d. Those arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study shall be brought in the barangay where such workplace or institution is located 12. Libel cases – see Art. 360 RPC a. Whether offended party is a public official or private person, file with the RTC of the province or city where libelous article is printed and first published b. If offended party is private individual, action may also be filed in the RTC of the province where he actually resided at the time of the commission of the offense c. If offended party is public officer, whose office is in Manila at the time of commission, action may be filed in the RTC of Manila d. If offended party is a public officer holding office outside of manila, action may be filed in the CFI of province or city where he held office at the time of the commission of the offense

Venue as Fixed by Law 1. Filed in the proper court of the place where the child resides (Art. 250 FC) in the following cases: a. Art. 223 – petitions for an order providing for disciplinary measures over the child b. Art. 225 – in case of disagreement in the exercise of legal guardianship over the property of the unemancipated child c. Art. 235 – approval of agreement as to emancipation 2. Guardianship of Minors a. If minor is resident – Family court of the province or city where minor resides b. If non-resident – Family court of province or city where his property or part thereof is situated 3. Rule on Adoption – family court of the province or city where the prospective adoptive parents reside (Sec. 6, Rule on Adoption) 4. Rules of Procedure on Corporate Rehabilitation – RTC having jurisdiction over territory where debtor’s principal office is located (Rule 3, Sec. 2) 5. Rules on Procedure for Intra-Corporate Controversies a. In RTC which has jurisdiction over the principal office b. Where the principal office is registered in the SEC as Metro Manila, action must be filed in the City or municipality where head office is located (Sec. 5) 6. Rules on Declaration of Absolute Nullity of Marriage – in the family court 7. Annulment of voidable marriages and for legal separation cases a. Family court of province or city where petitioner or respondent has been residing for at least 6 months prior to filing b. If non-resident respondent, where he may be found in the Philippines at election of petitioner c. In stations where no family courts are designated, case is raffled among RTC branches within the same station 8. Rule on custody of minors and writ of habeas corpus in relation to custody of minors – family court of the province or city where the petitioner resides or where they may be found 9. Rule on commitment of children a. Petition for involuntary commitment – family court of province or city in which parent or guardian resides or where child is found b. Petition for voluntary commitment – family court of province or city where child placement agency or

Note that the rule on venue refers to the FILING of actions As such, if it is not an action, rules on venue don’t apply An extra-judicial foreclosure of mortgage is NOT an action IMPROPER VENUE The ground of improper venue is placed on the same footing as the other grounds for a motion to dismiss enumerated in Sec. 1, Rule 16 It is entitled to the same considerations If it is not raised in a motion to dismiss, it may be alleged as an affirmative defense in the answer for a preliminary hearing thereon It is likewise subject to the sanction in Sec. 1, Rule 9 in that if it is not pleaded as an objection (either in a motion to dismiss or in a the answer), it is deemed waived

END OF RULE 4

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NOTES ON RULE 4

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NOTES ON RULE 4

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II. Civil Cases (Condensed)

RULE 5 UNIFORM PROCEDURE IN TRIAL COURTS

Sec. 3 – Pleadings A. Pleadings allowed to be filed: 1. Complaints 2. Compulsory counterclaims and cross-claims pleaded in the answer 3. Answers thereto B. All pleadings shall be verified

SECTION 1 - Uniform procedure.—The procedure in the Municipal Trial Courts shall be the same as in the Regional Trial Courts, except (a) where a particular provision expressly or impliedly applied only to either of said courts, or (b) in civil cases governed by the Rule on Summary procedure.

Sec. 4 – Duty of Court A. After determination that the case falls under summary procedure, court may dismiss the case outright on any of the grounds apparent therefrom for the dismissal of a civil action; based on: 1. From an examination of the allegations therein 2. And such evidence as may be attached thereto B. If no ground for dismissal is found: 1. Court shall issue summons 2. Summons shall state that summary procedure shall apply

SECTION 2 - Meaning of terms.—The term “Municipal Trial Courts” as used in these Rules shall include Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts. REVISED RULES ON SUMMARY PROCEDURE Condensed Sec. 1 – Scope – rule shall govern the summary procedure in the MTC, MTC in Cities, MCTC in the following cases falling within their jurisdiction: A. Civil Cases 1. Cases of forcible entry and unlawful detainer a. Irrespective of the amount of damages or unpaid rentals sought to be recovered b. Where attorney’s fees are awarded, it shall not exceed P20,000 2. All other civil cases where total amount of plaintiff’s claim does not exceed P100,000 or P200,000 in Metropolitan Manila, exclusive of interest and costs a. EXCEPT: probate proceedings B. Criminal Cases 1. Traffic laws, rules, and regulations violation 2. Rental law violations 3. Municipal or city ordinance violations 4. All other criminal cases where penalty prescribed by law for offense charged is imprisonment not exceeding 6 months and/or a fine not exceeding P1,000 a. Irrespective of other imposable penalties, accessory or otherwise, or of civil liability arising therefrom b. In offenses involving damage to property through criminal negligence, this rule shall govern where imposable fine does not exceed P10,000 Rule shall not apply: 1. To a civil case where plaintiff’s cause of action is pleaded in the same complaint with another cause of action subject to ordinary procedure 2. To a criminal case where offense charged is necessarily related to another criminal case subject to ordinary procedure Notes: -

Sec. 5 – Answer A. Within 10 days from service of summons: 1. Defendant shall file his answer to the complaint a. Affirmative and negative defenses not pleaded therein shall be deemed waived (1) EXCEPT: for lack of jurisdiction over the subject matter b. Cross-claims and compulsory counterclaims not asserted shall be considered barred 2. Defendant to serve a copy thereof on the plaintiff B. Within 10 days from service of the answer 1. Answer to counterclaims or cross-claims shall be filed and served Notes: -

-

-

Rules on summary procedure do not apply to forcible entry and unlawful detainer Rule on summary procedure applies only to cases filed before the MTC (Sec. 16, BP 129) a. It has no application to cases before RTC b. Appeals of MTC decisions to the RTC are governed by the rules of the latter court

Parties are not prohibited from filing an answer with affirmative defenses in cases falling under summary procedure a. But the trial courts are enjoined from conducting a preliminary hearing on such affirmative defenses to prevent unnecessary delay Adjudication of the case can be done on the basis of affidavits or other evidence Proceeding must be as summary as possible Filing of an answer within the reglementary period is mandatory and non-extendible a. The Rules use the word “Shall” b. Giving the provisions a directory application would subvert the nature of the rule and defeat its objective Affidavit filed within the period to answer may be considered as an answer

Sec. 6 – Effect of Failure to Answer A. If defendant fail to answer the complaint within the period provided: 1. Court (motu proprio or on motion of plaintiff) shall render judgment 2. Judgment: a. As may be warranted by the facts alleged in the complaint and b. Limited to what is prayed for B. The court may in its discretion reduce the amount of damages and attorney’s fees claimed 1. For being excessive or unconscionable

Sec. 2 – Determination of Applicability A. Upon filing of action, court shall issue an order declaring whether or not the case shall be governed by this Rule B. Patently erroneous determination to avoid application of summary procedure rules = ground for disciplinary action

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2. Notes: -

-

-

Without prejudice to the applicability of Sec. 4, Rule 18 ROC, if there are 2 or more defendants

Sec. 8 – Record of Preliminary Conference A. Court shall issue an order stating the matters taken up therein, including but not limited to: 1. Whether the parties have arrived at an amicable settlement, and if so, the terms thereof 2. Stipulations or admissions entered into by the parties; 3. Whether, on the basis of pleadings and stipulations and admission made, judgment may be rendered without need for further proceedings a. In which event, judgment shall be rendered within 30 days from issuance of order 4. Clear specification of material facts which remain uncontroverted; and 5. Such other matters intended to expedite the disposition of the case B. WHEN: Within 5 days after termination of the preliminary conference

Sec. 6 allows the trial court to render judgment, even motu proprio, upon failure of defendant to file answer within the reglementary period The Rule do not provide that an answer filed after the reglementary period should be expunged from the records a. There is no provision for an entry of default when defendant fails to file his answer Defense of lack of jurisdiction may be met and ruled squarely by the court, as this may even be raised in a motion to dismiss as an exception to the rule on prohibited pleadings in summary procedure Motion to dismiss which involves grounds that may qualify as defenses in an answer should be treated as an answer

Sec. 7 – Preliminary Conference; appearance of parties A. A preliminary conference shall be held 1. Not later than 30 days after the last answer is filed 2. Rules on pre-trial in ordinary cases shall be applicable unless inconsistent with the provisions of this Rule B. Failure of plaintiff to appear in preliminary conference 1. Cause for dismissal of complaint 2. Defendant who appears in the absence of plaintiff shall be entitled to judgment on his counterclaim in accordance with Sec. 6 3. All cross-claims shall be dismissed C. If sole defendant shall fail to appear 1. Plaintiff entitled to judgment in accordance with Sec. 6 2. Rule shall not apply where one of 2 or more defendants sued under a common cause of action who had pleaded a common defense shall appear at preliminary conference Notes: -

-

-

-

Sec. 9 – Submission of affidavits and position papers A. Within 10 days from receipt of the order in Sec. 8, parties shall submit: 1. Affidavits of their witnesses 2. Other evidence on the factual issues defined in the order 3. Position papers setting forth the law and facts relied upon by them Notes: -

-

Provision requires that immediately after the preliminary conference, MTC should issue an order clearly and distinctly setting forth the issues Preliminary conference: a. Where parties are admonished to settle their dispute amicably b. If amicable settlement not possible, to narrow, clarify and define the issues of the case Sec. 6 is made mandatory by the use of auxiliary verbs “shall” and “must” a. But it does not follow that the absence of preliminary conference would necessarily render nugatory the proceedings (Martinez v. De La Merced) b. Unless there is a showing of substantial prejudice caused to a party, the trial court’s inadvertent failure to calendar the case for pre-trial or preliminary conference cannot render proceedings illegal or void ab initio Party’s failure to object to the absence of pre-trial is deemed a waiver Rule allows the application of the Rules on pre-trial a. But only where the provisions of the latter are consisted with the former b. The latter is merely secondary thereto Note that it is only when the defendant failed to answer the complaint may the court proceed to judgment a. When defendant did file an answer to the complaint, trial court may not declare him in default b. A motion to declare defendant in default is a prohibited pleading under Sec. 15(h) of the rules on summary procedure

-

Formal offer of evidence applicable only to ordinary trials not to cases covered by the rule on summary procedure Failure of adverse party to reply does not ipso facto render the facts set forth therein duly proven a. Plaintiffs still has the burden of proving their cause of action b. Since they are the ones asserting affirmative relief Particular item of evidence may be admissible but evidentiary weight depends on judicial valuation provided by the rules of evidence Joint counter-affidavit which sets forth defenses and raises issues and counterclaims may be considered as an answer A defective complaint in summary procedure may be cured by the allegations in the position paper (Dula v. Maravilla) a. Similar to a complaint, which fails to state a cause of action, may be cured by evidence presented during trial in regular procedure b. For this to apply, plaintiff must have a valid and subsisting cause of action at the time of the commencement of action (Sepulveda Sr., v. Pelaez)

Sec. 10 – Rendition of judgment A. Court shall render judgment within 30 days after: 1. Receipt of last affidavits and position papers, or 2. The expiration of the period for filing the same B. Court may issue an order for matters than need to be clarified (clarificatory procedure) 1. Should the court find it necessary to clarify certain matters of facts 2. Order is issued within the same period 3. Parties are required to submit affidavits and other evidence on said matters within 10 days from receipt of said order 4. Judgment rendered within 15 days after receipt of last clarificatory affidavits, or expiration of the period for filing the same C. Clarificatory hearings shall not be resorted to gain time for rendition of judgment

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Notes: -

-

-

Notes: -

Note that trial courts are no longer allowed to conduct a clarificatory hearing after submission of affidavits and submission papers a. If court desires to clarify certain material facts, it may require parties to submit affidavits or other evidence A court cannot resort to clarificatory procedure when parties fail to submit their affidavits and position paper as required by Sec. 9 Courts cannot issue subpoena duces tecum in cases triable summarily merely on the basis of the answers It is only after evaluating the affidavits and position papers submitted by the parties that the court can determine whether he should resort to the clarificatory procedure in Sec. 10 If any of the parties fail to submit evidence and position papers within the reglementary period, court cannot set the clarificatory procedure

-

IV. Common Provisions (Condensed) Sec. 18 – Referral to Lupon – Cases requiring referral to the Lupon for conciliation under the provisions of PD 1508 where there is no showing of compliance with such requirement, shall be dismissed without prejudice and may be revived only after such requirement shall have been complied with. This provision shall not apply to criminal cases where the accused was arrested without a warrant. Notes: -

-

Motion to dismiss that is prohibited by the rules is a motion to dismiss which would stop the running of the period to file an answer and cause undue delay Where no answer is filed, court may not declare defendant in default because a motion to declare defendant in default is a prohibited pleading When the rule on summary procedure bars a petition for relief from judgment of a petition for certiorari, mandamus, or prohibition against any interlocutory order, a. It has in mind: 1. Sec. 1, Rule 38 on petitions for relief from judgment; and 2. Rule 65 regarding petitions for certiorari, mandamus, or prohibition b. Aforementioned petitions are cognizable by the RTCs, not the MTCs c. If Sec. 19 RSP and Rules 38 and 65 ROC are juxtaposed, conclusion is that no petition for relief from judgment nor a special civil action for certiorari, prohibition, or mandamus arising from a judgment nor a special civil action of certiorari, prohibition, or mandamus arising from cases covered by the RSP may be filed with a superior court

Sec. 20 – Affidavits A. Affidavits required to be submitted under this Rule: 1. Shall state only facts of direct personal knowledge of the affiants which are admissible in evidence; 2. Shall show their competence to testify to the matters stated therein B. Violation of this requirement: 1. May subject the party of the counsel who submits the same to disciplinary action 2. Shall be cause to expunge the inadmissible affidavit or portion thereof from the record

Sec. 18 mandates that non-referral shall result in dismissal a. Dismissal is without prejudice b. Except in criminal cases where the accused is in custody without a warrant While referral is not jurisdictional, the intent is to increase awareness on the need for conciliation The rules regarding finality of judgment under the ROC apply to cases covered by the 1991 Revised Rules on Summary Procedure A judgment or order which is not appealed or made subject of a motion for reconsideration within the prescribed 15 day period attains finality

Sec. 21 – Appeal A. Judgment or final order shall be appealable to the appropriate RTC 1. RTC shall decide the same in accordance with Sec. 22, BP 129 2. Decision of the RTC in civil cases governed by this Rule, including forcible entry and unlawful detainer, shall be immediately executory a. Without prejudice to a further appeal that may be taken therefrom B. Sec. 10, Rule 70 shall be deemed repealed

Sec. 19 – Prohibited pleadings and motions The following pleadings, motions, or petitions shall not be allowed in the cases covered by this Rule: 1. Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter, or failure to comply with the preceding section; 2. Motion for a bill of particulars 3. Motion for new trial, or for reconsideration of a judgment, or for re-opening of trial 4. Petition for relief from judgment 5. Motion for extension of time to file pleadings, affidavits or any other paper; 6. Memoranda; 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; 8. Motion to declare defendant in default 9. Dilatory motions for postponement 10. Reply 11. Third-party complaints 12. Interventions

Sec. 22 – Applicability of the regular rules – The regular procedure prescribed in the Rules of Court shall apply to the special cases herein provided for in a suppletory capacity insofar as they are not inconsistent therewith, Sec. 23 – Effectivity – This revised Rule on Summary Procedure shall be effective on November 15, 1991. The foregoing rules no longer apply to cases of Forcible Entry and Unlawful Detainer cases under Rule 70 since the pertinent and applicable provisions thereof have already been incorporated in Rule 70.

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THE KATARUNGANG PAMBARANGAY LAW Title I, Book III, RA 7160 Condensed

The parties may, at any stage of the proceedings, agree in writing to have the matter in dispute decided by arbitration by either the Punong Barangay or Pangkat.

No complaint, petition, action, or proceeding involving any matter (between individuals or natural persons) within the authority of the lupon shall be filed or instituted directly in court or any other government office or adjudication UNLESS: 1. There has been confrontation between the parties before the lupon chairman or pangkat; and 2. That no conciliation or settlement has been reached or unless the settlement has been repudiated by the parties thereto

The settlement and arbitration agreement may be repudiated on the ground that consent is vitiated by fraud, violence, or intimidation. Such repudiation shall be sufficient basis for the issuance of the certification for filing a complaint in court or any government office for adjudication (10 days to repudiate). Rules on Venue under the Katarungang Pambarangay Law 1. Disputes between residents of the same barangay shall be brought for settlement before the lupon of said barangay 2. Residents of different barangays within the same city or municipality – in the barangay where the respondent or any of the respondents reside at the election of complainant 3. Disputes involving real property or any interest therein – where real property or larger portion thereof is located 4. Disputes arising at the workplace where contending parties are employed or at the institution where such parties are enrolled for study – in the barangay where such workplace or institution is located

Cases not covered by the Katarungang Pambarangay Law (Substantive Exceptions) 1. Where one party is the government or any subdivision or instrumentality thereof 2. Where one party is a public officer or employee, and the dispute relates to the performance of his official functions; 3. Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5,000 4. Offenses where there is no private offended party 5. Where the dispute involves real properties located in different cities or municipalities a. UNLESS the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon 6. Disputes involving parties who actually reside in barangays or different cities or municipalities a. EXCEPT: (1) Where such barangay units adjoin each other; and (2) The parties thereto agree to submit their differences to amicable settlement by an appropriate lupon 7. Such other classes of disputes which the president may determine in the interest of justice; and 8. Where one of the parties is a juridical entity

END OF RULE 5

The court in which non-criminal cases not falling within the authority of the lupon are filed may, at any time before trial, motu proprio refer the case to the lupon concerned for amicable settlement. While the dispute is under mediation, conciliation, or arbitration, the prescriptive periods for offenses and cause of action under existing laws shall be interrupted upon filing of the complaint with the punong barangay. Such interruption shall not exceed 60 days from time of filing of complaint with punong barangay. The parties may go directly to court in the following instances: (Procedural Exceptions): 1. Where the accused is under police custody or detention 2. Where the person has otherwise been deprived of personal liberty calling for habeas corpus proceeding; 3. Where the actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendente lite; 4. Where the action may otherwise be barred by the statute of limitations; 5. Labor disputes (Montoya v. Escayo) 6. Actions to annul judgment upon a compromise (Sanchez v. Tupaz) 7. CARL disputes; 8. Disputes involving the traditions of indigenous cultural community

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NOTES ON RULE 5 RULES ON SUMMARY PROCEDURE IN CIVIL CASES Filing of verified complaint with RTC

Court may dismiss outright

Court may summon the defendant

Within 10 days from receipt of summons, defendant answers, incorporating compulsory counterclaim, or cross-claim, and serves a copy to plaintiff

Answer to counterclaim and crossclaim within 10 days

If defendant fails to answer in 10 days, the court motu-proprio or on plaintiff’s motion, may render judgment based on facts alleged in the complaint without prejudice to Rule 9, Sec. 3 If plaintiff fails to appear in preliminary conference, complaint may be dismissed. Defendant entitled to decision based on his counterclaim. All cross-claims dismissed

Preliminary conference within 30 days after last answer is filed

Within 5 days after conference, court issues record of preliminary conference

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

Within 10 days from receipt of order, submission by the parties of affidavits and position papers

Rendition of judgment within 30 days from receipt of last affidavit or within 15 days after last clarificatory paper

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NOTES ON RULE 5

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The Nine Pleadings Allowed: 1. Complaint 2. Counterclaim 3. Cross-claim 4. Third-party complaint 5. Complaint-in-intervention 6. Answer 7. Reply 8. Counter-counterclaim; and 9. Counter-cross-claim

RULE 6 KINDS OF PLEADINGS

SECTION 3 - Complaint.—The complaint is the pleading alleging the plaintiff’s cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint.

SECTION 1 - Pleadings defined.—Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. “Pleadings” The term includes all papers filed, excluding evidentiary matters, from the complaint down to the judgment Documents attached to the pleadings and made a part thereof are considered evidence and also part of pleadings (Asia Banking Corp. v. Oslen & Co.) A bill of particulars constitutes part of the pleading that it supplements (Sec. 6, Rule 12) A covering letter for a pleading is not part of the latter (Clorox Co. v. Director of Patents)

Notes -

Purpose of Pleadings: 1. To apprise the court of the rival claims in a judicial controversy submitted for trial and decision. 2. To draw a line of battle between the litigants and to indicate fairly the nature of the claims or defenses of both parties a. A party cannot subsequently take a position contradictory to or inconsistent with his pleadings b. Issues in a case are limited to those presented in pleadings 3. To define the issues and form the foundation of proof to be submitted during the trial as well as advice a party to what his adversary would rely on as a cause of action or as defense so that he would properly be prepared at the trial to meet the issues raised PLEADING Purpose: to submit a claim or defense for appropriate judgment May be initiatory Always filed before judgment Only 9 kinds of pleading are allowed by the rules Must be written

Provision is also true and are applicable to other initiatory pleadings, as well as to petitions filed in the trial or appellate courts Note however that in appellate courts, it is the act of the lower court which is complained of that has to be alleged, instead of a cause of action Jurisdiction of the court and the nature of the action are determined by the averments of the complaint Prayer for relief is not controlling on the court and is merely advisory as to the nature of the action (See Sec. 2, Rule 7)

Ultimate Facts Refer to the essential facts constituting the plaintiff’s cause of action A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient Test of sufficiency of facts alleged in the complaint – determine whether upon the averment of facts, a valid judgment may be properly rendered SECTION 4 - Answer.—An answer is a pleading in which a defending party sets forth his defenses. Answer – is the pleading where the defendant sets forth his affirmative or negative defenses. It may or may not contain a counterclaim. It may likewise be the response to a counterclaim or cross-claim

MOTION Purpose: to apply for an order not included in the judgment

SECTION 5 - Defenses.—Defenses may either be negative or affirmative. (a) A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action. (b) An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant would nevertheless prevent or bar recovery by him. The affirmative defenses include fraud, statute of limitations, release payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance.

Cannot be initiatory as they are always made in a case already filed in court May be filed even after judgment Any application for relief not by a pleading is a motion May be oral when made in open court or in the course of a hearing or trial

SECTION 2 - Pleadings allowed.—The claims of a party are asserted in a complaint, counterclaim, cross-claim, third (fourth, etc.)—party complaint, or complaint-in-intervention. The defenses of a party are alleged in the answer to the pleading asserting a claim against him. An answer may be responded to by a reply.

Sec. 5(a) defines a NEGATIVE DEFENSE It is the specific denial of the material facts or facts alleged in the pleading of the claimant essential to his cause of action A denial is not specific just because it is so qualified (Agton v. CA)

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-



-

This is especially true where a blanket denial is made of all the averments of the complaint instead of dealing particularly with each  Such general denial will be deemed admission of the averments in the complaint To be considered specific, see Sec. 10, Rule 8

Direct Attack and Collateral Attack Distinguished 1. Direct attack a. A direct attack against a judgment is made to an action or proceeding b. Main object of which is to annul, set aside, or enjoin the enforcement of such judgment c. If not yet carried into effect or if property has been disposed of, aggrieved party may sue for recovery 2. Collateral attack a. It is made when, in another action to obtain a different relief, an attack on the judgment is made as an incident to such action b. This is proper only when: (1) The judgment, on its face, is null and void; or (2) Where it is patent that the court which rendered said judgment has no jurisdiction

Sec. 5(b) defines and illustrates an AFFIRMATIVE DEFENSE It is an allegation of a new matter which, hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him The enumeration is not exclusive; some affirmative defenses which should be specifically pleaded include: 1. Res judicata 2. Ultra vires acts of a corporation 3. Laches 4. Unconstitutionality Note also that if no motion to dismiss had been filed, any of the grounds therefor may be raised as an affirmative defense in the answer (Sec. 6, Rule 16)

While a counterclaim may be filed with a subject matter or for a relief different from those in the basic complaint in the case, it does not follow that such counterclaim is in the nature of a separate and independent action in itself (Co v. CA) Its allowance in the action is subject to explicit conditions as set forth particularly in its required relation to the subject matter of the opposing parties’ claim Failing in that respect, it cannot be entertained as a counterclaim in the original a. It must be filed and pursued as an altogether different and original action

Insufficient denial or denial amounting to admissions: 1. General denial; and 2. Denial in the form of a negative pregnant Negative Pregnant – is a denial in such form as to imply or express an admission of the substantial fact, which apparently is controverted. It is a form of denial which really admits the important facts contained in the allegations to which it relates. While it is a denial in the form its substance actually has the effect of an admission because of a too literal denial of the allegation sough to be denied. This arises when the pleader merely repeats the allegations in a negative form. Notes: -

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Where defendant who is a counter-claimant and therefore a plaintiff in his counterclaim dies, a simple motion for substitution is permissible under Rule 3

That being said, may a counterclaim be allowed to nullify a Torrens Title? 1. First school of thought: NOT ALLOWED a. Where the objective of the claim is to nullify the title to the property in question, which thereby challenges the judgment pursuant to which the title was decreed, this is apparently a collateral attack which is not permitted under the principle of indefeasibility of Torrens Title b. In Co v. CA, the Court held that the issue of validity of title can only be raised in an action expressly instituted for that purpose and not by counterclaim c. Said principle was reiterated in Vda. De Villanueva v. CA 2. Second school of thought: COUNTERCLAIM ALLOWED AS DIRECT ATTACK a. Lenas v. IAC – reconveyance of title was granted in a counterclaim in an action to recover possession b. Heirs of Santiago v. Heirs of Santiago – the court held that a counterclaim can be considered a direct attack in the title c. DBP v. CA – it was held that a counterclaim is considered a complaint, only this time, it is the original defendant who becomes the plaintiff d. Leyson v. Bantuyan – court held that an attack on a certificate of title may be an original action or a counter-claim in which a certificate of title is assailed as void; a counterclaim is considered a new suit

The rules made it clear that the admission to be drawn from an affirmative allegation is merely “hypothetical” Justice Feria: an affirmative defense does not require that the defending party admit, expressly or impliedly, the material allegations of the complaint a. It is an allegation of new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would prevent or bar recovery Note also that a collateral attack on Torrens Title as affirmative defense is not allowed a. Vda. De Villanueva v. CA – the issue of invalidity of the titles as a defense in an answer/counterclaim to respondents’ action for recovery of ownership partakes of the nature of a collateral attack and is an indirect challenge to the final judgment and decrees of registration which resulted in the issuance of titles b. Sec. 48, PD 1529 (Property Registration Act) requires no less than a direct action for reconveyance duly filed within the period provided for by law

SECTION 6 - Counterclaim.—A counterclaim is any claim which a defending party may have against an opposing party. Nature of Counterclaim It partakes of the nature of a complaint or a cause of action against a plaintiff a. A cross-claimant or a counterclaimant is a plaintiff on the cross-claim or counterclaim

Counterclaim, Set-off, and Recoupment 1. Counterclaim or Contrarreclamacion a. Includes both set-off and recoupment and is broader than both

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b.

2.

3.

It includes equitable demands and secures to the defendant full relief which is a separate action at law and would have secured him on the state of facts c. Being substantially a cross-action by defendant against plaintiff Set-off or Compensacion a. A money demand by defendant against plaintiff arising upon contract and constituting a debt independent of and unconnected with the cause of action in the complaint b. May be used to offset a plaintiff’s claim but not to recover affirmatively Recoupment or Reconvencion a. It differs from a counterclaim in this wise: (1) Under a counterclaim, defendant may have an affirmative judgment where he is able to prove a demand in excess of the plaintiff’s demand (2) In recoupment, whatever the damages proved by defendant, they can go only to reduce or extinguish the claim against him b. Recoupment must arise out of the contract or transaction upon which the plaintiff’s claim is founded

SECTION 7 - Compulsory counterclaim.—A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the Regional Trial Court, the counterclaim may be considered compulsory regardless of the amount. Purpose – the reason for the rule on counterclaims is to avoid multiplicity of suits and to dispose of the whole matter in controversy in one action Classification of Counterclaims 1. Permissive Counterclaim a. Essentially an independent claim that may be filed separately in another case 2. Compulsory Counterclaim a. When its object arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction b. Unlike permissive counterclaims, compulsory counterclaims should be set up in the same action, otherwise they would be barred forever c. If a compulsory counterclaim is: (1) Filed concurrently with the main action but in a different proceeding, it would be abated on the ground of litis pendentia (2) Filed subsequently, abated on the ground of res judicata

For Set-off or Recoupment to be considered as counterclaim, the following requisites must concur (Lopez v. Gloria and Sheriff of Leyte): 1. The same be essentially a genuine action of the defendant against the plaintiff  Under this requisite, independent of any other consideration, a genuine action is constituted by defendant which could be employed separately against plaintiff 2. The same should have as its object, to neutralize, wholly or partially, that which the plaintiff is trying to obtain  Under this requisite, that the defendant admits the facts upon which the action of plaintiff is based  This requisite is absent if defendant bases his claim on facts which directly destroy the action or cause of action of plaintiff; in this case, the claim of defendant would only be a special defense 3. The same does not have for its object to destroy directly the action of the plaintiff; and  Under this requisite, set-off or recoupment may be merely a defense and not a counterclaim if it only tends to oppose or to destroy the action of plaintiff 4. The same ought not to pray for a positive remedy distinct from payment of money

COMPULSORY COUNTERCLAIM One which arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction It is barred if not set up in the action

Same Capacity Rule – A counterclaim must be filed against an opposing party in the same capacity he is suing (De Borja v. De Borja)

Need not be answered; no default

Note that a counterclaim against counsel is not allowed (Chavez v. Sandiganbayan) A lawyer who acts in the name of a client should not be sued on a counterclaim in the very same case he has filed only as a counsel and not as a party Any claim for alleged damages or other causes of action should be filed in an entirely separate and distinct civil action A lawyer cannot properly attend to his duties towards his client if, in the same case, he is kept busy defending himself

PERMISSIVE COUNTERCLAIM It does not arise out of nor is it necessarily connected with the subject matter of the opposing party’s claim It may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction It is not barred even if not set up in the action Must be answered, otherwise, the defendant can be declared in default

Note: A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default, principally because the issues raised in the counterclaim are deemed automatically joined by the allegations of the complaint. (Gojo v. Goyala) PERMISSIVE COUNTERCLAIMS Permissive Counterclaim Counterclaim is permissive if it does not arise out of, nor is necessarily connected with, the subject matter of the opposing party’s claim This is not barred even if not set up in the action Must have independent jurisdictional ground (see notes on fourth element of compulsory counterclaims)

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Cases where Counterclaims were Held as Permissive 1. In an action for money, defendant’s counterclaim for damages sustained because of supposed illegal detention by plaintiff is merely permissive (Yap Unki v. Chua Jamco) 2. The civil case in the Pasig Court, which is in effect a counterclaim to the Manila case, was ordered transferred and consolidated with the Manila case (Delta v. Mangosing)



-

COMPULSORY COUNTERCLAIMS Requisites of Compulsory Counterclaim: 1. It must be cognizable by regular courts  If a claim is cognizable by other quasi-judicial bodies (like the NLRC or the SEC) then it cannot be compulsory 2. It arises out of or is necessarily connected with, the transaction or occurrence that is the subject matter of the opposing party’s or co-party’s claim 3. Does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction  When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained 4. The trial court has jurisdiction to entertain the claim both as to the amount and the nature thereof, except that in an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount  See separate discussion below

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GENERAL RULE: A compulsory counterclaim not set up in the answer is deemed barred

UNLESS: it had independent jurisdictional grounds to support it  Under Sec. 2 and 3 of Rule 17, where the complaint is dismissed upon the motion of the plaintiff or due to the fault of the plaintiff, the defendant may prosecute his counterclaim in the same or in a separate action Note however the language of the present rule: 1. The counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof 2. EXCEPT that in an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount (note this is only with regard to the AMOUNT and not as to NATURE, see notes below) As such, a compulsory counterclaim in the RTC needs no independent jurisdictional grounds However, permissive counterclaims must have independent jurisdictional ground  In the MTC, a counterclaim beyond the court’s jurisdiction may only be pleaded by way of defense; if found to be meritorious, complaint may be dismissed on the ground that the defendant has bigger credit (Calo v. Ajax)  In Yu Lay v. Galmes, it has been held that the failure of the defendant to set up, by way of counterclaim, the credit for a sum greater than that of the justice of the peace’s jurisdiction does not mean that he thereby loses his right to set it up before a competent court  The rule that a compulsory counterclaim is barred if not set up, when applied to MTCs presupposes that the amount involved is within said court’s jurisdiction

Limitations on Jurisdiction over the Nature of the Claim While there is no limit on the amount of the claim as far as the RTC is concerned, the RTC must, however, have jurisdiction over the nature of the claim Regardless if it is the RTC or MTC, the court must have jurisdiction over the nature of the claim Illustrative cases: 1. Vda. De Chua v. IAC – it was held that the rules on jurisdiction in an independent action applies to counterclaims; a counterclaim for recovery of possession may be allowed in the RTC but not a counterclaim for ejectment 2. Chan v. CA – it was held that a counterclaim for ejectment may be set up in a consignation case filed with the MTC but not with the RTC 3. Zulueta v. Pan Am – lack of jurisdiction over the main case was cured by the compulsory counterclaim based upon damages already suffered by defendant in consequence of the filing of the complaint 4. Where the MTC has no jurisdiction in ejectment, it has also no jurisdiction to entertain counterclaim

EXCEPTIONS: 1. If it is a counterclaim which either matured or was acquired by a party after serving his answer  In this case, it may be pleaded by filing a supplemental answer or pleading before judgment (Sec. 9, Rule 11) 2. When a pleader fails to set up a counterclaim through oversight inadvertence, excusable negligence, or when justice requires  He may, by leave of court, set-up the counterclaim by amendment of the pleading (Sec. 10, Rule 11) A compulsory counterclaim is auxiliary to the original suit It is auxiliary to the proceeding in the original suit and derives its jurisdictional support therefrom It presupposes the existence of a claim against the party filing the counterclaim Where there is no claim against a counterclaimant, the counterclaim is improper and it must be dismissed; more so where complaint is dismissed at the instance of the counterclaimant

NAMARCO v. Federation of United Namarco Distributors Inc. laid down the following criteria to determine whether a counterclaim is compulsory: If YES to all four questions = counterclaim is COMPULSORY 1. Are the issues of fact and law raised by the claim and counterclaim largely the same? 2. Would res judicata bar a subsequent suit on defendant’s claim about the compulsory counterclaim rule? 3. Will substantially the same evidence support or refute plaintiff's claim as well as defendant’s counterclaim 4. Is there any logical relation between the claim and counterclaim?

As to the Fourth Element According to Justice Moran, a compulsory counterclaim is essentially auxiliary or ancillary to the main controversy Being ancillary, it needs no independent jurisdictional grounds to support it, and as a consequence, no jurisdictional amount is required for its adjudication If the court does not have jurisdiction to entertain the main action of the case and dismissed the same, then the compulsory counterclaim, being ancillary, must likewise be dismissed

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The Logical Relationship Test – Any claim a party has against an opposing party that is logically related to the claim being asserted by the opposing party, and that is not within the exception to the rule is a compulsory counterclaim.



Nexus Between the Phrase Logical Relationship and Purpose of Rule A counterclaim is logically related to the opposing party’s claim where separate trials of each of their respective claims would involve SUBSTANTIAL DUPLICATION of effort and time by parties and courts Where multiple claims involve many of the same factual issues, or the same factual and legal issues, or when they are offshoots of the same basic controversy between parties, fairness and convenience require that the counterclaimant be permitted to maintain his cause of action

If he opts to set up his compulsory counterclaim, he may still plead his ground for dismissal as an affirmative defense in his answer (more favorable option)

Note also that No Filing Fee is required for Compulsory Counterclaims but only for Permissive Counterclaims Filing fee does not apply to a compulsory counterclaim Only to permissive counterclaim There is no need to pay docketing fees for compulsory counterclaim (Metal Engineering Resources Co. v. CA) Cases where Counterclaim was Held to be Compulsory and Examples 1. A counterclaim for damages and attorney’s fees as a consequence of an action filed against petitioner is compulsory and must be pleaded in the same action (Tui Po v. Bautista) 2. In an action for recovery of possession of real estate – the expense for clearing and cultivation is a compulsory counterclaim even if it is inconsistent with the defense of ownership (Camara v. Aguilar) 3. In an action for annulment on ground of fraud – expenses for preservation and improvement of property is compulsory (Maclan v. Garcia) 4. In an action by debtor against a creditor to prevent extrajudicial foreclosure of chattel mortgage, creditor should file a counterclaim for mortgage debt and damages, if any, provided that the debt is already mature (Papa v. Banaag) 5. In an action to quiet title, the claim of defendants for damages against the plaintiff for usurping the produce of the property is compulsory (Doliente v. Blanco) 6. Claims for compensation for improvements in good faith should be set in an action for ejectment suit against defendant (Beltran v. Balbuena) 7. In Linaza v. IAC, and which was reiterated in Melquiades v. IAC, reconveyance of title was granted in a counterclaim 8. The claim of employers for actual damages against a dismiss employee where the basis of the claim arises from or is necessarily connected with the fact of termination, should be entered as a counterclaim in labor dismissal case a. This should be distinguished from causes of action for damages where employment relationship is merely incidental and the cause of action proceeds from a different source of obligation 9. Note that compulsory counterclaim incapable of pecuniary estimation, such as those arising from quasi-contracts are not allowed in ejectment cases, but may be the subject of a separate action in the RTC (Arenas v. CA) 10. Rules on Counterclaim for Improvements in Ejectment Cases a. Power of the court in ejectment case to decide issue of builder in good faith (Tayag, et.al. v. Yusecom et.al.) (1) Speaking of ordinary ejectment cases, if lessees or occupant has not built anything on the premises, payment of rent would be a valid and satisfactory solution (2) But where defendant has built on the land, especially where it is substantial and valuable, courts even in ejectment cases are bound to take cognizance of such fact (3) When the court finds that the construction or planting had been effected in good faith: (a) Court enforces or defends the respective rights of parties and to assess the value of the land and improvement

The counterclaim must have MATURED before the answer If counterclaim matures AFTER the answer, it is merely PERMISSIVE Counterclaim or cross-claim, which either matured or was acquired by a party after serving his pleading, may, with court permission, be presented as a counterclaim or a cross-claim by supplemental pleading before judgment Meaning of Transaction or Occurrence “Transaction” may comprehend a series of many occurrences depending not so much upon the immediateness of their connection as upon their logical relationship “Transaction” is broad enough to include an occurrence and the words “transaction” or “occurrence” as used include the facts out of which a cause of action may arise and probably mean whatever may be done by one person which affects another’s rights and out of which a cause of action arises It is not enough that the claim and counterclaim arise out of the same contract a. It should also arise out of the same transaction or occurrence that is the subject matter of the opposing party’s claim Failure to Invoke Compulsory Counterclaim A party to a case who failed to invoke his claim in the main case, while having the opportunity to do so, will be precluded, subsequently, from invoking his claim, even if it were true, after the decision has become final (Tuazon v. Arca) Estoppel may be successfully invoked if party fails to raise the question in early stages of proceeding (Corona v. CA) A compulsory claim cannot be the subject of a separate action Filing of a Motion to Dismiss is an Implied Waiver of Compulsory Counterclaim If the dismissal of the main action results in the dismissal of the counterclaim already filed, it stands to reason that the filing of a motion to dismiss the complaint is an implied waiver of the compulsory counterclaim since the grant of the motion ultimately results in the dismissal of the counterclaim Hence, the filing of a motion to dismiss and setting up of a compulsory counterclaim are incompatible remedies In the event that defendant has a ground for dismissal and a compulsory counterclaim at the same time, he must choose only one remedy  If he chooses a motion to dismiss, he will lose his compulsory counterclaim

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b.

c.

d.

e.

(b) Instead of directing the parties to comply with Art 448 NCC, and if they cannot agree, to file a new action (c) This is to avoid multiplicity of suits and to administer practical and speedy justice (4) Court may apply the provisions of the NCC relative to builders specially since there is no question as to the ownership of the buildings In Alvira v. Vera – as an incident to the main issue of possession de facto, inferior courts can decide, if defendant has built on the land a substantial and valuable building, and there is no dispute as to ownership, their rights according to the NCC However, in Depra v. Dumlao, the SC, addressing the question of the decision of the MTC ordering a forced lease between parties after finding that defendant was builder in good faith, held that the decision is null and void (1) Judgment in a detainer case is effective in respect of possession only (2) MTC overstepped its bounds when it imposed upon the parties a forced lease; a lease is an interest in real property and belongs to the jurisdiction of CFI Counterclaim for improvement is compulsory as held in Baclayon v. CA (1) Although the alternative defense of being builders in good faith is only permissive, (2) The counterclaim for reimbursement of the value of the improvements is compulsory (3) Failure to set up in an action for recovery of ownership and possession filed with the RTC bars the right to raise it in a subsequent litigation In a special civil action for declaratory relief a defendant may set up in his answer a counterclaim based on or arising from the same transaction, deed or contract on which the petition is based (Ledesma v. Morales and Amparo)

SECTION 8 - Cross-claim.—A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. Purpose of Cross-claim – to settle in a single proceeding all the claims of the different parties in the case against each other in order to avoid multiplicity of suits Requirements for a Cross-claim 1. A claim by one party against a co-party 2. It must arise out of the subject matter of the complaint or of the counterclaim; and 3. The cross-claimant is prejudiced by the claim against him by the opposing party Limitations on Cross-claim 1. Must arise out of the subject matter of the complaint 2. Can be filed only against a co-party 3. Is proper only where cross claimant stands to be prejudiced by filing of the action against him (see notes under Cross Bill) 4. If the complaint is dismissed, cross-claim should also be dismissed (see notes below) Cross Claim v. Counterclaim – they differ in that: 1. In cross-claim, it is filed against a co-party 2. And always arises out of the transaction or occurrence that is the subject matter of either the original action or of a counterclaim therein GENERAL RULE: C ross-claim not set up in the action is BARRED EXCEPTIONS: Permissive cross-claims 1. When it is outside the jurisdiction of the court; or 2. If the court cannot acquire jurisdiction over third parties whose presence is necessary for the adjudication of said cross-claim  In which case, the cross-claim is considered as permissive 3. Cross claim that may mature or may be acquired after service of the answer

Related Rules on Counterclaims 1. Sec. 8, Rule 11 – a compulsory counterclaim or a crossclaim that a defending party has at the time he files his answer shall be contained therein 2. Sec. 2, Rule 9 – a compulsory counterclaim or cross-claim, not set up shall be barred 3. Sec. 9, Rule 11 – a counterclaim or cross-claim which either matured or was acquired by a party after serving his pleading may, with the permission of the court, be presented as a counterclaim or cross-claim by supplemental pleading before judgment 4. Sec. 10, Rule 11 – when a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or excusable negligence, or when justice requires, he may, by leave of court, set up the counterclaim or cross-claim by amendment before judgment 5. Sec. 4, Rule 11 – a counterclaim or cross-claim must be answered within 10 days from service 6. Sec. 3, Rule 11 – as to an amended counterclaim or crossclaim. The counter-defendant shall answer the same within 15 days after being served a copy thereof. Where its filing is not a matter of right, the counter-defendant shall answer the amended counterclaim within 10 days from notice of the order admitting the same. An answer earlier filed may serve as the answer to the amended counterclaim if no new answer is filed

Note: The dismissal of the complaint carries with it the dismissal of a cross-claim which is purely defensive, but not a cross-claim seeking an affirmative relief. On Dismissal of the Complaint (as discussed in Ruiz v. CA) Where cross-claim stemmed from the alleged unjust refusal of donees to return donated properties, resulting in the donors filing of the complaint for revocation of donation Here, the cross-claim arose from the complaint of the donors and was not separable to the main action  It had no independent existence and was based entirely on that complaint The cross-claim was defensive in character because it can prosper only if plaintiffs succeed Since plaintiffs failed to establish that the petitioners’ refusal was not justified, it necessarily followed that the respondents’ cross-claim, which was based on the same allegation, also had to fail Cross-claimants cannot claim more right than the plaintiffs themselves, on whose cause of action the cross-claimants depended

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Test of Propriety of Cross-claims There must at least be a necessary relation to the matter constituting the principal cause of action If the cause of action set forth in the cross claim is entirely foreign to the matters alleged in the original complaint or in the counterclaim, the cross-claim shall be dismissed There must be some legal or equitable relationship between the ground for recovery alleged in the cross-claim and the matters alleged as cause of action by plaintiff

reply, all the new matters alleged in the answer are deemed controverted. If the plaintiff wishes to interpose any claims arising out of the new matters so alleged such claims shall be set forth in an amended or supplemental complaint. Primary Purpose of Reply – to join issues with new matters raised in the answer and thereby authorize the pleader of the reply to introduce evidence on said new issues

Improper Cross-Claims: 1. Where the cross-claim is improper, the remedy is certiorari (Malinao v. Luzon Surety) 2. The dismissal of a cross-claim is unappealable when the order dismissing the complaint becomes final and executory (Ruiz, Jr. v. CA) 3. A cross-claim is not allowed after declaration of default of cross-claimant (Tan v. Dimayuga)  It would be tantamount to setting aside the order of default because then the cross-claimant would reobtain a standing in court as party litigant CROSS-CLAIM

COUNTERCLAIM

Against a co-party

Against an opposing party

Must arise out of the transaction that is the subject matter of the original action or for a counterclaim therein No need for a leave of court

May arise out or be necessarily connected with the transaction or the subject matter of the opposing party’s claim, in which case, it is called compulsory; or it may not, in which case it is permissive No need for leave of court

Regalado notes that the filing of the reply is optional as the new matters raised in the answer are deemed controverted even without a reply.  Where the party desires to file a reply, he must nevertheless do so within 10 days from service of the pleading responded to (Sec. 6, Rule 11) When Reply is Necessary: 1. To set up affirmative defenses on the counterclaim (Rosario v. Martinez) 2. Where the answer alleges the defense of usury in which case a reply under oath should be made; otherwise, the allegation of usurious interest shall be deemed admitted (Sun Bros. v. Caluntad) 3. Where the defense in the answer is based on an actionable document, a reply under oath must be made; otherwise, the genuineness and due execution of the document shall be deemed admitted (Toribio v. Bidin)

THIRD-PARTY COMPLAINT Against a person not a party to the action

Exception to the Rule in Falcasantos v. How Suy Ching – where the case is submitted on the pleadings, the failure of the party to make a reply does not mean that he is deemed to have controverted the issues raised in the answer

Must be in respect of the opponent’s (plaintiff) claim

Limitations 1. Calvo v. Roldan – a party cannot, in his reply, amend his cause of action 2. Anaya v. Palaoran – a party cannot, in his reply, introduce therein new or additional causes of action

Leave of court is needed

SECTION 11 - Third, (fourth, etc.)—party complaint.—A third (fourth, etc.)—party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.)—party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent’s claim.

Illustrative Cases: 1. In an action for damages against the judgment creditor and the Sheriff for having sold the property of the plaintiff, the Sheriff may file a cross-claim against the judgment creditor for whatever amount he may be adjudged to pay the plaintiff 2. In an action against a co-signer of a promissory note one of whom is merely an accommodation party, the latter may file cross-claim against the party accommodated for whatever amount he may be adjudged to pay the plaintiff 3. The cross-claim need not seek relief against all original defendants. A third-party complaint may be likened to a cross claim (Talisay-Silay v. CIR) 4. A cross-claim of defendant against co-defendant in an action where their liability is in solidum is not barred even when the latter is not summoned (Cardenas v. Camus)

NOTE: for CONTRIBUTION, INDEMNITY, SUBROGATION, or any other RELIEF (CIS) Nature and Object of Third-Party Complaint It is a procedural device; Sec. 11 defines it A third-party complaint is actually independent of and separate and distinct from plaintiff’s complaint  The Rules permit defendant to bring in a third-party defendant to litigate his separate cause of action in respect of plaintiff’s claim against a third-party in the original and principal cause But Regalado notes that a third-party complaint need not arise out of or be entirely dependent on the main action as it suffices that the former be only “in respect of” the claim of the third-party plaintiff’s opponent Object is to avoid circuity of action and unnecessary proliferation of lawsuits and disposing expeditiously in one litigation the entire subject matter

SECTION 9 - Counterclaims and counter-cross-claims.—A counterclaim may be asserted against an original counterclaimant. A cross-claim may also be filed against an original cross-claimant. SECTION 10 - Reply.—A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. If a party does not file such

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Purpose is to enable a defending party to obtain contribution, indemnity, subrogation, or other relief from a person not a party to the action Notwithstanding the judgment on the pleadings, defendant could still proceed with the prosecution of the third-party complaint Judgment on a third-party complaint may become final and executory without waiting for the final determination of the main case (Pascual v. Bautista)

Rule on Venue and Jurisdiction Inapplicable Jurisdiction over 3rd party complaint is but a continuation of the main action and is a procedural device to avoid multiplicity of suits As such, proscription on jurisdiction and venue applicable to ordinary suits may not apply (Eastern Assurance v. Cui) What is determinative of venue are the operative facts in the main case, and not those alleged in the third-party complaint

Reason for Leave of Court - To obviate delay in the resolution of the complaint as when: a. Third party defendant cannot be located; or b. Unnecessary issues may be introduced; or c. Introduction of a new and separate controversy

Grounds for Third-Party Complaint – The third party complaint must have a connection with the main action, with defendant claiming for: 1. Contribution, 2. Indemnity, 3. Subrogation, or 4. Any other relief

Basis of Third-Party Complaint Under this Rule, a person not party to an action may be impleaded by the defendant either: (a) On allegation of liability to the latter; (b) On the ground of direct liability to the plaintiff; or (c) Both (a) and (b) Situation in (a) is covered by the phrase “contribution, indemnity or subrogation”, while (b) and (c) are subsumed under the catch-all phrase (Samala v. Victor)

Tests of Propriety – The tests whether the third-party complaint in respect to plaintiff’s claim are: 1. Whether it arises out of the same transaction on which plaintiff’s claim is based; or 2. Whether the third party’s claim, although arising out of another or different contract or transaction, is connected with plaintiff’s claim; or 3. Where the third-party defendant would be directly liable to the plaintiff or to the defendant in whole or in part of plaintiff’s claim against the original defendant, although the third party’s liability arises out of another transaction; or 4. Where the third-party defendant may assert defenses which the third-party plaintiff may have against the plaintiff’s claim

Third-Party Complaint v. Cross-Claim a. SIMILARITY: the third-party seeks to recover from another person some relief in respect to the opposing party’s claim b. DIFFERENCE: (1) In a cross-claim, third party is already impleaded (2) In a third-party complaint, third party is not yet impleaded; leave of court is also required and if granted, summons will have to be served on the third-party defendant

Notes: -

Third-Party Complaint v. Complaint in Intervention (Rule 19) a. SIMILARITY: both result in bringing into the action a 3 rd person who was not originally a party b. DIFFERENCE: (1) Initiative in a third-party complaint is with the person already a party to the action (2) In intervention, initiative is with a non-party who seeks to join the action

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No Need to Amend Complaint to Hold Third-Party Defendant Directly Liable to Plaintiff When a third-party defendant is impleaded on the ground of direct liability to the plaintiff, there is no need to amend the complaint to hold the third-party defendant liable Since liability if third-party defendant is already asserted in the third-party complaint, amendment of complaint to assert such liability is a mere matter of form A third-party complaint, however, involves an action separate and distinct from, although related to, the main complaint A third-party defendant who feels aggrieved by some allegations in the main complaint should, aside from answering the third-party complaint, also answer the main complaint

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Leave of court to file a third-party complaint may be obtained by motion under Rule 15 Summons on third, fourth, etc. party defendant must be served for the court to obtain jurisdiction over his person, since he is not an original party Where the trial court has jurisdiction over the main case, it also has jurisdiction over the third-party complaint regardless of the amount involved as a third-party complaint is merely auxiliary to and is a continuation of the main action A third party complaint is not proper in an action for declaratory relief

Examples of Third-Party Complaint 1. A creditor files an action for collection against one of the solidary debtors. Defendant may with leave of court file a third-party complaint against his co-debtor for contribution of his share in the obligation 2. The victim of a vehicular accident files an action for damages against one of the owners of the vehicle involved. The latter with leave of court may file a third-party complaint against his insurer for indemnity to the extent of the insurance against any liability of the owner of the motor vehicle. 3. Where an action is filed by the lessor against the lessee for failure to make repairs on the leased premises, the lessee may with leave of court file a third-party complaint against the sublessee who assumes compliance, for subrogation 4. In an action for damages based on torts, defendant may with leave of court file a third-party complaint against a third person on the ground that the latter’s negligence is the proximate cause of the accident

Same Capacity Rule applies – So, one who is sued in his individual capacity cannot file a third-party complaint in another capacity, like an administrator (Capayas v. CFI Albay) Third-Party Defendant must NOT be a Party – The third-party complaint cannot be asserted against one who is already a party to the action. (Del Rosario v. Jimenez)

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Judgment and Appeal There are 2 judgments that may be rendered in the action where a third-party complaint is filed: 1. Judgment on the principal action; and 2. Judgment on the third-party complaint An appeal in one does not inure to the benefit of the other When the issues presented in the third-party complaint are separate and distinct from those in the complaint, the third-party complaint is not a legal obstacle to the dismissal of the main action An order disallowing a third-party complaint is appealable since it would finally dispose of defendant’s right to implead the party (De Dios v. Balagot) But the main case cannot be tried pending receipt of answer to the third-party complaint  It is the duty of the judge to rule on third-party complaint where issues have been joined and evidence received Examples: 1. Where a third-party defendant appealed but the third-party plaintiff did not appeal from the judgment against him in favor of the plaintiff, such judgment became executory, without prejudice to the thirdparty defendant’s appeal being given due course as it pertains only to the third-party complaint (Firestone Tire & Rubber Co. v. Tempongko) 2. Where the trial court dismissed the complaint and the defendant’s third-party complaint, and only the plaintiff appealed, the CA cannot make a finding of liability on the third-party defendants who did not appeal from the dismissal of the third-party complaint (Go, et.al. v. CA)

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Distinguished from a Third-party Complaint A third-party complaint is proper when not one of the third-party defendants therein is a party to the main action If one or more of the defendants in the counterclaim or cross-claim is already a party to the action, then the other necessary parties may be brought under this section SECTION 13 - Answer to third (fourth, etc.)—party complaint.—A third (fourth, etc.)—party defendant may allege in his answer his defenses, counterclaims or cross-claims, including such defenses that the third (fourth, etc.)—party plaintiff may have against the original plaintiff’s claim. In proper cases, he may also assert a counterclaim against the original plaintiff in respect of the latter’s claim against the third-party plaintiff. Notes -

SECTION 12 - Bringing new parties.—When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained.

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For purposes of Sec. 12, the court may authorize the filing of the proper third-party complaint to implead the other parties not included in the complaint (Rubio v. Mariano) Even where the impleading of third-party defendants does not fall squarely within the requisites of Sec. 12, their inclusion in the action may be permitted where there is a question of law or fact common to the right in which they are interested and another right sought to be enforced in the action, hence their inclusion is now necessary under Sec. 6, Rule 3 Notes: -

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A new party impleaded by plaintiff in a compulsory counterclaim cannot be considered to have automatically and unknowingly submitted to the jurisdiction of the court  A contrary ruling would result in mischievous consequences whereby a party may be indiscriminately impleaded The correct procedure in such instances is for the trial court to order such impleaded parties to be brought in as defendants, if jurisdiction over them can be obtained, by directing that summons be served on them  In this manner, they can properly be appraised of and answer the charges against them  Only upon service of summons can trial court obtain jurisdiction over them

Under this rule, the third-party defendant is allowed to include in his answer to the third-party complaint defenses, counterclaims, or cross-claims, including such defenses that the third-party plaintiff may have against the original plaintiff’s claim In proper cases, he may also assert a counter-claim against the third-party plaintiff

Example: A third party complaint was filed against a reinsurer by the defendant insurer The reinsurer may set up in his answer the defense alleged by the defendant insurer that the loss was caused by the willful act of connivance by the plaintiff insured But the third-party defendant reinsurer may not ordinarily file a counterclaim against the plaintiff insured, there being no privity of contract between them

In an action to recover possession by a co-owner, the defendant files a counterclaim to recover title to the same property  The other co-owners may be brought in under this section as defendants to the counterclaim for complete relief thereon The plaintiff’s husbands may be joined as co-defendants of their wives in the counter-complaint against them (Aurelio v. CA) While a compulsory counterclaim may implead persons not parties to the original complaint, the general rule – a defendant in a compulsory counterclaim need not file any responsive pleading, as it is deemed to have adopted the allegations in the complaint as its answer – does not apply  The filing of a responsive pleading is deemed a voluntary submission to the jurisdiction of the court

END OF RULE 6

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NOTES ON RULE 6

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NOTES ON RULE 6

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Contents of the Pleading: 1. Pleading designation 2. Allegations of the party’s claims or defenses  Divided into numbered paragraphs  One paragraph for a statement of a single set of circumstances  If more than one cause of action, the first is referred to as “first cause of action” then “second cause of action” and so on; same goes to the answers 3. Relief prayed for  May add a general prayer for such further or other reliefs as may be deemed just or equitable 4. Date of the pleading  Every pleading shall be dated

RULE 7 PARTS OF A PLEADING SECTION 1 - Caption.—The caption sets forth the name of the court, the title of the action, and the docket number if assigned. The title of the action indicates the names of the parties. They shall all be named in the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties. Their respective participation in the case shall be indicated. Contents of a Caption: 1. Name of the Court 2. Title of the Action a. Indicates the name of the parties b. Participation of parties 3. Docket number, if assigned

Title of the Pleading not Controlling Courts should not be misled by a false name given to a pleading or a defective title Courts should be guided by the averments thereof The prayer in a pleading does not constitute an essential part of the allegations determinative of the jurisdiction of the court Question on jurisdiction depends largely upon the determination of the true nature of the action  This in turn involves the consideration of the ultimate facts alleged as constitutive of the cause of action therein (Bautista v. Fernandez) Prayer for relief, although part of the complaint, cannot create a cause of action  As such, it cannot be considered as a part of the allegations of the nature of the cause of action (Rosales v. Reyes)

Test of Sufficiency of Plaintiff’s Initial Pleading As to form, the test is whether it clearly states the nature, basis, and extent of the claim or demand asserted, so that the defendant and the court may be fully informed and proceed accordingly. Caption not Determinative of Nature of Pleading It is not the caption but the facts alleged which give meaning to the pleading Courts are called upon to pierce the form and go into the substance thereof Vlasons Enterprises Corp. v. CA – the mere failure to include the name of the party in the title of the complaint is not fatal by itself provided there is a statement in the body of the petition indicating that a defendant was made party to such action

SECTION 3 - Signature and address.—Every pleading must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box. The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action.

SECTION 2 - The body.—The body of the pleading sets forth its designation, the allegations of the party’s claims or defenses, the relief prayed for, and the date of the pleading. (n) (a) Paragraphs.—The allegations in the body of a pleading shall be divided into paragraphs so numbered as to be readily identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings. (3a) (b) Headings—When two or more causes of action are joined, the statement of the first shall be prefaced by the words “first cause of action,” of the second by “second cause of action,” and so on for the others. When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint, they shall be prefaced by the words “answer to the first cause of action” or “answer to the second cause of action” and so on; and when one or more paragraphs of the answer are addressed to several causes of action, they shall be prefaced by words to that effect. (4) (c) Relief.—The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable. (3a, R6) (d) Date.—Every pleading shall be dated.

Breakdown of the Provision: A. Every pleading must be signed by the party or counsel representing him 1. Address must be stated 2. Such address must not be a post office box B. Signature of counsel constitutes a certificate by him that: 1. He has read the pleading 2. That to the best of his knowledge, information, and belief there is good ground to support it; and 3. That it is not interposed for delay C. Unsigned Pleading 1. No legal effect 2. Court may, in its discretion, allow such remedy to be remedied if it appears that: a. It was due to mere inadvertence; and b. It was not intended for delay D. Counsel shall be subject to appropriate disciplinary action: 1. If he deliberately files an unsigned pleading,

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2. 3. 4.

If he signs a pleading in violation of the Rule If he alleges scandalous or indecent matter therein If he fails to promptly report to the court a change of his address

Note: The 2nd paragraph emphasizes that the pleader’s affirmation of the truth and correctness of the allegations in his pleading shall be based not only on his “knowledge and belief” but specifically on his “PERSONAL knowledge or based on AUTHENTIC records”

Effect of Failure to Sign or Signing with Intent to Defeat Purposes of Rules: 1. Strike out pleading as sham and false 2. Action proceeds as if no pleading has been served; and 3. Attorney may be subjected to disciplinary action

Purpose of Verification Intended to forestall allegations which are perjured or hearsay Purpose is reasonably subserved by the requirement for authentic documents such as official records  Note that these are exceptions to the hearsay rule As such, verification cannot be made on facts or arising in whole or in part from mere information and belief

Attorney should also indicate his Roll of Attorneys Number Bar Matter No. 287 (2000) – lawyers should indicate his current Professional Tax Receipt, IBP Official Receipt, and his Roll of Attorneys Number in all pleadings, motions, and papers Bar Matter No. 1132 (2003) – all pleadings which do not bear counsel’s roll number may not be acted upon by the court  Without prejudice to whatever disciplinary action the court may take against erring counsel  Counsel is required to comply with the requirement within 5 days from notice  Failure to comply with said order shall be ground for further disciplinary action and contempt of court

Who can make a verification? 1. By the party or his representative 2. His lawyer 3. Or any person who personally knows the truth of the facts alleged in the pleading Note: Pleadings filed in the inferior courts in cases covered by the Rules on Summary Procedure are all required to be verified How a Pleading is Verified: by an affidavit that the affiant: 1. Has read the pleading; and 2. That the allegations therein are true and correct of his personal knowledge or based on authentic documents

GENERAL RULE: No substitution of attorneys will be allowed EXCEPTION: Unless all of the following requisites are present: 1. There is written request for such substitution 2. It is filed with the written consent of the client; and 3. With the written consent of the attorney to be substituted, or with proof of service of notice of said motion to the attorney to be substituted

Verification is REQUIRED in the following: 1. Petition for relief from judgment or order (Sec. 3, Rule 38) 2. Petition for review from RTC to the CA (Sec. 1, Rule 42) 3. Petition for review from quasi-judicial agencies to the CA (Sec. 5, Rule 43) 4. Appeal by certiorari from the CTA to the SC (Sec. 12, RA 9282 amending Sec. 19, RA 1125) 5. Appeal by certiorari from CA to the SC (Sec. 1, Rule 45) 6. Petition for annulment of judgments or final orders and resolutions (Sec. 1, Rule 47) 7. Complaint for injunction (Sec. 4, Rule 58) 8. Application for appointment of receiver (Sec. 1, Rule 59) 9. Application for support pendente lite (Sec. 1, Rule 69) 10. Petition for certiorari against judgments, final orders, or resolutions of constitutional commissions (Sec. 2, Rule 64) 11. Petition for certiorari (Sec. 1, Rule 65) 12. Petition for prohibition (Sec. 2, Rule 65) 13. Petition for mandamus (Sec. 3, Rule 65) 14. Petition for quo warranto (Sec. 1, Rule 66) 15. Complaint for expropriation (Sec. 1, Rule 67) 16. Complaint for forcible entry or unlawful detainer (Sec. 4, Rule 70) 17. Petition for indirect contempt (Sec. 4, Rule 71) 18. Petition for appointment of a general guardian (Sec. 2, Rule 93) 19. Petition for leave to sell or encumber property of the ward by a guardian (Sec. 1, Rule 95) 20. Petition for declaration of competency of a ward (Sec. 1, Rule 97) 21. Petition for habeas corpus (Sec. 3, Rule 102) 22. Petition for change of name (Sec. 2, Rule 103) 23. Petition for voluntary judicial dissolution of a corporation (Sec. 1, Rule 104) 24. Petition for cancellation or correction of entries in the civil registry (Sec. 1, Rule 108)

Unless the requisites are complied with, no substitution will be permitted and the attorney who last appeared in the case before such application will be responsible for the conduct of the case (Bacarro v. CA, et al., citing US v. Borromeo) SECTION 4 - Verification.—Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records. A pleading required to be verified which contains a verification based on “information and belief,” or upon “knowledge, information and belief,” or lacks a proper verification, shall be treated as an unsigned pleading. Breakdown of Provision: A. Pleadings need not be under oath, verified, or accompanied by affidavit 1. UNLESS when otherwise specifically required by law B. Verification of pleading: 1. By an affidavit that affiant has read the pleading and that the allegations therein are true and correct of his knowledge; or 2. By Authentic Records C. Pleading required to be verified but lacks proper verification 1. Effect: Same as unsigned pleading 2. Verification based on “information and belief” or upon “knowledge, information, and belief” treated as unsigned pleading

The following are not required to be verified in the manner and form prescribed by Sec. 4 but MUST BE UNDER OATH: 1. Denial of the genuineness and due execution of an actionable document (Sec. 8, Rule 8)

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2. 3. 4. 5.

Denial of allegations of usury (Sec. 11, Rule 8) Motion to set aside a default order (Sec. 3(b), Rule 9) Answer to written interrogatories (Sec. 2, Rule 25) Answer to request for admission (Sec. 2, Rule 26)

action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission, of a false certification or noncompliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.

In the following cases, SUPPORTING AFFIDAVITS or AFFIDAVITS OF MERITS are required: 1. Motion to postpone for absence of evidence (Sec. 3, Rule 30) 2. Motion to postpone for illness of a party or counsel (Sec. 4, Rule 30) 3. Motion for summary judgment or opposition thereto (Sec. 1, 2, 3, and 5, Rule 35) 4. Motion for new trial on the ground of fraud, accident, mistake, or excusable negligence or opposition thereto (Sec. 2, Rule 37) 5. Petition for relief from judgment or order (Sec. 3, Rule 38) 6. Third-party claim (Sec. 16, Rule 39) 7. Proof required of a redemptioner (Sec. 30, Rule 39) 8. Motion for preliminary attachment (Sec. 3, Rule 57) 9. Motion for dissolution of preliminary injunction (Sec. 6, Rule 58) 10. Application for a writ of replevin (Sec. 2, Rule 60) 11. Claim against the estate of a decedent (Sec. 9, Rule 86) 12. Motion for new trial on the ground of newly-discovered evidence in criminal cases (Sec. 4, Rule 121)

Breakdown of Provision A. WHO: The plaintiff or principal party B. HOW: Certify under oath: 1. In the complaint or other initiatory pleading asserting a claim for relief; or 2. In a sworn certification annexed thereto and simultaneously filed therewith C. Contents of the Certification: 1. That: a. He has not theretofore commenced any action or filed any claim involving the same issue in any court, tribunal or quasi-judicial agency; and, b. To the best of his knowledge, no such other action or claim is pending therein 2. If there is such other pending action or claim, a complete statement of the present status thereof; and 3. If he should thereafter learn that the same or similar action or claim has been filed or is pending: a. He shall report that fact within 5 days therefrom b. To the court wherein his aforesaid complaint or initiatory pleading has been filed D. Failure to Comply: 1. Not curable by mere amendment of the complaint or other initiatory pleading 2. A cause for the dismissal of the case a. Dismissal without prejudice (unless otherwise provided) b. Upon motion and after hearing E. Submission of a false certification or non-compliance with any undertakings: 1. Constitute indirect contempt of court 2. Without prejudice to corresponding administrative and criminal actions F. If acts of party or his counsel clearly constitute willful and deliberate forum shopping 1. Ground for summary dismissal with prejudice 2. Constitute direct contempt of court 3. Cause for administrative sanctions

Illustrative Cases 1. Verification “to the best of my knowledge” is insufficient compliance (De Cano v. Edu) 2. Were a petition for mandamus was verified by the counsel to be true “to the best of his knowledge, information and belief”, it was held to be insufficient in view of the sanctions respecting attorneys (now in Sec. 3) of this Rule (Guerra Enterprises Co. Inc. v. CFI Lanao del Sur) Principles on relaxation laid down in Jurisprudence 1. Where the verification is made by the attorney who also signed the pleadings, the courts are inclined to be liberal and accept substantial compliance with the verification rule (Arambulo v. Perez) 2. Where the question at issue is one purely of law and there is no need of delving into the veracity of allegations, technical defects are disregarded (Antem Consolidated v. CA) 3. Even where verification is required by the Rules, the court may give due course to the pleading even if such verification is lacking or is insufficient or defective if the circumstances warrant the relaxation or dispensing of the rule in the interest of justice (Oshita v. Republic) 4. Verification of a pleading is a formal, not jurisdictional, requisite (Buenaventura v. Uy) 5. It is simply intended to secure an assurance that the allegations are true and correct and that the pleading is filed in good faith (Bank of the Phil. Islands v. CA) 6. In the interest of substantial justice, Court may simply order the correction of the unverified pleading or act on it and waive strict compliance with the rules (Vda. De Gabriel v. CA)

Note: This rule was taken from Circular No. 04-94 or the Certificate of Non-Forum Shopping

SECTION 5 - Certification against forum shopping. —The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasijudicial agency and, to the best of his knowledge, no such other

NATURE, PURPOSE, DEFINITION Forum Shopping Forum shopping involves the institution of 2 or more cases, actions, or proceedings grounded on the supposition

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that one or the other court or tribunal would make a favorable disposition It is the act of a party against whom an adverse judgment has been rendered in one forum, of seeking another opinion in another forum, other than by appeal or the special civil action of certiorari

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But forum shopping does not require a literal identity of parties; it is sufficient that there is identity of interest represented (Firs Philippine International Bank et al. v. CA)

CERTIFICATION IS MANDATORY; INITIATORY PLEADINGS

The Prohibition on Non-Forum Shopping The filing of a similar petition in different courts is prohibited Forum shopping is deplorable as it degrades the administration of justice, adds to the already congested court dockets, and wreaks havoc upon orderly judicial procedure

Certification is a mandatory part of an initiatory pleading A certificate of non-forum shopping is not, however, required in COMPULSORY counterclaims  Since these claims cannot be the subject of a separate and independent action, certification is not needed However, a certification is needed in PERMISSIVE counterclaims (Korea Exchange Bank v. Gonzales)  Any judgment of the court on the complaint of the petitioner would not bar any suit on the counterclaim  Hence, the permissive counterclaim is an initiatory pleading, which requires the appendage of a certificate of non-forum shopping  Failure to do so results to the dismissal of the counterclaim without prejudice

Distinguish between Certification and Forum Shopping The certification against forum shopping is separate from and independent of the avoidance of the act of forum shopping itself A violation of the rules on certification is sufficient cause for the dismissal without prejudice of the complaint or initiatory pleading upon motion and after hearing A violation of non-forum shopping is a ground for summary dismissal thereof and direct contempt

Note also that the Rules require only the initiatory pleading to be accompanied with a certificate of non-forum shopping So a certification is not needed in a search warrant application since it is not a pleading (Kenneth Roy Savage v. Judge Taypin) Certification is also not necessary in a mere motion for extension (Far Eastern Shipping v. CA)

Three Ways of Committing Forum-Shopping 1. Filing multiple cases based on the same cause of action and with the same prayer, the previous not having been resolved yet (litis pendentia) 2. Filing multiple cases based on the same cause of action and with the same prayer, the previous having been resolved with finality (res judicata) 3. Filing multiple cases based on the same causes of action but with different prayers (splitting of cause of action, where the ground for dismissal is also litis pendentia or res judicata)

When may an omission be excused? Only upon manifest equitable grounds proving substantial compliance therewith The court held that in those cases where the deficiency were tolerated, special circumstances or compelling reasons made the strict application of the rules distinctly unjustified (Ong v. CA)

TESTS ON FORUM SHOPPING

WHO EXECUTES CERTIFICATION

It has been held in Executive Secretary v. Gordon that there is forum-shopping: 1. Whenever as a result of an adverse decision in one forum, a party seeks a favorable decision (other than by appeal or certiorari) in another, or 2. If, after he has filed a petition before the SC, a party files another before the CA since in such case he deliberately splits appeals, or 3. Where a party attempts to obtain a preliminary injunction in another court after failing to obtain the same from the original court

Certification by Plaintiff, not Attorney Certification against forum shopping ordained by the Rules is to be executed by the petitioner, not his counsel The petitioner is in the best position to know whether he filed or caused the filing of a petition in the case Certification by counsel  Defective certification  Equivalent to non-compliance with the requirement and constitutes a valid cause for dismissal of petition EXCEPTION: In a case, the court held that the rationale of the rule does not apply where it is the attorney-in-fact who instituted the action in which case the certificate may be signed by the attorney-in-fact

Some Tests of Forum Shopping laid down by Jurisprudence 1. The mere filing, however, of several cases based on the same incident does not necessarily constitute forum shopping.  Test is whether the several actions filed involve the same transactions and the same essential facts and circumstances (Paredes v. Sandiganbayan)  The actions must also raise identical causes of action, subject matter, and issues (Int’l Container Terminal Services v. CA) 2. Whether in the 2 or more cases pending, there are identity of parties, rights or causes of actions, and reliefs sought  Forum shopping exists where the elements of litis pendentia are present  Or where a final judgment in one case will amount to res judicata in the other (Buan v. Lopez)

Special Power of Attorney is Insufficient In Santos v. CA, the court held that a special power of attorney executed for convenience was insufficient considering that: 1. The petitioners are all natural persons and 2. There is no showing of any reasonable cause to justify their failure to personally sign The court emphasized in Republic v. Carmel Development Inc. that the certification must be made by petitioner himself and not by counsel, even if the latter has a special power of attorney specially authorizing counsel to execute the certification on plaintiff’s behalf

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Party Misjoined Need Not Sign Certification Any act or omission committed by a misjoined party (such as omission to execute the Certificate should not be a cause for impediment to the prosecution of the case, much less dismissal (Chua v. Torres)

Instances when petitioner may not personally sign the certificate: The fact that petitioners were abroad when the petition was filed is a justification for not personally signing the Certificate (Hamilton v. Fe Quitanghon) In cases where is it is highly impractical to require all the plaintiff’s to sign the certificate, it is sufficient, in order not to defeat the ends of justice, for one of the plaintiffs, acting as representative, to sign the certificate provided that the plaintiffs share a common interest in the subject matter of the case filed as a “collective,” raising only one common cause of action

Certification for Corporations In corporations, as distinguished from a natural person, may be signed for and in behalf of a corporation by a specially authorized lawyer who has personal knowledge of the facts required to be disclosed in such document Note also that the certification must be accompanied by a BOARD RESOLUTION authorizing the counsel to sign the certification (General Milling Corp. v. NLRC)  Certification not signed by a duly authorized person renders the petition subject to dismissal

Cases where “Higher Interests of Justice” was invoked 1. The court set aside procedural technicalities in the higher interest of justice even if the certification was signed by counsel and filed beyond the reglementary period in People v. Gako 2. In view of the peculiar circumstances of the case and in the interest of justice, the procedural defect may be set aside pro hac vice (National Steel Corp v. CA) 3. Where only 3 out of 4 petitioners in a petition signed the certificate, the court held that they should not be unduly prejudiced by the fault of their co-petitioner who did not sign the certificate (Fiel v. Kris Security Systems Inc.) 4. The rules on forum shopping should be applied with liberality in election cases since a strict application would not work to the best interest of the parties and the electorate (Bince Jr. v. COMELEC)

GENERAL RULE: All parties are required to sign the certification The court earlier held in Five Star Bus Co. v. CA that a petition may be summarily dismissed on the ground that the affidavit of non-forum shopping was not signed by the petitioners Verification and certification by one of the five petitioners was held insufficient compliance in Loquias v. Office of the Ombudsman EXCEPTION: When the case calls for a relaxation of the doctrine; Subject to two conditions: 1. The petitioners must show justifiable cause for their failure to personally sign the certification, and 2. They must also be able to prove that the outright dismissal of the petition would seriously impair the orderly administration of justice

EFFECT OF SUBSEQUENT COMPLIANCE WITHIN REGLEMENTARY PERIOD Court held in Roadway Express Inc. v. CA that all the more reason should the petition for review be allowed in this case, in view of the compliance prior to the dismissal of the petition, and even if the certification was not filed with the pleading but in a manifestation

THE PRINCIPLE OF LIBERAL APPLICATION The criteria would be “where there are special circumstances or compelling reasons making the strict application of the rule clearly unjustified” The apparent merits of the substantive aspects of the case should be deemed as special or compelling reasons. (Batoy v. Cabardo)

EFFECT OF THE SUBMISSION OF A FALSE CERTIFICATION OR NON-COMPLIANCE WITH ANY OF THE UNDERTAKINGS Submission of False Certification or Non-Compliance of Undertaking Constitutes indirect contempt Without prejudice to the corresponding administrative and criminal actions

Certificate of Non-Forum Shopping is Mandatory But Not Jurisdictional The required certificate is mandatory and applies to election cases but is not jurisdictional Substantial compliance by filing certification within reglementary period is sufficient (Loyola v. CA)

If acts of Counsel or Party Constitute Willful and Deliberate Forum Shopping Summary dismissal with prejudice Direct contempt As well as administrative sanctions

Rule on Substantial Compliance The rule on substantial compliance may be availed of with respect to the contents of the certification Note that the requirement of strict compliance with the provisions regarding certification merely underscores its mandatory nature  This means that the certification cannot be altogether dispensed with or its requirements completely disregarded (Cavile v. Cavile) Ex: The failure to state in the certificate that he undertakes to inform the court of any petition which may be filed, may be overlooked since it does not appear that any petition related to the case has been filed in any court (Cabarbo v. CA) Where petitioners are husband and wife, the certificate by one of them is substantial compliance with the rule (Spouses Dar v. Legasto)

TIME TO INVOKE RULE In general, violation of the rule on forum shopping should be raised at the earliest opportunity in a motion to dismiss or a similar pleading Invoking it in the later stages of the proceedings or on appeal may result in the dismissal of the action as an exception only if the violation arises from or will result in: 1. The loss of jurisdiction over the subject matter 2. The pendency of another action between the same parties for the same cause 3. Barring of the action by a prior judgment, or 4. The crossing of the Statute of Limitations

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ILLUSTRATIVE CASES AND EXAMPLES There IS forum shopping in the following cases: 1. The rule has been extended to a defendant who, for reasons only known to him, commences a new action against the plaintiff – instead of filing a responsive pleading in the other case (Victronics Computers Inc. v. RTC) 2. There is also forum shopping in connection with litigations commenced in the Courts while an administrative proceeding is pending in order to defeat administrative processes (Villanueva v. Adre) 3. A willful attempt by the same party to obtain a preliminary injunction in another court after it failed to acquire the same from the original court (Fil-Estate Golf and Dev. Inc. v. CA) 4. After a party has filed a petition before the SC, he subsequently files another before the IAC is forum shopping since he deliberately split appeals (Borromeo v. IAC) 5. Where the litigant sues the same party against whom another action or actions for the alleged violation of the same right and the enforcement of the same relief is/are still pending (First Philippine International Bank v. CA) 6. When, in effect, the petition filed before the CA, not being an appeal nor special action, was filed during pendency of her motion before the RTC (Lapu-lapu Development and Housing Corp v. Group Management Corp.) 7. While petition was pending in COMELEC, respondent filed a wholly separate petition for certiorari also with the COMELEC pleading the same reliefs prayed for in the supplemental petition (Santos v. COMELEC) 8. When a notice of appeal which is the proper mode of questioning the main decision and a special civil action for certiorari is filed questioning not only the issuance of immediate execution which is also proper but also the merits of the main decision (Candido v. Camacho) There is NO forum shopping in the following cases: 1. Where the special civil action for certiorari and the appeal brought by as a party do not involve the same issue (GSIS v. Bengson Commercial Buildings) 2. Where the first petition involved the propriety of the affirmative defenses while the second petition raised the issue of the judge’s partiality (Gochan v. Gochan) 3. An action for quieting of title and partition has a different cause of action and is not a valid reason for defeating the execution of the summary remedy of ejectment (Gachon v. Devera) 4. When there is no identity of rights or causes of action and the reliefs prayed for (HSBC v. Catalan) 5. There is no forum shopping in the Supreme Court (as between divisions) (Republic v. Express Telecommunications Co. Inc.)

END OF RULE 7

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NOTES ON RULE 7

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NOTES ON RULE 7

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B.

RULE 8 MANNER OF MAKING ALLEGATIONS IN A PLEADING SECTION 1 - In general .—Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts. (1) If a defense relief on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated. (n)

Evidentiary Facts  Those which go to prove the case  Facts which are necessary for the determination of the ultimate facts  Premises upon which conclusions of ultimate facts are based  Facts which furnish evidence of existence of some other facts

Test to Distinguish Conclusion of Law from Statement of Facts 1. Statement of fact – if from the facts in evidence, the result can be reached by the process of natural reasoning adopted in the investigation of the truth, it becomes an ultimate fact 2. Conclusion of law – if resort must be had to the artificial processes of law in order to reach a final determination, the result is a conclusion of law

Breakdown of Provision: A. Every pleading shall contain a statement of the ultimate facts on which the party pleading relies for his claim or defense 1. In a methodical and logical form 2. A plain, concise and direct statement 3. Statement of mere evidentiary facts omitted B. If a defense relief is based on law, state in a clear and concise manner: 1. Pertinent provisions of the law 2. Applicability of the law to him

Note: -

The plaintiff is not required to indicate in his complaint the particular provision of law upon which he relies And if he does so and is mistaken, this will not preclude relief if the facts stated and proven justify it (La Insular v. Jao Oge) Though take note of the 2nd par. AS TO DOCUMENTS ATTACHED TO PLEADINGS

PRELIMINARIES

Ultimate Facts in Documents

Like all other pleadings, the complaint shall contain in a methodical and logical form a plain, concise, and direct statement of the ultimate facts on which the plaintiff relies for his claim, omitting the statement of mere evidentiary facts

GENERAL RULE: Ultimate facts in documents even if attached to the complaint cannot take place of allegation and must be alleged as if the documents were not attached thereo (Orbit Transportation v. Workmen’s Compensation Commission)

Note: Facts within judicial notice of courts or presumed by law need not be pleaded

EXCEPTION: Where there are allegations of fact in the complaint, resort may be had to exhibits attached thereto in aid or elucidation of an indefiniteness or uncertainty of said allegations  BUT Annexes cannot supply the omission of allegations necessary to present a good cause of action

Office, Purpose, or Function To inform the defendant clearly and definitely of the claims made against him So that defendant may be prepared to meet the issues at trial

Documents Attached to Pleadings are Part of Pleadings Documents attached must be construed as evidence and as part of the pleadings No necessity of expressly introducing them in evidence when the authenticity and due execution have not been denied under oath  In such case, the documents are facts admitted by parties Material facts established in annexes attached to the complaint or petition which disprove or are contrary to the very allegations of the pleader should not be suppressed in the pleader’s statement of his case and issues involved (Orbit Transportation v. Workmen’s Compensation Commission)  Instead, these must be specifically averred  So that the court may have before it a full and complete picture of the questions raised

The Complaint It should inform the defendant of all material facts on which the plaintiff relies to support to his demand; It should state the theory of a cause of action which forms the bases of the plaintiff’s claim of liability Ultimate Facts and Evidentiary Facts A. Ultimate Facts  Means the essential facts constituting the plaintiff’s cause of action  A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient  Important and substantial facts which either directly form the basis of the primary right and duty, or which directly make up the wrongful acts or omissions of defendant  Does not refer to details of probative matter or particulars of evidence by which these material elements are to be established  Refers to principal, determinate, constitutive facts, upon the existence of which, the entire cause of action rests

AS TO RELIEFS The prayer for relief, though part of the complaint, is not part of the cause of action and does not give it character Plaintiff is entitled to as much relief as the facts warrant Although that relief is not specifically demanded

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It is the duty of the courts to grant the relief to which parties are shown to be entitled by the allegations in their pleadings and the facts proved at trial The mere fact that they themselves misconstrued the legal effect of the facts alleged and proved will not prevent the court from placing the just construction thereon and adjudicate the issue accordingly

Breakdown of Provision A. A party may set forth 2 or more statements of a claim or defense 1. Alternatively or hypothetically 2. Either in one cause of action or defense or in separate causes of action or defenses B. When two or more statements are made in the alternative and one of them if made independently would be sufficient 1. Pleading is not made insufficient by the insufficiency of one or more of the alternative statements

JUDICIAL ADMISSIONS IN PLEADINGS A party cannot subsequently take a position contradictory to or inconsistent with his pleadings The facts therein admitted are to be taken as true for the purpose of the action (Lianga Lumber v. Lianga Timber) Issues in a case are limited to those presented in the pleadings Ex: Allegations of having inherited the property from their deceased parents mean that the land is conjugal

Election of Remedies Broadly, election of remedies refers to the choice by a party of one or two or more co-existing remedial rights, where several such rights arise out of the same facts It has been generally limited to a choice by a party between inconsistent remedial rights  The assertion of one being necessarily repugnant to, or repudiation of, the other In its technical and more restricted sense, it is the adoption of one of 2 or more co-existing remedies  With the effect of precluding a resort to the others As a technical rule of procedure, purpose of the doctrine of election of remedies:  Is not to prevent recourse to any remedy  But to prevent double redress for a single wrong It is an application on the law of estoppel Ordinarily, election of remedies is not made until the judicial proceedings has gone to judgment on the merits

ILLUSTRATIVE CASES AND EXAMPLES Allegations which are Mere Conclusions of Law 1. The general rule is that an allegation of duty in terms unaccompanied by a statement of the facts showing the existence of the duty, is a mere conclusion of law  Unless there is a relation set forth from which the law raises a duty 2. Allegations that the defendants were actuated by ulterior motives, gross and evident bad faith, etc. are conclusions alleged and expression of opinion unsupported by factual premises 3. Allegations characterizing the letter of dismissal as libelous is a conclusion of law without factual basis 4. The allegation that the individual defendants held their shares in trust for plaintiffs without averment of facts from which the court could conclude the existence of the alleged trust, was not deemed admitted by motion to dismiss for that was a conclusion of law (Mathay v. Consolidated Bank and Trust) 5. Allegations in a petition in the nature of conclusions about the meaning of a contract, inconsistent with stated terms of the contract, cannot be considered  Ex: an allegation characterizing an instrument or purporting to interpret it and state its effects 6. Allegation that there was a violation of trust duty was plainly a conclusion of law, for a mere allegation that it was the duty of a party to do this or that, or that he was guilty of a breach thereof, is a statement of a conclusion  Ex: an allegation that the defendants acquired stock holdings far in excess of what they were lawfully entitled 7. An averment that an act was unlawful or wrongful is a mere legal conclusion or opinion of the pleader 8. Mere conclusions of law are allegations that a contract is void, voidable, invalid, illegal, ultra vires, or against public policy, without stating facts showing its invalidity 9. An allegation of bad faith is a mere conclusion of law

HOWEVER, when a certain state of facts under the law entitles a party to these remedies both founded upon identical state of facts, these remedies are not considered inconsistent remedies In this case, invocation of one remedy is not an election which will bar the other  UNLESS: 1. The suit upon the remedy first invoke shall reach the stage of final adjudication, or 2. Unless by the invocation of the remedy first sought to be enforced, plaintiff shall have gained an advantage thereby or caused detriment or change of situation to the other No Binding Election Occurs Before a Decision on the Merits is had or a Detriment to the Other Party Supervenes No binding election occurs before a decision on the merits is had or a detriment to the other party supervenes The principle of election of remedies is discordant with the modern procedural concepts embodied in civil procedure which permits a party to seek inconsistent remedies in his claim for relief without being required to elect between them at the pleading stage of litigation Illustrative Cases 1. The defense of expiration of right to repurchase or the alternative defense of having inherited the property is allowed; otherwise, alternative defense is barred (Heirs of Marquez v. Valencia) 2. A party may state as many claims or defenses as he has regardless of consistency but each must be consistent in itself 3. The hypothetical defense of prescription is allowed (Doran v. Dinamore)

SECTION 2 - Alternative causes of action or defenses.—A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. (2)

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Facts that Must be Averred Generally: 1. Conditions precedent (Sec. 3)  But there must still be an allegation that the specific condition precedent has been complied with, otherwise, it will be dismissed for lack of cause of action 2. Capacity to sue or be sued (Sec. 4) 3. Capacity to sue or be sued in a representative capacity (Sec. 4)  NOTE: A party desiring to raise an issue as to the legal existence or capacity of any party to sue or be sued in a representative capacity shall do so by specific denial which shall include supporting particulars within the pleader’s knowledge 4. Legal existence of an organization (Sec. 4) 5. Malice, intent, knowledge, or other condition of the mind (Sec. 5) 6. Judgments of domestic or foreign courts, tribunals, boards, or officers (Sec. 6)  No need to show jurisdiction, for it is presumed 7. Official document or act (Sec. 9)

-

The specific circumstances that a foreign corporation is either duly licensed to do business in the Philippines or the transaction sued upon is singular and isolated is an essential part of plaintiff’s capacity to sue and must be affirmatively alleged (Atlantic Mutual Insurance Co. v. Cebu Stevedoring Co. Inc.)

SECTION 5 - Fraud, mistake, condition of the mind.—In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity. Malice, intent, knowledge or other condition of the mind of a person may be averred generally. (5a) State with particularity – averments of fraud or mistake May be stated generally – averments of malice, intent, knowledge or other condition of the mind of a person Notes: -

Facts that Must be Averred Particularly – The circumstances showing fraud or mistake in all averments of fraud or mistake (Sec. 5)

Facts constituting the condition of the mind are permitted to be averred generally as it would be difficult to do so with particularity Fraud and mistake are required to be averred with particularity in order to enable the opposing party to controvert the particular facts allegedly constituting the same

The test is whether the complaint states sufficient ultimate facts to give defendants fair notice of the nature of the action and the fraudulent acts

SECTION 3 - Conditions precedent.—In any pleading a general averment of the performance or occurrence of all conditions precedent shall be sufficient. (3) If plaintiff’s cause of action depends upon a condition precedent Complaint must allege fulfillment or legal excuse for nonfulfillment Omission of such allegation will make the complaint insufficient  Case may be dismissed for failure to state cause of action

SECTION 6 - Judgment.—In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. (6) Notes: -

SECTION 4 - Capacity.—Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, must be averred. A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge. (4)

-

This provision is a necessary consequence of the disputable presumption that a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of his jurisdiction (Sec. 3(n), Rule 131) Such judicial record may be impeached by evidence of want of jurisdiction in the court or judicial officer (Sec. 29, Rule 132)

SECTION 7 - Action or defense based on document.—Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading. (7)

What must be averred: 1. Facts showing the capacity of a party to sue or be sued; or 2. The authority to sue or be sued in a representative capacity; 3. Or the legal existence of an organized association of persons that is made a party

When action or defense based upon a written instrument or document: 1. Substance of such shall be set forth in the pleading 2. The original or copy thereof attached as an exhibit a. It will be deemed part of the pleading

How is Capacity challenged? 1. By specific denial – which shall include such supporting particulars as are peculiarly within pleaders’ knowledge, (The Home Insurance Co. v. Eastern Shipping Lines); or 2. By a motion to dismiss (See Rule 16); or 3. By filing a motion for bill of particulars (Bontillo v. IAC)

Where a pleader relies upon a document, its substance must be set out in the pleading either by its terms or by its legal effects Actionable Document – the written instrument upon which the action or defense is based

As to Foreign Corporations Whether or not a foreign corporation may sue or be sued in the Philippines depends on whether or not it is doing business in the Philippines

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Requisites of the Rule: 1. The substance of such instrument or document shall be set forth in the pleading; and 2. The original or copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be part of the pleading; or 3. Said copy may with like effect be set forth in the pleading

Meaning of Genuineness and Due Execution A. Due Execution 1. That the party whose signature it bears admits that he voluntarily signed it; or 2. That it was signed by another for him with his authority B. Genuineness 1. That the party whose signature it bears admits that at the time it was signed it was in words and figures exactly as set out; and 2. That the formalities, such as swearing and acknowledgement, or revenue stamps which are required by law are waived by him

Two permissible ways of pleading an actionable document: 1. By setting forth the substance of such document in the pleading and attaching the document thereto as an annex; 2. Or by setting forth said document verbatim in the pleading Unless alleged in any of the aforementioned modes, the rule on implied admission in Sec. 8 will not apply

To deny the genuineness and due execution of an instrument means that the defendant must declare under oath that: 1. He did not sign the document or 2. That it is otherwise false or fabricated

Note: A variance in the substance of the document set forth in the pleading and the document annexed thereto does not warrant dismissal of the action (Convets Inc. v. National Dev. Co.) However, the contents of the document annexed are controlling

DENIAL MUST BE SPECIFIC

Example: Action to enforce or rescind a written contract of lease The contract itself is the basis of the action A copy of such contract must either be: 1. Set forth in the complaint; or 2. Its substance must be recited therein Attached also is the original or a copy thereof with the complaint Letters written by lessee to lessor or vice-versa concerning the contract need not and should not be set forth in the complaint  They may have evidential value but evidence, even in writing, does not necessarily have a place in a pleading (Araneta Inc. v. Lyric Film Exchange)

The denial contemplated by this section must be specific A mere statement in the answer that the instrument was procured by fraudulent representation does not raise any issue as to its genuineness or due execution (Songco v. Sellner) An attack on the instrument in general is insufficient even though the answer is under oath An oath which reads that “the contents of the foregoing are true and correct according to my best knowledge and information” is not sufficient  Where the genuineness of the document which is the basis of the action has not been specifically denied

Rule is not applicable if the document is not the basis of the complaint or defense

FAILURE TO DENY Effect of Failure to Deny Under Oath 1. The genuineness and due execution is deemed admitted 2. The document need not be formally offered in evidence

SECTION 8 - How to contest such documents.—When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. (8a)

Where the actionable document is properly alleged (Sec. 7), failure to deny the same results in the admission of the genuineness and due execution of said document EXCEPT: 1. When the adverse party was not party to the instrument, and 2. When an order for the inspection of the document (Rule 27) was not complied with Defenses Cut Off for Failure to Make Denial - Those defenses inconsistent with genuineness and due execution, such as: 1. Defenses that signature is forgery 2. That it was unauthorized, as in the case of an agent signing for his principal, or one signing in behalf of a partnership or corporation 3. Or that in case of corporation, that the corporation was not authorized under its charter to sign the document 4. That the party charged signed the instrument in some other capacity alleged in the pleading setting it out; 5. That it was never delivered 6. That the document was spurious, counterfeit, or of different import on its face as the one executed

How to Contest an Actionable Document 1. By specific denial under oath; and 2. By setting forth what is claimed to be the facts PURPOSE AND DEFINITIONS Reason for the Rule To enable the adverse party to know beforehand whether he will have to meet the issue of genuineness or due execution of the document during trial While mandatory, rule is a discovery procedure and should be reasonably construed to attain its purpose, and in a way as not to effect a denial of substantial justice

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Defenses that are NOT deemed Admitted – those which are not inconsistent with due execution and genuineness, such as: 1. Payment, illegality, or want of consideration 2. Compromise, estoppel, coercion 3. Failure to deny does not preclude a party from arguing against it by evidence of fraud, mistake, statute of limitations 4. Mistake or imperfection in the writing 5. That it does not express the true agreement of the parties 6. That the agreement is invalid 7. There is an intrinsic ambiguity in the writing

B.

C.

If pleader decides to deny only a part or a qualification of an averment:  He shall specify so much of it as is true and material  He shall deny the remainder If defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint  He shall so state  This shall have the effect of a denial FIRST MODE OF DENIAL

WHEN RULE IS NOT APPLICABLE

Specific Absolute Denial – By specifically denying the averment and, whenever practicable, setting forth the substance of the matters relied upon for such denial

When Rule is NOT Applicable 1. When the adverse party does not appear to be a party to the instrument; or 2. When compliance with an order for an inspection of the original instrument is refused; or 3. When document or instrument is not the basis of action or defense  In this case, a simple specific denial would be sufficient

Purpose – to make him disclose the matters alleged in the complaint which he sincerely intends to disprove at the trial, together with the matters which he relies upon to support the denial Contents of Denial It must not only specify each material allegation of facts, the truth of which is not admitted But he must also, whenever applicable, set forth the substance of the matters which he will rely upon to support his denial Ex: Deny contract and set forth the real contract

Examples as to when rule is not applicable: 1. Heirs on a written contract executed by the father need not be denied by the heirs (Lim Chingco v. Terariray) 2. An endorsement by the payee in a note executed by the maker need not be denied by the latter (Heinszen and Co. v. Jones) 3. Statements of account exclusively prepared by the plaintiff and attached to the complaint of plaintiff does not have to be denied under oath and is not binding on defendant (Kalilid Wood Industries v. IAC)

When Denial is Insufficient Mere use of the words specific denial is not sufficient Denial in the answer does not become specific merely because it is qualified by the word (Agton v. CA) Where the averments in the opposing party’s pleading are based on documents which are: 1. In the possession of defendant; or 2. Are presumed to be known by him; or 3. Are readily ascertainable by him, A general allegation of lack of knowledge or information thereof on his part will not be considered a specific denial but an admission (Warner, Barnes and Co. Ltd. v. Reyes et al.)

SECTION 9 -- Official document or act.—In pleading an official document or official act, it is sufficient to aver that the document was issued or the act done in compliance with law. (9) SECTION 10 - Specific denial.—A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. Where a defendant desires to deny only a part of an averment, he shill specify so much of it as is true and material and shall deny only the remainder. Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of a denial. (10a)

Where the answer merely reproduces the recitals in the complaints and denies such recitals without setting forth the matters relied upon in support of such denials, such answer contains only general denials and judgment on the pleadings is proper (Syquia v. Marsman) SECOND MODE OF DENIAL Partial Specific Denial – Part admission, part denial

PURPOSE

Purpose – to abolish negative pregnants which is a denial pregnant with an admission of the substantial facts alleged in the pleadings

The purpose of requiring the defendant to make a specific denial is to make him disclose the matters alleged in the complaint which he sincerely intends to disprove at the trial, together with matters which he relies upon to support the denial

Negative Pregnant Is that form of denial which at the same time involves an affirmative implication favorable to the opposing party Denial pregnant with an admission of the substantial facts in the pleading responded to

MODES OF DENIAL A.

Defendant must specify each material allegation of fact the truth of which he does not admit  Whenever applicable, he shall set forth the substance of the matters which he will rely upon to support the denial

A Negative Pregnant Arises: 1. From a too literal denial of the allegations of the opponent’s pleadings  In such case, it is merely the form and not the substance that is denied

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2.

Where a fact is alleged with qualifying or modifying language, and the words of the allegation are so qualified or modified are literally denied  In such case, the qualifying circumstances alone are denied while the fact itself is admitted

2.

The denial must be made in accordance with the modes in Sec. 10 Failure to do so would fail to tender an issue and would admit the material allegations of the adverse party’s pleading  In which case, judgment on the pleadings would be proper

If the defendant’s denial is a negative pregnant, it is equivalent to an admission (Galofa v. Nee Bon Sing) Example: In the case of Galofa, defendant denies the material averment of par. 4 of the complaint, the truth being that he never asserted title of ownership to the property, much less to plaintiff, nor claimed possession of right over said property SC held that this denial is as to the material averment contained in par.4 conjoined with his disclaimer or dominical, or possessory right in the manner alleged in the complaint It was held as a negative pregnant and was deemed to be an admission The defendant has, in effect, denied only the qualification but not the averment that he had deprived the plaintiff of actual possession of the land

Examples of Averments NOT Deemed Admitted Even if Not Specifically Denied 1. Immaterial allegations (like allegations by way of anticipation of defense) 2. Incorrect conclusions of facts drawn from facts set out in the complaint 3. Conclusions of law 4. General averment contradicted by specific averment 5. Unliquidated damages 6. Default 7. Annulment of marriage 8. Legal separation 9. Allegations as to amount of damages 10. All allegations in the complaint where no answer has been filed by the defendant

THIRD MODE OF DENIAL Disavowal of Knowledge – By an allegation of lack of knowledge or information sufficient to form a belief as to the truth or falsity of the averment in the opposing party’s pleading

Withdrawal of Express Admissions 1. Admissions may be withdrawn by amendments  Under Sec. 8, Rule 10, an amended pleading supersedes the pleading that it amends  Admissions in superseded pleadings may be received in evidence against the pleader, and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived 2. Admission may be contradicted by showing palpable mistake or that no such admission was made

Requisites: 1. It is indispensable that the matter regarding which lack of knowledge be clearly specified, so that the adversary may know what is denied 2. The denial must only refer to matters which are not plainly and necessarily within defendant’s knowledge  Must be made in good faith  Otherwise, it shall be deemed as an admission

SECTION 12 - Striking out of pleading or matter contained therein.— Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these Rules, upon motion made by a party within twenty (20) days after the service of the pleading upon him, or upon the court’s own initiative at any time, the court may order any pleading to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalous matter be stricken out therefrom. (5, R9)

On Ignorance A mere allegation of ignorance of the facts alleged in the complaint is insufficient to raise an issue  Defendant must positively state how it is that he is ignorant of the facts as alleged (Philippine Advertising v. Revilla) A profession of ignorance about a fact which is patently and necessarily within the pleader’s knowledge or means of knowing is as ineffective as no denial at all (New Japan Motors v. Perucho) Notes: -

proceedings do not require proof and cannot be contradicted EXCEPTION: Unless they have been made through palpable mistake or that no such admission was made

Pleadings or Matters to be Stricken Out: Matters that are: 1. Sham or false 2. Redundant 3. Immaterial, or 4. Scandalous

The setting up of special defenses which are evasive and do not touch the heart of the controversy is a strategy that cannot be sanctioned (Syquia v. Marsman) Failure to deny estops defendants from questioning the allegations (Velasco v. CA)

When Court May Order Any Pleading to be Stricken Out 1. Upon motion made by a party before responding to a pleading; or 2. If no responsive pleading is permitted by the rules, upon motion made by a party within 20 days after the service of the pleading upon him; or 3. Upon the Court’s initiative at any time

SECTION 11 - Allegations not specifically denied deemed admitted.—Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be .deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath. (1a, R9)

False Allegations An averment in a pleading made without reasonable cause and found untrue shall subject the offending party to a payment of such reasonable expenses as may have been necessarily incurred by the other party by reason of such untrue pleading. The amount of expenses so payable shall be fixed by the judge in the trial, and taxed as costs. (Sec. 4, Rule 142)

On Judicial Admissions 1. GENERAL RULE: Admissions made by parties in the pleadings, or in the course of the trial or other

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No Cost for Irrelevant Matters When the record contains any unnecessary, irrelevant, or immaterial matter, the party at whose instance the same was inserted or at whose instance the same was printed, shall not be allowed as costs any disbursement for preparing, certifying, or printing such matter (Sec. 5, Rule 142)

END OF RULE 8

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NOTES ON RULE 8

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NOTES ON RULE 8

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RULE 9 EFFECT OF FAILURE TO PLEAD SECTION 1 - Defenses and objections not pleaded.—Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (2a) Breakdown of Provision A. Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived B. But the court shall dismiss the claim when it appears from the pleading or records that: 1. Court has no jurisdiction over the subject matter 2. There is another action pending between the same parties for the same cause 3. The action is barred by a prior judgment 4. The action is barred by statute of limitations

As to prescription:  It is not deemed waived if it is apparent on the face of the complaint or evidence adduced during trial  It has been held that the defense of prescription may be considered only if the same is invoked in the answer  Except where the fact of prescription appears in the allegations in the complaint of the evidence presented by plaintiff, in which case such defense is deemed not waived (Ferrer v. Ercita)  Thus, it would appear that the non-waiver is dependent on the timeliness of invocation of the defense, or where such defense is a matter of record or evidence

The Presence of any of the Four Grounds Authorizes the court to motu proprio dismiss the claim  The claims asserted in the complaint, counter-claim, cross-claim, third-party complaint, or complaint in intervention But it is necessary that the constitutive facts of such grounds, if not in the answer with evidence adduced therefor, should appear in the other pleadings filed or in the evidence on record in the case Illustrative Cases 1. Brown v. Yambao – courts can take cognizance of the action since actions seeking decree of legal separation, or annulment of marriage, involves public interest; defense of prescription deemed not waived 2. PNB v. Perez – the defense of prescription can only be considered if the same is invoked as such in the answer of the defendant  In this case, no such defense was invoked because the defendant had been declared in default  But such rule does not obtain when the evidence shows that the cause of action upon which plaintiff’s complaint is based is already barred by statute of limitatioons 3. Garcia v. Mathis – where the allegations in the complaint showed that the action has prescribed, the case was dismissed even if prescription was not invoked

GENERAL RULE: Defenses and objections not raised in a motion to dismiss or in the answer are deemed waived EXCEPTIONS: 1. Lack of jurisdiction over the subject matter; 2. Litis pendentia; 3. Res judicata; and 4. Prescription of the action Lack of Jurisdiction over the Subject Matter The objection on jurisdictional grounds which is not waived even if not alleged is lack of jurisdiction over the SUBJECT MATTER Lack of jurisdiction over the NATURE of the action has been eliminated in Rule 16  Although objection may possibly be raised in other pleadings or proceedings Lack of jurisdiction over the subject matter can always be raised anytime  Even for the first time on appeal  Jurisdictional issues cannot be waived but subject, however, to the principle of estoppel by laches

Limitations on Exceptions Sec. 1 Rule 9 covers situations where a defense or objection is not raised in a motion to dismiss or answer It does not apply where defenses are raised in the answer but not included in the pre-trial order  Non-inclusion of the defense of prescription in the pre-trial order barred its consideration during trial

Litis Pendentia Since the other case is still pending, a resolution of the objection raised on this ground should properly await the resolution of and developments in the other pending case Upon occurrence of the relevant contingencies in the other case, this objection may then be raised  Unless already submitted to the court  Which by then would be in a better position to appreciate the merits of the objection

SECTION 2 - Compulsory counterclaim, or cross-claim, not set up barred.—A compulsory counterclaim, or a cross-claim, not set up shall be barred. (4a) Amended Answer – is proper if the counterclaim or cross-claim already existed at the time the original answer was filed but due to oversight inadvertence, or excusable neglect it was not set up

Res Judicata and Prescription Included as exceptions since they are grounds for extinguishment of the claim Note also Sec. 5, Rule 16 which provides that a motion to dismiss on the grounds, inter alia, of res judicata or prescription shall bar the refiling of the same action or claim

Supplemental Answer – is proper if the counterclaim or cross-claim matures or is acquired after the answer is filed Relevant Provisions 1. See Sec. 8, Rule 11 2. See Rule 17 on Effects of Dismissal of complaint on counterclaim 3. See Rule 6, Sec. 7

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Purpose of Rule To avoid multiplicity of suits and to dispose of the whole matter in controversy in one action Adjustment of defendant’s demand by counterclaim rather than by independent suit

(d) Extent of relief to be awarded.—A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. (5a, R18) (e) Where no defaults allowed.—If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. (6a, R18)

Effect of Failure to Set Up Compulsory Counterclaim If a compulsory counterclaim is not set up, it shall be barred Party in error is precluded from setting it up in a subsequent litigation on the ground of res judicata What are barred by prior judgment are not only the matters actually raised and litigated, but also such matters as could have been raised but were not Where the counterclaim is made subject of a separate suit, it may be abated upon plea of auter action pendant or litis pendentia and/or dismissed on the ground of res judicata A compulsory counterclaim is ancillary to the proceedings in the original suit

Breakdown of Provision A. If defending party fails to answer within time allowed, the court shall declare the defending party in default 1. HOW: a. Upon motion of the claiming party b. With notice to the defending party c. And proof of such failure 2. The court shall then proceed to render judgment granting the claimant such relief as the pleading may warrant a. UNLESS: the court in its discretion requires the claimant to submit evidence b. Reception of evidence may be delegated to clerk of court B. Effect of Order of Default 1. Party in default is entitled to notice of subsequent proceedings 2. But not to take part in the trial C. Relief from Order of Default 1. A party may file a motion to set aside the order 2. WHEN: a. At any time after notice of the order of default b. Before judgment 3. HOW: File a motion under oath to set aside the order of default 4. Upon a showing that: 1. His failure to answer was due to fraud, accident, mistake, or excusable negligence; and 2. That he has a meritorious defense 5. Order of default may be set aside on such terms and conditions as the judge may impose on the interest of justice D. Effect of Partial Default 1. When a pleading asserting a claim states a common cause of action against several defending parties, some answer and the others fail 2. Court shall try the case against all upon the answers thus filed and render judgment upon evidence presented E. Extent of Relief to be Awarded – judgment rendered against party in default: 1. Shall not exceed the amount or be different in kind from that prayed for 2. No award of unliquidated damages F. Where No Defaults Allowed 1. If defending party in an action for legal separation fails to answer a. Court shall order prosecuting attorney to investigate whether or not a collusion between parties exist b. IF there is no collusion, Court shall order prosecuting attorney to intervene for the State in order to see to it that the evidence submitted is not fabricated

Note also that the Filing of Motion to Dismiss is Implied Waiver of Compulsory Counterclaim The filing of a motion to dismiss and the setting up of a compulsory counterclaim are incompatible remedies Party must choose only one remedy 1. If he decides to file a motion to dismiss, he will lose his compulsory counterclaim 2. If he opts to set up a compulsory counterclaim, he may still plead his ground for dismissal as an affirmative defense in his answer But if the Dismissal of the Counterclaim was due to Non-Payment of Docket Fees, it is not res judicata In this case, it was not a determination on the merits And the dismissal would be unqualified So the dismissal is not a bar to the filing of the counterclaim in a subsequent action instituted by the plaintiff involving the same subject-matter See Meliton v. CA, et al. SECTION 3 - Default; declaration of.—If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. (1a, R18) (a) Effect of order of default.—A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. (2a, R18) (b) Relief from order of default.—A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense. In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice. (3a, R18) (c) Effect of partial default.—When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented. (4a, R18)

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Dual Stages of Default – two stages of default: 1. Declaration of Order of Default – when defendant fails to answer within the time specified in the rules, the court shall, upon motion of the plaintiff and proof of such failure, declare defendant in default 2. Rendition of Judgment by Default – thereafter, on the basis of the allegation of the complaint or after receiving plaintiff’s evidence, the court shall render judgment granting him such relief as the complaint and the facts proven may warrant ORDER OF DEFAULT Issued by the court, on plaintiff’s motion for failure of defendant to file his responsive pleading seasonably Interlocutory – not appealable

Basis of Default 1. Fundamentally, default orders are taken on the legal presumption that in failing to file an answer, defendant does not oppose the allegations and relief demanded in the complaint 2. There must be a motion to declare defendant in default Take Note: The court cannot motu proprio declare a defendant in default, there must be a motion to that effect by plaintiff with proof of failure by defendant to file his responsive pleading despite due notice Under the rule of summary procedure, no default order is rendered or required as a motion to declare the defendant in default is prohibited

JUDGMENT BY DEFAULT Rendered by the court following a default order or after it received, ex parte, plaintiff’s evidence Final – appealable

Caution in Issuing Default Orders While there are instances when a party may properly be defaulted, these should be the exception rather than the rule, and should be allowed only in clear cases of obstinate refusal or inordinate neglect to comply with the orders of the court (Tropical Homes, Inc. v. Villaluz)

When Declaration of Default Proper There is only one instance when a party defendant can properly be declared in default and that is when he fails to file his answer within the reglementary period, or within such extended time as he is allowed by the court, under Sec. 1, Rule 18

Kinds of Declaration of Default 1. A validly or properly declared in default for causes attributable to the defendant 2. Illegally or improvidently declared in default as when it is premature – for causes not attributable to defendant  The proceedings are null and void  Certiorari is an appropriate remedy despite availability of appeal

Take Note: Failure to file a responsive pleading within the reglementary period, and not failure to appear at hearing, is the SOLE ground for an order of default Except the failure to appear at pre-trial conference wherein the effects of a default on the part of the defendant are followed (Sec. 5, Rule 18)  Failure of the defendant to attend the pre-trial is a cause for the court to order the plaintiff to present his evidence ex parte and for the court to render judgment on the basis thereof; but this consequence is not to be called a declaration of default Also, a default judgment may be rendered, even if defendant had filed his answer, under the circumstances in Sec. 3(c), Rule 29

May a defendant be declared in default while a motion to dismiss or a motion for a bill of particulars remains pending and undisposed of? No, because the filing of a motion to dismiss or motion for bill of particulars interrupts the running of the period to answer. It will run again from the moment defendant receives the order denying motion to dismiss or for a bill of particulars. Effect of Order of Default: 1. The court shall proceed to render judgment granting the claimant such relief as his pleading may warrant; or in its discretion 2. Shall require the claimant to submit evidence; 3. Loss of standing in court of the defaulting party 4. Defendant is still entitled to notices of subsequent proceedings

NOTE: Where the answer is filed beyond the reglementary period but before the defendant was declared in default, and there is no showing that defendant intended to delay the case, the answer should be admitted (Cathay Pacific v. Romillo) GENERAL RULE: Default order and consequently a default judgment are triggered by the failure of the defending party to file the required answer (Sec. 3, Rule 9) EXCEPTIONS: A judgment by default may be rendered in the following cases despite an answer having been filed: 1. If a party refuses to obey an order requiring him to comply with the various modes of discovery (Sec. 3©, Rule 29); or 2. If a party or officer or managing agent of a party willfully fails to appear before the officer who is to take his deposition (Sec. 5, Rule 29)

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Elements of a Valid Declaration of Default 1. The court must have validly acquired jurisdiction over the person of the defendant either by service of summons or voluntary appearance 2. The defendant failed to file his answer within the time allowed therefor 3. There must be a motion to declare the defendant in default with notice to the latter 4. There must be notice to the defendant by serving upon him a copy of such motion 5. There must be proof of such failure to answer 6. There must be a hearing to declare defendant in default

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Loss of standing in court – consequence of an order of default; a party in default is considered out of court  He cannot appear therein, adduce evidence and be heard nor take part in the trial  He loses his right to present his defense, control the proceedings and examine witness  Although he is entitled to notice of subsequent proceedings Loss of standing does not constitute a waiver of all his rights except that being heard and or presenting evidence in trial court:  He is entitled to notice of final judgments and orders and proceedings taken subsequent thereto (Garcia v. CA)  He may be cited and may testify as a witness (Cavile v. Florendo)  He has the right to notice of motion for execution pending appeal (SC Johnson & Co v. CA)

 -

Defaulting defendant in a common cause of action may ask for execution of judgment issued in his favor (Castro v. Pena) Note that these principles are not applicable where the order of default is invalid for lack of proper service of summons

4.

Remedies available to defendant in default, as held in Lina v. CA 1. The defendant in default may file a motion, under oath, to set aside the order of default  At any time after discovery thereof (from Notice)  and before judgment, 2. If the judgment has already been rendered, he may file for new trial under Sec. 1 (a) Rule 37  when the defendant discovered the default,  but before the same has become final and executory 3. If defendant discovered the default after judgment had become final and executory, he may file a petition for relief under Sec. 2, Rule 38 4. He may also appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no petition to set aside the order of default has been presented by him

5.

automatically joined by allegations in the complaint (Gojo v. Goyala) Declaration of default before expiration of period to answer is null and void (Denso v. IAC) a. Filing of a special civil action for certiorari under Rule 65 does not interrupt the period to file an answer; defendant may be declared in default even if there is a pending petition for certiorari (Diaz v. Diaz) A motion to dismiss assailing the merits may be considered as an answer but the court explained that a motion to dismiss may not be considered as an answer (Matute v. CA)

Partial Default: 1. The pleading asserting a claim states a common cause of action against several defending parties 2. Some of the defending parties answer and the others fail to do so 3. The answer interposes a common defense Effect of Partial Default When the complaint states a common cause of action against several defendants some of whom answers and some of them do not, the court should declare defaulting defendants in default, and proceed to trial on answers of others It must be established that: 1. Petitioner has a common cause of action against all defendants; and 2. All defendants are indispensable parties to the case Some rules laid down by jurisprudence: a. The rule is not applicable to defenses personal to the answering defendant such as forgery (Luzon Surety v. Magbanua) b. Where a co-defendant who filed his answer died and the case was dismissed as to him, the answer he filed does not inure to the benefit of the defendant who did not file his own answer

Certiorari Available Defendant Improvidently Declared in Default An order of default is interlocutory and is not appealable (Vencilan v. Vano) But if the order is void, remedy is certiorari; the appeal may be treated as certiorari (Akut v. CA) Note that a defendant who is properly declared in default is differently situated from one who is improvidently declared: 1. Defendant PROPERLY declared in default a. He irreparably loses his right to participate in trial b. He is limited to the remedy set forth in Sec. 2, Par. 3, Rule 41; he can only contest the judgment by default on the designated ground that it is contrary to evidence or law 2. Defendant IMPROVIDENTLY declared in default a. He retains his right to participate and the subsequent judgment by default annulled and case remanded to court of origin b. He has the option to avail of the same remedy in Rule 41 or to forthwith interpose a petition for certiorari seeking nullification of the order of default; or in the event that the latter has been rendered, to have both decrees declared void

Requisites to Lift Order of Default A Verified Motion showing: 1. Fraud, accident, mistake, or excusable neglect; AND 2. Meritorious defenses Notes: -

Illustrative Cases 1. It is an error to declare defendant in default after an answer had already been filed (Cathay Pacific v. Romillo, Jr.) a. The answer should be admitted (Tumambing v. Ganzon) 2. Failure to furnish plaintiff with copy of answer is ground for default (Gonzales v. Francisco) a. Failure to furnish plaintiff with a copy of letteranswer prepared by an ordinary layman containing a recital of facts relied upon as defenses, is a sufficient and substantial compliance, and is not a ground for default (Cequerra v. Cayetano) 3. When a counterclaim need not be answered, default is improper a. A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default; issues raised in the counterclaim are deemed

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The motion must be under oath or verified and accompanied by an affidavit of merits A meritorious defense is synonymous to a “good and valid defense” His motion must be accompanied by a statement of the evidence which he intends to present if the motion is granted and which is such as to warrant a reasonable belief that the result of the case would probably be otherwise if a new trial is granted These two requisites MUST concur It is within the discretion of the trial court to set aside an order of default and permit the filing of defendant’s answer even beyond the reglementary period, or to refuse to set aside the default order where it finds no justification for the delay (Malipod v. Tan)

Liberality in Setting Aside Default Courts should be liberal in setting aside orders of default, for a default judgment is frowned upon and are not looked upon with favor for such a judgment may amount to a positive and considerable injustice to the defendant and the possibility of such serious consequences necessitates a careful examination of the

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grounds upon which the defendant asks that it be set aside. (Montinola v. Planters Bank) Effect of Setting Aside of Default Order If the court sets aside the order of default, the defendant is now restored to his standing and rights in the action But proceedings already taken are not to be disturbed (Jamie v. Maniego) Although it is within the discretion of the court to re-open the evidence submitted by the plaintiff and enable the defendant to challenge the same (Denso Inc. v. IAC) The lifting of an order of default does not revert the case to its pre-trial stage, much less render a second pre-trial mandatory (DBP v. CA) ‘ Extent of Relief to be Awarded A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages The rules see to it that any judgment against him must be in accordance with the law The court acts in excess of jurisdiction if it awards an amount beyond the claim made in the complaint or beyond that proved by evidence Although the defendant would not be in position to object, elementary justice requires that only legal evidence should be considered against him And if an unfavorable judgment should be justifiable, it cannot exceed the amount or be different from what is prayed for in the complaint If the claim is not proved, the case should be dismissed Where No Defaults Allowed 1. An action for annulment or declaration of nullity of marriage 2. For legal separation 3. Special civil actions of certiorari. Prohibition and mandamus where comment instead of an answer is required to be filed 4. Summary procedure

END OF RULE 9

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NOTES ON RULE 9 DEFAULT IN ORDINARY PROCEDURE After the lapse of time to file an answer, the plaintiff may move to declare the defendant in default

If motion denied: Defendant allowed to file an answer

If motion granted: Court issues order of default and renders judgment or require plaintiff to submit evidence ex parte

REMEDIES FROM JUDGMENT BY DEFAULT

Judgment by default Before judgment by default is rendered, defendant may: (1) Move to set aside order of default upon showing of FAME and that he has a meritorious defense; (2) Avail of Rule 65 in proper cases

Court maintains order of default

Motion for new trial or reconsideration at any time after service of judgment by default and within 15 (3) days therefrom

Failure to file a motion for new trial or denial of said motion

Court sets aside order of default and defendant is allowed to file an answer Presentation of plaintiff’s evidence ex-parte

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

Case set for pre-trial

If plaintiff proves his allegations: Judgment by default

If plaintiff fails proves his allegations: Case is dismissed Failure to appeal without defendant’s fault

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

Annulment of judgment under Rule 47

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NOTES ON RULE 9

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3.

RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS

4.

Amendment of reply any time within 10 days after it is served Formal amendment

Illustrative Cases: 1. Even after a motion to dismiss has been filed by defendant or such motion has been submitted for decision, plaintiff can still amend his complaint as a matter of right  A motion to dismiss is not a responsive pleading  An error of the court in refusing such amendment is controllable by mandamus (Breslin, et al. v. Luzon Stevedoring) 2. Amendment of the complaint may be allowed even if an order for its dismissal has been issued as long as the motion to amend is filed before dismissal became final (Constantino v. Reyes) 3. An amended answer may also be allowed even after the case had been set for trial on the merits if the purpose of the amendment is to submit the real matter in dispute without intent to delay the action (Paman v. Diaz) 4. The defense of prescription, which is not raised in a motion to dismiss nor as an affirmative defense in the original answer, may validly be set up for the first time in an amended answer (Aznar III et al., v. Bernad, et al.)  Effect of the amended answer is the withdrawal of the original answer and its substitution  Since in this case, no responsive pleading, such as a reply, had been filed by plaintiff and the case had not been calendared for hearing, defendant had the right to amend his answer 5. Amendment to the complaint prior to the filing of the answer may introduce new causes of action against the same defendant, in which case new summons together with the amended complaint must be served upon defendant (Atkins Kroll & Co. v. Domingo)  It is only when new causes of action are alleged in the amended complaint filed before the defendant has appeared in court that another summons must be served on the defendant with the amended complaint  If an answer had already been filed or if defendants were already served with summons in the original complaint and appeared and filed a motion to dismiss, no new summons is needed (Gumabay v. Beralin)

SECTION 1 - Amendments in general.—Pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. (1) Pleadings are Amended by: 1. Adding or striking out an allegation or the name of any party; or 2. By correcting a mistake in the name of a party or a mistake or inadequate allegation or description in any other object Purpose of Rule on Amendment: So that the actual merits of the controversy may be speedily be determined, without regard to technicalities In the most expeditious and inexpensive manner To avoid multiplicity of suits The real matter in dispute and other matters included in the action may be completely determined in a single proceeding Different Methods of Amendment: 1. Suppression 2. Addition 3. Incorporation 4. Substitution 5. By attaching document to complaint Types of Amendments: 1. Amendment as a matter of right – the party has the unconditional right to amend his pleading. The court has no right to prevent him from amending. The opposite party has no right to oppose the amendment. 2. Amendment as a matter of judicial discretion – the court may or may not allow the amendment. The other party has the right to oppose. SECTION 2 - Amendments as a matter of right.—A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served. (2a)

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

When Amendments Allowed as a Matter of Right – A party may amend his pleadings: 1. Once as a matter of course; 2. At any time before a responsive pleading is served 3. In case of a reply, he may so amend it (the complaint) at any time within 10 days after it is served

Requisites for Valid Amendment 1. After the case is set for hearing (not after responsive pleading is filed) 2. Substantial amendment may be made: a. Only upon leave of court; b. Upon motion filed in court; c. And after notice to the adverse party; d. And an opportunity to be heard

Amendment for the first time is a matter of right before a responsive pleading is filed or, in the case of a reply, within 10 days after it was served Amendment for the second or subsequent time must always be with leave of court even before a responsive pleading is filed or before the case is set in the calendar of the court

Note: Such leave may only be refused if it appears to the court that the motion was made to delay the action

Instances When an Amendments is a Matter of Right: 1. Amendment of complaint before an answer is filed. 2. Amendment of answer before a reply is filed or before the period for filing a reply expires

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What May be Amended – Pleadings, any process, affidavit, or other documents in the case; all matters, principal and collateral, involved in the action

Limitations on Leave to Amend; Amendments Should Not be Allowed in the following: 1. To set up a cause of action not existing at the time of filing of complaint (Surigao Mines Exploration Co. v. Harris) 2. An action for collection of note not yet due when filed is not curable by amendment even if it fell during the pendency of the case (no cause of action) (Limpangco v. Mercado)

Practice in Amending Pleading with Leave of Court The practice is to attach the amended pleading to the motion which is titled as a Motion to admit instead of a bare motion leave This is now required by the rules (See Sec. 9, Rule 15) If leave of court is not obtained, amended complaint may be stricken out

Summary of Principles: 1. If there is no valid subsisting cause of action at the time of filing, the complaint is NOT AMENDABLE 2. If there is merely an imperfect or incomplete statement of cause of action, the complaint IS AMENDABLE

There Must be Reasonable Ground Where amendment is not a matter of right, a bare assertion of a desire to amend the pleading because certain matters have not been therein alleged, or the submission of an amended one, without more, is obviously insufficient There must be some reasonable grounds justifying its exercise of discretion to allow amendment

Effect on Statute of Limitations 1. For new and different causes of action, the statute runs until after amendment (Ruymann and Farris v. Dir. Of Lands)  For purposes of determining the commencement of the suit, the original complaint is deemed abandoned and superseded by the amended complaint only if the amended complaint introduces a new or different cause of action or demand (Versoza v. CA) 2. Addition of a new count which merely supplements and amplifies the facts originally alleged relates back to the date of the commencement of the action and is not barred by the statute  It is the actual filing in court that controls and not the ate of the formal admission of the amended pleading 3. Imperfect statement of cause of action – the plea of the statute relates back to the time of the filing of the original complaint 4. If the defendant had no means of knowing before trial began, that the claim advanced by plaintiff is barred by statute of limitations, amendment is allowed

Test of Change of Cause of Action In determining whether a different cause of action is introduced by amendments, what is to be ascertained is whether the defendants shall be required to answer for a liability or legal obligation wholly different from that which was stated in the original complaint An amendment will not be considered as stating a new cause of action in the following: 1. If the facts alleged in the amended complaint show substantially the same wrong with respect to the same matter but are more fully and differently stated 2. Where averments which were implied are made express 3. Where the subject of the controversy or liability sought to be enforced remains the same 4. An amendment to change the relief sought does not change the theory of the case

Amendments to Vest Court with Jurisdiction When the court of origin had no jurisdiction over the original complaint in the first place, amendments may not be had (Stricter view) Before an amendment can be permitted, the trial court must have acquired jurisdiction over the case in the first instance (Tirona v. Alejo) This is only true if a responsive pleading had already been filed, but not when amendment is a matter of right In summary (a more Liberal view): 1. The rule that a plaintiff may not amend his cause of action for purpose of vesting the court with jurisdiction which it does not have under the original complaint, only applies if a responsive pleading had already been filed and, therefore, leave of court is required 2. Before the filing of a responsive pleading, the plaintiff may amend his pleading as a matter of course without leave of court, and this is true even if a motion to dismiss has been filed, because the latter is not a responsive pleading For as long as no responsive pleading had not yet been filed, there is no limitation on the scope and nature of the amendment

Liberality in Accepting Amendments In furtherance of justice The courts should be liberal in allowing amendments to pleadings to avoid multiplicity of suits and in order that the real controversies between the parties are presented, their rights determined, and the case decided on the merits Should the trial court find the allegations in the pleadings to be inadequate, it should allow the party concerned to file proper amendments to pleadings in accordance with the mandate of the Rules This liberality is greatest in the early stages of a lawsuit Amendments Should Not be Disallowed in the following: 1. When disallowance would result in injustice to the moving party; 2. Where the amendment would not prejudice the adverse party or place him at a disadvantage and he has all the time allowed by law to answer the amended pleading and to prepare for trial (Shaffer v. Palma) 3. An amended answer to include additional defense allowed liberally (Paman v. Diaz) 4. Even after the parties have rested, it is within the discretion of the court to allow amendment to an answer for purposes of questioning the personality of the plaintiff in bringing the action (International Film v. Lyric Film Exchange)

Amendments to Cure Lack of Cause of Action Note that a complaint may fail to state a cause of action either because: 1. The action have not yet accrued when the action was commenced

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This cannot be cured by amendment since the cause of action must exist at the time of the commencement of action 2. Or the cause of action have already accrued but was imperfectly stated  This situation is curable by amendment Some cases: 1. Mere correction of a defect in the allegation of the complaint because as it then stood, the original complaint states no cause of action, is permitted (Tamayo v. San Miguel Brewery) 2. Amendment to allege earnest efforts to compromise among members of the same family was allowed (Versoza v. Versoza) Remember that where the plaintiff has no valid cause of action at the time of the filing of the complaint, this defect cannot be cured or remedied by the acquisition or accrual of one while the action is still pending  An amendment which seeks to set up a cause of action after it had accrued is NOT permissible (Surigao Mines Exploration v. Harris)

2. 3.

a. A defect in the designation of the parties; and b. Other clearly clerical or typographical errors At its own initiative or on motion Provided no prejudice is caused thereby to the adverse party

SECTION 5 - Amendment to conform to or authorize presentation of evidence.—When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. (5a) Applicability of this Section This is an instance wherein the court acquires jurisdiction over the issues even if the same are not alleged in the original pleadings of the parties  Where the trial of said issues is with the express or implied consent of the parties This rule is premised on the fact that evidence had been introduced on an issue not raised by the pleadings without any objection by the adverse party It does not apply when the case was decided on a stipulation of facts in which case the pleadings are not deemed amended to conform to the evidence (MWSS v. CA)

Illustrative Cases: 1. Amendment to include prescription was allowed even after case is set for trial but before trial (Castillo v. Galvan) 2. A motion to amend answer long after pre-trial was terminated and the case placed in the pre-trial calendar, to include the defenses of prescription, estoppel, laches, and fraud was denied (Gulang v. Nodayag) 3. An amendment from sole proprietorship to name of owner is a mere formal amendment (Juasing Hardware v. Mendoza) 4. Plaintiff may amend the complaint to place it out of prescription based on an erroneous allegation of fact (Malayan Insurance v. Delgado Shipping Agencies) 5. Amendment to include compulsory counterclaim is allowed (Uy Hoo & Co. Inc. v. Tan) 6. Amendment to question capacity to sue even after resting by both parties discretionary (International Films v. Lyric Film Exchange) 7. Prayer for reinstatement and additional damages in an amended answer filed 6 years from original answer is not barred by laches or prescription – as this allegation is merely supplemented and amplified fact of termination (Panay Electric Co. v. CA) 8. Even if amended defense will alter theory of defense, if it will negate defendant’s liability, amendment is permissible (R and B Surety and Insurance v. Savellano) 9. The court may allow amendment of pleadings even if the cause of action or defense is substantially altered if no substantial injury will be caused thereby (Marini Gonzales v. Lood) 10. An amendment eliminating claims of ownership and limiting the same to the issue of prior possession does not substantially alter the theory of the complaint (Espejo v. Malate)

What this rule contemplates This rule allows a complaint which states no cause of action to be cured either by: 1. Evidence presented without objection or 2. In the event of an objection sustained by the court, by an amendment of the complaint with leave of court It also allows the admission of evidence: 1. On a defense not raised in a motion or answer if no objection is made thereto; 2. In the event of such objection, court may allow amendment of the answer in order to raise said defense Remember, however, that where the plaintiff has no valid cause of action at the time of the filing of the complaint, this defect cannot be cured or remedied by the acquisition or accrual of one while the action is pending This Section Envisions Two Scenarios 1. When evidence is not objected to  When issues not raised by pleadings are tried by express or implied consent of the parties, they shall be treated in all respected as if they had been raised in the pleadings  This is premised on the fact that evidence has been introduced on an issue not raised by the pleadings without any objection thereto raised by parties  Such amendments of pleadings as may be necessary to cause them to conform to the evidence and raise these issues may be made upon motion of any party at any time, even after judgment  But failure to amend does not affect the result of the trial of those issues

SECTION 4 - Formal amendments.—A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided so prejudice is caused thereby to the adverse party. (4a) Breakdown of Provision 1. The following may be summarily corrected by the court at any stage of the action:

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2.

When evidence is objected to  Objection on the ground that it is not within the issues made by the pleadings  Court may allow the pleadings to be amended and shall do so freely  When the presentation of the merits of the action will be subserved  As safeguard, the court may grant a continuance to enable the objecting party to meet such evidence

Principles in Jurisprudence 1. The rule on amendment need not be applied rigidly, particularly where no surprise or prejudice is caused the objecting party (Co Tiamco v. Diaz) 2. Where there is a variance in the defendant’s pleadings and the evidence adduced at trial, the court may treat the pleading as amended to conform to the evidence (National Power Corp. v. CA) On Pre-Trial The rules on pre-trial do not prohibit a subsequent amendment of the complaint after pre-trial has been issued To forbid allowance of a succeeding amendment would render nugatory the rules on amendment after the case had been set for hearing Such amendments may even be allowed at any stage of the action if only to insure the actual merits of the controversy may speedily be determined without regard to technicalities

AS TO THE FIRST SCENARIO There is an implied consent even if no motion is filed and no amendment is ordered The court may just as well render a valid judgment on the issues thus proved Appellate courts may treat the pleadings as amended to conform to the evidence although pleadings were not actually amended Relevant Rules 1. The complaint must contain a statement of all the facts constituting the plaintiff’s cause of action  If it does not, it is subject to demurrer 2. If the defendant permits evidence to be introduced without objection, which supplies the necessary allegations of a defective complaint, then this evidence has the effect of curing the defects of such complaint  A demurrer thereafter is inadmissible  Court is required to render judgment in any particular case, giving such relief as consistent with the case made by the pleadings and the evidence

SECTION 6 - Supplemental pleadings. — Upon motion of a party the court may, upon reasonable notice and upon such terms as’ are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. (6a) Breakdown of Provision A. Court may permit a party to serve a supplemental pleading 1. Upon motion of a party 2. Upon reasonable notice 3. Upon such terms as just B. Supplemental pleading sets forth transactions, occurrences, events which have happened since the date of the pleading sought to be supplemented C. Adverse party may plead thereto within 10 days from notice of order admitting supplemental pleading

AS TO THE SECOND SCENARIO There must be an amendment Amendment before accepting evidence (Co Tiam Co v. Diaz) Purpose of the amendment after judgment is to support the judgment or to make the record show more perfectly what was really tried and decided  An amendment to pleadings after judgment which would nullify the judgment and begin a new contest is not authorized Objection to evidence not alleged must be supported by affidavit of merits to show that he has meritorious defense of which he may be deprived if the amendment to accommodate the evidence be allowed, not merely on technical grounds (Chua Kiong v. Whitaker)

Supplemental Pleadings – those which aver facts occurring after the filing of the original pleadings and which are materials to the mature claims and/or defenses therein alleged Distinctions between Supplemental Pleadings and Amended Pleadings 1. As to subject a. Amended Pleadings – refer to the facts existing at time of filing of original pleading b. Supplemental Pleadings – refer to those occurring after the filing of original pleading 2. As to effect a. Amended Pleadings – supersedes the original b. Supplemental Pleadings – merely supplements 3. As to time a. Amended Pleadings – original may be amended without leave of court before a responsive pleading is filed b. Supplemental Pleadings – always needs a leave of court 4. As to form a. Amended Pleadings – amendment must be appropriately marked b. Supplemental Pleadings – no such requirement

Two Conflicting Rulings 1. One line of cases holds that where the evidence sustains an award in excess of that claimed in the complaint, but the plaintiff failed to amend the prayer of its complaint as to the amount of damages to conform to the evidence, the amount demanded in the complaint should be the measure of damages (Malayan Insurance Co. Inc. v. Manila Port Services) 2. There are cases where the SC has held that even without such amendment to conform to the evidence, the amount proved at trial may validly be awarded (Tuazon v. Bolanos)

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Nature of a Supplemental Pleading Only serves to bolster or adds something to the primary pleading It exists side by side with the original Does not replace that which it supplements Assumes that the original pleading is to stand and that issues joined with the original pleading remained an issue to be tried in the action A continuation of the complaint Usual office is to set up new facts which justify enlarge, or change the kind of relief with respect to the same subject matter as the controversy referred to in the original complaint It may be allowed to supply deficiencies or to raise issues in the pleadings but brought out during the pre-trial, but not on separate and distinct causes of action A supplemental complaint should supply only deficiencies in aid of an original complaint  Should contain only causes of action relevant and material to the plaintiff’s right and which help or aid the plaintiff’s right or defense  Must be based on matters arising subsequently to the original complaint related to the claim or defense presented therein, and founded on the same new cause of action  It cannot be used to try a new matter or new cause of action

Note: Amendments to a pleading should be indicated in the amended pleading, as by underscoring, enclosing them in quotation marks, putting them in capital letters, and so forth, as would make them readily evident The Amended Pleading SUPERSEDES the Original Pleading Original pleading is deemed withdrawn and no longer constitutes part of the record However, the filing of the amended pleading does not retroact to the date of the filing of the original  Hence, the statute of limitations runs until the filing of the amendment (Ruymann, et al. v. Dir. Of Lands)  But an amendment which merely supplements and amplifies facts originally alleged in the complaint relates back to the date of the commencement of the action and is not barred by the statute of limitations (Panay Electric Co. v. CA) It is the actual filing in the court that controls, and not the date of the formal admission of the amended pleading Specific Rules on Prescription Where the original complaint states a cause of action but does it imperfectly, and afterwards an amended complaint is filed correcting the defect, the plea of prescription will relate to the time of the filing of the original complaint (Pangasinan Trans. Co. v. Phil Farming Co. Ltd.) But such rule will not apply to the party who was impleaded for the first time in the amended complaint which was filed after the period of prescription had already elapsed; hence, the amended complaint should be dismissed (Aetna Insurance Co. v. Luzon Stevedoring)

Effect of Supplemental Complaint It relates back to the date of commencement of the action and is not barred by the statute of limitations Period of which expires after services of the original complaint but before service of the amendment It is the actual filing in court that controls

Liberal Application The rule is that amendments should be liberally allowed (Cese v. GSIS) This liberality at the outset of the action decreases as the case moves to its termination (Salvador v. Frio) Amendments to pleadings may be permitted even for the first time on appeal, if, without changing the cause of action or causing unfair prejudice to the other party, the purpose is to: 1. Correct a defect of party plaintiff, as where it is merely to include the husband of the plaintiff (Cuyugan v. Dizon) 2. Substitute the name of the real party in interest (Polacio v. Fely Trans Co.)

Some Limitations 1. Claims or defenses which have matured after the filing of the original pleadings cannot be averred in a supplemental pleading (it may be the subject of an amendment) 2. Supplemental pleadings are not allowed on separate and distinct causes of action 3. The admission or non-admission of a supplemental pleading is not a matter of right but is discretionary on the court Effect of Failure to Answer Failure to answer a supplemental complaint when ordered by the court is ground for default But where the basic and principal issue which had been previously traversed and joined by the answer remained, there is no necessity to require defendant to plead further to the supplemental complaint and there is no legal ground to declare defendant in default for such failure to plead

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

Note Sec. 7, Rule 11 A supplemental complaint may be answered within 10 days from notice of the order admitting the same Unless a different period is fixe by the court The answer to the complaint shall serve as the answer to a supplemental complaint if no new supplemental answer is filed

Effect of an Amended Pleading 1. An amended pleading supersedes the pleading that it amends 2. Admissions in the superseded pleading can still be received in evidence against the pleader 3. Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived

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

According to Justice Moran Pleadings superseded or amended disappear from the record as judicial admissions Any statement contained therein may be considered as an extrajudicial admission

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As such, in order that the court may take it into consideration, it should be offered formally in evidence Ex: If in the original answer, the defendant admitted his debt claimed by plaintiff, and he amends it later, denying in his amended answer the whole debt  The admission contained in the original answer is receivable against him  But such original answer should be introduced formally in evidence since it is no longer a part of the record as judicial admission because it has been superseded or amended by another pleading  If not offered in evidence, admission contained therein will not be considered Note that the present rule states that admissions in superseded pleadings may be received in evidence against the pleader

An amended pleading supersedes the original pleading Original pleading disappears from the records Defenses in original pleadings not reproduced in the amended pleading are deemed waived Case stands for trial on the amended pleading only

END OF RULE 10

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is filed. This Rule shall apply to the answer to an amended counterclaim amended cross-claim, amended third (fourth, etc.)— party complaint, and amended complaint-in-intervention. (3a)

RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS SECTION 1 - Answer to the complaint.—The defendant shall file his answer to the complaint within fifteen (15) days after service of summons, unless a different period is fixed by the court. (1a)

Breakdown of Provision A. If plaintiff files amended complaint as matter of right 1. Defendant to answer within 15 days after being served a copy thereof B. If plaintiff files amended complaint which is not a matter of right 1. Defendant to answer within 10 days from notice of the order admitting the same 2. Answer earlier filed may serve as answer to amended complaint if no answer is filed C. Sec. 3, Rule 11 shall apply to: 1. Answer to an amended counterclaim 2. Answer to amended cross-claim 3. Answer to amended third-party complaint 4. Answer to amended complaint-in-intervention

Note: In case of a non-resident defendant on whom extrajudicial service of summons is made, period to answer must be at least 60 days (Sec. 15, Rule 15) SECTION 2 - Answer of a defendant foreign private juridical entity.—Where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same, the answer shall be filed within thirty (30) days after receipt of summons by such entity. (2a) Breakdown of Sec. 1 and 2 A. Defendant to file his Answer to the Complaint 1. Within 15 days after service of summons 2. UNLESS different period is fixed by the court B. If defendant is a foreign private juridical entity 1. Service of summons made on the government official designated by law to receive the same 2. Answer is filed within 30 days after receipt of summons

Reckoning Dates: A. If the filing of an amended complaint is a matter of right  As where no answer has yet been filed to the original complaint, no motion for leave of court order granting such leave to file amended complaint being involved  15-day period to answer is counted from service of amended complaint B. If filing of amended complaint is not a matter of right  Leave of court is required  The 10-day period to answer runs from notice of the court order granting the same

Answer to Complaint: 1. Within 15 days after service of summons  UNLESS a different period is fixed by the court 2. In case the defendant is a foreign juridical entity a. If it has a resident agent – within 15 days after service of summons to him b. If it has no resident agent, but it has an agent or officer in the Philippines – within 15 days after service of summons to said agent or officer c. If it has no resident agent nor agent nor officer – in which case service of summons is to be made with the SEC which will then send a copy thereof by registered mail within 10 days to the home office of foreign corporation – within 30 days after receipt of summons by the home office of the foreign private entity 3. In case of service of summons by publication – within the time specified in the order granting leave to serve summons by publication, which shall not be less than 60 days after notice (Rule 14 and 15) 4. In case of a non-resident defendant on whom extraterritorial service of summons is made – answer should be at least 60 days

Leave of Court Leave of court to file a pleading or motion is obtained by filing a motion for leave accompanied by the pleading or motion sought to be admitted (See Sec. 9, Rule 15) Plaintiff should serve on defendant and file with the court the motion for leave to file an amended complaint If motion is granted, defendant shall file his answer within 10 days from order admitting amended complaint If no answer is filed, his original answer may serve as answer to the amended complaint  As such, he cannot be held in default  However, new material allegations in the amended complaint which are not specifically denied are deemed admitted Note: this rule shall also apply to the answer to an amended counterclaim, amended cross-claim, amended third-party complaint, and amended complaint-in-intervention If no new answer is filed, answer to original pleading shall be deemed as answer to amended pleading

Note: The court may extend the time to file the pleadings but it may NOT shorten them  Except in Quo warranto proceedings

SECTION 4 - Answer to counterclaim or cross-claim.—A counterclaim or cross-claim must be answered within ten (10) days from service. (4)

SECTION 3 - Answer to amended complaint.—Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (15) days after being served with a copy thereof. Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten (10) days from notice of the Order admitting the same. An answer earlier filed may serve as the answer to the amended complaint, if no new answer

Note: Failure to answer is a ground for default A Counterclaim need not be answered in the following cases: 1. Where the answer would be a repetition of the allegations in the complaint (Navarro v. Bello)

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2. 3.

Where the issues raised in the counterclaim are inseparable from those posed in the complaint (Sarmiento v. Juan) A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default, principally because the issues raised in the counterclaim are deemed automatically joined by the allegations in the compliant (Gojo v. Goyala)



Effect of Failure to Answer Supplemental Complaint Failure to answer a supplemental complaint when ordered by the court is a ground for default (Del Bros. v. IAC) But where the basic and principal issue had been previously traversed and joined by the answer remained:  There is no necessity to require defendant to plead further to the supplemental complaint  There is no legal ground to declare defendant in default for such failure to plead The answer to the complaint shall serve as an answer to the supplemental complaint  Justice Feria notes that new and material allegations in the supplemental complaint which are not specifically denied are deemed admitted

Nature of Default on Counterclaim Unlike default on a complaint, default to a counterclaim does not divest the plaintiff of standing in court or right to produce evidence on his complaint nor per se entitle defendant to immediate judgment on the counterclaim (Navarro v. Bello) A counterclaim or cross claim must be answered within 10 days from service. SECTION 5 - Answer to third (fourth, etc.)—party complaint.— . The time to answer a third (fourth, etc.)—party complaint shall be governed by the same rule as the answer to the complaint. (5a) Notes: -

Contents of an answer to a third-party complaint are provided for in Sec. 13, Rule 6 Time to file such answer is 15 days from service of summons to which are attached copies of the complaint and the third-party complaint The third-party defendant is served with summons just like the original defendant, hence he also has 15, 30, or 60 days from service of summons, as the case may be a. 15 days for resident defendant b. 30 days for defendant foreign private juridical entity c. 60 days for non-resident defendant

SECTION 8 - Existing counterclaim or cross-claim.--A compulsory, counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein. (8a, R6) SECTION 9 - Counterclaim or cross-claim arising after answer.— A counterclaim or a cross-claim which either matured or was acquired by a party after serving his pleading may, with the permission of the court, be presented as a counterclaim or a cross-claim by supplemental pleading before judgment. (9, R6) SECTION 10 - Omitted counterclaim or cross-claim.— When a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when justice requires, he may, by leave of court, set up the counterclaim or cross-claim by amendment before judgment. (3a, R9)

SECTION 6 - Reply.—A reply may be filed within ten (10) days from service of the pleading responded to. (6) A reply may be filed within 10 days from service of pleading responded to. Notes: -

merely omitted by pleader and, in all probability, were likewise known to defending party In a supplemental complaint, it seeks the introduction of facts or events which occurred or supervened after the filing of the original complaint; hence, for lack of knowledge thereof, defending party may need a longer period of time to respond to the allegations

Breakdown of Provisions A. A compulsory counterclaim or a cross-claim that defendant has at time of filing of answer 1. The same shall be contained in the answer B. Counterclaim or cross-claim arising after the Answer 1. This covers counterclaim or cross-claim which either: a. Matured or b. Was acquired by a party after his pleading 2. May be presented as counterclaim or cross-claim by SUPPLEMENTAL PLEADING a. How: With the permission of the court b. When: Before judgment C. Omitted counterclaim or cross-claim 1. When pleader fails to set up counterclaim or crossclaim through: a. Oversight, inadvertence, or excusable neglect; or b. When justice requires 2. Pleader may set up the counterclaim or cross-claim by AMENDED PLEADING a. How: By leave of court b. When: Before judgment

This section uses the word MAY It is ordinarily optional to file a reply since, by his failure to do so, all the new matters alleged in the antecedent pleading are deemed controverted

SECTION 7 - Answer to supplemental complaint.—A supplemental complaint may be answered within ten (10) days from notice of the order admitting the same, unless a different period is fixed by the court. The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed. (a) Since the filing of a supplemental complaint requires leave of court, The procedure for filing an answer thereto is similar to the case of an amended complaint the filing of which is not a matter of right, hence likewise requiring leave of court Unlike the amended complaint, the court may, in a supplemental complaint, fix a different period for answering the supplemental complaint in lieu of the reglementary 10 day period  Note that in an amended complaint, the facts sought to be incorporated were already known to but were

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See Sec. 2, Rule 11 for comments for Sec. 11 See Sec. 6 and 7, Rule 6 discussion:  An after-acquired counterclaim or cross-claim may be set up by filing a supplemental pleading



RECAP OF THE RULES

While an omitted counterclaim or cross-claim may be raised in an amended pleading pursuant to and under the conditions in Sec. 9 and 10 of this Rule

PLEADING Defendant’s Answer

Note also: A counterclaim or cross-claim need not be answered if: 1. It is based on or is inseparable from the defenses raised by the opposing party, or 2. Merely allege the opposite of the facts in the complaint Where the counterclaim or cross-claim is only for damages or attorney’s fees arising from the filing of the complaint, it need not be answered The foregoing doctrines also apply to after-acquired or omitted counterclaims and cross-claims subsequently allowed by the court to be filed in the action

Foreign Private Juridical Entity’s Answer Non-Resident Defendant’s Answer Answer to Amended Complaint when Filed as a Matter of Right Answer to Amended Complaint when Filed Not as a Matter of Right

SECTION 11 - Extension of time to plead .—Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules. The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules. (7)

Answer to Counterclaim or Cross-Claim Answer to ThirdParty Complaint

Requisites: 1. There must be a motion 2. With service of such motion to other party; and 3. On such terms as may be just Notes: -

-

Reply Answer to Supplemental Complaint

A motion for extension of time to file petition should be filed prior to the expiration or lapse of the period fixed by law Parties and counsel should not assume that courts are bound to grant the time they pray for; a motion that is not acted upon in due time is deemed denied But, once granted, the extension of time starts from the end of the original reglementary period  It runs whether or not the movant/grantee has knowledge of such actions of the granting  Notice in this instance is unimportant as, in the first place, lawyers should never presume that their motions for extension or postponement would be granted As to rules regarding period allowed to defendant to file its answer following the motion to dismiss, See Sec. 4, Rule 16

WHEN TO FILE 15 days after service of summons Unless different period is fixed by court Within 30 days after receipt of summons At least 60 days from extrajudicial service of summons Within 15 days after being served a copy thereof Within 10 days from notice of the order admitting the same; if no new answer is filed, answer earlier filed may serve as the answer to amended complaint Within 10 days from service Same rules as answer to complaint Within 10 days from service of the pleading responded to Within 10 days from notice of the order admitting the same Unless a different period is fixed by the court If no new answer is filed, answer to the complaint shall serve as answer

END OF RULE 11

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Principal Function – it is intended to inform the adverse party more specifically of the precise nature and character of the cause of action or defense alleged in a pleading with a view to enable him to properly prepare his responsive pleading, and an opportunity to prepare an intelligent answer

RULE 12 BILL OF PARTICULARS SECTION 1 - When applied for; purpose.—Before responding to a pleading, a party may move for a definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading. If the pleading is a reply, the motion must be filed within ten (10) days from service thereof. Such motion shall point out the defects complained of, the paragraphs wherein they are contained, and the details desired. (1a)

Notes: -

-

Breakdown of Provision A. A party may move for a definite statement or for a bill of particulars 1. On any matter which is not averred with sufficient definiteness or particularity a. To enable him to properly prepare his responsive pleading 2. Before responding to a pleading B. If the pleading is a reply, motion must be filed within 10 days from service thereof C. Such motion shall: 1. Point out the defects complained of 2. Point out the paragraphs wherein they are contained 3. And the details desired

The motion for a bill of particulars shall be filed before responding to a pleading; Hence, it must be filed within the period granted by Rule 11 for the filing of a responsive pleading The motion must comply with the requirements for motions under Sec. 4, 5, and 6 of Rule 15; Otherwise the motion will not suspend the period to answer The motion applies to ANY pleading which in the perception of the movant contains ambiguous allegations

Illustrative Cases 1. Mere ambiguity or indefiniteness is not a ground for a motion to dismiss so long as the complaint sufficiently shows a cause of action. The deficiency could be cured by means of a motion for a bill of particulars (City of Cebu v. CA) 2. A motion to dismiss based upon failure to state a cause of action with particularity should be treated as a motion for bill of particulars (Salvador v. Frio) 3. A co-defendant is not proper party to ask for a bill of particulars of a co-party’s answer. That rule belongs to the plaintiff (Garcia v. Flores, et al.)

Bill of Particulars – a complementary procedural document consisting of an amplification or more particularized outline of a pleading, and being in the nature of a more specific allegation of the facts recited in the pleading.

Scope – The rule is strictly construed as applicable only to particulars necessary to enable a party to prepare his responsive pleading and not to evidentiary matters obtainable by discovery Note: The granting of a motion for a bill of particulars lies within the sound discretion of the court and its ruling will not be reversed unless there was palpable abuse of discretion or it was a clearly erroneous order. (Santos v. Liwag)

Under this rule, the remedy available to a party who seeks clarification of any issue or matter vaguely or obscurely pleaded by the other party is to file a motion, either for (1) a definite statement, or (2) for a bill of particulars. An order directing the submission of such statement or bill is proper where it enables the party movant to intelligibly prepare a responsive pleading, or adequately prepare for trial (Virata v. Sandiganbayan)

Instances When Bill of Particulars Allowed 1. When the allegations are indefinite and uncertain that the nature of the action cannot be understood therefrom (Co Tiamco v. Diaz) 2. When the allegations are so vague that they do not appear therefrom in what capacity a party sues or is sued (Bartillo v. IAC) 3. When allegations are uncertain as to time, place, quantity, title, person or any other matter required to be pleaded with certainty 4. When the allegations are faulty in duplication, setting out two grounds for a single claim 5. When denials are so indefinite and uncertain that it cannot be understood what is denied and what is admitted 6. Particulars of details of computation of bank account were allowed; technicalities are frowned upon (Mutuc v. Agloro) 7. Conclusions of law; these allegations need statement of facts (Santos v. Liwag)

It is Within the Office of the Bill of Particulars: To amplify or limit a pleading, specify more minutely and particularly a claim or defense set up and pleaded in general terms To give information, not contained in the pleading, as to the precise nature, character, scope, and extent of the cause of action or defense relied on by the pleader To apprise the opposite party of the case which he has to meet To the end that proof at trial may be limited to the matters specified and in order that surprise be avoided To expedite trial, and assist the court To prevent injustice or do justice in the case when that cannot be accomplished without the aid of such bill It is Not The Office of the Bill Particulars: To supply material allegations necessary to the validity of a pleading To change a cause of action or defense stated in the pleading To state a cause of action or defense other than that one stated To set forth the pleader’s theory of his cause of action or a rule of evidence on which he intends to reply To furnish evidentiary information

Instances Where Bill of Particulars Improper – the bill is improper on matters: 1. Specified with particularity 2. Within party’s knowledge; or 3. Irrelevant to allegations of complaint 4. Which are more properly ascertainable by discovery Note: The motion for a bill of particulars must comply with the requirements of motions under Sec. 4, 5, and 6 of Rule 15

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

B.

Upon the filing of the motion, the clerk must immediately bring it to the attention of the court. The court may either deny or grant it outright, or allow the parties opportunity to be heard. A seasonable motion for a bill of particulars interrupts the period within which to Answer.

Plaintiff’s failure to comply with order of the court may be a ground for dismissing the complaint. Such dismissal, unless made without prejudice, would be a bar to a subsequent action on the same cause. (Bautista v. Teodoro) Effect of Non-Compliance 1. If the order is not obeyed or in case insufficient compliance therewith, the court may: a. Order the striking out of the pleading or the portion thereof to which the order is directed; or b. Make such order as it may deem just 2. If the plaintiff fails to obey, his complaint may be dismissed with prejudice UNLESS otherwise ordered by the court (Rule 12, Sec. 4; Rule 17, Sec. 3) 3. If the defendant fails to obey, his answer will be stricken off and his counterclaim dismissed, and he will be declared in default upon motion of the plaintiff (Rule 12, Sec. 4; Rule 17, Sec. 4; Rule 9, Sec. 3)

Stay Period to File Responsive Pleading: 1. After service of the bill or for a more definite pleading, or after notice of denial of the motion: a. Movant shall have the same time to serve his responsive pleading, if any is permitted by this rule, as that to which he was entitled at the time of serving his motion b. But not less than 5 days in any event 2. If the motion is filed beyond that period, it should rightly be denied 3. If the motion is filed on time, whether or not the movant succeeds, he has the same time to serve his responsive pleading as that to which he was entitled but not less than 5 days in any event 4. Pending resolution of these questions, a. Issues of the case cannot be said to have been joined b. Party’s failure to attend subsequent hearings does not amount to failure to prosecute

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

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

Effect of Motion 1. If the motion is granted, in whole or in part,  The movant can wait until the bill of particulars is served on him by opposing party  Then he will have the balance of the reglementary period within which to file his responsive pleading 2. If the motion is denied  He will still have such balance of the reglementary period to file his responsive pleading, counted from service of the order denying his motion

Breakdown of Provision A. If motion is granted, compliance therewith must be effected: 1. Within 10 days from notice of the order 2. UNLESS a different period is fixe by the court B. The bill of particulars or a more definite statement ordered: 1. May be filed either: a. In a separate pleading or b. In an amended pleading 2. Copy thereof is served on adverse party Note: -

2. Insufficiently complied Court may: 1. Order the striking out of the pleading or the portions thereof to which the order was directed 2. Or to make such other order as it deems just

In any case, he shall have not less than 5 days to file his responsive pleading SECTION 6 - Bill a part of pleading.—A bill of particulars becomes part of the pleading for which it is intended. (1[a]a)

The motion may be granted in whole or in part Period to comply with order granting motion: 10 days from notice of order unless a different period is fixed by court The bill may be filed either in a separate or amended pleading, serving a copy thereof to the adverse party

Review of Section 1 A motion for a bill of particulars must be filed within the reglementary period for the filing of a responsive pleading to the pleading sought to be clarified  This contemplates pleadings which are required by the Rules to be answered under pain of procedural sanctions  Sanctions such as default or implied admissions of the facts not responded to A special provision regarding vague reply is included  A motion for a bill directed to a reply must be filed within 10 days  Note that a responsive pleading is not required for a reply; the filing of the reply itself is optional or permissive (Sec. 6, Rule 11)

SECTION 4 - Effect of non-compliance.—If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just. (1[c]a) Breakdown of Provision A. If order is: 1. Not obeyed or

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The filing of a motion for a bill of particulars interrupts the time to plead, but only if it is sufficient in form and substance. 1.

2.

If the motion is granted  Movant can wait until the bill is served on him by opposing party  When served, he will have the balance of the reglementary period within which to file his responsive pleading  He will have at least 5 days to file his responsive pleading If the motion is denied  Movant will still have such balance of the reglementary period to do so  Counted from the service of the order denying his motion  He will have at least 5 days to file his responsive pleading

END OF RULE 12

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NOTES ON RULE 12

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Note: However, in Labor cases, both the party and its counsel must be duly served their separate copies of the order, decision, or resolution, unlike in ordinary judicial proceedings where notice to counsel is deemed notice to party

RULE 13 FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

Formal Notice is Not Necessary Where there is Actual Notice Formal notice is necessary as a rule but not where there is actual notice of the decision Like when there is a motion for reconsideration of the decision which was filed

SECTION 1 - Coverage .—This Rule shall govern the filing of all pleadings and other papers, as well as the service thereof, except those for which a different mode of service is prescribed. (n)

Where there is Substantial Compliance 1. The actual presence of the offended party and signing of the judgment by the private prosecutor was considered as an actual notice (Neplum Inc. v. Orbesco) 2. There is substantial compliance when petitioner acquired knowledge of the writ of execution containing a literal copy of the judgment (De Los Reyes v. Ugarte) 3. A copy of the decision obtained by counsel from PSC Secretary is substantial compliance with the requirement of notice of judgment (Laoag v. PSC) 4. The filing of the petitioner’s comment of the motion for reconsideration shows that he has received copy of the judgment (Luzon Rubber & Manufacturing Co v. Estaris)

SECTION 2 - Filing and service, defined.—Filing is the act of presenting the pleading or other paper to the clerk of court. Service is the act of providing a party with a copy of the pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side. (2a) Breakdown of Provision: A. Filing – the act of presenting the pleading or other paper to the clerk of court B. Service – the act of providing a party with a copy of the pleading or paper concerned 1. If any party has appeared by counsel a. Service upon him shall be made upon his counsel or one of them (1) UNLESS service upon the party himself is ordered by the court 2. If one party appears for several parties a. He shall only be entitled to one copy of any paper served upon him by the opposite side

Service on Lawyer is at Given Address Notice should be made upon the counsel of record at his exact given address (National Investment and Dev. Corp. v. CA) , to which notice of all kinds emanating from the court should be sent in the absence of a proper and adequate notice to the court of a change of address Service upon a lawyer must be effected at the exact given address of the lawyer and not in the vicinity or at a general receiving section for an entire multi-storied building with many offices (PLDT v. NLRC) Leaving abroad by lawyer is no excuse for not receiving notice (Antonio v. CA)

GENERAL RULE: Notice to counsel is notice to party Purpose – the purpose of requiring a formal service to the lawyer is to maintain a uniform procedure, calculated to place in competent hands the orderly prosecution of a party’s case. (National Investment and Development Corp. v. CA)

Duty of Counsel - It is the duty of counsel to adopt and strictly maintain a system that efficiently takes into account all court notices sent to him (Mercado v. Domingo) As to Change of Addresses A. Use of different address is not a notice of change 1. There must be a formal change of address (Philippine Suburban Dev. Corp. v. CA) 2. The fact that counsel used a different address in later pleadings should not be taken as notice to the court of either change of address or of another address in addition to that which was already of record (Lopez v. De Los Reyes) B. Where Court already took Notice of Change of Address 1. Notice, however, sent to counsel of record is valid even if the latter did not make a formal appearance where previous notices were sent to and received by said lawyer without complaint from defendant (Vda. De Mintu v. CA) 2. Where the court had already taken notice of the change of address, notice sent to old address not binding. (Anthony Sy v. IAC) 3. Where the trial judge was informed in open court and had already taken cognizance of the change, it had in fact acted in accordance with the change

Lawyers Must Make Formal Appearance There must be a formal appearance of lawyer Not enough that the attorney appear for a party at the trial Notice to a provisional lawyer is not binding Right of Lawyer to Formal Notice Where a party appears by attorney in an action or proceeding in a court of record, all notices required to be given therein must be given to the attorney of record  Service of the court’s order upon any person other than the counsel of record: 1. Not legally effective and binding upon the party 2. Nor may it start the corresponding reglementary period for the subsequent procedural steps that may be taken by the attorney Where a copy of the decision is served on a person who is neither a clerk nor one in charge of the attorney’s office, such service is invalid Service to a party is allowed only if the party is not represented by counsel  UNLESS service upon the party himself is ordered by the court Where a party is represented by a lawyer, service to lawyer is service to party  UNLESS service upon party is ordered by the court

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Substitution of Counsel A. General Principles: 1. A lawyer’s withdrawal as counsel must be made in a formal petition filed in the case, without which, notice of judgment rendered in the case served on counsel of record, is for all intents and purposes, notice to the client 2. There must be a formal petition for substitution 3. Consent of lawyer to be changed is not needed B. No substitution of attorney will be allowed unless the following requisites concur: 1. Written application for substitution 2. Written consent of client to substitution 3. Written consent of attorney to be substituted, if such consent can be obtained; or if not, 4. There must be filed with application for substitution, proof of service of such motion in the manner required by the rules on the attorney to be substituted

Filing by Mail Should be through the registry service which is made by deposit of the pleading in the post office; not through other means of transmission Date of delivery of the pleadings to a private letterforwarding agency of private carrier is not a recognized mode of filing pleadings Filing by mail can only be done through the Philippine Government Post Office or its postal agencies If a private carrier is availed of by the party, the date of actual receipt by the court of such pleading, and not the date of delivery to carrier, is deemed to be the date of the filing of that pleading

SECTION 3 - Manner of filing .—The filing of pleadings, appearances, motions, notices, orders, judgments and all other papers shall be made by presenting the original copies thereof, plainly indicated as such, personally to the clerk of court or by sending them by registered mail. In the first case, the clerk of court shall endorse on the pleading the date and hour of filing. In the second case, the date of the mailing of motions, pleadings, or any other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the record of the case. (1a)

Breakdown of Provision A. Every judgment, resolution, order, pleading 1. Subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment, or similar papers 2. Shall be filed with the court 3. And served upon parties affected

SECTION 4 - Papers required to be filed and served.— Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers shall be filed with the court, and served upon the parties affected. (2a)

Filing – is an act of presenting the pleading or other paper to the clerk of court Papers Required to be Filed and Served: 1. Pleading subsequent to the complaint 2. Appearance 3. Written motion 4. Notice 5. Order 6. Judgment 7. Demand 8. Offer of Judgment 9. Resolution 10. Similar papers

Breakdown of Provision The filing of pleadings, appearances, motions, notices, orders, judgments, and all other paper shall be made by: A. Presenting the original copies thereof, plainly indicated as such B. Present to: 1. The clerk of court a. Clerk shall endorse on the pleading the date and hour of filing 2. Or by sending them by registered mail a. Date of the mailing as shown by the post office stamp on the envelope or registry receipt shall be considered as the date of filing b. Envelope shall be attached to the record of the case

Comment of Justice Feria In the case of pleadings subsequent to the original complaint and written motions, they should first be served on the parties affected before filed with the court Ex parte written motions are now required to be served on the parties affected, although they need not be set for hearing Original complaint is first filed and subsequently served with summons

Manner of Filing: 1. Personal service by presenting the original copies thereof, plainly indicated as such, to the clerk of court; or 2. Registered mail Under Sec. 8, Rule 136: Clerk shall keep a general docket Each page numbered and prepared for receiving all entries in a single case Shall enter therein all cases, numbered consecutively in the order in which they were received Under the heading of each case and a complete title thereof, the date of: 1. Each paper filed or issued 2. Each order or judgment entered 3. Each other step taken in the case

Parties Must be Furnished Copies No judgment or order, whether final or interlocutory, has juridical existence until and unless it is set down in writing, signed, and promulgated 1. Delivered by the Judge to the Clerk for filing 2. Released to the parties and implementation 3. Even after promulgation, it does not bind parties until and unless notice thereof is duly served on them SECTION 5 - Modes of service.—Service of pleadings, motions, notices, orders, judgments and other papers shall be made either personally or by mail. (3a)

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Service – is the act of providing a party with a copy of the pleading or paper concerned

2. 3.

Modes of Service 1.

2.

3.

Personal Service (Sec. 6) a. Delivering personally a copy to the party, who is not represented by a counsel, or to his counsel; or b. Leaving a copy in counsel’s office with his clerk or with a person having charge thereof; or c. Leaving the copy between 8am and 6pm at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion then residing thereon – if not person is found in his office, or if his office is unknown, or if he has no office

Notes: -

By leaving it in his office with his clerk or with a person having charge thereof If he has no office, by leaving a copy between the 8am and 6pm, at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion then residing therein

Personal service may either be actual or constructive Service on a person not an employee or person in charge of the office is invalid (Tuazon v. Molina) Service of court notice to a store which was not established as residence or office is not valid (Fuentes v. Macandong)

SECTION 7 - Service by mail.—Service by registered mail shall be made by depositing the copy in the office, in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered. If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail. (5a)

By Mail (Sec. 7) a. Ordinary Mail – it does not constitute filing until the papers are actually delivered into the custody of clerk or judge b. Registered Mail – The date of mailing is the date of filing  Such date of filing is determinable from two sources: (1) from the post office stamp on the envelope or (2) from the registry receipt  Either of which may suffice to prove the timeliness of the filing of pleadings  If date stamped on one is earlier than the other, the former may be accepted as date of filing  This presupposes that the envelope or registry receipt and the dates appearing thereon are duly authenticated before the tribunal where they are presented

Breakdown of Provision A. Service by Registered Mail 1. Done by depositing the copy in the post office 2. Specifics: a. In a sealed envelope b. Plainly addressed to the party or his counsel (1) At his office if known (2) Otherwise, at his residence if known c. Postage fully pre-paid d. With instructions to the postmaster to return the mail to the sender after 10 days if undelivered B. Service may be done by ordinary mail 1. If no registry service is available in the locality of either sender or the addressee

Substituted Service (Sec. 8) – by delivery of the copy to the clerk of court with proof of failure of both personal and service by mail

Fax Pleadings Filing a pleading by facsimile is not sanctioned But fax was allowed in an extradition case (Justice Cuevas v. Juan Antonio Munoz)

Notes: -

Docket Fees However, where payment of fees is required by law or the rules, a case is deemed filed only upon payment of the correct docket fees regardless of the actual date of the filing in court

-

Aside from personal service or by mail, service may also be: 1. By substituted service (Sec. 8) 2. And judgments, final orders or resolutions may be served by publication (Sec. 9)  This is only proper where the summons on the defendant had also been served by publication

-

Service by ordinary mail is allowed only in instances where no registry service exists Where the notice of appeal was sent by special delivery mail within the period of perfecting appeal but received in court after the expiration of the period, service is valid (Verdejo v. CA) If a pleading is posted with a private carrier and not through registered mail as mandated by Sec. 1, Rule 13  Date of receipt by the court and not the date of mailing is the date of filing of said pleading The legal and conclusive presumption is that the date postmarked on the envelope is the date of filing

SECTION 8 - Substituted service.—If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery. (6a)

SECTION 6 - Personal service.—Service of the papers may be made by delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, or he has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion then residing therein. (4a)

Breakdown of Provision: A. Service may be made by delivering the copy to the clerk of court 1. If service cannot be made under the two preceding sections,

Breakdown of Provision: A. Service of papers may be made by: 1. Delivering personally a copy to the party or his counsel

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2. B. C.

The office and place of residence of the party or his counsel being unknown With proof of failure of both personal service and service by mail Service is complete at the time of such delivery



Service by Publication What is authorized or required to be served is the judgment, final order, or resolution Only the dispositive portion of the fallo should be required to be published, not the entire text of the decision or resolution The term “judgment” must be that contemplated in Rule 36

Note: Substituted service as applied to pleadings in this section is different from the Substituted Service as applied to summons in Rule 14. SECTION 9 - Service of judgments, final orders, or resolutions.— Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party. (7a)

SECTION 10 - Completeness of service.—Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever date is earlier. (8a)

Breakdown of Provision: A. Judgments, final orders, or resolutions shall be served either: 1. Personally, or 2. By registered mail B. When party summoned by publication has failed to appear in the action: 1. Judgments, final orders, resolutions against him shall be served upon him also by publication 2. At the expense of the prevailing party

Breakdown of Provision A. When Service is Complete 1. Personal Service – upon actual delivery 2. Service by Ordinary Mail a. Upon expiration of 10 days after mailing b. Unless the court otherwise provides 3. Service by Registered Mail a. Upon actual receipt by addressee, or b. After 5 days from date he received the first notice of postmaster  Whichever date is earlier

Kinds of Service for Final Judgments or Orders 1. Personal; or 2. By registered mail; or 3. By publication (in special cases); if party is summoned by publication and has failed to appear in the action Notes: -

-

Logical solution would be to authorize the trial court to effect service of judgment by publication

Completeness of Service 1. Personal Service a. By handling a copy to the defendant; or b. Tendering him a copy if he refuses (complete upon actual delivery) 2. Service by Ordinary mail a. Complete upon expiration of 10 days after mailing, unless the court provides otherwise 3. Service by Registered Mail a. Complete upon actual receipt by the addressee; or after 5 days from the date he received the first notice of the postmaster  Whichever date is earlier

Service of final orders and judgments can only be made either by personal service or by registered mail; or in special cases, by publication No substituted service Service cannot be by ordinary mail  This service does not become final and executory since service if fatally defective (Vda. De Espiritu v. CFI Cavite) The mere notation in the rollo that a copy of the resolution was sent to counsel, absent a showing of his receipt thereof, does not constitute proof of service (Soria v. CA)

Constructive Service by Registered Mail There must be conclusive proof that a first notice by the postmaster to the addressee was received Presumption that official duty has been performed does not apply (ITT Philippines Inc. v. CA) If, however, the postmaster certifies that such notice was sent, presumption arises and overrides the contrary claim of addressee (Ferraren v. Santos)

Rule on Registered Mail Contemplates of Two Situations: 1. ACTUAL service the completeness of which is determined upon receipt by the addressee of the registered mail; and 2. CONSTRUCTIVE service the completeness of which is determined upon the expiration of 5 days from the date of first notice of the postmaster without the addressee having claimed the registered mail Notes: -

No Substitute Service Judgments, final orders, or final resolutions cannot be served by substituted service Ex: It has been ascertained that a party’s counsel is dead or has permanently left the country an withdrawn from the case without substitution, and the whereabouts of the party represented can neither be ascertained nor the fact thereof obtained from the opposing party, and summons had not been served by publication  Service of the judgment by publication is not authorized and would not be valid  Substituted service cannot be availed of

-

Service by registered mail is complete upon actual receipt by the attorney, his employee or messenger in the office (Mata v. Legarda) Service by registered mail is effective at expiration of the 5-day period from date of first notice (Magno v. CA)

Illustration: 1. (General rule) If first notice is received by addressee on Dec. 1, and he gets his mail on Dec. 3, the service is complete on Dec. 3, the date of actual receipt

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2. 3. 4.

(Exception) But if addressee gets his mail on Dec. 15, service is deemed complete on Dec. 6, or five days from Dec. 1, the date of first notice If addressee never gets the mail, service is also deemed complete on Dec. 6, as provided in the exception to the general rule If he receives his mail 2 months after it is registered and there is no proof of the first notice, service is complete on the date of actual receipt, following the general rule

C.

Violation may be cause to consider paper as not filed

Preference for Personal Service Sec. 11 refers to both: 1. Service of pleadings and other papers on the adverse party or his counsel as provided for in Sec. 6, 7, and 8 2. Filing of pleadings and other papers in court Personal service and filing are preferred for obvious reasons  Such should expedite action or resolution on a pleading, motion, or other paper  Minimize delays likely to be incurred if service or filing is done by mail  It does away with less than ethical practices of some lawyers

For Completeness and Proof of Service by Registered Mail, there is NO Presumption that Official Duty has been Performed There must be clear proof of compliance with postal regulations governing the sending and receipt of the notice referred to in Sec. 8, Rule 13 Notice by Postmaster and Certification Proof of First Notice sent by postmaster to addressee with the Postmaster’s certification or testimony There must be conclusive proof that counsel or somebody acting on his behalf was duly notified or had actually received the notice There must be conclusive proof of sending and receipt of notice by registered mail, otherwise service is not complete Postmaster’s certification should include data not only as to whether or not notice was issued but also as to how, when and to whom delivery thereof was made (Dela Cruz v. Dela Cruz) Actual receipt of the notice by the addressee  This must be stated in the certification  Otherwise expiration of period does not apply until proof of actual receipt  There is a presumption that the person to whom mail is delivered is duly authorized by addressee to receive it

Personal Service is Mandatory Personal service and filing is the general rule and resort to the other modes of service and filing is the exception Whenever personal service or filing is practicable, in light of the circumstances of time, place, and person, personal service or filing is mandatory Only when personal service or filing is not practicable may resort to other modes be had  It must be accompanied by a written explanation as to why personal service or filing was not practicable to begin with Discretion of the Court Sec. 11 gives the court the discretion to consider a pleading or paper as not filed if the other modes of service or filing were resorted to and no written explanation was made as to why personal service was not done Exercise of discretion must necessarily consider: 1. The practicability of personal service 2. The importance of the subject matter of the case or issues involved therein 3. The prima facie merit of the pleading sought to be expunged for violation of Sec. 11

The Rule on Completeness of Service by Registered Mail only Provides for a Disputable Presumption It may be rebutted (Cabuang v. Bello) For the rule to apply, service must have been made on the counsel de parte (Fojas v. Navarro) and if it was sent to his address of record and he fails to receive it for causes imputable to him, the service becomes final and it is not necessary to effect further service (Magno v. CA)

SECTION 12 - Proof of filing. —The filing of a pleading or paper shall be proved by its existence in the record of the case. if it is not in the record, but is claimed to have been filed personally, the filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same; if filed by registered mail, by the registry receipt and by the affidavit of the person who did the mailing, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered. (n)

Service of notice by registered mail cannot be avoided by counsel’s refusal to accept delivery after notification thereof, and notice is deemed complete regardless of such refusal to accept (Isaac v. Mendoza) SECTION 11 - Priorities in modes of service and filing —Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed. (n)

Proof of Filing 1. Filing of a pleading or paper shall be proved by its existence in the record of the case 2. If not in the record, but is claimed to have been filed personally: a. It shall be proved by the written or stamped acknowledgement of its filing by the clerk of court on a copy of the same 3. If filed by registered mail: a. By the registry receipt b. And by the affidavit of the person who did the mailing  Containing full statement of the date and place of depositing the mail in the post office  In a sealed envelope addressed to the court  With postage fully prepaid

Breakdown of Provision: A. GENERAL RULE: Service and filing of pleadings and other papers shall be done personally, whenever applicable B. EXCEPTION: With respect to papers emanating from the court 1. Resort to other modes must be accompanied by a written explanation why service or filing was not done personally

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C.

With instructions to the postmaster to return the mail to the sender after 10 days if not delivered

SECTION 13 - Proof of service.—Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof of the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. (10a)

D.

Only from the filing of such notice for record: 1. Shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action 2. And only of its pendency against the parties designated by their real names Notice of lis pendens may be cancelled 1. Only upon order of the court 2. After proper showing: a. That the notice is for the purpose of molesting adverse party b. Or that it is not necessary to protect the rights of the party who caused it to be recorded

Lis Pendens Literally means a pending suit Refers to the jurisdiction, power or control which a court acquires over property involved in a suit, pending the continuance of the action, and until final judgment The annotation of lis pendens is an announcement to the whole world that a particular real property is in litigation’ serving as a warning that one who acquires an interest over said property does so at its own risk A notice of lis pendens may involve actions that deal not only with the title or possession of property, but also with the use or occupation of property  The litigation must directly involve a specific property which is necessarily affected by the judgment

Proof of Service 1. Proof of personal service shall consist of: a. A written admission of the party served b. Or the official return of the server c. Or the affidavit of the party serving  Contains a full statement of the date, place, and manner of service 2. Proof of service by ordinary mail shall consist of: a. An affidavit of the person mailing of facts showing compliance with Sec. 7 3. Proof of service by registered mail shall consist of: a. Affidavit and the registry receipt issued by the mailing office  Registry return card shall be filed immediately upon its receipt by sender  Or, in lieu thereof the unclaimed letter together with the certified or sworn copy of the postmaster to the addressee

Purpose of Lis Pendens 1. To protect the rights of the party causing the registration of the lis pendens 2. To advise third persons who purchase or contract on the subject property that they do so at their peril and subject to the result of the pending litigation Two-fold Effect of Filing a Notice of Lis Pendens 1. It keeps the subject matter of the litigation within the power of the court until the entry of final judgment to prevent the defeat of the final judgment by successive alienations 2. It bins a purchaser, bona fide or not, of the land subject of the litigation to the judgment or decree that the court will promulgate subsequently

SECTION 14 - Notice of lis pendens.—In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action. Said notice shall contain the names of the parties and the object of the action or defense, and a description of the property in that province affected thereby. Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names. The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be recorded. (24a, R14)

Transfer Does Not Affect the Merits of the Case A transferee pendente lite of the property involved in litigation stands exactly in the shoes of his predecessor in interest, and as such transferee, he is bound by the proceeding in the case -

Breakdown of Provision A. A Notice of pendency of action may be filed 1. In an action affecting the title or the right of possession of real property 2. By the plaintiff and the defendant (when affirmative relief is claimed in his answer) 3. In the office of the registry of deeds of the province in which the property is situated B. Notice shall contain: 1. Names of the parties 2. The object of the action or defense 3. Description of the property in that province affected

Without a notice of lis pendens, a third party who acquires the property after relying only on the certificate of title is a purchaser in good faith  Against such 3rd party, the supposed rights of a litigant cannot prevail  The former is not bound by the property owner’s undertakings not annotated in the TCT

Actions where Notice of Lis Pendens is Allowed – according to Rule 13: 1. An action to recover possession of real estate 2. An action to quiet title thereto 3. An action to remove clouds thereon 4. An action for partition; and

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Any other proceedings of any kind in Court directly affecting the title to the land or the use or occupation thereto or the buildings thereon

Note: To put the property under the coverage of the rule on lis pendens, all a party has to do is to assert a claim of possession or title over the subject property. It is not necessary that ownership or interest over the property is involved Lis pendens is not, however, allowed in an action for collection of unpaid installments on the purchase price of the property, as the action is in personam. Actions where Notice of Lis Pendens has No Application – as held in Tongohan v. CA 1. Preliminary attachments 2. Proceedings for the probate of wills 3. Levies on execution 4. Proceedings for administration of estate or deceased persons 5. Proceedings in which the only object is the recovery of a money judgment Requirements – As decreed by Sec. 76, PD 1529; a notice of lis pendens should contain: 1. A statement of the institution of an action or proceeding 2. The court where the same is pending 3. Date of its institution 4. It should also contain: a. A reference to the number of the certificate of title b. An adequate description of the land affected c. And its registered owner Cancellation of Lis Pendens – The trial court’s inherent power to cancel a notice of lis pendens is exercised only under exceptional circumstances, such as: (Eduardo Fernandez, et al. v. CA) 1. Where such circumstances are imputable to the party who caused the annotation 2. Where the litigation was unduly prolonged to the prejudice of the other party because several continuances procured by petitioner 3. Where the case which is the basis of lis pendens notation was dismissed for non-prosequitur on the part of the plaintiff; or 4. Where judgment was rendered against the party who caused such a notation Notes: -

Notice of lis pendens cannot be cancelled ex-parte Neither can it be ordered cancelled upon the mere filing of a bond Cancellation cannot be ordered where appeal is perfected (since the trial court already has lost jurisdiction)

Effect of Order of Cancellation – where at the time of the purchase there was already an order for the cancellation of the notice of lis pendens, the buyer may not be considered as purchasers in bad faith Other Principles Laid Down by Jurisprudence 1. The party who had the notice annotated and who won the litigation over the property has the better right as against one who bought it with such annotation (Heirs of Maria Marasigan v. IAC) 2. Where the notice of lis pendens is limited to a one-half undivided interest in the property in litigation, the owner of the other half has the right to sell his undivided pro indiviso share (Mercado v. Viardo) END OF RULE 13

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NOTES ON RULE 13

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NOTES ON RULE 13

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On Motions to Dismiss It is not accurate to say that the motion to dismiss was not filed seasonably because it was filed beyond the reglementary period if there was no valid service of summons to begin with If a defendant has not been properly summoned, the period to file a motion to dismiss for lack of jurisdiction over his person does not commence to run until he voluntarily submits to the jurisdiction of the court  Since the court has no jurisdiction to adjudicate the controversy as to him until such time (Orange Theatre Corp. v. Rayhertz Amusement Corp.)

RULE 14 SUMMONS SECTION 1 - Clerk to issue summons.—Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall forthwith issue the corresponding summons to the defendants. (1a) Breakdown of Provision A. Clerk to issue corresponding summons to defendants 1. Upon filing of the complaint 2. And upon payment of the requisite legal fees

Note: Although as a rule, modes of service of summons are strictly followed in order that the court may acquire jurisdiction over the person of the defendant, such procedural modes, however, are liberally construed in quasi-judicial proceedings, substantial compliance with the same, being considered adequate (Santos v. NLRC)

Summons – the writ by which the defendant is notified of the action brought against him Purpose of Summons 1. Actions in Personam a. To acquire jurisdiction over the person of the defendant in a civil case; and b. To give notice to the defendant that an action has been commenced against him (right to due process) 2. Actions in Rem and Quasi in Rem a. Not to acquire jurisdiction over the defendant but mainly to satisfy the constitutional requirement of due process b. Jurisdiction over the defendant is not required and the court acquires jurisdiction over an action as long as it acquires jurisdiction over the res

GENERAL RULE: When an additional defendant is joined, summons must be served upon him EXCEPTIONS: 1. When the administrator of a deceased party defendant substitutes the deceased 2. Where upon the death of the original defendant his infant heirs are made parties; and 3. In cases of substitution of the deceased under Sec. 16, Rule 3 In these instances, the service of the order of substitution is sufficient

Effect of Invalid Summons 1. The trial court does not acquire jurisdiction and renders null and void all subsequent proceedings and issuances (Syjuco v. Castro) 2. Any judgment without service of summons in the absence of a valid waiver is null and void (Filmerco Commercial Co. v. IAC)

SECTION 2 - Contents.—The summons shall be directed to the defendant, signed by the clerk of court under seal, and contain: (a) the name of the court and the names of the parties to the action; (b) a direction that the defendant answer within the time fixed by these Rules; (c) a notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for. A copy of the complaint and order for appointment of guardian ad litem, if any, shall be attached to the original and each copy of the summons. (3a)

Some Principles in Jurisprudence 1. Personal service is required in actions in personam (Venturanza v. CA) 2. The modes of service of summons must be strictly followed in order that the court may acquire jurisdiction over the person (Sps. Isagani Miranda and Miguela Joguilon v. CA)

Breakdown of Provision A. Summons shall be: 1. Directed to the defendant 2. Signed by clear of court under seal B. Summons shall contain: 1. Name of the court and the names of the parties to the action 2. A direction that the defendant answer within the time fixed by the Rules 3. A notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for C. The following shall be attached to the original and each copy of the summons: 1. A copy of the complaint 2. Order for appointment of guardian ad litem (if any)

Waiver to Question Jurisdiction over the Person One of the circumstances considered by the Court as indicative of waiver by the defendant of any alleged defect of jurisdiction over his person is his failure to raise the question of jurisdiction in the trial court at the first opportunity  Defects in jurisdiction arising from irregularities in the commencement of the proceedings may be waived by a failure to make seasonable objections Note however that the question of jurisdiction over the subject matter may be invoked at any stage of the proceedings  Unlike in jurisdiction over the person where any irregularities must be seasonably raised Irregularities over the acquisition of jurisdiction over the person can be pleaded in a motion to dismiss or as an affirmative defense in the answer

Illustrative Cases 1. Jurisdiction cannot be acquired over the defendant without service of summons, even if he knows of the case against him, unless he voluntarily submits to the

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3.

4.

jurisdiction of the court by appearing therein (Habana v. Vamenta) Where the defendant died before the filing of the action and summons was served on his co-defendant, the court never acquired jurisdiction over the former and judgment as to him is a nullity (Dumlao v. Quality Plastic Products) As to copies to be attached: a. If the order for appointment of guardian ad litem is not attached – order new summons with copy (Castanohal v. Castrano) b. If the complaint is not attached, failure to object is a waiver (Paglaran v. Ballatan) c. The failure to attach a copy of the complaint to the summons (Pagalaran v. Ballatan) or a copy of the order appointing a guardian ad litem (Castano v. Castano) are mere technical defects and the service of summons vests jurisdiction in the court over the defendant Where the defendant has already been served with summons on the original complaint, no further summons is required on the amended complaint if it does not introduce new causes of action (Ong Peng v. Custodio) a. But where defendant was declared in default on the original complaint, and plaintiff subsequently filed an amended complaint, new summons must be served on the defendant on the amended complaint as the original complaint is deemed withdrawn upon such amendment (Atkins Kroll & Co. v. Domingo) b. If defendant has not yet appeared by filing adversary pleadings and an amended complaint introducing new causes of action is filed, a new service of summons must be served upon him as regards amended complaint (Ong Peng v. Custodio)

Breakdown of Provision A. When service of has been completed: 1. The server shall serve a copy of the return a. Within 5 days therefrom b. Personally or by registered mail c. To the plaintiff’s counsel 2. The server shall return the summons a. To the clerk who issue it b. Accompanied by proof of service Proof of Service It is required to be given to the plaintiff’s counsel in order to enable him: 1. To move for a default order should the defendant fail to answer on time, or 2. In case of non-service, so that alias summons may be sought In either of the 2 cases, server must serve a copy of the return on plaintiff’s counsel within 5 days from completion or failure of service Certificate of Service of Summons Prima facie evidence of the facts set out in such certificate To overcome presumption arising from the sheriff’s return, evidence must be clear and convincing (Olar v. Cuna) In the absence of contrary evidence, the presumption is that he has regularly performed his official duty Where the sheriff’s return is defective, the presumption of regularity will not lie  Defective return is now insufficient and incompetent proof that summons was served in the manner prescribed (Syjuco v. Castro)

SECTION 3 - By whom served.—The summons may be served by the sheriff, his deputy, or other proper court officer, or for justifiable reasons by any suitable person authorized by the court issuing the summons. (5a)

SECTION 5 - Issuance of alias summons.— If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the plaintiff’s counsel, stating the reasons for the failure of service, within five (5) days therefrom. In such a case, or if the summons has been lost, the clerk, on demand of the plaintiff, may issue an alias summons. (4a)

Breakdown of Provision A. Summons may be served by: 1. The sheriff 2. His deputy 3. Other proper court officer 4. Any suitable person authorized by the court – for justifiable reasons

Breakdown of Provision A. If summons is returned without being served on any or all defendants 1. Server shall serve a copy of the return on plaintiff’s counsel a. Stating the reasons for the failure of service b. Within 5 days therefrom B. If summon is not served or if summons has been lost: 1. Clerk may issue alias summons a. On demand of plaintiff

Note: The enumeration in Sec. 3 of the persons who may validly serve summons is EXCLUSIVE Summons was invalidly served by the following, without authority granted by the Court 1. A police sergeant (Sequito v. Letrondo) 2. A postmaster (Olar v. Cuna) 3. A patrolman (Bello v. Ubo)

Alias Summons – one issued when the original has not produced its effect because of a defect in form or in the manner of service, and when issued supersedes the first writ

In the aforementioned cases, service was invalid and court did not acquire jurisdiction

THE MODES OF SERVICE OF SUMMONS SECTION 4 - Return.—When the service has been completed, the server shall, within five (5) days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiff’s counsel, and shall return the summons to the clerk who issued it, accompanied by proof of service. (6a)

Modes: 1.

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Personal Service (Sec. 6) a. By handing a copy of summons to him; or b. If he refuses to receive it, by tendering it to him

2.

Substituted Service (Sec. 7) a. By leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion residing therein; or b. By leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof



SECTION 7 - Substituted service.— If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof. (8a)

For substituted service of summons to be valid, it is necessary to establish the following: 1. The impossibility of the personal service of summons within a reasonable time 2. The efforts exerted to locate the person to be served; and 3. Service upon a person of sufficient age and discretion residing in the same place as defendant or some competent person in charge of his office or regular place of business 3.

Service by Publication (Sec. 14, 15, and 16) Requisites: a. Defendant’s identity or whereabouts are unknown and cannot be ascertained by diligent inquiry; and b. There must be leave of court

4.

Any other manner as court may deem sufficient (Sec. 15)

Said rule requires that summons be served at defendant’s residence in the event that personal service is not possible within reasonable time for justifiable reasons

Breakdown of Provision A. If, for justifiable causes, defendant cannot be served within a reasonable time as provide in the preceding section, service may be effected: 1. By leaving copies of the summons at defendant’s residence with some person of suitable age and discretion residing therein; or 2. By leaving copies at defendant’s office or regular place of business with some competent person in charge thereof GENERAL RULE: Summons must be served to defendant in person. EXCEPTION: It is only when the defendant cannot be served personally within a reasonable time and for justifiable reasons that a substituted service may be made

Note that summons cannot be served by mail Where service is made by publication, a copy of the summons and order of the court shall be sent by registered mail to last known address of defendant (Sec. 15)  Resort to registered mail is only complementary to the service of summons by publication  But it does not mean that service by registered mail alone would suffice

Requisites for Valid Substituted Service 1. The efforts exerted by the sheriff to effect personal service within a reasonable period of time a. Impossibility of service should be shown by stating the efforts made to find defendant 2. That such personal service cannot be effected for justifiable reasons 3. The service of summons was made at: a. Defendant’s residence or b. Defendant’s office or regular place of business at the time of the service 4. Address of defendant to whom summons was supposed to have been served must be indicated in the return

SECTION 6 - Service in person on defendant. — Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him. (7a) Breakdown of Provision A. Whenever practicable, summons shall be served by: 1. Handling a copy thereof to defendant in person; or 2. By tendering it to him, if he refuses to receive and sign for it

There must be STRICT compliance with requirements of substituted service The statutory requirements of substitute service must be followed strictly, faithfully, and fully,  Any substituted service other than the statute is considered ineffective Substituted service is in derogation of the usual method of service  It is an extraordinary method in character  May be used only as prescribed in the circumstances authorized by statute The return must show impossibility of service and the efforts of the sheriff to effect personal service If the return is defective:  No presumption of regularity of the service Judgment may be annulled based on lack of jurisdiction for improper substitute service for failure to show in return impossibility of personal service within a reasonable time

Distinguish “Service in Person on Defendant” from “Personal Service of Pleadings” Under Personal Service of Pleadings and Other Papers under Sec. 6, Rule 13, personal service includes: 1. Service on the party or his counsel; or 2. By leaving a copy with the clerk or person having charge of his office; or 3. Leaving it with a person of sufficient age and discretion at the party’s or counsel’s residence Under Service in Person on Defendant under this Rule, 1. Service is only made on the defendant himself Service is to be done personally This does not mean that service is possible only at defendant’s actual residence It is enough that defendant is handed a copy of the summons in person by anyone authorize by law This is distinct from Substituted Service under Sec. 7, Rule 14

Principles as Laid down by Jurisprudence 1. In ejectment cases, being in personam, personal service of summons on defendant is essential to acquire jurisdiction over his person, hence summons by publication is null and void (Ilaya Textile Market, Inc. v. Ocampo)

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Where the action is in personam and defendant is in the Philippines, service must be made in accordance with Sec. 6; Substituted service should be availed only where defendant cannot be promptly served in person (Litonjua v. CA) Impossibility of personal service should be explained in the proof of service showing that efforts were exerted therefor, hence resort to substituted service (Keister v. Navarro)  Such facts must be reported in the proof of service otherwise the substituted service is invalid (Busuego v. CA)  But where substituted service under such circumstances was not objected to by defendant at the trial where he voluntarily appeared by counsel, the substituted service was declared valid; whatever defect there was in such mode of service was deemed waived (Boticano v. Chu)

AS TO PROOFS Proof of Prior Efforts of Personal Delivery The absence in sheriff’s return of a statement about the impossibility of personal service does not conclusively prove that the service is invalid Proof of prior attempts at personal service may be submitted by plaintiff during the hearing of any incident assailing the validity of substitute service (Mapa v. CA) While the sheriff’s return carries with it the disputable presumption of regularity  This is in the sense that the entries therein are deemed correct  It does not necessarily show that an act done in relation to the official duty for which the return is made was not done simply because it is not disclosed therein The impossibility of service may be established by evidence

Some Cases on Substituted Service 1. Ownership of the house is not synonymous with dwelling (Arevalo v. Quilatan) 2. Substituted service to wife is valid (Daran v. Angco), but not when they are not residents of the same place (Valmonte v. CA) 3. Service with one copy of complaint on 2 defendants is irregular (Bello v. Ubo) 4. Service of summons on co-owner is not binding on others (Eduardo Fernanez, et al. v. CA)

Irregularity may be Cured by Proof of Actual Receipt The constitutional requirement of due process exacts that service be such as may be reasonably expected to give the notice desired (Montalban v. Maximo)  Once service provided by the rules reasonably accomplishes that end, justice is answered and due process is served Irregularities of this kind, however, may be cured by proof that the copies have actually been delivered to defendant, which is equivalent to personal service

DEFINITION OF TERMS

But there is NO Need for Proof of Actual Receipt In substituted service, it is immaterial that the defendant does not in fact receive actual notice  This will not affect validity of the service The defendant may be charged by a judgment in personam as a result of legal proceedings upon a method of service which is not personal, which in fact may not become actual notice to him, and which may be accomplished in his lawful absence from the country  The rules do not require that papers be served on defendant’s personally or a showing that papers were delivered to defendant by person with whom they were left (Smith v. Kincaid)

Meaning of RESIDENCE For a substituted service to be valid, summons served at the defendant’s residence must be served at his residence AT THE TIME OF SERVICE; not his former place of residence “dwelling house” or “residence” refers to the dwelling house at the time of service They refer to the place where the person named in the summons is living at the time of when the service is made, even though he may be temporarily out of the country at that time (Venturanza v. CA) Under the rules, plaintiff, in the initial stages, is merely required to know defendant’s dwelling house or residence or his office or regular place of business  Nothing more  He is not asked to investigate where a resident defendant actually is, at the precise moment of filing  He is not even duty bound to see to it that the person upon whom the service was actually made delivers the summons to defendant or informs him about it Meaning of Defendant’s Office or Regular Place of Business “office” or “regular place of business” refers to the office or place of business of defendant at the time of service The rule specifically designates the persons to whom copies of the process should be left “to be in charge” means to have care an custody of, under control of, or entrusted to the management or direction of (Sandoval II v. HoR)  Maintenance man cannot be said to be entrusted with the management of office records  Not any employee or anyone who pretends to be an employee could validly receive summons

In substituted service, the validity of service does not depend upon actual receipt But irregularity in service may be cured by proof of actual receipt Thus, where summons was in fact received by the defendant, his argument that the sheriff should have tried first to serve summons on him personally before resorting to substituted service is not meritorious (Boticano v. Chu, Jr.) Mere knowledge, however, is not sufficient, in the absence of a valid service In the absence however, of a categorical admission similar to that made in Boticano, no such inference to the contrary could be drawn SECTION 8 - Service upon entity without juridical personality.— When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person

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Breakdown of Provision A. When defendant is a: 1. Minor, 2. Insane, or 3. Otherwise an incompetent B. Service shall be made: 1. Upon him personally, 2. AND: a. On his legal guardian – if he has one b. Upon his guardian ad litem – if he has no guardian; appointment applied for by plaintiff 3. In case of defendant minor, service may also be made on his father or mother

whose connection with the entity has, upon due notice, been severed before the action was brought. (9a) Breakdown of Provision A. When persons associated in an entity without juridical personality are sued under the name by which they are commonly known B. Service may be effected: 1. Upon all defendants by serving upon any one of them 2. Or Upon person in charge of the office or place of business maintained in such name C. Such service shall not bind individually any person whose connection with the entity has been severed before the action was brought (upon due notice)

Note: With respect to insane or otherwise incompetent persons, it is not necessary that they be judicially declared as such

A Review of Relevant Provisions under Rule 3 Sec. 1, Rule 3 provides that only natural or juridical persons may be parties in a civil action  But it also provides that “entities authorized by law” may likewise be parties to a suit Sec. 15, Rule 3 provides that an entity without juridical personality may be sued under the circumstances prescribed therein in connection with a transaction it may have entered into Note: -

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SECTION 11 - Service upon domestic private juridical entity.— When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or inhouse counsel. (13a) Breakdown of Provision A. When defendant is a corporation, partnership, or association, 1. Organized under the laws of the Philippines 2. With a juridical personality B. Service may be made on the – president, managing partner, general manager, corporate secretary, treasurer, or inhouse counsel

Such entity without juridical personality can be sued, but cannot sue by initiating an original civil action  As a matter of fairness and logical procedure, once it is impleaded as defendant, it may also file counterclaims and cross-claims or other initiatory pleadings for claims it may properly avail itself since it is already a party to the suit Note also that this section does not limit itself to associations engaged in business  Associations not engaged in business or commercial activity can also commit actionable wrongs  Civic associations and organizations are also included

Purpose of the Rule Service must be made on a representative so integrated with the corporation sued as to make it a priori supposable that he will realize his responsibilities and know what he should do with legal paper served on him (G&G Trading Corp. v. CA) As held in Artemio Baltazar v. CA The regular mode of serving summons upon a private Philippine corporation is by personal service upon one of the officers of such corporation But there is no requirement that it be done at the principal office of the corporation So it can be said that personal service upon the corporation may be effected through service upon the office or residential address of the corporation president, for example

SECTION 9 - Service upon prisoners.—When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose. (12a) Breakdown of Provision When defendant is a prisoner confined in a jail or institution 1. Service shall be effected by the officer having the management of such jail or institution 2. Such officer is deemed deputized as special sheriff for said purpose

Strict Application of the Rules The rule must be strictly observed; service must be made to one named in statute (Delta Motors v. Mangosing) Resort to substituted service by publication on a private domestic corporation was held invalid where the sheriff did not ascertain from the records of the SEC the address of its corporate headquarters and address of its corporate headquarters and addresses of its directors and other officers (Baltazar v. CA) Under the present rule, service on an agent of the corporation is no longer permitted  The designation of persons or officers who are authorized to accept summons for a domestic corporation is now limited and more clearly specified The doctrine of substantial compliance followed under the 1964 Rules is no longer applicable in view of the amendments introduced by the 1997 Rules

Note: Since the said officer is deputized as special sheriff, he is charged with the duty of complying with the provisions of Sec. 4 an 5 of this Rule relative to the return on summons on prisoner. SECTION 10 - Service upon minors and incompetents — When the defendant is a minor, insane or otherwise an incompetent, service shall be made upon him personally and on his legal guardian if he has one, or if none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service may also be made on his father or mother. (10a, 11a)

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2.

The new rule is restricted, limited, and exclusive (EB Villarosa & Partner Co., Ltd. v. Benito)

Note: The doctrine of piercing the veil of corporate fiction does not apply to service of summons. It refers to determination of liability and not to determination of jurisdiction

Term implies a continuity of commercial dealings and arrangements, and contemplates, to that extent, the performance of acts or works or the exercise of some of the functions normally incident to, and in progressive prosecution of, the purpose and object of its organization

Note: A foreign corporation not engaged in business in the Philippines may file an action in Philippine Courts for an ISOLATED Transaction

SECTION 12 - Service upon foreign private juridical entity.—When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers or agents within the Philippines. (14a)

Some Jurisprudence: 1. In Georg Grotjahn GMBH and Co. v. Isagani, it was held that the uninterrupted performance by a foreign corporation of acts pursuant to its primary purposes and functions as a regional headquarters for its home office, qualifies such corporation as one doing business in the country 2. Distinguish however from a single or isolated transaction or occasional, incidental, or casual transaction a. In such cases, the foreign corporation is not deemed to be doing business in the Philippines (Pacific Micronesian Line Inc. v. Del Rosario) b. But where the single act or transaction is not merely incidental or casual but indicates the foreign corporation’s intention to do other business in the Philippines, said single act or transaction constitutes doing or engaging in or transacting business in the Philippines (Far East Int’l Import and Export Corp. v. Nankai Kogyo Co.) 3. As a general rule, a foreign corporation will not be regarded as doing business in the State simply because it enters into contracts with residents of the State, where such contracts are consummated outside the State a. A foreign corporation is not doing business in the State merely because sales of its product are made there or other business furthering its interests is transacted there

Breakdown of Provision A. Defendant is a foreign juridical entity which has transacted business in the Philippines B. Service may be made on: 1. Its resident agent designated in accordance with law for that purpose; or 2. If no agent: a. On the government official designated by law to that effect; or b. Any of its officers or agents within the Philippines General Rule on Foreign Corporations Foreign corporations doing business in the Philippines without license cannot sue but may sued If it is not doing business, it can sue If it is not engaged in business in the Philippines  Not barred from seeking redress in the Philippines a fortiori, that same corporation cannot claim exemption from being sued in Philippine courts for acts done against a person or persons in the Philippines Summons may be issued under this rule when it is doing business in the Philippines or “which has transacted business in the Philippines”

The Fact of Doing Business in the Philippines Must be Established by Appropriate Allegations in the Complaint When the allegation in the complaint have a bearing on the plaintiff’s capacity to sue and merely state that plaintiff is a foreign corporation existing under US laws, such averment conjures 2 alternative possibilities: 1. That the corporation is engaged in the Philippines a. In this case, a corporation must have been duly licensed in order to maintain the suit 2. That it is not so engaged a. In this case, that the transaction sued upon is singular and isolated, hence no license is needed The qualifying circumstances being an essential part of plaintiff’s capacity to sue must be affirmatively pleaded

Note also Sec. 123 of the Corporation Code which provides that when a foreign private corporation applies for a license to do business in the Philippines, it shall be granted subject to the condition, inter alia, that if it has no resident agent, summons and processes intended for it shall be served on the SEC Reglementary Periods Where service of summons is made on the government official designated by law, defendant corporation has 30 days from its receipt of summons within which to file its answer (Sec. 2, Rule 11) If served on its resident agent, offices or other agents in the Philippines, the 15-day reglementary period applies (Facilities Management Corp. v. De la Osa)

It is now settled that, for purposes of having summons served on a foreign corporation in accordance with Rules 14 and 12, it is sufficient that it be alleged in the complaint that the foreign corporation is doing business in the Philippines.

Meaning of Doing Business Mentholatum Co., Inc. v. Mangaliman – no general rule or governing principle can be laid down as to what constitutes doing or engaging or trading in business; each case must be judged in light of its peculiar environmental circumstances Griffin v. Implement Dealer’s Mut. Fire Ins. Co.: 1. The test seems to be whether the foreign corporation is continuing the body or substance of the business or enterprise for which it was organized or whether it has substantially retired from it and turned over it over to another

Determination of Jurisdiction is NOT a Final Matter It cannot be said that the petitioner’s right to question the jurisdiction of the court over its person is now a foreclosed matter A determination that the foreign corporation is doing business is only tentative  It is made only for the purposes of enabling the local court to acquire jurisdiction over the foreign

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corporation through service of summons pursuant to Rules 14 and 12 Such determination does not foreclose a contrary finding should evidence later show that it is not transacting business in the country

SECTION 14 - Service upon defendant whose identity or whereabouts are unknown.—In any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order. (16a)

How Service of Summons Effected Upon Private Foreign Corporations 1. Three instances as provided for in Sec. 14, Rule 7 a. By serving upon the agent designated in accordance with law to accept service of summons b. If there is no resident agent, by service on the government official designated by law to that office c. By serving on any officer or agent of said corporation within the Philippines 2. Under the Corp Code, if the corporation is without resident agent, service of summons may be made upon the SEC  SEC must transmit it within 10 days by mail copy of summons or other legal process to the corporation at its home or principal office

Breakdown of Provision A. Whenever a defendant is: 1. Designated as an unknown owner, or the like, or 2. Where his whereabouts are unknown and cannot be ascertained by diligent inquiry B. Service may be effected: 1. With leave of court 2. By publication a. In a newspaper of general circulation b. And in such places and for such time as the court may order In Baltazar v. CA, Justice Feliciano notes that service of summons by publication may be allowed under Rule 14 in 3 different situations: 1. First is the situation of an Unknown Defendant – governed by Sec. 14 2. Second is the situation were Extraterritorial service is proper – governed by Sec. 15 3. Third, is that of a resident who is temporarily out of the Philippines – governed by Sec. 16

SECTION 13 - Service upon public corporations.—When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct. (15) Breakdown of Provision A. If defendant is the Republic, service may be effected: 1. On the Solicitor General B. If defendant is a province, city, or municipality, or like public corporations, service may be effected 1. On its executive head; or 2. On such other officer or officers as the law or court may direct

Under the present rule, summons by publication is allowed in any action. Determine the Nature of Action In ascertaining the validity of the service of summons it is helpful to determine first whether the action is in personam, in rem, or quasi in rem The rule on service of summons under Rule 14 apply accordingly to the nature of action Review: 1. Action in personam – action against a person on the basis of personal liability 2. Action in rem – an action against the thing itself instead of against the person 3. Action quasi in rem – one wherein an individual is named as defendant and the purpose of the proceeding is to subject his interest therein to the obligation or lien burdening the property

REVIEW: Service of Summons on Different Entities DEFENDANT SERVICE OF SUMMONS Entity without Upon any or all the defendants being sued juridical under common name; or person in charge of personality (Sec. the office 8) In case of minors: by serving upon the minor, regardless of age, and upon his legal guardian, or also upon either of his parents In case of incompetents: by serving on him Minors and personally and upon his legal guardian, but incompetents not upon his parents, unless they are his (Sec. 10) legal guardians In any event: if the minor or incompetent has no legal guardian, the plaintiff must obtain the appointment of a guardian ad litem for him Domestic private To the president, managing partner, general juridical entity manager, corporate secretary, treasurer, or (Sec. 11) in house counsel (enumeration is exclusive) Serve on the resident agent; or if none; on Foreign private the government official designated by law; or juridical entity on any officer or agent of the corporation (Sec. 12) within the Philippines In case defendant is the Republic, by serving upon the SolGen Public In case of a province, city or municipality, or corporations like public corporations, by serving on its (Sec. 13) executive head or on such other officer or officers as the law or the court may direct

In determining the propriety of summons by publication, distinction should be made on whether or not defendant is a resident or not Rule on residents is governed by Sec. 14 and 16 Rule on non-residents who cannot be found in the Philippines is governed by Sec. 15 Note: In an action quasi in rem or in rem against a non-resident defendant, jurisdiction over his person is non-essential  If the law requires in such case that the summons upon defendant be served by publication, it is merely to satisfy the constitutional requirement of due process Summons by way of publication may with leave of court be availed of where a defendant involved in any action is designated as an unknown owner or whenever his whereabouts are unknown and cannot be ascertained. The summons shall be effected through publication in a newspaper of general circulation and in such places and for such time as the court sets

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THE RULE ON UNKNOWN DEFENDANTS

SERVICE OF SUMMONS BY PUBLICATION

As held in United Coconut Planters Bank v. Ongpin – If a defendant is a resident and plaintiff cannot determine the correct address of respondent, petitioner only needs to show that: 1. Respondent’s address is unknown and 2. Cannot be ascertained by diligent inquiry Upon compliance with this requirement, it can validly serve summons by publication in a newspaper of general circulation

Limitation - Service of summons by publication is limited to: 1. Actions in rem and quasi in rem 2. Where defendant is a non-resident who cannot be found in the Philippines

Note: -

In these type of actions, jurisdiction over the person of the defendant is not essential for giving the court jurisdiction so long as the court acquires jurisdiction over the res.

Summons by publication in actions in personam is permissible in certain situations Its limitation to actions in rem and quasi in rem refers to non-resident defendants who cannot be found in the Philippines Under the present section, summons by publication is allowed IN ANY ACTION

It is a Requirement of Fair Play While it may be true that service of summons by publication does not involve any absolute assurance that said nonresident defendant shall thereby receive actual notice  Such service is required not for purposes of physically acquiring jurisdiction over his person  But simply in pursuance of the requirements of fair play However, it is necessary that copies of summons and complaint be duly served at defendant’s last known address by registered mail as complement to the publication

SECTION 15 - Extraterritorial service.—When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent; or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. (17a)

Illustrative Cases 1. Where defendant is a non-resident, but his wife is a resident and is his attorney-in-fact, who commenced an action in his behalf, in a complaint against said nonresident defendant, summons may validly be served on his wife and the court has jurisdiction over said non-resident (Gemperle v. Schenker) 2. If it is a personal action in personam, it is personal or substituted service, not extraterritorial service, which is required (The Dial Corp. et al. v. Soriano et al.)  In a personal action for injunction, extraterritorial service of summons and complaint on the nonresident defendants cannot confer on the court jurisdiction (Kawasaki Port Service Corp., et al. v. Amores, etc., et al.) 3. Since the defendant is a non-resident and the suit involves real property in the Philippines wherein defendant has an interest, service of summons by publication in a local newspaper is authorized (Sahagun v. CA)

Breakdown of Provision A. If the defendant: 1. Does not reside in the Philippines 2. And is not found in the Philippines B. And the action: 1. Affects the personal status of the plaintiff, or 2. Relates to or the subject of which is property within the Philippines a. In which defendant has or claims a lien or interest, actual or contingent; or b. In which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or c. Property of defendant has been attached within the Philippines C. Service may be effected out of the Philippines 1. By leave of court 2. By: a. Personal service as under Sec. 6 b. Publication in a newspaper of general circulation (1) In such places and for such time as court may order (2) A copy of the summons and order of the court shall be sent by registered mail to the last known address of defendant c. In any other manner the court may deem sufficient D. Any order granting such leave shall specify a reasonable time within which defendant must answer 1. Time shall not be less than 60 days after notice

THE NON-RESIDENT DEFENDANT The remedy against a non-resident defendant who cannot be served with summons in the Philippines is to locate real or personal property and attach the property  Here, the action becomes in rem or quasi in rem  In which case, service by publication is permissible  However, if attachment is invalid, service by publication is void If the defendant is ONLY temporarily out of the Philippines, substituted service is permissible  But in this case, he is a resident defendant ACTIONS RELATING TO PROPERTY IN THE PHILIPPINES DOES NOT INCLUDE PERSONAL ACTIONS Note: Contractual rights are not property located in the Philippines within the meaning of the rule to justify extraterritorial service of summons

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Judgment Limited to STATUS or PROPERTY Judgment must be confined strictly to the personal status of plaintiff or to the disposition of property Court cannot grant relief which would be a personal liability upon the non-resident defendant In proceedings in rem or quasi-in-rem against a nonresident who is not served personally within the State, and who does not appear, relief must be confined to the res Example: In an action to foreclose mortgage, no personal judgment for deficiency can be entered

Where Action Affects the Personal Status of Plaintiff Status means a legal personal relationship, not temporary in nature nor terminable at the mere will of the parties, with which third persons and the state are concerned (Holzer v. Deutsche Reichsbahn Gesellschaft) Note however that actions affecting personal status are different from actions in personam  Monetary obligations do not, in any way, refer to status, rights and obligations  Obligations are more or less temporary, but status is relatively permanent

In these cases, the property itself is the sole thing which is impleaded and is the responsible object which is the subject of the judicial power (Banco Espanol Filipino v. Palanca) Accordingly, the relief must be confined to the res, and the court cannot lawfully render a personal judgment against him.

Now, if the complaint does not involve the personal status of plaintiff, nor any property in the Philippines, the action being a personal action and in personam: Personal or substituted service is necessary to confer jurisdiction Not extraterritorial service

Judgment In Personam is INVALID Example: In seeking to recover damages from nonresident defendant for allege commission of injury to his person or property caused by the former’s nuisance  The action became in personam  As such, personal or, if not possible, substituted service and not extrajudicial service is necessary  Since there was no valid service, trial court had no jurisdiction to award damages

How Extraterritorial Service Made: By Leave of Court To be effective, service may, with leave of court, be by: 1. Personal service; 2. Publication (copy of summons and order of Court must be sent by registered mail at last known address) 3. Any other manner the court may deem sufficient Service Must be Made Outside of the Philippines By Leave of Court As held in Valmonte v. CA, where service upon a non-resident’s counsel was held invalid and which does not fall under the third mode The third mode of service, like the first 2, must be made outside the Philippines  Such as through the Philippine Embassy in the foreign country where defendant resides

Rule Applies only to Non-Resident Defendants The service of summons in an action in personam against a resident defendant outside of the court’s territorial jurisdiction is valid Principles limiting summons beyond the court’s territorial jurisdiction to actions in rem and quasi in rem should be made to apply only to non-residents who cannot be found in the Philippines

Note: Publication in Foreign Newspaper is discretionary

EXTRATERRITORIAL SERVICE SECTION 16 - Residents temporarily out of the Philippines.—When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section. (18a)

RULE: Service of summons on non-resident defendants who cannot be found in the Philippines is limited to actions in rem and quasi in rem Extraterritorial service of summons is proper only in four instances: 1. When the action affects the personal status of the plaintiff 2. When the action relates to, or the subject of which is property within the Philippines in which the defendant has or claims a lien or interest, actual or contingent 3. When the relief demanded in such action consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines; and 4. When the defendant nonresident’s property has been attached in the Philippines

Breakdown of Provision A. Service to a defendant who ordinarily resides in the Philippines, but who is temporarily out of it 1. Service may also be effected out of the Philippines a. By leave of court b. As under the preceding section Substituted Service is Allowed Where the defendant is residing in the Philippines, jurisdiction over his person may be acquired by substituted service of summons under Sec. 8 Extra-territorial service is also allowed (also by leave of court) according to Sec. 16

General Notes: When the defendant is not residing and is not found in the Philippines, the Philippine courts cannot try any case against him  Because of the impossibility of acquiring jurisdiction over his person  Unless he voluntarily appears in court But when the action falls under any of the 4 instances mentioned above, Philippine courts may then try the case  In these cases, they have jurisdiction over the res  Venue in such cases may be laid in the province where the property of defendant or a part thereof involved in the litigation is located

In other words, a resident defendant in an action personam, who cannot be personally served with summons, may be summoned either by: 1. Substituted service in accordance with Sec. 7, Rule 14 2. Or by service by publication under Sec. 16, Rule 14

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DEFENDANT

ACTION

Resident but identity or whereabouts unknown (Sec. 14)

Any action

Not a resident and is not found in the Philippines (Sec. 15)

In rem or quasi in rem; it either: (1) Affects the personal status of plaintiff (2) Relates to or the subject of which is property within the Phil in which defendant has a lien or interest (3) Demands a relief which consists wholly or in part in excluding the defendant from any interest in any property within the Phil; or (4) Property of defendant has been attached in the Philippines

Resident temporarily out of the Philippines (Sec. 16)

Any action

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SERVICE OF SUMMONS With leave by court, by publication in a newspaper of general circulation Extraterritorial Service: (a) With leave of court serve outside the Phil by personal service; or (b) with leave of court serve by publication in a newspaper of general circulation, in which case the copy of the summons and order of court must also be sent by registered mail to the last known address of defendant; or (c) Any other manner the court deem sufficient Substituted Service or with leave of court, personal service out of the Phil as under extraterritorial service

While Sec. 15 provides for modes of service which may also be availed of in the case a resident defendant is temporarily absent, the normal mode of service of such is by substituted service under Sec. 7  Personal service outside the country and service by publication are not ordinary means of summons (Montalban, et al. v. Maxima)

Where the defendant is a resident and the action is in personam, summons by publication is invalid as being violative of due process Plaintiff’s recourse, where personal service fails, is to attach properties of defendant under Sec. 1(f), Rule 57  This converts the suit to one in rem or quasi in rem and summons by publication will now become valid If plaintiff fails to do such,  Court should not dismiss the case but order the case to be held pending in the archives  So that the action will not prescribe  Until such time as plaintiff succeeds in ascertaining the defendant’s whereabouts or his properties Pantaleon v. Asuncion SECTION 18 - Proof of service.—The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy. (20) Breakdown of Provision Proof of Service of Summons: 1. Shall be made in writing and shall: a. Set forth the manner, place, date of service b. Specify any papers which may have been served with the process and the name of the person who received the same c. Shall be sworn to when made by a person, other than the sheriff or his deputy

SECTION 17 - Leave of court.—Any application to the court under this Rule for leave to effect service in any manner for which leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf setting forth the grounds for the application. (19) Breakdown of Provision A. Any application to the court for leave to effect service in any manner for which leave of court is necessary 1. Shall be made by motion in writing 2. Supported by affidavit of the plaintiff or some other person on his behalf 3. Setting forth the grounds for the application

Effect of Defect of Proof of Service Where sheriff’s return is defective, presumption of regularity in the performance of official functions will not lie Defective return is insufficient and incompetent to prove that summons was indeed served Party alleging valid summons will now prove that summons was indeed served If there is no valid summons, court did not acquire jurisdiction which renders null and void all subsequent proceedings and issuances

Service of Summons by Publication is Authorized, with Prior Leave of Court: 1. Where the identity of the defendant is unknown; 2. Where the whereabouts of the defendant is unknown; 3. Where the defendant does not reside and is not found in the Philippines but the suit can properly be maintained against him here, being in rem or quasi in rem; and 4. Where the defendant is a resident of the Philippines but is temporarily out of the country

SECTION 19 - Proof of service by publication.—If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached, and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address. (21)

Summons in a suit in personam against a resident temporarily absent from the Philippines Summons may validly be effected by substitute service under Sec. 7  It is immaterial that defendant does not in fact receive actual notice

Breakdown of Provision If service has been made by publication, service may be proved by: 1. Affidavit: a. The printer, his foreman, or principal clerk; or b. Of the editor, business or advertising manager  A copy of the publication shall be attached

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2.

And an Affidavit: a. Showing the deposit of a copy of the summons; and b. Order of publication in the post office, postage prepaid, directed to defendant by registered mail to his last known address

SECTION 20 - Voluntary appearance.—The defendant’s voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. (23a) Any form of appearance in court, by the defendant, by his agent authorized to do so, or by attorney, is equivalent to service except where such appearance is precisely to object the jurisdiction of the court over the person of the defendant (Carballo v. Encarnacion) Voluntary Appearance Equivalent to Service Appearance in whatever form, without expressly objecting to the jurisdiction of the court over the person, is a submission to the jurisdiction of the court over the person Any appearance other than for sole purpose of challenging the jurisdiction over the defendant’s person is sufficient  But the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person shall not be deemed voluntary appearance (Vide Naval v. CA) Illustrative Cases 1. Appearance of counsel on behalf of defendant is equivalent service (Tuason v. CA) 2. The filing of answer with cross-claim is equivalent to voluntary appearance and cures the defect, if any, of the summons (Paramount Insurance v. Judge Luna) 3. The filing of a motion for reconsideration of the judgment by default and a motion to admit answer on the ground of excusable negligence is submission to the court’s jurisdiction (Europa v. IAC)

END OF RULE 14

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NOTES ON RULE 14

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NOTES ON RULE 14

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RULE 15 MOTIONS

Breakdown of Provision A. Every written motion shall be set for hearing by applicant 1. EXCEPT for motions which the court may act upon without prejudicing the rights of adverse party B. Every written motion required to be heard and the notice of the hearing thereof 1. Shall be served in such a manner as to ensure its receipts by other party at least 3 days before such hearing 2. UNLESS court for good cause sets the hearing on shorter notice

SECTION 1 - Motion defined.—A motion is an application for relief other than by a pleading. (1a) Kinds of Motion 1. Motion Ex Parte – made without the presence or a notification to the other party because the question generally presented is not debatable (e.g. Motion for extension of time to file pleadings) 2. Motion Of Course – where movant is entitled to the relief or remedy sought as a matter of discretion on the part of the court 3. Litigated Motion – one made with notice to the adverse party to give an opportunity to oppose (e.g. Motion to dismiss) 4. Special Motion – motion addressed to the discretion of the court

Requisites of a Motion: (not made in open court or in the course of hearing or trial) 1. It must be in writing 2. Hearing of motion set by applicant 3. Notice of hearing shall be addressed to parties concerned; date of hearing must not be later than 10 days from the filing of the motion (Sec. 5) 4. Motion and notice of hearing must be served at least 3 days before the date of hearing (three day notice rule) Exceptions to the 3-day notice rule: a. Ex-parte motions b. Urgent motions c. Motions agreed upon by the parties to be heard on shorter notice or jointly submitted by parties; and d. Motions for summary judgment which must be served at least 10 days before hearing 5. Proof of service (Sec. 6)

GENERAL RULE: A motion cannot pray for judgment EXCEPTIONS: 1. Motion for judgment on the pleadings 2. Motion for summary judgment; and 3. Motion for judgment on demurrer to evidence SECTION 2 - Motions must be in writing.—All motions shall be in writing except those made in open court or in the course of a hearing or trial. (2a)

Applicability of the Rule The rule does not apply to applications for a writ of preliminary attachment, appointment of a receiver, delivery of personal property, and a motion for a writ of possession  All of which may be granted ex parte Rule does not apply to manifestations which, unless otherwise indicated, are usually made merely for the information of the court

GENERAL RULE: Motions shall be in writing EXCEPTIONS: 1. Motions for continuance made in the presence of the adverse party or those made in the course of the hearing or trial 2. Those made in open court even in the absence of the adverse party or those made in the course of a hearing or trial

Effects of Want of Notice A motion that does not contain a notice of hearing is but a mere scrap of paper  It is not even a motion for it does not comply with the rules  Clerk has no right to receive it A court has no jurisdiction to issue an order in consideration of a motion for correction of judgment which does not have a proper notice of hearing (Fajardo v. CA) Copy of a motion containing a notice of time and place of hearing of said motion is a mandatory requirement  Failure to do follow Sec. 4, 5 and 6 is a fatal flaw  The motion is pro forma, hence, it did not suspend the running of prescriptive period

SECTION 3 - Contents.—A motion shall state the relief sought to be obtained and the grounds upon which it is based, and if required by these Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers. (3a) Breakdown of Provision: A. A motion shall: 1. State the relief sought to be obtained 2. State the grounds upon which it is based 3. Be accompanied by supporting affidavits and other papers if: a. Required by the Rules or b. Necessary to prove facts alleged therein

Purpose of the Rule – Notice of hearing is intended to prevent surprise and to afford the adverse party a chance to be heard before the motion is resolved by the trial court. Motions without notice is pro forma.

SECTION 4 - Hearing of motion.—Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant. Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice. (4a)

GENERAL RULE: All written motions shall be set for hearing, even if that hearing may be conducted on less than 3 days advance notice EXCEPTION: Excepted from the hearing requirement are the nonlitigable or non-litigated motions

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Those motions that may be acted upon by the court without prejudicing the rights of the adverse party E.g. motion for extension

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without furnishing the other party with a copy thereof is defective (BPI v. Far East Molasses) Defect is fatal

However, there are exceptions to the strict application of this rule: 1. Where rigid application will result in manifest failure or miscarriage of justice (Goldloop Properties Inc. v. CA) 2. Where the interest of substantial justice will be served (Tamargo v. CA) 3. Where the resolution of the motion is addressed solely to the sound and judicious discretion of the court (Galvez v. CA) 4. Where the injustice to the adverse party is not commensurate to the degree of his thoughtlessness in not complying with the procedure prescribed (Galang v. CA)

The Exceptions to the 3-Day Notice Rule 1. Ex parte motions 2. Urgent motions 3. Motions agreed upon by the parties to be heard on shorter notice or jointly submitted by the parties 4. Motions for summary judgment which must be served at least 10 days before its hearing (See Sec. 3, Rule 35) As to Ex-Parte Motions While a motion may be allowed to be filed ex parte, it does not necessarily mean that the hearing thereof shall be dispensed with Court may still hear the same ex parte since the court can very well see to it that the absent party’s interests will be duly protected An ex parte proceeding merely means that it is taken or granted at the instance and for the benefit of one party, and without notice to or contestation by any party adversely affected

Purposes of Setting Date of Hearing – Purpose of setting the date of the hearing within a reasonable time after filing of motion is to avoid delay. However, in the event service of motion with notice of hearing is done by registered mail on all parties concerned, the date of hearing should be at least 3 days after receipt thereof by other parties.

Test as to Necessity of Notice The true test as to the necessity of the notice of motion in a case not specifically provided for whether the court may act on the motion without prejudicing the rights of the adverse party. If so, it need not be set for hearing.

SECTION 6 - Proof of service necessary.—No written motion set for hearing shall be acted upon by the court without proof of service thereof. (6a) Rule on Strict Application Sec. 4, 5, and 6 requires notice to be: 1. Sent at least 3 days before the hearing 2. Directed to parties concerned 3. Stating the time and place of hearing of the motion 4. With proper notice thereof Failing to comply with these requirements makes the motion a mere scrap of paper and the judge will not take cognizance thereof

SECTION 5 - Notice of hearing.—The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion. (5a) Breakdown of Provision A. The notice of hearing shall: 1. Be addressed to all parties concerned 2. Specify the time and dating of the hearing  The date must not be later than 10 days after filing of the motion

The same is also true where the date for the hearing of the motion is unintelligible, hence fatally defective and without legal effect. (Republic Planters Bank, et al. v. IAC, et al.)

Effect of Defective Notice A motion that fails to religiously comply with the mandatory requirements of Sec. 5 is pro forma and presents no question which merits the attention and consideration of the court (Barcelonia v. CA) Such defect is not cured by a subsequent action of the Court (Ramos v. CA)

Note: An alias writ of execution need no hearing since it may be construed as an order directing the sheriff to implement the original writ. The motion need not be litigated since the court may act upon the same without prejudicing the rights of the adverse party Since there was no need for a hearing, provisions of Sec. 4 and 6 are inapplicable

Note: When a party is represented by a lawyer, service should be made upon the lawyer and not upon the client. Notice upon the party himself is not considered in law and is invalid Unless service upon party himself is ordered by the court Service to a party is only allowed if: 1. Party is not represented by counsel 2. If service upon the party himself is ordered by court

SECTION 7 - Motion day.—Except for motions requiring immediate action, all motions shall be scheduled for hearing on Friday afternoons, or if Friday is a non-working day, in the afternoon of the next working day. (7a) Breakdown of Provision A. All motions shall be scheduled for hearing: 1. On Friday afternoons 2. If Friday is a non-working day, then the afternoon of the next working day B. Except for motions requiring immediate actions

The Notice Must be Directed to Parties Sec. 5 expressly and unequivocally requires that the notice shall be directed to the parties concerned The rule commanding the movant that the notice of hearing shall be directed to the parties concerned does not provide for any qualification or exception Hence, a manifestation and motion sent by ordinary mail addressed to the clerk setting the motion for hearing

Note: No motion day in the SC

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SECTION 8 - Omnibus motion.—Subject to the provisions of section 1 of Rule 9, a motion attacking a pleading, order, judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed waived. (8a) Omnibus Motion Rule – a motion attacking a pleading, order, judgment, or proceeding; shall include all objections then available. Objections not included shall be deemed waived except the defenses referred in Sec. 1, Rule 9 Purpose – to require the movant to raise all available exceptions for relief during a single opportunity so that multiple and piece-meal objections may be avoided The present rule expressly subjects an omnibus motion to the provisions of Sec. 1, Rule 9 As such, the omnibus motion rule shall not apply when it appears from the pleadings or evidence on record: 1. That the court has no jurisdiction over the subject matter 2. That there is another action pending between the same parties or the same cause of action 3. That the action is barred by a prior judgment or by statute of limitations SECTION 9 - Motion for leave.—A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted. (n) Purpose Evident purpose is to provide the court with the basis for determining the merits of the motion for leave of court to file the desired pleading or motion Such pleading or motion sought to be admitted is now required to be attached to the motion for leave  Otherwise, the latter may be denied Since the court will have to fathom the contents of the projected pleading and the opposing party to intelligently formulate his opposition This particularly assumes significance in the filing of amended and supplemental pleadings both of which require prior leave of court It also minimizes the time element when responsive pleadings would be required When an amended or supplemental complaint is attached to the motion for its admission and copy is served on defendant, his period to answer immediately runs from his receipt of the court order admitting the same SECTION 10 - Form.—The Rules applicable to pleadings shall apply to written motions so far as concerns caption, designation, signature, and other matters of form. (9a)

END OF RULE 15

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NOTES ON RULE 15

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Period to file: Within the time for, but before filing of, the answer to the complaint or pleading asserting a claim

RULE 16 MOTION TO DISMISS

Exceptions:  

SECTION 1 - Grounds.—Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds: (a) That the court has no jurisdiction over the person of the defending party; (b) That the court has no jurisdiction over the subject matter of the claim; (c) That venue is improperly laid; (d) That the plaintiff has no legal capacity to sue; (e) That there is another action pending between the same parties for the same cause; (f) That the cause of action is barred by a prior judgment or by the statute of limitations; (g) That the pleading asserting the claim states no cause of action; (h) That the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished; (i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and (j) That a condition precedent for filing the claim has not been complied with. (1a)

Note: Complaints cannot be dismissed on ground not alleged in a motion to dismiss The motion may be based on only one of the grounds enumerated in Sec. 1, Rule 16 But when it appears from the pleadings or evidence on record that: 1. The court has no jurisdiction, 2. That there is another action pending between the same parties for the same cause 3. The action is barred by prior judgment or the statute of limitations In the forgoing, the court shall dismiss the claim A motion to dismiss hypothetically admits the truth of the facts alleged in the complaint Such admission is only limited to all material and relevant facts which are well pleaded in the complaint It does not admit to the following: 1. The truth of mere epithets charging fraud, nor allegations of legal conclusions, erroneous statements of law 2. Inferences or conclusions drawn from such facts, even if alleged in the complaint 3. Inferences or conclusions from facts not stated 4. To matters of evidence, surplusage or irrelevant matters 5. Allegations of fact the falsity of which is subject to judicial notice 6. Facts legally impossible; facts inadmissible in evidence; facts which do not appear by record; documents not include in the pleadings

NATURE Types of Dismissal of Action 1. Motion to dismiss before Answer (Rule 16) 2. Motion to dismiss under Rule 17  Upon notice by plaintiff;  Upon motion by plaintiff; or  Due to fault of plaintiff 3. Motion to dismiss called a demurrer to evidence after plaintiff has completed presentation of his evidence under Rule 33 4. Dismissal of an appeal

FIRST GROUND NO JURISDICTIOON OVER THE PERSON OF DEFENDING PARTY

Note: A motion to dismiss under this Rule differs from a motion to dismiss under Rule 33 on demurrer to evidence: MOTION TO DISMISS Grounded on preliminary objections May be filed by any defending party against whom a claim is asserted in the action Should be filed within the time for but prior to the filing of the answer of the defending party to the pleading asserting the claim against him If denied, defendant must file an answer, or else he may be declared in default If granted, plaintiff may appeal or if subsequent case is not barred, he may re-file the case

For special reasons which may be allowed even after trial has begun, a motion to dismiss may be filed The court has allowed the filing of a motion to dismiss where the evidence that would constitute a ground for dismissal was discovered during trial

See earlier rules on Jurisdiction

DEMURRER TO EVIDENCE Based on insufficiency of evidence May be filed only by the defendant against the complaint of the plaintiff

The jurisdictional grounds which may be invoked are confined to lack of jurisdiction over the person of the defending party and the subject-matter of the claim. Note also that the term used is not limited to the defendant but applies to all defending parties against whom are claims are asserted through other initiatory pleadings Jurisdiction is obtained over the original defendant by service of summons Jurisdiction is obtained over other defending parties by service of the pleading containing the claim

May be filed for the dismissal of the case only after the plaintiff has completed the presentation of his evidence If denied, defendant may present evidence

Discussion of the Court in La Naval Drug Corp. v. CA, et al. Court held that while lack of jurisdiction over the person of defendant may be duly and seasonably raised, his voluntary appearance in court without qualification is a waiver of such defense. Even if he challenges the jurisdiction of the court over his person and invokes other grounds for the dismissal of the action under Rule 16, he is not deemed to be in estoppel or

If granted, plaintiff appeals and the order of dismissal is reversed, defendant loses his right to present evidence

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to have waived his objection to jurisdiction over his person The defendant may after all invoke his objections alternatively, hence he would not thereby be said to inconsistently challenge the jurisdiction of the court and at the same time calls it to exercise its jurisdiction a. The first questions the jurisdiction over his person b. The second, assuming the court has jurisdiction over his person, impugns its jurisdiction over other aspects of the case

FOURTH GROUND PLAINTIFF HAS NO LEGAL CAPACITY TO SUE This refers to the lack of necessary qualifications to appear in the case because one is not in full exercise of his civil rights. E.g. Minority, insanity, coverture, lack of juridical personality, incompetence, civil interdiction, lack of license to operate (in case of foreign corporations) Note: Where the plaintiff is not the real party-in-interest, the ground for the motion to dismiss is lack of cause of action.

Note also that Sec. 20, Rule 14 makes a categorical statement that the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed voluntary appearance on his part.

Jurisprudence 1. Lack of legal capacity to sue means that the plaintiff is either not in the exercise of his civil rights or does not have the character or representation that he claims (Lunsod v. Ortega) 2. A foreign corporation doing business in the Philippines without the requisite license cannot maintain any suit in the Philippines (Sec. 133, Corp. Code) a. But not where the case involves a mere isolated transaction (Aetna Casualty & Surety Co. Inc. v. Pacific Star Line) b. But if the said foreign corporation is sued in our courts, it may seek relief against the wrongful assumption of jurisdiction and its petition therefor need not aver its legal capacity (Time, Inc. v. Reyes) 3. The issue of plaintiff’s lack of legal capacity to sue cannot be raised for the first time on appeal where the defendant dealt with the former as a party in the proceedings below (Univ. of Pangasinan Faculty Union v. Univ. of Pangasinan)

SECOND GROUND NO JURISICTION OVER THE SUBJECT MATTER See earlier rules on Jurisdiction Note that the rule refers to the subject matter of each particular claim and not only to that of the suit. So other initiatory pleadings included. Jurisdiction over the subject-matter Is determined by the allegations in the complaint Regardless of whether or not the plaintiff is entitled to recover upon all of the claims asserted therein Defenses asserted in answer of motion to dismiss are not to be considered for this purpose (Magay v. Estandian) Note: Where a party invokes the jurisdiction of a court to obtain affirmative relief and fails, he cannot thereafter repudiate such jurisdiction. While the issue of jurisdiction may be raised at any time, he is estopped as it is tantamount to speculating on the fortunes of litigation (Crisostomo, et al. v. CA)

FIFTH GROUND LITIS PENDENTIA Litis Pendentia as a ground for the dismissal of a civil action refers to that situation wherein another action is pending between the same parties for the same cause of action.

Note: Lack of jurisdiction over the subject matter may be invoked as a defense at any stage of the action, even if no such objection was raised in a motion to dismiss or in the answer, and it may be so claimed even after the trial had commenced (Ker & Co. v. CTA)

Requisites of Litis Pendentia 1. Identity of the parties or at least such parties representing the same interests in both actions 2. There is substantial identity in the cause of action and relief sought, the relief being founded on the same facts; and 3. The identity in the two cases should be such that any judgment that may be rendered in one, regardless of which party is successful would amount to res judicata in the other case

THIRD GROUND IMPROPER VENUE See earlier rules on Venue Jurisprudence: 1. Where a motion to dismiss for improper venue is erroneously denied, the remedy is prohibition (Enriquez v. Macadaeg) 2. Where the plaintiffs filed the action in a court of improper venue and thereafter submitted to its jurisdiction, the issue of venue was thereby waived and they are in estoppel to repudiate or question the proceedings in said court (Vda. De Suan, et al. v. Cusi, et al.) 3. Objection to venue is also impliedly waived where the party enters into trial, cross-examines the witnesses of the adverse party and adduces evidence (Paper Industries Corp of the Philippines v. Samson et al.)

Note: A motion to dismiss may be filed in either suit, not necessarily in the one instituted first Purpose A sanction of public policy against multiplicity of suits The latter action is deemed unnecessary and vexatious When Action is Deemed Pending Once the complaint is filed and there is a pending action, lack of knowledge of filing is of no moment The Rules merely state that another action pending between the same parties for the same cause is a ground for dismissal The rule does not contemplate that there be prior pending action, since it is enough that there is a pending action

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Neither is it required that the party be served with summons before lis pendens should apply (Andersons Groups, Inc. v. CA)

Which of the Two Actions Shall be Dismissed? GENERAL RULE: Priority-in-Time Rule The general rule is that it should be the later case Second case should be dismissed not only as a matter of comity with a co-ordinate and co-equal court but also to prevent confusion that might seriously hinder the administration of justice

b.

Discussion on the Requisites of Litis Pendentia 1. Identity of Parties  Only substantial, not absolute, identity of parties is required  Substantial identity – when there is a community of interest between a party in the first case and a party in the second case albeit the latter was not impleaded in the first case  E.g. – Where the vendor was impleaded as defendant in 1st case, it cannot be denied that the interests of the buyer are inextricably with those of vendor such that the former’s exercise of her rights as buyer of the land foreclosed by vendor, is conditioned on the latter’s defense of the validity of foreclosure procedures in the civil case for annulment of foreclosure sale (Sempio v. CA) 2. Identity of Rights  Identity of rights is regardless of form of action  E.g. While in the first case, an action is for annulment of foreclosure sale against vendor, and 2nd case is an action for injunction filed by purchaser a. What is dissimilar is only the form by which the purchaser has sought to enforce her right as new owner of land b. There is only one cause of action running through the purchaser’s litigious undertaking: the continued violation of what she believes to be her right to exclusive possession and enjoyment of the land 3. Identity in the aforestated particulars  A plea of the pendency of a prior action is not available unless the prior action is of such a character that, had judgment been rendered therein on the merits, such a judgment would be conclusive between the parties and could be pleaded in bar of the 2nd action  If the final judgment in one case is not conclusive in the other case, this requirement is not met

Note: That there is no hard and fast rule that governs the determination of which of the actions should be abated  Court merely says that generally, it is the second case which is abated  Law does not specifically require that the pending action which would hold in abatement the other be a prior pending action Criteria in Determining Which Action Shall be Dismissed: 1.

The More Appropriate Rule a. The court held in Andresons Groups Inc. v. CA that the criterion used in determining which case should be abated is which is the more appropriate action or which the court would be in a better position to serve the interests of justice b. Given the pendency of two action, the following are relevant considerations in determining which action should be dismissed (Allied Banking Corp v. CA): (1) The date of the filing, with reference generally given to the first action filed to be retained; (2) Whether the action sought to be dismissed was filed merely to pre-empt the later action or to anticipate its filing and lay the basis for its dismissal (3) Whether the action is the appropriate vehicle for litigating the issues between the parties c. Examples: (1) An action for unlawful detainer was considered as more appropriate than an action for declaratory relief with consignation (Teodoro v. Mirasol) (2) A case for consignation was dismissed, albeit filed earlier, due to the institution of a quieting of title suit in Ramos v. Peralta. SC held that the 2nd case has broader scope of inquiry

2.

The Interest of Justice Rule a. In applying this standard, what was asked was which court would be in a better position to serve the interests of justice b. Taking into account: (1) The nature of the controversy (2) The comparative accessibility of the court to the parties (3) Other similar factors c. Example: In a case of custody, the case filed with the CFI was dismissed to give way to the case filed in the Juvenile and Domestic Relations Court (RoaMagsaysay v. Magsaysay)

3.

(1) The second case shall not be abated if not brought to harass or vex (2) The first case shall be abated if it is merely an anticipatory action or, an anticipatory defense against an unexpected suit – a clever move to steal the march from the aggrieved party Example: An action for collection ahead of an action for a statement of account apparently to enable it to pay its obligation, is the appropriate case for determining the parties’ rights (Allied Banking Corp. v. CA)

Note: The determination of whether there is an identity of causes of action for purposes of litis pendentia is inextricably linked with that of res judicata, each constituting an element of the other. Examples 1. There is litis pendentia where 1st case is for breach of lease contract and damages and 2nd case is for rescission of contract and damages  There is identity of causes – validity of the agreement is in issue 2. There is no litis pendentia where the 1st case filed before the SEC is to declare a contract of lease void for being ultra vires, and the 2nd case before the RTC for recovery of possession of the property subject of the contract (Casil v. CA)  In the 1st – focus was on the alleged ultra vires act and not the contract itself

The Anticipatory Rule a. The bona fide or good faith of the parties is a crucial element

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a.



3.

4.

5.

6.

In the 2nd – validity of the contract of lease was the principal issue  No similarity in rights and reliefs prayed for  Also a difference in jurisdiction  Judgment in one will not amount to res judicata; Judgment in SEC prohibiting the ultra vires act will not settle the issue in the RTC, those of possession, validity, and damages Case before the DARAB for declaration of tenancy, accounting, recovery of sum of money plus damages, pendency of such is a bar to an action for forcible entry involving the same parties, identity of rights asserted, relief founded on the same facts (Tirona v. Alejo) Where the 1st action is for collection of mortgage indebtedness, while the 2nd action was to annul mortgage, the 2nd case should be dismissed (Marcelo v. Merchant Banking) Where the 1st action is for recovery of land and the 2nd is for quieting of title, the 2nd case should be dismissed (Francisco v. Vda. De Blas)  The cloud sought to be removed in the 2nd case, which is the issue of ownership, had already been raised in the 1st case As to counterclaims, it must be a compulsory one (Valencia v. CA)

2. 3.

4.

SIXTH GROUND RES JUDICATA AND PRESCRIPTION

5.

Requisites of Res Judicata 1. Previous final judgment or order 2. Jurisdiction over the subject matter and the parties by the court rendering it 3. Judgment upon the merits 4. There must be identity of parties, of the subject matter, and of cause of action between the first and second actions

6.

SEVENTH GROUND NO CAUSE OF ACTION

Note: There could be res judicata without a trial, such as in: 1. Judgment on the pleadings (Rule 34) 2. Summary Judgment (Rule 35) 3. Order of dismissal under Sec. 3, Rule 17

Complaint States No Cause of Action – When the ground for dismissal is that the complaint states no cause of action, such fact can be determined only from the facts alleged in the complaint.

Jurisprudence: 1. The trial court can take judicial notice of the finality of a judgment previously decided by it and the fact that the same case is now pending before it, the defeated party having refilled the same (Baguio v. Jalagat, et al.)

Note: It is the FAILURE to state a cause of action and not LACK or ABSENCE of a cause of action that is a ground for a motion to dismiss The former means that there is insufficiency in the allegations in the pleading The latter means that there is insufficiency in the factual basis of the action

Prescription – A motion to dismiss on the ground of prescription will be given due course only if the complaint shows on its face that the action has already prescribed

A cause of action exists if the following elements are present: 1. A right in favor of the plaintiff by whatever means and under whatever law it arises or is created 2. An obligation on the part of the named defendant to respect or not to violate such right; and 3. An act or omission on the part of such defendant violative of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages

Prescription v. Laches PRESCRIPTION It is concerned with the fact of delay It is a matter of time Statutory Applies at law Based on fixed time

However, if the allegations of the complaint, or evidence presented, clearly indicate that the action has prescribed, or where there is no issue in fact as to prescription, defense of prescription is not deemed waived by failure to allege the same (Chua Lamko v. Dioso) Estoppel and prescription cannot be invoked against the State (Republic v. CA) A motion to dismiss on the ground of prescription will be given due course only if the complaint shows on its face that the action has already prescribed (Sison v. McQuaid) a. If it does not so appear, the determination of the motion to dismiss must be deferred until trial (Cordova v. Cordova)  See however, Sec. 3 which prohibits deferment of the resolution of the motion b. So since deferment is no longer allowed: (1) Evidence may be received in support of the motion under Sec. 2, Rule 16; or (2) The motion to dismiss should be denied without prejudice to the complaint’s dismissal if evidence disclose that the action had already prescribed (Sec. 1, Rule 9) Prescription cannot be invoked as a ground if the contract is alleged to be void ab initio (Ruiz v. CA) a. But where the prescription depends on whether the contract is void or voidable, there must be a hearing (Landayan v. Bacani) Petition for quieting of title although essentially reconveyance should not be dismissed on the ground of prescription where it is alleged that plaintiff is in possession of the property (Faja v. CA) Action for annulment of contract on the ground that it is null and void for lack of consent does not prescribe (Castillo v. Heirs of Madrigal) a. But action for damages arising therefrom prescribes

LACHES It is concerned with the effect of delay It is a matter of equity Non-statutory Applies in equity Not based on fixed time

Rule: The allegations in the complaint are sufficient to constitute a cause of action against the defendants, if, admitting the facts alleged, the court can render a valid judgment upon the same in accordance with the prayer therein.

Jurisprudence 1. Defense of prescription is waived and cannot be considered on appeal if not raised in the trial court (Ramos v. Osorio)

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Test of Sufficiency It is axiomatic under this ground that the defendant is regarded as having admitted all the averments in the complaint, hypothetically Test of sufficiency of the facts found in the petition, as constituting a cause of action, being whether or not, admitting the facts alleged, the court could render a valid judgment upon the same in accordance with the prayer  In determining the sufficiency of statements, only those statements in the complaint may properly be considered The insufficiency of the cause of action must appear on the face of the complaint Note, however, that ambiguities and lapses in the language of these allegations may be understood or clarified through a recourse to the annexes, related pleadings, or other submissions of plaintiffs

b. 4.

5.

EIGHTH GROUND WAIVER, ABANDONMENT, EXTINGUISHMENT

Doubtful Veracity is NOT a Ground If the motion assails directly or indirectly the veracity of the allegations, it is improper to grant the motion upon the assumption that the averments therein are true and those of the complaint are not. Sufficiency should be tested on the strength of the allegations of facts contained in the complaint, no other The SC has uniformly ruled that the court may not inquire into the truth of the allegations, and find them to be false before a hearing is had on the merits If the court finds the allegations to be sufficient but doubts their veracity, it is incumbent upon the court to deny the motion and require defendant to answer Veracity of assertions should be asserted at trial on merits

See Art. 1231, CC; See ObliCon Notes NINTH GROUND UNENFORCEABILITY UNDER THE STATUTE OF FRAUDS See Art. 1403, CC; See ObliCon Notes Unlike a motion to dismiss on the ground that the complaint states no cause of action, a motion invoking the Statute of Frauds may be filed even if the absence of a cause of action does not appear on the face of the complaint. Such absence may be proved during the hearing of the motion to dismiss on said ground. (Yuviengco et al. v. Dacuycuy, etc., et al.)

When Other Facts May be Considered – Other facts not alleged in the complaint may be considered where: 1. The motion to dismiss was heard with submission of evidence; or 2. If documentary evidence admitted by stipulation disclose facts sufficient to defeat the claim (Tan v. Dir. Of Forestry) 3. Or those admitted during hearing on preliminary injunction (Santiago v. Pioneer Savings and Loan Bank) Note: -

Neither can such defect be cured by allegations in a complaint in intervention filed by a third party (Nacar v. Nistal et al.) Where a complaint does not contain all facts constituting the plaintiff’s cause of action, it is subject to a motion to dismiss. a. However, if defendant permits evidence to be introduced, without objection, which supplies necessary allegation in such defective complaint, this evidence cures the defects of such complaint which may no longer be dismissed on that account (Pascua v. CA, et al.) An action cannot be dismissed on the ground that the complaint is vague or indefinite. The remedy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery (Galeon v. Caleon, et al.)

TENTH GROUND NON-COMPLIANCE WITH CONDITION PRECEDENT Some Relevant Provisions: 1. Art. 222 – No suit shall be filed or maintained between members of the same family unless it should appear that earnest efforts toward a compromise have been made, but the same have failed, subject to the limitations in Art. 2035 2. Art. 2035 – No compromise upon the following questions shall be valid: (1) The civil status of persons (2) The validity of a marriage or a legal separation (3) Any ground for legal separation (4) Future support (5) The jurisdiction of courts (6) Future legitime

Other pleadings may be considered All documents attached must also be considered

Jurisprudence 1. Even if the complaint stated a valid cause of action, a motion to dismiss for insufficiency of cause of action will be granted if documentary evidence admitted by stipulations discloses facts sufficient to defeat the claim and enables the court to go beyond the complaint. (Tan v. Dir. Of Forestry) 2. Courts should exercise utmost care and circumspection in passing upon motions to dismiss based on this ground (Militante v. Antero et al.) 3. Where the facts alleged to make out the principal cause of action and relief are insufficient, the case should be dismissed and plaintiff cannot rely on ancillary matters in the complaint to make out a cause of action. a. When the action is for cancellation of defendant’s title but the allegations therein are inadequate, plaintiff cannot lean on his allegations of supposed improvements made on the land as these are purely ancillary to the principal relief sought (Gabila v. Barriaga)

The Rule is Not Applicable: 1. Where there could be no valid compromise  This is a mere condition precedent that may be cured by amendment 2. The rule does not apply where one of the parties is a stranger  The phrase “between members of the same family” should be construed in the light of Art. 150 FC 3. The rule is applicable only in ordinary civil actions and is not applicable in special proceedings 4. Where the agreement contains an arbitration clause, it is premature to file a third party complaint (Sea-Land Service Inc. v. CA)

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5.

No need of prior referral to DAR to determine Existence of Tenancy Relationship  Note that PD 316 and 1038, which require a preliminary determination of the existence of a tenancy relationship have already been expressly repealed by RA 6657

determined on the basis of the facts alleged in the complaint Lack of formal hearing of a motion to dismiss is not fatal where the issues raised were fully discussed in the motion and opposition. (Castillo v. CA)

Jurisprudence: 1. Where the plaintiff has not exhausted all administrative remedies, the complaint not having alleged the fact of such exhaustion, the same may be dismissed for lack of cause of action (Pineda v. CFI Davao, et al.) a. If this objection is not raised at a proper time, it is waived and the court can try the case (CN Hodges v. Mun. Board, etc., et al.) 2. Where the complaint does not state that it is one of the excepted cases, or it does not allege prior availment of conciliation process, or it does not have a certification that no conciliation or settlement had been reached under P 1508, case should be dismissed on motion (Morata v. Go, et al.) 3. Where the defendant had participated in the trial court without any invocation of PD 1508, and the judgment therein had become final and executory, but said defendant thereafter sought the annulment of the decision for alleged lack of jurisdiction, the same was denied under the doctrine of estoppel and laches (Royales, et al., v. IAC) 4. Non-compliance with PD 1508 only results in lack of cause of action or prematurity (Vda. De Borromeo v. Pogoy) a. This objection, not being jurisdictional in nature, is deemed waived if not raised in a motion to dismiss (Ebol v. Amin, et al.) 5. The fact that the suit is exclusively between members of the same family is a ground for dismissal if no earnest efforts at compromise had been made (Art. 222 CC, Art. 151, FC) a. But this is not available where a compromise of the controversy is not permitted by law (Art. 2035 CC) b. Failure to allege in the complaint that earnest efforts at compromise had been made is not a ground for a motion to dismiss if one of the parties is a stranger (Magbatela v. Gonong) c. Or where the suit is between collateral relatives who are not brothers or sisters, and, therefore, not members of the same family (Mendez v. Bionson)

SECTION 3 - Resolution of motion.—After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading. The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. In every case, the resolution shall state clearly and distinctly the reasons therefor. (3a) The Court may: 1. Dismiss the action; 2. Deny the motion; or 3. Order the amendment of the pleading Note: In resolving the motion to dismiss, the court is required to give reasons for its resolution. The resolution shall state clearly and distinctly the reasons It proscribes the common practice of perfunctorily dismissing the motion for lack of merit Prohibits minute resolutions; it requires that the resolution shall state clearly and distinctly the reasons therefor Now, the motion to dismiss must be granted or denied. Resolution thereof cannot be deferred (National Irrigation Administration v. CA) Jurisprudence: 1. An order denying a motion to dismiss is interlocutory and not appealable (Harrison Foundry & Machinery, et al. v. Harrison Foundry Workers Assoc.) a. But if the denial was with grave abuse of discretion or is without or in excess of jurisdiction, prohibition will lie (Moreno v. Macadaeg) b. Certiorari and prohibition are proper remedies from such order of denial (Alban v. Madarang, et al.) 2. An order granting a motion to dismiss is final and appealable (Monares v. CNS Enterprises) 3. However, if the order of the dismissal is not an adjudication on the merits, as where the venue is improperly laid, that the plaintiff has no legal capacity to sue, litis pendentia, that the complaint states no cause of action or that a condition precedent for filing the suit has not been complied with, such dismissal is not a bar to another action when the circumstances change and warrant the refiling and prosecution of the same. 4. Where the defect is curable by amendment as where the complaint states no cause of action, and the court refuses to allow amendment the same is reversible error (Macapinlac v. Repide) a. However, the plaintiff must move for leave to amend the complaint before dismissal order becomes final (Constantino v. Reyes)

SECTION 2 - Hearing of motion.—At the hearing of the motion, the parties shall submit their arguments on the questions of law and their evidence on the questions of fact involved except those not available at that time. Should the case go to trial, the evidence presented during the hearing shall automatically be part of the evidence of the party presenting the same. (n) Breakdown of Provision: A. At the hearing of the motion the parties shall submit: 1. Their arguments on the questions of law 2. Their evidence on the questions of fact involved a. EXCEPT those not available at the time B. Should the case go to trial, evidence presented during hearing shall automatically be part of the evidence of the party presenting the same The hearing should be conducted as in ordinary hearings Parties should be allowed to present evidence and the evidence should be taken down EXCEPT: when the motion is based on the ground of insufficiency of cause of action which must generally be

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Jurisprudence 1. When the ground is based on fact that the action is premature, it is not a judgment on the merits (Castano v. Castano) 2. Dismissal based on lis pendens is not a judgment on merits, hence, no res judicata (Moldes v. Mullet) 3. On the matter of prescription: a. If what is referred to is that the cause of action is barred by the statute of limitations, that is the action has prescribed (Art. 1139 – 1155), the motion to dismiss shall be grounded on Sec. 1, par. (f) b. If what is involved us the fact that the ownership or other real rights claimed have prescribed, or a case of extinctive prescription is involved (Art. 1117 to 1138), then the ground for the motion to dismiss should properly be based on Sec. 1, par. (h) since the claim has been extinguished

SECTION 4 - Time to plead.—If the motion is denied, the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any event, computed from his receipt of the notice of the denial. If the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading, unless the court provides a longer period. (4a) Breakdown of Provision: 1. If the motion is denied, movant shall file his answer: a. Within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion b. But not less than 5 days in any event, computed from his receipt of the notice of denial 2. If pleading is ordered to be amended, he shall file his answer a. Within the period prescribed by Rule 11 counted from service of amended pleading b. Unless the court provides a longer period

SECTION 6 - Pleading grounds as affirmative defenses.—If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. (5a) The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. (n)

When the period of filing the answer has been suspended, as by defendant’s filing of a motion for a bill of particulars, a motion to dismiss may thereafter be filed within the remaining period to file the answer since the time to file the latter is coterminous with that of the former. (Dumanan et al. v. Butuan City Rural Bank, et al.) SECTION 5 - Effect of dismissal.—Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f), (h) and (i) of section 1 hereof shall bar the refiling of the same action or claim. (n)

If no motion to dismiss had been filed, any of the grounds for dismissal may be pleaded as affirmative defenses and a preliminary hearing may be had at court’s discretion. The 2nd paragraph clarified the effect of dismissal of the complaint upon a counterclaim duly pleaded in the action

Effects of Action on Motion to Dismiss ACTION Order granting motion to dismiss is a final order, without prejudice Order granting motion to dismiss, with prejudice

REMEDY

Note: If the defendant would not want to file a counterclaim, he should not file a motion to dismiss Instead, he should allege the grounds of a motion to dismiss as affirmative defenses in his answer with a counterclaim A preliminary hearing may be had thereon, and in the event the complaint is dismissed, defendant can prosecute his counterclaim

Re-file the complaint

Appeal File answer and proceed with the trial.

Order denying the motion to dismiss is interlocutory

Note: A motion to dismiss is not a responsive pleading, hence the filing thereof does not preclude the plaintiff from doing what he can lawfully do before the defendant files his answer (Rodriguez v. Fernan)

If decision is adverse, appeal therefrom and raise as error the denial of the motion to dismiss. If there is grave abuse of discretion amounting to lack or excess of jurisdiction, certiorari or prohibition may be filed under Rule 65

Regalado notes: Any of the grounds for dismissal provide for in this rule, may be alleged as affirmative defenses And a preliminary hearing may be had thereon if no motion to dismiss on any of said grounds had been filed and resolved As to other affirmative defenses: a. Sec. 5(b), Rule 6 enumerates some affirmative defenses such as fraud, illegality, and estoppel b. Jurisprudence has also provided ultra vires acts and unconstitutionality of the statute involved  Since the aforementioned defenses and others by way of confession and avoidance are not among the grounds for a motion to dismiss under Rule 16, while the same may be alleged as affirmative defenses to be proved during trial, it would not be proper to have a preliminary hearing thereon under the circumstances and for the purpose contemplated in this section

Effect of Dismissal GENERAL RULE: The action or claim may be re-filed EXCEPTION: The action cannot be re-filed if it was dismissed on any of these grounds: 1. Prescription 2. Unenforceability under the Statute of Frauds 3. Res judicata; and 4. Extinguishment of claim or demand Note: in these instances, remedy of plaintiff is appeal since an order sustaining the motion to dismiss was an adjudication on the merits

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Note that the preliminary hearing authorized in this section is NOT mandatory, since the grant thereof may be had in the discretion of the court.

Dismissal based on lis pendens is not a judgment on the merits, hence, no res judicata (Moldes v. Mullet)

If a motion to dismiss has been filed and denied: The order of denial is interlocutory The court may reconsider and reverse the order of denial in its final judgment (Lasala v. Sarnate) Defendant may also reiterate the grounds thereof as affirmative defenses BUT no preliminary hearing may be had thereon because a motion to dismiss had already been filed and decided (Rasdas v. Estenor)

END OF RULE 16

The present rule makes it clear that any of the grounds for dismissal provided for Rule 16 may be pleaded as an affirmative defense in the answer if no motion to dismiss has been filed This means that if a motion to dismiss has been filed and unconditionally denied, it need no longer be alleged in the answer but may only be raised again on appeal Note: The filing of a motion to dismiss is implied waiver of compulsory counterclaim The dismissal of the main action results in the dismissal of the counterclaim already filed As such, the filing of the motion to dismiss is an implied waiver of the compulsory counterclaim Both are incompatible remedies As such, the defendant must choose one DENIAL OF THE MOTION GENERAL RULE: The denial of a motion to dismiss a complaint is an interlocutory order and cannot be appealed or questioned  The remedy of the aggrieved party is to file an answer and interpose as defenses the objections raised in his motion to dismiss, proceed to trial, and in case of an adverse decision, to appeal EXCEPTION: When certiorari, prohibition, or mandamus is available  Where there is patent grave abuse of discretion in denying the motion, the court may entertain the petition for certiorari (National Investment Dev. Corp. v. Aquino)  If the grounds are indubitable, certiorari and prohibition is available (Alice Van Dorn v. Romillo)  Or where the court in denying the motion acts without or in excess of jurisdiction (Mendoza v. CA)  Under certain situations, recourse to certiorari or mandamus is appropriate (Emergency Loan Pawnshop Inc. v. CA): 1. When the trial court issued the order without or in excess of jurisdiction 2. Where there is patent grave abuse of discretion by the trial court 3. Appeal would not prove to be a speedy and adequate remedy EFFECT OF GRANT When an order sustaining a motion to dismiss is final, in that it disposes of the case in its entirety being an adjudication on the merits, the remedy of the plaintiff is to appeal the order When the ground is based on facts that the action is premature, it is not a judgment on the merits (Castano v. Castano)

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NOTES ON RULE 16

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NOTES ON RULE 16

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Note: If the plaintiff files a notice of dismissal proving therein a reason that prevents the refiling of the complaint, the dismissal must be deemed one with prejudice. This happens when the notice provides that the plaintiff recognizes the fact of prescription or extinguishment of the obligation of the defendant for reasons stated in Sec. 5, Rule 16.

RULE 17 DISMISSAL OF ACTIONS SECTION 1 - Dismissal upon notice by plaintiff.—A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. (1a)

Jurisprudence 1. To be more precise, however, what causes the loss by a plaintiff of the right to effect dismissal of the action by mere notice Is not the filing of the defendant’s answer with the court but the service on the plaintiff of said answer of a motion for summary judgment (Go v. Cruz, et al.) 2. Where the first complaint for foreclosure of a chattel mortgage for non-payment of certain installments due thereunder was dismissed with prejudice, at the instance of plaintiff under this section, another complaint later filed by him for non-payment of installments subsequent to those involved in the first case should not be dismissed on the ground of res judicata since said 2nd case involved different causes of action (Filinvest Credit Corp. v. Salas)

Breakdown of Provision: A. A complaint may be dismissed by the plaintiff: 1. By filing a notice of dismissal; or a. At any time before service of the answer 2. By filing a motion for summary judgment B. Upon such notice, the court shall issue an order confirming the dismissal C. Dismissal is without prejudice; except: 1. Unless otherwise stated in the notice 2. A notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim

Overview of Section 2 and 3 SECTION 2 Dismissal is at the instance of the plaintiff Dismissal is a matter of procedure, without prejudice unless otherwise stated in the court order or on motion to dismiss Dismissal is without prejudice to the right of defendant to prosecute his counterclaim in a separation action unless within 15 days from notice of motion he manifests his intention to have his counterclaim resolved in the same action

Dismissal is effected not by motion but by mere notice of dismissal which is a matter of right before the service of: 1. The answer; or 2. A motion for summary judgment The Rule allows the plaintiff to withdraw his complaint by mere notice The withdrawal is not automatic It requires an order by the court confirming the dismissal Until confirmed, the withdrawal does not take effect Note that the withdrawal must be before the defendant has pleaded to the complaint  At that point, defendant has hardly been exposed to any kind of damage or prejudice

SECTION 3 Dismissal is not procured by plaintiff though justified by causes imputable to him Dismissal is a matter of evidence, an adjudication on the merits

Dismissal is without prejudice to the right of defendant to prosecute his counterclaim on the same or separate action

SECTION 2 - Dismissal upon motion of plaintiff.—Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff’s instance save upon approval of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without the approval of the court. (2a)

Note: The dismissal as a matter of right ceases when an answer or a motion for summary judgment is served on the plaintiff and not when the answer or the motion is filed with the court. Thus, if a notice of dismissal is filed by the plaintiff even after an answer has been filed in court but before the responsive pleading has been served on the plaintiff, the notice of dismissal is still a matter of right. The rule requires a court order confirming the dismissal GENERAL RULE: Such dismissal is without prejudice EXCEPTIONS: 1. Where the notice of dismissal so provides; or 2. Where the plaintiff has previously dismissed the same case in a court of competent jurisdiction (Two Dismissal Rule) 3. Even where the notice of dismissal does not provide that it is with prejudice but it is premised on the fact of payment by the defendant of the claim involved (Serrano v. Cabrera)

Breakdown of Provision: A. A complaint shall not be dismissed at the plaintiff’s instance 1. Except as provided in Sec. 1 2. Save upon approval of the court a. Upon such terms and conditions as the court deems proper B. If counterclaim has been pleaded by defendant prior to service upon him of plaintiff’s motion for dismissal 1. Dismissal shall be limited to the complaint

Two Dismissal Rule – when the same complaint had twice been dismissed by the plaintiff without order of the court by simply filing a notice of dismissal, the 2nd dismissal operates as an adjudication on the merits.

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C.

D. E.

Dismissal shall be without prejudice to the right of defendant to prosecute his counterclaim in a separate action 1. Unless within 15 days from notice of motion he manifests his preference to have his counterclaim resolved in the same action Dismissal under Sec. 2 shall be without prejudice 1. Unless otherwise specified in the order Class suit shall not be dismissed or compromised without the approval of the court

Note: This rule does not apply to dismissal of expropriation cases which is governed by Rule 67 which specifically governs eminent domain cases. COMPARED TO OTHER PROVISIONS Sec. 1 and Sec. 2 Both sections refer to the dismissal of the ENTIRE case at the instance of the plaintiff, provided that under: 1. Sec. 1 – there has been no service of an answer or a motion for summary judgment 2. Sec. 2 – defendant has not filed a counterclaim and the court deems the dismissal proper Absent such contingent considerations, the plaintiff has the virtual freedom to desist from further prosecuting any defendant by causing the dismissal of the complaint

Under this section, dismissal of the complaint is subject to the discretion of the court and upon such terms and conditions as may be just. GENERAL RULE: Dismissal under this rule is WITHOUT prejudice EXCEPTIONS: 1. When otherwise stated in the motion to dismiss; or 2. When stated to be with prejudice in the order of the court

As distinguished from Sec. 11, Rule 3 Said provision allows parties to be dropped or added by order of the court, on motion, or motu proprio at any stage of the action and on such terms as are just This refers to maintenance of the case against all parties  Except that one or more defendant may be excluded Remember that this does not comprehend whimsical or irrational dropping of parties It contemplates the situation where there has been an erroneous inclusion or misjoinder of parties  Presupposes that the original inclusion of defendant was made in honest conviction that it was proper  But subsequent dropping is requested because it has turned out to be incorrect

AS TO COUNTERCLAIMS If a counterclaim has been pleaded by the defendant prior to the service upon him of the plaintiff’s motion for dismissal, the dismissal shall be limited to the complaint. Remember that if the civil case is dismissed, so also is the counterclaim filed therein It was held that if the court does not have jurisdiction to entertain the main action of the case and dismiss the case, then the compulsory counterclaim, being ancillary to the principal controversy must likewise be dismissed  No jurisdiction remained for any grant of relief under the counterclaim (Metals Engineering Resources v. CA)

SECTION 3 - Dismissal due to fault of plaintiff.—If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court’s own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. (3a)

However, under this section, if a counterclaim has been pleaded by a defendant PRIOR to the service upon him of the plaintiff’s motion for dismissal, the dismissal shall be limited to the complaint. Such dismissal shall be without prejudice to the right of the defendant to either: 1. Prosecute his counterclaim in a separate action; or  In this case, the court should render the corresponding order granting and reserving his right to prosecute his claim in a separate complaint 2. To have the same resolved in the same action  In this case, defendant must manifest such preference to the trial court within 15 days from notice to him of plaintiff’s motion to dismiss

Breakdown of Provision: A. The complaint may be dismissed, if for no justifiable cause, the plaintiff fails: 1. To appear on the date of the presentation of his evidence in chief on the complaint; or 2. To prosecute his action for an unreasonable length of time; or 3. To comply with the Rules or any order of the court B. The dismissal may be upon: 1. Motion of the defendant; or 2. Court’s own motion C. The dismissal shall: 1. Be without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action 2. Have the effect of an adjudication upon the merits a. Unless otherwise declared by the court

Note: These alternative remedies of the defendant are available to him regardless of whether his counterclaim is compulsory or permissive EFFECT OF DISMISSAL The dismissal is without prejudice Only instance when dismissal of an action under the rule is with prejudice is when the order or motion itself states When a court issues upon plaintiff’s instance a dismissal order that is silent as to whether it is with or without prejudice, the presumption is that, it is without prejudice (Vallangca v. CA)

Section 3 contemplates dismissal due to fault of plaintiff

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Under this section: Like in Sec. 2:  Only the complaint is dismissed  Its dismissal does not necessarily carry with it the dismissal of the counterclaim  Defendant is granted an option to prosecute his counterclaim in the same or separate action The rule contemplates a situation which an answer with counterclaim have already been filed

2.

Such prejudicious absence is limited to the date or dates when presentation of his evidence in chief on the complaint was scheduled or expected Since plaintiff’s presence is now required only during the presentation of his evidence in chief, his absence during the presentation of defendant or other parties’ evidence, or even at rebuttal or subsequent stages, is not a ground for dismissal.

What Constitutes Unreasonable Length of Time The dismissal of an action pursuant to this rule rests upon the sound discretion of the court ( Smith Bell and Co. v. American President Lines Ltd.) What constitutes unreasonable length of time depends on the circumstances of each particular case  The sound discretion of the court in the determination of said question will not be disturbed in the absence of patent abuse  The burden of showing abuse of judicial discretion is upon the appellant since every presumption is in favor of the correctness of court action

But as to Counterclaims: Defendant is granted the choice to prosecute that counterclaim in either the same or a separate action, just like the grant of that remedy in Sec. 6, Rule 16 In this section (as well as in Sec. 6, Rule 16), defendant is not required to manifest his preference within a 15-day period as in Sec. 2 Reason:  The motions to dismiss in this section and in Sec. 6, Rule 16, are filed by defendant who perforce has already deliberated upon the course of action he intends to take on his counterclaim and which he may even manifest right in his motion to dismiss  The dismissal in Sec. 2 is at the instance of plaintiff, hence, defendant is granted the time and duty to manifest preference within 15 days from notice, after an opportunity to study the situation

Duty of the Plaintiff To Prosecute Under the rules, it is the duty of a plaintiff to always take the initiative in keeping the proceedings active and going until it is terminated  Otherwise, the case may be dismissed either upon motion of his adversary or the court itself Upon issuance of summons, plaintiff or counsel should see to it that the sheriff or process server immediately cause its service  If plaintiff is not furnished with a return of service, plaintiff should inquire from the court as to the status of the summons, not only to take appropriate action if unserved, but to know if period to answer has expired  If summons is unserved, plaintiff should make verifications and ask for alias summons and/or summons by publication

Complaint May be Dismissed: 1. Upon motion of defendant; or 2. Upon the court’s own initiative Note: The court cannot issue an order of dismissal motu proprio except for the grounds mentioned in this rule and those in Sec. 1, Rule 9 Grounds for Dismissal 1. Plaintiff fails to appear for no justifiable cause on the date of the presentation of his evidence in chief on the complaint; 2. Plaintiff fails to prosecute his action for an unreasonable length of time (nolle prosequi); and 3. Plaintiff fails to comply with these Rules or any order of the court

Jurisprudence: 1. Plaintiff’s failure to appear, not absence of lawyer is ground for dismissal (Calalang v. CA)  But the unwillingness of the party to proceed to trial because of absence of counsel after being given time to secure services of counsel if ground for dismissal for failure to prosecute (Rodillas v. Farmacia Central) 2. Where plaintiffs were not again ready to present their evidence on the date of trial but instead moved for another postponement, the dismissal is justified (EE Elser, Inc. v. Dela Rama Steamship, Co.)  Where trial had previously been postponed 9 times at plaintiff’s request and the case had been pending for more than 4 years, action may be dismissed for failure to prosecute (Jordas v. Vedad) 3. The plaintiff’s failure to appear at trial after he has presented his evidence and rested his case does not warrant the dismissal of the case on the ground of failure to prosecute. It is merely a waiver of his right to crossexamine and to object to the admissibility of evidence (Jalover v. Ytoriaga) 4. The action should never be dismissed on a non-suit for want of prosecution when the delay was caused by the parties looking towards a settlement. (Goldloop Properties Inc. v. CA)

The dismissal shall have the effect of an adjudication upon the merits (Res judicata); UNLESS: 1. Otherwise declare by court; or 2. If the court has not yet acquired jurisdiction over the person of the defendant FAILURE TO APPEAR AND FAILURE TO PROSECUTE While a court can dismiss a case on the ground of non-prosequitur, the real test for the exercise of such power is whether, under the circumstances, plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude. (Producers Bank v. CA) There must be unwillingness on the part of the plaintiff to prosecute (Gapoy v. Adil) The dismissal of the case for failure of plaintiff to appear at trial, to be valid, now requires that: 1. His non-appearance is without justifiable cause; and

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FAILURE TO COMPLY WITH RULES AND COURT ORDER

Jurisprudence 1. A dismissal under this rule for lack of interest on the part of the plaintiff without any condition, is with prejudice and shall have the effect of an adjudication upon the merits  Unless otherwise provided by the Court 2. However, there is no res judicata if the court has not yet acquired jurisdiction over the person of the defendant (Guzman v. Mapa) 3. Dismissal of a case due to failure to prosecute shall have the effect of an adjudication upon the merits (Vergara v. IAC) 4. Dismissal for failure to appear at pre-trial is similar to dismissal for failure to prosecute or to comply with an order of the court under Sec. 3, and is, therefore, an adjudication on the merits unless otherwise provided (Gutierrez v. CA) 5. Where, however, the case was not tried on the merits and dismissal was due to negligence of lawyer rather than plaintiff,  In the interest of justice, dismissal of the case should be decreed without prejudice to the filing of a new action (Gutierrez v. CA)

Note: The order must be valid. It is still within the discretion of the court to dismiss It may not be reversed on appeal in the absence of abuse Burden is upon the party showing abuse of judicial discretion Jurisprudence on Failure to Comply with Court Order 1. Dismissal for failure to comply with order to amend complaint to make claims asserted more definite is ground for dismissal (Santos v. General Wood Craft) 2. Failure to comply with an order to include indispensable parties is ground for dismissal (Aranico-Rubino v. Aquino) 3. An order to amend the complaint before the proper substitution of parties after the death of a party as directed by Sec. 17, Rule 3 has been effected is void  It imposes no duty upon plaintiff to comply with said order to the end that an order dismissing the said complaint, for such non-compliance, would similarly be void (Barrameda v. Barbara) 4. The failure to comply with order of new judge to recall witness so he may observe demeanor is sufficient ground for dismissal (Castillo v. Torres) 5. Failure to submit stipulation of facts and memoranda is not a ground for dismissal (Buenaventura v. Buenaventura)

DISMISSAL WITHOUT PREJUDICE Note: Dismissal for lack of jurisdiction is always without prejudice Jurisprudence: 1. Dismissal for failure to comply with certificate non-forum shopping is without prejudice unless order provides that it is with prejudice (Sto. Domingo-David v. Guerrero) 2. Dismissal for failure to prosecute will not constitute res judicata in favor of a party in intervention who did not join the defendants but alleged an independent claim since the dismissal relates to the cause of action and none was made against the intervenor. (Barroso v. Veloso) 3. Failure of plaintiff to appear after having adduced evidence cannot be considered failure to prosecute  It is only a waiver of right to cross-examine witnesses for defendant and to object to admissibility of evidence

Jurisprudence on Failure to Comply with Rules 1. The court may dismiss the complaint motu proprio for failure to comply with the rule on actionable documents (Rosales v. CA) 2. The failure of the parties to submit a compromise agreement within period granted to them by court is not a ground for dismissal (Goldloop Properties Inc. v. CA) 3. Dismissal is improper where a 3rd party complaint has been admitted and the 3rd party defendant had not yet been summoned (Sotto v. Valenzuela) 4. A case may be dismissed for failure to answer written interrogatories under Rule 25 even without an order from the court to answer. (Arellano v. CFI- Sorsogon)

AS TO SUMMARY PROCEDURE

LIMITATIONS ON POWER TO DISMISS

Under Sec. 7 of the Rule on Summary Procedure: Failure of plaintiff to appear in preliminary conference shall be cause for dismissal of his complaint Defendant who appears in the absence of plaintiff shall be entitled to judgment on his counterclaim in accordance with Sec. 6 thereof All cross-claims shall be dismissed

Notwithstanding the accepted basic principle, it is imperative to note that the dismissal of actions under Sec. 3, Rule 17 should be applied with extra care. Hence, it becomes necessary that the sound discretion of the court must extend to the vigilance of duly recognizing the circumstances surrounding the particular case to the end that technicality shall not lord over substantial justice.

SECTION 4 - Dismissal of counterclaim, cross-claim, or third-party complaint.—The provisions of this Rule shall apply. to the dismissal of any counterclaim, cross-claim, or third-party complaint. A voluntary dismissal by the claimant by notice as in section 1 of this Rule, shall be made before a responsive pleading or a motion for summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing. (4n)

As held in Dayo, et al. v. Dayo, et al. “dismissals should be ordered not as penalty for neglect, but only in the extreme cases where the termination of the proceeding by dismissal is the only remedy consistent with equity and justice.” DISMISSAL WITH PREJUDICE

Breakdown of Provision: A. Provisions of this rule shall apply to the dismissal of any counterclaim, cross-claim, or third-party complaint B. Voluntary dismissal by claimant by notice as in Sec. 1, shall be made:

Dismissal of actions under Sec. 3 which do not expressly state whether they are with or without prejudice are held to be with prejudice on the merits

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1. 2.

Before a responsive pleading or motion for summary judgment is served; or If there is none, before introduction of evidence at trial or hearing

Effect of Dismissals Dismissal or continuance of an action operates to annul orders, ruling, or judgments previously made in the case It also annuls all proceedings had in connection therewith and renders all pleadings ineffective Dismissal or non-suit leaves the situation as though no suit had ever been brought Jurisprudence: 1. A dismissal or discontinuance of an action operates to annul orders, rulings, or judgments previously made in the case, as well as all proceedings had in connection therewith and renders all pleadings ineffective (Servicewide Specialist Inc. v. CA)

END OF RULE 17

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NOTES ON RULE 17

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

RULE 18 PRE-TRIAL

Note that under Sec. 3, Rule 17, failure of plaintiff to comply with the rules is a ground for dismissal

Pre-Trial is MANDATORY The present rules make a pre-trial mandatory Pre-trial conferences bring the parties together, making possible an amicable settlement or doing away with at least the non-essentials of the case Vital objective: the simplification, abbreviation, and expedition of the trial, if not indeed its dispensation Mandatory nature is addressed to both court and parties:  Court must set the case for pre-trial and notify the parties as well as counsel to appear  Parties with their counsel are obliged to obey the order of the court to that effect Under the present rule, the court is no longer tasked with sending a separate notice to the party  Notice of pre-trial shall be served on counsel, who is charged with the duty of notifying the client

SECTION 1 - When conducted .—After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial. (5a, R20) The rules on pre-trial have been supplemented by AM No. 03-1-0-SC – Approving the Proposed Rule on Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Trial and Use of Deposition – Discovery Measures (August 16, 2004) The guidelines under AM No. 03-1-09-SC was for the further implementation of the pre-trial guidelines laid down in Admin Circ. No. 3-99 dated Jan. 15, 1999 and except as otherwise specifically provided for in other special rules. Separate Rules on Pre-trial in particular cases were provided for under: 1. Interim Rules of Procedure Governing Intra-Corporate Controversies (April 1, 2001) 2. Rule on Declaration of Absolute Nullity of Void Marriages and Voidable Marriages (AM No. 02-11-SC; Mar 15, 2003) 3. Rule on Legal Separation (AM No. 02-11-11-SC; Mar 15, 2003) 4. The Rules on pre-trial under Rule 18 are applicable in preliminary conference in Forcible Entry and Unlawful Detainer cases (Sec. 8, Rule 70)

Note: The “Last Pleading” need not be literally construed as the actual filing of the last pleading. For purpose of pre-trial, the expiration of the period for filing the last pleading is sufficient (Sarmiento v. Juan) The answer ordinarily is the last pleading When defendant’s answer contains:  A counterclaim – plaintiff’s answer is the last pleading  A cross-claim – answer of cross-defendant is the last pleading Where plaintiff’s answer to a counterclaim contains a counterclaim against the opposing party or a cross-claim against a co-defendant, answer of opposing party to counterclaim or answer of co-defendant to cross-claim is last pleading Where plaintiff files a reply alleging facts in denial or avoidance of new matter, such reply is last pleading The last pleading is the last pleading joining the issues

Pre-Trial is a mandatory conference and personal confrontation before the judge between the parties and their respective counsel. Concept of Pre-Trial A procedural device by which the court is called upon, after the filing of the last pleading, to compel the parties and their lawyers to appear before it, and negotiate an amicable settlement or otherwise make a formal settlement and embody in a single document the issues of fact and law involved in the action, and such other matters as may aid in the prompt disposition in the case, such as:  Number of witnesses  Tenor or character of their testimonies  Documentary evidence; nature and purpose of each  Number of trial dates One objective is to take trial out of the realm of surprise and maneuvering Also lays down the foundational and structural framework of the continuous trial system

Reason for Last Pleading Requirement is intended to fully appraise the court and the parties of all issues in the case before pre-trial is conducted Remember: the issues may only be ascertained from the allegations contained in the pleadings filed by parties Last permissible pleading that a party may file would be the reply to the answer to the last pleading of a claim that had been filed in a case  This may either be a complaint, a cross-claim, a counterclaim, or third-party complaint

When Pre-trial is Conducted After the last pleading has been served and filed It shall be the duty of the plaintiff to promptly move exparte that the case be set for pre-trial

PART ONE: ANTECEDENTS OF A PRE-TRIAL From AM No. 03-1-0-SC A.

Note the following SC issuances: 1. Specifically, the motion is to be filed within 5 days after the last pleading joining the issues has been served and filed (Admin Circ. No. 3-99, Jan 15, 1999) 2. Within 5 days from date of filing of the reply, plaintiff must promptly move ex-parte that the case be set for pre-trial conference. If the plaintiff fails to file said motion within the given period, the branch clerk shall issue a Notice of Pre-Trial (AM No. 03-109-SC, July 13, 2004)

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Within one day from receipt of the complaint 1. Summons a. Summons shall be prepared b. And shall contain a reminder to defendant to observe restraint in filing a motion to dismiss and instead allege the grounds thereof as defenses in the Answer, in conformity with IBPOCA Memorandum on Policy Guidelines dated March 12, 2002 c. Copy of summons attached 2. Court order a. Court shall issue an order requiring the parties:

b. c.

(1) To avail of interrogatories to parties under Rule 25 (2) Request for admission by adverse party under Rule 26 (3) Or at their discretion make use of dispositions under Rule 23 (4) Or other measures under Rule 27 and 28 Order shall be complied with within 5 days from filing of the answer Copy of the order shall be served upon the defendant together with summons and upon plaintiff

3.

4.

SECTION 2 - Nature and purpose.—The pre-trial is mandatory. The court shall consider: (a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; (b) The simplification of the issues; (c) The necessity or desirability of amendments to the pleadings; (d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; (e) The limitation of the number of witnesses; (f) The advisability of a preliminary reference of issues to a commissioner; (g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist; (h) The advisability or necessity of suspending the proceedings; and (i) Such other matters as may aid in the prompt disposition of the action. (1a, R20)

the case for pre-trial or a preliminary conference cannot render the proceedings illegal or void ab initio  A party’s failure to object to the absence of a pre-trial is deemed a waiver of his right thereto (Martinez v. De la Merced) When the pleadings tendered genuine issues resolvable only in a trial on the merits but instead of setting the case for pre-trial the court granted plaintiff’s motion for summary judgment, it was held that petitioner was substantially prejudiced and denied of his right to due process of law which is tantamount to an abuse of discretion or lack of jurisdiction (Paz v. CA)  Certiorari and not appeal is the proper remedy Where defendant asked the Court to give time to pay – there is no need of resetting pre-trial. The proper procedure is not declaration of default but summary judgment (Jarantilla, Jr. v. Adil)

SECTION 3 - Notice of pre-trial.—The notice of pre-trial shall be served on counsel, or on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him. (n) Notice of Pre-Trial – under this section, the notice of pre-trial shall be served on counsel and service shall be made on the party only if he has no counsel However, the duty of counsel served with such notice is to duly notify his client thereof The notice must be such as to give them and their counsel, time to comply with the notice, given the circumstances of time and place of hearing Jurisprudence 1. The omission to specify in the notice of hearing that it was notice of pre-trial is not an irregularity (Ravelo v. CA) 2. The knowledge of petitioner of the existence of pre-trial order is an exception to the literal application of the rule that notice to the parties of the pre-trial order is indispensable (Western Agro Industries Corp. v. CA) 3. Absence of notice of third pre-trial is justified where after proper notice for first 2 pre-trials, defendants filed thirdparty complaint which he completely abandoned (Fabar v. Rodelas) 4. The sufficiency of the written notice of pre-trial is irrelevant where evidence shows that counsel and the parties actually knew of the pre-trial (Bembo v. CA)

The purposes of a pre-trial under the old Rule have been reproduced with 2 substantial amendments: 1. The court shall consider submission to alternative modes of dispute resolution including conciliation and mediation and not only arbitration  With regard to submission to arbitration, see RA 876 and Art. 2028 and 2041 on compromises and arbitration  See also RA 9285 which institutionalized the use of an alternative dispute resolution system and provided for a broader scope of alternative modes for dispute resolution 2. It shall also consider the advisability of judgment on the pleadings, summary judgment or dismissal of the action on the bases of proceedings at pre-trial conference

SECTION 4 - Appearance of parties.—It shall be the duty of the parties and their counsel to appear at the pre-trial. The nonappearance of a party may be excused only if a valid cause is shown therefor or if a representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents. (n)

Note: Under AM No. 03-1-09-SC, the trial judge can now set as many pre-trial conferences as may be necessary Effect of Failure to Calendar for Pre-Trial The pre-trial calendar should be separate from the trial calendar (Fuentes v. Macandog)  It is preferred that the pre-trial first be set and to schedule the trial and other incidents at a different date

Note: BOTH parties and counsel must appear at pre-trial Client and counsel must appear; this is mandatory Failure of client to appear is a ground for dismissal The appearance of plaintiff and defendant is also mandatory their failure to do so without justification is not a ground for new trial (American Ins. v. Republic)

Jurisprudence 1. The process of securing admissions, whether of facts or evidence, is essentially voluntary. When the parties are unable to arrive at a stipulation of agreed facts, the court mist close the pre-trial and proceed with the trial of the case (FilOil Marketing Corp. v. Dy Pac & Co.) 2. Unless there is a showing of substantial prejudice caused to a party, the trial court’s inadvertent failure to calendar

Substitution of Appearance of Parties A party may not himself be present at the pre-trial and another person may substitute for him, or his lawyer may

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undertake to appear not only as an attorney but in substitution of his client’s person It is imperative that the representative or lawyer have a special authority to make substantive agreements; this special authority must be in writing

2.

Effect of Non-appearance of Defendant  Cause the plaintiff to present evidence ex parte  Cause for the court to render judgment on the basis thereof Note that the non-appearance of defendant in pre-trial is not a ground to declare him in default

When Non-Appearance of a Party may be Excused: 1. If a valid cause is shown therefor; and 2. If a representative shall appear in his behalf fully authorized in writing to: a. Enter into an amicable settlement; b. Submit to alternative modes of dispute resolution; and c. Enter into stipulations or admissions of facts and of documents

A plaintiff who makes no valid appearance at pre-trial may not ask the defendant to be punished for the same shortcoming it was equally guilty of (Sarmiento v. Juan) The remedy for plaintiff’s failure to appear at the pre-trial is to declare him non-suited  Not requiring the defendant to present his evidence Judgment Ex Parte is DIFFERENT from Judgment by Default 1. Judgment against a defendant based on evidence presented ex parte pursuant to a default order  Sec. 5, Rule 18 provides that judgment against defendant should not exceed amount or be different in kind from that prayed for  Trial may proceed ex parte 2. Judgment based on evidence presented ex parte and against a defendant who had filed an answer but who failed to appear at hearing  Award may exceed amount from that prayed for  A defendant in default is not and should not be placed in a situation more favorable than a defendant who answered but who fails to appear for trial despite notice (Gochangco v. CFI – Negros Occidental)  Trial may proceed ex parte  It is not invalidated by the fact merely that reception of evidence had been undertaken by the clerk of court on the court’s instructions

Note: 1. The written authority must be in form of an SPA (Sec. 23, Rule 38). If the party is a corporation, the SPA must be supported by a board resolution. 2. The mere presentation of such written authority is not sufficient, but must be complemented by a showing of valid cause for the non-appearance of the party himself. Special Authority of Representative of Lawyer in Behalf of Client Without special authority, lawyer or representative cannot be deemed capacitated to appear in place of the party  It will be considered that the latter has failed to put up an appearance at all  And therefore, not suited or shall be cause to allow plaintiff to present evidence ex parte The scope, extent, and limits of the authority must likewise be shown (Barrera v. Militante)  Note that under the present rule, the representative must be fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents The authority must be specific and not general

Note: Semantical propriety: the word “default” is identified with the failure to file a required answer, not non-appearance Note that under this rule, there can be no judgment by default The sanction for failure of defendant to appear in the pretrial is not to consider him as in default But to authorize plaintiff to present evidence ex parte and the court to render judgment on the basis thereof As such, limitations on the extent of a judgment by default no longer applies when defendant fails to appear during pre-trial

Note that under Sec. 4, Rule 18, the law is clear and unambiguous. Counsel, as representative, mist have appeared in party’s behalf fully authorized in writing Jurisprudence 1. A certificate of the Secretary of a corporation couched in general terms authorizing a lawyer to appear in all cases filed against the corporation and on all matters that may be necessary is insufficient and warrants a declaration of default (Far Corporation v. IAC)

The remedy of a plaintiff who has been non-suited is to file a motion to set aside the order of non-suit Affidavit of merit is not necessary in a simple motion for reconsideration of the order of non-suit  Except as to show the cause of the failure to appear at the pre-trial (Jonathan Landoil International Inc. v. Mangudadatu) The provisions of Rule 37 on New Trial do not govern all motions for reconsideration based on fraud, accident, excusable negligence, or mistake  They are applicable only when a party adversely affected by a judgment, already rendered in a case, seeks to have it set aside and a new trial held, in the hope that it may be reversed or modified on account of the evidence that is to be produced  If a new trial is granted, original decision shall be vacated and the action is to stand for trial de novo  The procedure contemplated in this rule involves a reopening of the case for hearing, after it was already submitted for decision and judgment thereon was actually reached

SECTION 5 - Effect of failure to appear.—The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof. (2a, R20) Effect of Failure to Appear 1. Effect of Non-appearance of Plaintiff  Cause for the dismissal of the action (order of nonsuit)  This dismissal shall be without prejudice a. Except when the court orders otherwise

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

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Since the reopening would necessarily affect the party in whose favor the disputed judgment was rendered,  Rule requires that movant show the valid cause of action or defense which he intends to prove at new trial A dismissal for failure to appear at the pre-trial hearing is deemed an adjudication on the merits, unless otherwise stated in the order  Remedy of plaintiff declared non-suited is to appeal from the order of dismissal, the same being a final resolution of the case  If a motion for reconsideration had been filed by plaintiff but was denied, appeal lies from both orders  And where appeal is the proper remedy, certiorari will not lie

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was due to fraud, accident, mistake, or excusable negligence  The motion need not really stress the fact that the defendant has a valid and meritorious defense because his answer which contains his defenses is already of record The filing of the pre-trial brief is mandatory

The Guidelines likewise enjoins strict compliance with the rule on the contents of the pre-trial brief. Under the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages and the Rules on Legal Separation, the failure to file pretrial brief to comply with its required contents shall have the same effect of failure to appear at the pre-trial. PART TWO: CONDUCTING THE PRE-TRIAL

Where defendant is declared in default for his failure to appear at the pre-trial, His remedy is to file a motion for reconsideration without need for affidavits of merits regarding the fraud, accident, mistake, or excusable negligence (Lucero v. Dacayo)  If denied with grave abuse of discretion, certiorari is the remedy as such order of default is interlocutory (Note however the pronouncement that non-appearance of defendant is not a ground for declaring him in default)

SCOPE Pre-Trials are not intended merely to determine whether the parties can arrive at compromises. Exhaustive pre-trials should be conducted to reduce areas of conflict and simplify issues, secure stipulations or admissions of facts, limit the number of witnesses, consider the advisability of preliminary reference of issues to a commissioner and other matters as may aid in the prompt disposition of the action.

SECTION 6 - Pre-trial brief.—The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least three (3) days before the date of the pre-trial, their respective pre-trial briefs which shall contain, among others: (a) A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; (b) A summary of admitted facts and proposed stipulation of facts; (c) The issues to be tried or resolved; (d) The documents or exhibits to be presented, stating the purpose thereof; (No evidence shall be allowed to be presented and offered during the trial in support of an evidencein-chief other than those that had been earlier identified and pre-marked during pre-trial, except if allowed by the court for good cause shown); (e) A manifestation of their having availed or then intention to avail themselves of discovery procedures or referral to commissioners; and (f) The number and names of the witnesses, and the substance of their respective testimonies and the approximate number of hours that will be required by the parties for the presentation of their respective witnesses. Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. (n) (As modified by AM No. 03-109-SC)

SUBMISSION TO ALTERNATIVE MODES OF DISPUTE RESOLUTION A.

Alternative Dispute Resolution Describes a range of techniques used to resolve disputes outside of courts Typically, ADR is informal and flexible and emphasizes “helping parties help themselves” reach a mutually beneficial resolution Note that not all disputes can be resolved by mutual agreements ADR techniques also include binding judgments imposed by 3rd parties

B.

Mediation 1. Use of Mediation – Under the Guidelines, “at the start of the pre-trial conference, the judge shall immediately refer the parties and/or their counsel if authorized by their clients to the PMC mediation unit for purposes of mediation if available” 2. Type of Cases that are mediatable (from Resolution of the Supreme Court in AM No. 04-3-15-SC, March 23, 2004) a. All civil cases, settlement of estates, and cases covered by the Rule on Summary Procedure except those which by law may not be compromised; b. Cases cognizable by the Lupong Tagapamayapa under the Katarungang Pambansa Law c. The civil aspect of BP 22 cases; and d. The civil aspect of quasi-offenses under Title 14 of the RPC

This section makes it the mandatory duty of the parties to seasonably file their pre-trial briefs under the conditions and with the sanctions provided therein.

C.

Effect of Failure to File Pre-Trial Brief It shall have the same effect as failure to appear at the pretrial Remedy of defendant is to file a motion for reconsideration, showing that his failure to file a trial brief

Katarungang Pambarangay Law (Sec. 408) – The court in which non –criminals falling within the authority of the lupon under this Code are filed may at any time before trial, motu proprio refer the case of the lupon concerned for amicable settlement

D.

The Arbitration Law (RA 876) 1. Persons and matter subject to arbitration (Sec. 2): a. Two or more persons or parties may submit to the arbitration of one or more arbitrators any

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b. c.

2.

controversy existing between them at the time of the submission and which may be the subject of an action Or the parties to any contract may in such contract agree to settle by arbitration a controversy thereafter arising between them Such submission shall be valid, enforceable, and irrevocable, save upon the grounds as exist at law for the revocation of any contract

Possibility of an Amicable Settlement Relevant Provisions under the CC 1. Art. 2029 – The court shall endeavor to persuade the litigants in a civil case to agree upon some fair compromise 2. Art. 2032 – Court’s approval is necessary in compromises entered into by guardians, parents, absentee’s representatives, and administrators or executors of decedent’s estates 3. Art. 2033 - Juridical persons may compromise only in the form and with the requisites which may be necessary to alienate property 4. Art. 2034 – There may be a compromise upon the civil liability arising from an offense; but such compromise shall not extinguish the public action for the imposition of legal penalty 5. Art. 2031 – Courts may mitigate the damages to be paid by the losing party who has shown sincere desire for a compromise

Note however, that the foregoing matters refer to courtannexed mediation a. It should be distinguished from the mediation, arbitration, and conciliation as conditions precedent under Katarungang Pambarangay Law and RA 9285 (Alternative Dispute Resolution Act of 2004) CONDUCTION OF PRE-TRIAL IF MEDIATION FAILS

If mediation fails, the judge will schedule the continuance of the pretrial conference.

Principles Involved in Compromise Agreements 1. The authority to compromise a litigation is not mandatorily required to be in writing 2. Vital thing is that the authority was made expressly 3. The authority to compromise if not in writing may be established by evidence  Compromise agreement entered without authority is not void, but unenforceable and may be ratified (Lim Pin v. Liao Tan) 4. Even if the parties concerned agreed to execute a stipulation of facts it does not mean that the respective counsels of contending parties can prepare a stipulation of facts the contents of which is prejudicial to the interests of their clients and sign it themselves without the intervention of their clients. (Caballero v. Dejarme)

But before then, the Judge may refer the case to the Branch Clerk of Court for a preliminary conference. Circular No. 3-99 provides that at the pre-trial conference, the following shall be done: 1. The judge with all tact, patience and impartiality shall endeavor to persuade the parties to arrive at a settlement of the dispute; if no amicable settlement is reached, then he must effectively direct the parties toward the achievement of the other objectives or goals of pre-trial 2. If warranted by the disclosure at the pre-trial, the judge may either forthwith dismiss the action, or determine the propriety of rendering a judgment on the pleadings or a summary judgment 3. The judge shall define the factual issues arising from the pleadings and endeavor to cull the material issues 4. If only legal issues are presented, the judge shall require the parties to submit their respective memoranda and thereafter render judgment 5. The judge should encourage the effective use of pre-trial discovery proceedings

Jurisprudence: 1. The filing of a pre-trial brief is mandatory and is not excused simply because defendant was not represented by counsel (Saguid v. CA) Duty of the Judge Before the continuation of the pre-trial conference, judge must study all pleadings, and determine the issues thereof and the respective positions of the parties to enable him to intelligently steer the parties toward a possible amicable settlement or, at the very least, to help reduce and limit the issues He should expose the parties to advantages of pre-trial: a. The simplification of issues b. The necessity or desirability of amendments to pleadings c. Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof During pre-trial, judge shall be the one to ask questions on issues raised therein and all questions or comments by counsel must be directed to judge to avoid hostilities

Preliminary Conference Preliminary Conference – Duties of the clerk: 1. To assist the parties in reaching a settlement 2. To mark the documents or exhibits to be presented by the parties and copies thereof to be attached to the records after comparison 3. To consider such other matters as may aid its prompt disposition During Preliminary Conference: The clerk shall also ascertain from the parties the undisputed facts and admissions on the genuineness and due execution of the documents marked as exhibits Proceedings shall be recorded in the “Minutes of Preliminary Conference” to be signed by both parties and/or counsel

1. 2.

The Minutes of Preliminary Conference and the exhibits shall be attached by the Clerk to the case record before pre-trial.

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The court shall initially ask the parties and lawyers if an amicable settlement is possible If not, judge may confer with parties with the opposing counsel to consider the following: a. Given the evidence of plaintiff presented in his pretrial brief to support his claim, what manner of compromise is considered acceptable to defendant at the present stage?

b.

3. 4.

Given the evidence of defendant described in his pretrial brief to support his defense, what manner of compromise is considered acceptable to plaintiff at the present stage? If not successful, court shall confer with the party and his counsel separately If the manner of compromise is not acceptable, judge shall confer with the parties without their counsel for the same purpose of settlement

The Trial Judge also has the following powers: (see The Guidelines) 1. At his discretion, order the parties to use affidavits of witnesses as direct testimonies  Subject to the right to object to inadmissible portions thereof and to the right of cross-examination  Affidavits shall be based on personal knowledge  Set forth facts as would be admissible in evidence  Shall show affirmatively that the affiant is competent to testify to the matters stated therein  Shall be in question and answer form  Shall conform with the rules on admissibility of evidence 2. Order the delegation of the reception of evidence to the Branch Clerk of Court under Rule 30 3. The advisability of a preliminary reference of issues to a commissioner (see Rule 32)

POWER OF THE COURT Itemization of Issues In a Single Document As held in DBP v. CA A trial court can always compel the parties to simplify, or at the very least, identify the issues Court has the power to require the parties to make a formals statement of the issues of fact and law involved  To set out which of the material averments of fact, or parts thereof, are admitted and which are denied The desirability and usefulness of the itemization in a single document: a. Of the facts which are admitted – and as to which no evidence need be presented; and b. Those of which are controverted – and as to which proof must be adduced Disclosure of Witnesses and Evidence

The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist A judgment on the pleadings may be rendered on motion of a party: 1. Where the answer fails to tender an issue, or 2. Otherwise admits to the material allegations of the adverse party’s pleading Note however in actions for annulment or for legal separation, material allegations alleged in complaint shall always be proved (Rule 34) A summary judgment may be rendered if the pleadings, depositions, and admissions on file, together with the affidavits, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law (Rule 35)

The trial court has the power to require the parties at pre-trial: 1. To state the number of witnesses intended to be called to the stand, their names and addresses, and a brief summary of the evidence each of them is expected to give 2. To formally disclose the number of the documents and things or a short description of the nature of each 3. To state the number of trial dates that each will need to put on his case

The former rule which authorized the court to render judgment on the pleadings or summary judgment if it appears at pre-trial that facts exist which justify such action has been included in this section Court should merely consider the propriety of such action If proper, a motion for judgment on the pleadings or summary judgment should be filed and heard in accordance with the rules (Auman v. Estenzo)

On the Number of Witnesses 1. The One-Day Examination of Witness Rule 2. The Most Important Witness Rule  Determine the most important witnesses to be heard and limit the number of facts to be proven by each witnesses and approximate number of hours per witness shall be fixed

Under the Guidelines: The judge should determine the propriety of rendering a summary judgment dismissing the case based on the disclosures made at pre-trial or a judgment based on the pleadings, evidence identified and admissions made during pre-trial If at pre-trial court finds that facts exist upon which a judgment on the pleadings of summary judgment may be made, it may render judgment on the pleadings or summary judgment

Duty of Disclosure 1. The parties are required to state the documents or exhibits to be presented, stating the purpose thereof (Sec. 6(d))  No evidence shall be allowed to be presented and offered during the trial in support of an evidence-inchief other than those that had been earlier identified and pre-marked during pre-trial  Except if allowed by the court for good cause shown 2. The number and names of witnesses (Sec. 6(f))  The substance of their respective testimonies  Approximate number of hours that will be required by parties for the prosecution of their respective witnesses

The advisability or necessity of suspending the proceedings See Sec. 8, Rule 30 Said rule provides that the suspension of actions shall be governed by the provisions of the civil code Art. 2030 – every civil action or proceeding shall be suspended: if it appears that one of the parties before the commencement of the action have offered to discuss a possible compromise but the other party refused the offer

In light of the objectives of a pre-trial and the role of trial court therein, it is evident that judges have the discretion to exclude witnesses and other pieces of evidence not listed in the pre-trial brief, provide the parties are given prior notice to this effect.

Such other matters as may aid in the prompt disposition of the action: As held in DBP v. CA: While it is not reasonable to expect that a pre-trial will always result in the parties reaching agreement as to all matters specified in the rule,

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It is nonetheless certain that by it, the court can always bring about the prompt disposition of the action: (1) The simplification of issues; and (2) Such other matters as may aid in the prompt disposition of the action

2. B.

Good Faith is Required – the parties are obliged, not only to make formal identification and specification of the issues and of their proofs, but also and equally as peremptorily, to directly address and discuss with sincerity and candor and in entire good faith, each of the other subjects enumerated in Sec. 2, Rule 18 (Mercader v. DBP) PART THREE: PROCEEDINGS AFTER TERMINATION OF PRE-TRIAL SECTION 7 - Record of pre-trial.—The proceedings in the pretrial shall be recorded. Upon the termination thereof, the court shall issue an order which shall recite in detail the matters taken up in the conference; the action taken thereon, the amendments allowed to the pleadings, and the agreements or admissions made by the parties as to any of the matters considered. Should the action proceed to trial, the order shall explicitly define and limit the issues to be tried. The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice. (5a, R20) Breakdown of Provision A. The proceedings in the pre-trial shall be recorded B. Upon termination, court shall issue an order which shall recite in detail: 1. The matters taken up in the conference 2. The action taken thereon 3. The amendments allowed to the pleadings; and 4. The agreements or admissions made by the parties as to any of the matters considered C. Should the action proceed to trial, order shall explicitly define and limit the issues to be tried D. Contents of the order shall control the subsequent course of the action 1. Unless modified before trial to prevent manifest injustice GENERAL RULE: The contents of the pre-trial order shall control the subsequent course of the action UNLESS: 1. Modified before trial to prevent manifest injustice (Rule 18, Sec. 7) 2. Issues impliedly included therein or may be inferable therefrom by necessary implication (Velasco v. Apostol) 3. Amendment to conform to evidence (Rule 10, Sec. 5)

The Trial Judge 1. Shall issue a Pre-Trial Order a. Within 10 days after termination of pre-trial b. Order shall set forth: (1) Actions taken during pre-trial conference (2) Facts stipulated (3) Admissions made, evidence marked (4) Number of witnesses to be presented (5) Schedule of trial c. Effect of Order: (1) Shall bind the parties (2) Limit the trial to matters not disposed of (3) Control the course of the action during trial d. Court may opt to dictate the Order in open court in the presence of parties and their counsel and with the use of a computer, (1) He shall have the same immediately finalized and printed (2) Once finished, parties and/or their counsel shall sign the same to manifest conformity 2. Ask the parties to agree on specific trial dates for continuous trial in accordance with Circular No. 1-89, January 19, 2989 a. Adhere to the case flow chart determined by the court (1) Containing the different stages of the proceedings up to promulgation of decision (2) Use the same time frame for each stage in setting the trial dates b. One-Day Examination of Witness Rule to be followed (1) A witness has to be fully examined in one day only (2) Rule shall be strictly adhered to (3) Subject to the court’s discretion during trial on whether or not to extend the direct and/or cross-examination for justifiable reasons 3. On the last hearing day a. On the last hearing day allotted for each party, party is required to make his formal offer of evidence after presentation of his last witness and opposing party is required to immediately interpose his objection thereto b. Thereafter, judge shall make the ruling on the offer of evidence in open court c. Judge has the discretion to allow the offer of evidence in writing in conformity with Sec. 35, Rule 132

Contents of Pre-Trial Order – Circular No. 1-89 specifically mandates that the pre-trial order shall include the following: 1. A statement of the nature of the case 2. The stipulations or admissions of the parties, including testimonial and documentary evidence 3. The issues involved: (1) factual and (2) legal 4. Number of witnesses; and 5. The dates of trial

A party is deemed to have waived the delimitations in a pre-trial order if he failed to object to the introduction of evidence on an issue outside of the pre-trial order, as well as in cross-examining the witness in regard to said evidence. If trial is necessary, the judge shall fix the trial dates required to complete presentation of evidence by both parties within 90 days from date of initial hearing.

A pre-trial order has the presumption of veracity and that the judge who issued it is presumed to have performed his duty regularly and faithfully, in the absence of competent proof to the contrary. (Lao v. Maya)

Note: After pre-trial conference, Judge should not fail to prepare and issue the requisite pre-trial order which shall embody the matters mentioned in Sec. 7

Trial is Limited to Unresolved Issues 1. Pre-trial is primarily intended to make certain that all issues necessary to the disposition of a case are properly raised

Specific Rules under the Guidelines A.

Minutes signed by parties and/or their counsels

All proceedings during pre-trial shall be recorded 1. Transcripts prepared

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2.

3. 4.

5. 6.

To obviate surprise, parties are expected to disclose at a pre-trial conference all issues of law and fact which they intend to raise at trial  Except as may involve privileged or impeaching matters Determination of issues at pre-trial conference bars the consideration of other questions on appeal Where the case proceeded to trial, with petitioners actively participating therein without raising their objections to the pre-trial, they are bound by the stipulations at the pre-trial (Macaraeg v. CA) The petitioner should be bound by the delimitation of the issues during the pre-trial because he himself agreed to the same An order allowing the presentation of unnamed witnesses may no longer be modified during trial, without the consent of parties affected (Tiu v. Middletown)

3.

The rule that admissions made by parties during a pretrial conference and incorporated in pre-trial order are binding, is not without exception  “if, in order to prevent manifest injustice, the admissions made by parties during pre-trial were disregarded by lower court, we will not hold otherwise” (Sese v. IAC)

Preliminary Conference on Appeal Under Rule 48, Rules of the Court of Appeals, at any time during the pendency of a case, the Division concerned may call the parties and their counsel to a preliminary conference: 1. To consider the possibility of an amicable settlement, except when the case is not allowed by law to be the subject of compromise 2. To define, simplify, and clarify issues for determination 3. To formulate stipulations of facts and admissions of documentary exhibits, limit the number of witnesses to be presented in cases falling within the original jurisdiction of the Court or within its appellate jurisdiction, where a motion for new trial is granted on the ground of newly discovered evidence; and 4. To take up such other matters which may aid the court in the prompt disposition of the case

EXCEPTION: One exception is prescription As held in Gicano v. Gegato, trial courts have authority and discretion to dismiss an action on the ground of prescription when the parties’ pleadings or other facts of record show it to be indeed barred. What is essential only is that the facts demonstrating the lapse of the prescriptive period be otherwise sufficiently and satisfactorily apparent on the record either in the averments of the plaintiffs or otherwise established by evidence.

Procedure:  Proceedings in such conference shall be recorded  Upon conclusion, resolution shall issue embodying all actions taken, stipulations and admissions, issues  Resolution shall control all subsequent proceedings in the case, unless within 5 days from notice any party can satisfactorily show causes why the same should not be followed

However, note the holding in Villanueva v. CA, wherein the SC held that the fact that the case proceeded to trial, with the petitioners actively participating without raising the necessary objection, all the more requires that they be bound by the stipulations they made at pre-trial. Petitioners were well aware that they raised the defense of prescription and laches since they included it in their answer. Their failure to include it in the pre-trial bars the defense.

Jurisprudence: 1. The amendment of a pre-trial order is addressed to the sound discretion of the court (Gotico v. Leyte) 2. Where the amount of back rentals to be paid by defendant is stated in the pre-trial order in the nature of a compromise agreement thereon, said pre-trial order in that sense has the force of res judicata on that issue (M&M Management Aids, Inc. v. CA)

Another exception is intertwined and intimately connected issues. As held in Jimmy Co v. CA, the question of delay, though not specifically mentioned as an issue at pre-trial may be tackled by the court considering that it is necessarily intertwined and intimately connected with the principal issue agreed upon the parties. Another exception is Sec. 5, Rule 10 – Amendments to conform to evidence.  This section allows the trial of issues not raised in the pleadings but not objected to or tried with the express or implied consent of the parties, and permits an amendment of the pleadings to conform to the evidence

END OF RULE 18

Issues Not Disposed by Voluntary Agreement of the Parties 1. Issues for trial must be limited to those not disposed of by admissions or agreement 2. The court has no discretion to exclude from trial issues not resolved by voluntary agreement between parties To Prevent Manifest Injustice 1. Rules are not applied with rigidity; to prevent manifest injustice, some exceptions are admitted 2. A pre-trial order is not meant to be a detailed catalogue of each and every issue that is to be or may be taken up during trial  Issues that are impliedly included therein or may be inferable therefrom by necessary implication included

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NOTES ON RULE 18 PRE – TRIAL

NO SETTLEMENT

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

FAILURE TO APPEAR

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

AMICABLE SETTLEMENT

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

TRIAL

COURT RENDERS DECISION

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NOTES ON RULE 18

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WHO AND HOW

RULE 19 INTERVENTION

Who May Intervene: 1. One who has a legal interest in the matter in litigation; 2. One who has a legal interest in the success of either of the parties 3. One who has an interest against both parties; or 4. One who is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof.

Intervention -- a legal proceeding by which a third person is permitted by the court to become a party by intervening in a pending action after meeting the conditions and requirements set by the Rules. Intervention v. Interpleader INTERVENTION An ancillary action Proper in any of the four situations mentioned in Rule 19 The action is against either or both the original parties to the pending suit

Factors to be Considered by the Court: 1. Whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties; and 2. Whether or not the intervenor’s rights may be fully protected in a separate proceeding

INTERPLEADER An original action Presupposes that the plaintiff has no interest in the subject matter of the action or has an interest therein, which in whole or in part, is not disputed by the other parties to the action

How to Intervene a. With leave of court, the court shall consider the 2 factors b. Motion to intervene may be filed at any time before rendition of judgment by trial court c. Copy of the pleadings-in-intervention shall be attached to the motion and served on the original parties

Defendants are being sued precisely to implead them

Jurisprudence 1. While a share of stock represents a proportionate or aliquot interest in the property of the corporation, it does not vest the owner thereof with any legal right or title to any of the property, his interest in the corporate property being equitable or beneficial in nature (Saw v. CA) 2. A purchaser of property in involuntary sales did not acquire the property from their owners but adverse to them, he could expect no party in the pending suit to safeguard his interest. Hence, the necessity of allowing his intervention (Santiago Land Development v. CA)

SECTION 1 - Who may intervene.—A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor’s rights may be fully protected in a separate proceeding. (2[a], [b]a, R12) NATURE

Intervention Pro Interesse Suo – where the stranger desires to intervene for the purpose of asserting a right in the res which is the subject-matter of litigation, without becoming a formal plaintiff or defendant, and without acquiring control over the course of a litigation, which is conceded to the main action therein In equity procedure; analogous to the trial of a right of property in an action of law Purpose is to enable a person whose property gets into the clutches of a court, in a controversy between others, to go into court and to procure it or its proceeds to be surrendered to him E.g. a person who really owns property or has a superior lien or other interest, sees a litigation spring up between others who assert rights in or concerning it  Though the litigation may not be technically binding on him, because of his not being a party, yet it might well happen that complications would ensue whereby his rights would materially be prejudiced  Republic v. Sandiganbayan – a private party was allowed to intervene before the Sandiganbayan in a complaint filed with the Sandiganbayan against Marcos by the PCGG where it claims an interest in the property sequestered by the PCGG without asking for an affirmative relief but merely to unite with the defendants in resisting the claims of the PCGG

Right to Intervene is not an absolute right Procedure to secure the right to intervene is fixed by the statute or rule Intervention can be secured only in accordance with the terms of the applicable provision Under the Rules, intervention is addressed to the sound discretion of the court Intervention is never an independent proceeding but is ancillary and supplemental to an existing litigation. Hence, the final dismissal of the principal action results in the denial of a pending motion for intervention. EXCEPT: When intervention has been allowed and the complaint in intervention has already been filed before the plaintiff’s action had been expressly dismissed (Metro Bank v. RTC-Manila) Purpose – to afford one, not an original party, yet having a certain right or interest in the pending case, the opportunity to appear and be joined so he could assert or protect such right or interest. Meaning of Interest The interest must be actual and material, direct and immediate, and not simply contingent and expectant It must be in the matter in direct legal operation and effect of the judgment, the interest must be substantial and real “interest in the subject”= a direct interest in the cause of action as pleaded, and would put the intervenor in a legal position to litigate a fact alleged in the complaint without the establishment of which plaintiff could not recover

Cases where Intervention Not Allowed: 1. Owner of merchandise lost by reason of collision between two steamships may not be allowed to intervene in an action between the owners of the steamships for damages (Urrutia & Co. v. Baco Rubber Plantation)

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2. 3. 4.

5. 6. 7. 8.

A mere creditor who has a right to the property in litigation in a foreclosure writ cannot be allowed to intervene (HSBC v. Aldecoa & Co.) In an action upon a Promissory Note against a widow, the heir of her deceased husband has no legal interest (Garcia v. Davis) Reinsurer wanted to intervene in an action for indemnity filed by insured shippers of cargo against insurer. Intervention denied on the ground that it would unduly delay proceedings and intervenor can protect his rights in a separate action (Gibson v. Revilla) A person cannot intervene in an estate proceeding for failure to prove his adoption by the deceased (Lazatin v. Campos) In an action of the wife abandoned by her husband against the bank to cancel mortgage, the husband cannot intervene after final judgment (Peyer v. Martinez) Intervention was denied for want of sufficient showing that movant’s right cannot be fully protected in a separate proceeding (Mayuga v. Mayuga) Intervention was denied in proceedings under Act 3135 for the issuance of a writ of possession (GSIS v. CA)  Intervention not proper where there is no pending litigation  Proceeding under Sec. 7, Act 3135 is ex parte

2.

DISMISSAL OF THE ACTION, EFFECT ON MOTION

In Metrobank, the complaint-in-intervention survived and was allowed to proceed despite dismissal of main action a. Metrobank brought a replevin suit for recovery of aircon units installed in a building acquired by respondents. Airconditioning company was allowed to intervene and after its complaint-in-intervention was admitted and answers thereto were filed, the case went to trial. Prior thereto, Metrobank and building occupants went into a compromise agreement and dismissed the case. b. On motion of intervenor, order of dismissal was reconsidered and set aside. RTC allowed the filing of an amended complaint-in-intervention. Metrobank challenged the order c. SC denied Metrobank (See holding above). There was no final dismissal of the main case since the compromise and joint motion only affected their respective claims but cannot affect the rights of intervenor.  When an intervenor has become party to a suit, trial court cannot dismiss the intervention on the basis of a compromise, unless intervenor was party to the compromise  Since the complaint in intervention was filed before the plaintiff’s action had been expressly dismissed, the intervenor’s complaint was not subject to dismissal

On Estoppel As a rule, Intervention is optional (Cruzcosa v. Concepcion) But whether the failure to intervene may be deemed as waiver or estoppel depends on each case (Liguez v. CA) It is believed that where intervenor’s rights are interwoven in the pending case and he had due notice of the proceedings, he will be estopped from questioning the decision rendered therein through another action

Once Intervention is Allowed, Dismissal is Not Proper After intervenor has appeared in the action, plaintiff has no absolute right to put intervenor out of court by dismissal of the action Parties have no power to waive or otherwise annul the substantial rights of the intervenor Note the holding in Metro Bank v. RTC-Manila The simple fact that the trial court properly dismissed the plaintiff’s action does not require dismissal of the action for the intervenor An intervenor has the right to claim judgment; right cannot be defeated by dismissal of the suit by the plaintiff after filing the petition and notice to other parties The trial court’s dismissal of plaintiff’s action does not require the dismissal of the action of intervenor Where a complaint in intervention was filed before plaintiff’s action had been expressly dismissed, the intervenor’s complaint was not subject to dismissal on the ground that no action was pending, since dismissal of plaintiff’s action did not affect the rights of the intervenor or effect the dismissal of the complaint in intervention

DENIAL OF MOTION FOR INTERVENTION Effect of Denial – If motion to intervene is denied: He has no personality because he has not been allowed to intervene Intervenor no longer entitled to notice Movant did not become a party to the case Order of the court denying the intervention is not a decision on the merits of the case, and does not constitute res judicata Remedy from Denial 1. Appeal  Movant cannot appeal from the decision but only from the order denying the intervention 2. Mandamus  Ordinarily, mandamus will not prosper to compel a discretionary act  Movant must show manifest injustice or palpable excess of authority equivalent to denial of a settled right to which petitioner is entitled, writ shall issue

The Rulings in Barangay Matictic v. Elbinas and MetroBank v. Presiding Judge 1. In Matictic, it was held that the dismissal of the main case barred further action on intervention a. This was an expropriation case filed by the Municipality against private individuals. The Mayor decided to withdraw the case. The Barangay filed a motion for intervention. b. The RTC, without taking action on the motion for intervention, dismissed the case without prejudice, since it was filed without Presidential approval c. The SC ruled that the Barangay, a part of but a different political entity, cannot question the dismissal. The dismissal of the motion was unavoidable since the main action ceased to exist

Remedy from Improper Granting of Intervention – party may file a certiorari or prohibition case

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SECTION 2 -- Time to intervene.–The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (n) GENERAL RULE: The motion to intervene must be filed at any time before the rendition of judgment by the trial court After a rendition of judgment, a motion to intervene is barred, even if the judgment itself recognizes the right of the movant The remedy of movant is to file separate action EXCEPTIONS: 1. With respect to indispensable parties, intervention may be allowed even on appeal (Falcasantos v. Falcasantos) 2. When the intervenor is the Republic (Lim v. Pacquing) 3. Intervention may be allowed after judgment where necessary to protect some interest which cannot otherwise be protected, and for the purpose of preserving the intervenor’s right to appeal (Pinlac v. CA) SECTION 3- Pleadings-in-intervention.–The intervenor shall file a complaint-in-intervention if he asserts a claim against either or all of the original parties, or an answer-in-intervention if he unites with the defending party in resisting a claim against the latter. (2[c]a, R12) Complaint-in-Intervention – if the intervenor asserts a claim against either or all of the original parties Answer-in-Intervention – if the intervenor unites with the defendants in resisting a claim against the latter SECTION 4 - Answer to complaint-in-intervention.–The answer to the complaint-in-intervention shall be filed within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the court. (2[d]a, R12) Answer to a complaint-in-intervention = Within 15 days from notice of the order admitting the same UNLESS: different period is fixed by court As in the case of the filing of an amended or supplemental pleading with leave of court, leave of court to file a complaint-in-intervention is obtained by filing a motion for leave to file the pleading which is attached thereto If Court grants the motion, answer to the complaint-inintervention shall be filed within 15 days from notice of order admitting the same unless court fixes a different period

END OF RULE 19

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NOTES ON RULE 19

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C.

RULE 20 CALENDAR OF CASES

III.

SECTION 1 - Calendar of cases.–The clerk of court, under the direct supervision of the judge, shall keep a calendar of cases for pre-trial, for trial, those whose trials were adjourned or postponed, and those with motions to set for hearing. Preference shall be given to habeas corpus cases, election cases, special civil actions, and those so required by law. (1a, R22) The Clerk shall keep a calendar of cases for: 1. Pre-trial 2. Trial 3. Those whose trials were adjourned or postponed 4. Those with motions to set for hearing Preference shall be given to: 1. Habeas corpus cases; 2. Election cases 3. Special civil actions; and 4. Those so required by law Notes: -

This is to ensure a more efficient monitoring of cases for both supervision and reportorial purposes It is also the duty of the presiding judge to exercise direct supervision over those matters

IV.

SECTION 2 - Assignment of cases.–The assignment of cases to the different branches of court shall be done exclusively by raffle. The assignment shall be done in open session of which adequate notice shall be given so as to afford interested parties the opportunity to be present (7a, R22) Breakdown of Provision: 1. Assignment of cases to the different branches of a court shall be done exclusively by raffle 2. The assignment: a. Shall be done in open session b. Adequate notice shall be given so as to afford interested parties the opportunity to be present

V.

Note: Assignment of cases is required to be done exclusively by raffle Supreme Court Circ. No. 7, Sept. 23, 1974 laid down the rules for the filing of cases filed in the CFI: I.

II.

VI.

Raffling of Cases A. All cases filed with the court where there are 2 or more branches shall be assigned or distributed to different branches by raffle B. The raffle should be regularly conducted at the hour and on the day or days to be fixed by the Exec. Judge 1. Only the maximum number of cases as can be equally distributed to all the branches in the particular station or grouping shall be included in the raffle Notice A. Notice of the day and hour of raffle shall be posted prominently in the bulletin boards of the courts and at conspicuous place at main door of session hall B. Other notice may be sent to parties 1. As interest of justice may require 2. On request of any party and with prior approval of Exec. Judge

VII.

VIII.

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No special raffle of any case except on meritorious application in writing by any party and with approval of the Exec. Judge Manner of Raffling A. Raffle must be conducted at lawyer’s table in open court by the Exec Judge personally with the attendance of 2 other judges (or authorized representative) B. In stations where there are only 2 salas 1. Judges of both and either the Clerk should be present C. In the absence of Exec Judge, the Judge at the station who is the most senior in appointment shall personally conduct the raffle D. No raffle in the chambers E. The raffle proceedings 1. Should be stenographically recorded 2. Minutes prepared and signed by the judge and clerk in attendance F. After the raffle 1. Exec Judge shall indicate the particular branch to which the case is assigned 2. Written in words and in figures on the cover of the Rollo and on the first page of the original complaint or information 3. Initiated by the Exec Judge and the other 2 officers who attended said raffle G. The raffle must be conducted in such manner that all branches shall receive more or less the same number of civil, criminal, and other kinds of cases In Case of Urgent or Interlocutory Matters A. Such urgent nature that it may not wait for the regular raffle B. Interested party may request the Exec Judge in writing for a special raffle C. If request is granted and the special raffle is conducted 1. Case shall immediately be referred to the branch to which it corresponds D. Exec Judge shall have no authority to act on any incidental or interlocutory matter in any case not yet assigned to any branch by raffle Notice of the Result of the Raffle A. Copy of the minutes of the raffle proceedings showing the case numbers and branches shall be immediately posted on the bulletin boards of the Clerk and Exec Judge 1. Duly certified by the Exec Judge or Judge who conducted raffle, as well as by the 2 other Judges in attendance B. Copies thereof furnished to each branch of court Reassignment of Cases of Disqualified Judges A. Records shall be returned to the Exec Judge and case included in the regular raffle for re-assignment B. Another case, similar category to one re-assigned, shall be assigned by raffle to the disqualified or inhibiting judge as replacement Dismissed Cases A. If a dismissed case is re-filed 1. It shall not be included in the raffle 2. It shall be assigned to the branch to which the original case pertained B. If such case is raffled and assigned to another branch 1. The latter must transfer the case to the branch to which it originally belonged 2. Another case shall be assigned as replacement Pairing System A. Every branch shall be considered as paired with another branch

B.

C. D.

E.

In the event of vacancy in any branch, or absence of judge, all incidental and interlocutory matters pertaining to it may be acted upon by the judge of the other branch paired with it Latter may likewise conduct trials or hearings on merits in criminal cases with detention prisoners assigned to another branch as well as other kinds of cases Branch 1 paired with 2; 3 with 4; and so on 1. Any branch without a pair shall be paired with the branch presided by the Exec Judge in addition to the latter’s regular pair In case of vacancy of 2 pair branches, or prolonged absence of both presiding judges 1. Incidental and interlocutory matters shall be acted by the Exec Judge

Administrative Order No. 134-92 Re: Pairing System for Single Sala Stations A. In the event of vacancy in a single sala station, or absence or disability of the judge thereof, and no acting judge has yet been assigned 1. The clerk, upon request of party, shall refer any urgent matter requiring immediate action to the nearest presiding judge of the appropriate RTC or MTC with jurisdiction to act on the matter a. Such presiding judge is authorized to hear and resolve any urgent matters requiring immediate attention prior to the appointment of a new judge, return of the regular judge, or assignment of acting judge b. If nearest court is a multiple sala station, matter shall be referred to the Exec Judge B. Before making such referral, the clerk: 1. Shall certify that the station is vacant, or that the judge is absent or disabled, and no acting judge has been designated 2. Notify such referral to the: a. RTC Exec Judge with jurisdiction over the MTC Single Sala Station concerned; or b. Court Administrator of an RTC Single Sala Station C. The presiding judge shall act on all matters pertaining to the paired single sala station in the said station utilizing its personnel and facilities 1. Attendance shall be deemed to be on official business 2. However, if his travel to the paired single sala would cause delay, he may act in his own station D. If there are 2 or more single sala courts more or less equidistant from the court without a judge, referral made to: 1. Presiding judge most senior in station 2. If judges are of equal seniority, then to the presiding judge with the least number of pending cases

END OF RULE 20

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NOTES ON RULE 20

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SECTION 3 - Form and contents.—A subpoena shall state the name of the court and the title of the action or investigation, shall be directed to the person whose attendance is required, and in the case of a subpoena duces tecum, it shall also contain a reasonable description of the books, documents or things demanded which must appear to the court prima facie relevant. (3a, R23)

RULE 21 SUBPOENA Subpoena v. Summons SUBPOENA An order to appear and testify or to produce books and documents May be served to a non-party Needs tender of kilometrage, attendance fee and reasonable cost of production fee

SUMMONS

A Subpoena: 1. Shall state the name of the court and the title of the action or investigation 2. Shall be directed to the person whose attendance is required 3. In case of a subpoena duces tecum, shall contain a reasonable description of the books, documents, or things demanded which must appear to the court to be prima facie relevant

An order to answer complaint Served on the defendant Does not need tender of kilometrage and other fees

SECTION 1 - Subpoena and subpoena duces tecum.— Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him any books, documents, or other things under his control, in which case it is called a subpoena duces tecum. (1a, R23)

The SDT is, in all respects, like the ordinary SAT with the exception that it concludes with an injunction that the witness shall bring with him and produce at the examination the books, documents, or things described in the subpoena Before a subpoena duces tecum may issue, the court must first be satisfied that the following requisites are present: 1. The books, documents, or other things requested must appear prima facie relevant to the issue subject of the controversy (test of relevancy) 2. Such books must be reasonably described by the parties to be readily identified (test of definiteness)

Subpoena Ad Testificandum (SAT) – a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority or for the taking of his deposition Subpoena Duces Tecum (SDT) – a process directed to a person requiring him to bring with him books, documents, or other things under his control

In determining whether the production of the documents described in a SDT should be enforced, it is proper to consider the following: 1. Whether the subpoena calls for the production of specific documents, or rather for specific proof; and 2. Whether that proof is prima facie sufficiently relevant to justify enforcing its production

SECTION 2 - By whom issued.—The subpoena may be issued by— a) the court before whom the witness is required to attend; b) the court of the place where the deposition is to be taken; c) the officer or body authorized by law to do so in connection with investigations conducted by said officer or body; or d) any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines. When application for a subpoena to a prisoner is made, the judge or officer shall examine and study carefully such application to determine whether the same is made for a valid purpose. No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in any penal institution shall be brought outside the said penal institution for appearance or attendance in any court unless authorized by the Supreme Court. (2a, R23)

It is the duty of petitioner to prove, to the satisfaction of the court, the relevancy and definiteness of the books and documents he seeks to be brought before it. SECTION 4 - Quashing a subpoena.—The court may quash a subpoena duces tecum upon motion promptly made and, in any event, at or before the time specified therein if it is unreasonable and oppressive, or the relevancy of the books, documents or things does not appear, or if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. The court may quash a subpoena ad testificandum on the ground that the witness is not bound thereby. In either case, the subpoena may be quashed on the ground that the witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served. (4a, R23)

Who May Issue: 1. Court before whom the witness is required to attend 2. Court of the place where the deposition is to be taken 3. Officer or body authorized by law to do so in connection with investigations conducted by said officer or body; or 4. Any justice of the SC or of the CA, in any case or investigation pending within the Philippines

Quashing a Subpoena: A. SDT may be quashed upon: 1. Motion promptly made; AND 2. Proof that: a. It is unreasonable and oppressive b. The articles sought to be produced do not appear prima facie to be relevant to the issues; or c. The person asking for the subpoena does not advance the cost for the production of the articles desired

Note: Sec. 38(2), BP 129 – All processes issued by the MTC and MCTC in cases falling within their jurisdiction may be served anywhere in the Philippines without the necessity of certification by the judge of the RTC

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B.

SAT may be quashed on the ground: 1. That the witness is not bound thereby, or 2. That the witness fees and kilometrage allowed by the Rules were not tendered when subpoena was served

SECTION 7 - Personal appearance in court.—A person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued by such court or officer. (10, R23)

Note: In either case, the subpoena may be quashed for failure to tender the witness fees and kilometrage allowed by the Rules

Personal appearance – Sec. 7 GENERAL RULE: 1. The court which issued the subpoena may issue a warrant for the arrest of the witness and make him pay the cost of such warrant and seizure, if the court should determine that his disobedience was willful and without just cause (Sec. 8) 2. The refusal to obey a subpoena without adequate cause shall be deemed contempt of the court issuing it (Sec. 9)

Period to File Motion to Quash – at or before time specified in the subpoena SECTION 5 - Subpoena for depositions.—Proof of service of a notice to take a deposition, as provided in sections 15 and 25 of Rule 23, shall constitute sufficient authorization for the issuance of subpoenas for the persons named in said notice by the clerk of the court of the place in which the deposition is to be taken. The clerk shall not, however, issue a subpoena duces tecum to any such person without an order of the court. (5a, R23)

EXCEPTIONS: Provisions regarding the compelling of attendance (Sec. 8) and contempt (Sec. 9) do not apply where: 1. Witness resides more than 100km from his residence to the place where he is to testify by the ordinary course of travel (Viatory Right) and  This refers to civil cases only, not criminal 2. Permission of the court in which the detention prisoner’s case is pending was not obtained

Breakdown of Provision A. Proof of service of a notice to take deposition shall constitute sufficient authorization for the issuance of subpoenas for persons named in said notice 1. By the clerk in which the deposition is to be taken B. The clerk shall not issue a subpoena duces tecum to any such person without an order of the court

SECTION 8 - Compelling attendance.—In case of failure of a witness to attend, the court or judge issuing the subpoena, upon proof of the service thereof and of the failure of the witness, may issue a warrant to the sheriff of the province, or his deputy, to arrest the witness and bring him before the court or officer where his attendance is required, and the cost of such warrant and seizure of such witness shall be paid by the witness if the court issuing it shall determine that his failure to answer the subpoena was willful and without just excuse. (11, R23)

SECTION 6 - Service.—Service of a subpoena shall be made in the same manner as personal or substituted service of summons. The original shall be exhibited and a copy thereof delivered to the person on whom it is served, tendering to him the fees for one day’s attendance and the kilometrage allowed by these Rules, except that, when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof, the tender need not be made. The service must be made so as to allow the witness a reasonable time for preparation and travel of the place of attendance. If the subpoena is duces tecum, the reasonable cost of producing the books, documents or things demanded shall also be tendered. (6a, R23)

Breakdown of Provision A. In case of failure of witness to attend 1. Court or judge issuing the subpoena may issue a warrant a. Upon proof of service thereof and b. Of the failure of the witness 2. Warrant issued to the sheriff of the province, or his deputy, to arrest the witness and bring him before the court or officer where his attendance is required B. If the court issuing subpoena determines that his failure to answer was willful and without just cause 1. He shall pay the cost of such warrant and his seizure

Breakdown of Provision A. Service of subpoena 1. Shall be made in the same manner as personal or substituted service of summons 2. Original shall be exhibited 3. Copy thereof delivered to the person on whom it is served a. Tender to him the fees for one day’s attendance and the kilometrage allowed by the Rules (1) EXCEPT: when a subpoena is issued by or on behalf of the Republic or an officer or agency thereof, tender need not be made b. If SDT, reasonable cost of producing the books, documents, or things demanded shall also be tendered B. Service must be made so as to allow the witness a reasonable time for the preparation and travel to place of attendance

SECTION 9 - Contempt—Failure by any person without adequate cause to obey a subpoena served upon him shall deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule (12a, R23) Breakdown of Provision A. Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of court from which the subpoena is issued B. If subpoena was not issued by a court 1. Disobedience thereto shall be punished in accordance with the applicable law or rule

Note: Administrative Circular No. 4, Sept. 22, 1988 authorized service of subpoena by counsel or their representatives to insure service thereof and return of the same.

Examples of subpoenas not issued by a court 1. Subpoena issued by a fiscal or prosecutor – disobedience of which is punishable as contempt of court

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2.

Subpoena issued by a commissioner – disobedience thereto shall be punished as contempt of the court who appointed the commissioner

Relevant Laws: 1. Sec. 12, Rule 71 – Contempt against quasi-judicial entities – Unless otherwise provided by law, this Rule shall apply to contempt committed against persons, entities, bodies or agencies, exercising quasi-judicial functions, or shall have suppletory effect to such rules as they may have adopted pursuant to authority granted to them by law to punish for contempt. The RTC of the place wherein the contempt has been committed shall have jurisdiction over such charges as may be filed therefore. 2. Sec. 13, Book VII, 1987 Admin Code – Subpoena – In any contested case, the agency shall have the power to require the attendance of witnesses for the production of books, papers, documents, and other pertinent data, upon request of any party before or during the hearing upon showing of general relevance. Unless otherwise provided by law, the agency may, in case of disobedience, invoke the aid of the RTC within whose jurisdiction the contested case being heard falls. The Court may punish contumacy or refusal as contempt. SECTION 10 - Exceptions.—The provisions of sections 8 and 9 this Rule shall not apply to a witness who resides more than one hundred (100) kilometers from his residence to the place where he is to testify by the ordinary course of travel, or to a detention prisoner if no permission of the court in which his case is pending was obtained. (9a, R23) Note: This rule applies solely to civil cases.

END OF RULE 21

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NOTES ON RULE 21

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-

RULE 22 COMPUTATION OF TIME SECTION 1 - How to compute time.—In computing any period of time prescribed or allowed by these Rules, or by order the court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is to excluded and the date of performance included. If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working day. (n)

Last day included  Unless it is a Saturday, Sunday, or legal holiday a. In such case, the time shall run until the end of the next day which is neither a Saturday, Sunday nor a Holiday (1) Note that under the present rules, Saturday is included in the pretermission of holidays b. The period to perfect an appeal is extended ipso jure to the first working day immediately following

Note: Extension of time to file the required pleading should therefore be counted from the expiration of the period regardless of the fact that said due date is a Saturday

Breakdown of Provision A. In computing any period of time: 1. Day of the act or event from which the designated period of time begins to run is excluded 2. Date of performance included B. If last day of period falls on a Saturday, Sunday, or legal holiday in the place where the court sits 1. Time shall not run until the next working day

A.M. No. 00-2-14-SC A. Sec. 1, Rule 22 applies in the matter of filing of pleadings in courts when the due date falls on a Saturday, Sunday, or legal holiday 1. In which case, the filing of the said pleading on the next working day is deemed on time B. Question: If the period is extended ipso jure to the next working day immediately following where the last day of the period is a Saturday, Sunday, or legal holiday 1. So that when a motion for extension is filed, period of extension is to be reckoned from the next working day and not from the original expiration of the period C. The Court resolves: 1. Sec. 1, Rule 22 speaks only of the last day of the period a. So when a party seeks an extension and the same is granted, the due date ceases to be the last day b. Hence, the provision no longer applies 2. Any extension of time to file should be counted from the expiration of the period regardless of the fact that said due date is a Saturday, Sunday, or legal holiday

Note: First day excluded and last day included Art. 13, CC – When the law speaks of years, months, days or nights, it shall be understood that years are of 365 days each; months, of 30 days; days, of 24 hours; and nights from sunset to sunrise. If months are designated by their name, they shall be computed by the number of days which they respectively have. In computing a period, the first day shall be excluded, and the last day included. Since Rule 22 is based on the provisions of Art. 13, the meaning of the terms therein are also applicable A pleading filed on the last day of the reglementary period but after office hours is still considered reasonably filed if duly mailed (Caltex Phil. Inc. v. Katipunan Labor Union) Or is received by a person authorized to do so (De Chavez v. Ocampo)

SECTION 2 - Effect of interruption.—Should an act be done which effectively interrupts the running of the period, the allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof. The day of the act that caused the interruption shall be excluded in the computation of the period. (n)

Applicability of Rule 22 The rule refers to the computation of period of time It does not apply to a specific date fixed for the performance of an act It applies only when the period of time is prescribed by the Rules, by order of court, or by any applicable statute

Pretermission of Holidays Sec. 28, Rev. Admin. Code – Where the day, or the last day, for doing an act required or permitted by law falls on a regular holiday or special day, the act may be done on the next succeeding business day It was earlier held that the computation of the appeal period is to the effect that the first day shall be excluded but the last day of the period so computed is to be included  Unless it is a Sunday or a legal holiday a. In which event, the time shall run until the end of the next day which is neither a Sunday nor a holiday b. Note that the present rule includes Saturday in the pretermission of holiday

Rule 22 adopts the rule on pretermission of holidays – the exclusion of such holidays in the computation of the period, whenever the first 2 conditions stated in Sec. 1 are present In considering the application of the rule on pretermission of holidays: The 2nd sentence of Sec. 1 refers to the place where the court sits Note that some non-working holidays are applicable to and observed only in some particular places So, the method of computation under Rule 22 does not generally apply to the following cases: Those provided in a contract (Art. 1159) A specific date fixed for a court hearing or foreclosure sale Prescriptive (not reglementary) periods specifically provided by the RPC for felonies therein

Holidays (Sec. 26, Chap. 7, Book 1, Admin Code) A. Regular Holidays 1. New Year’s Day – Jan. 1 2. Maundy Thursday – Movable date 3. Good Friday – Movable date 4. Araw ng Kagitingan – April 19 5. Labor Day – May 1

E.g. Computation of the appeal periods First day excluded

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B. C.

6. Independence Day – June 12 7. National Heroes Day – Last Sunday of August 8. Bonifacio Day – Nov. 30 9. Christmas Day – Dec. 25 10. Rizal Day – Dec. 30 Nationwide Special Days 1. All Saints Day – Nov. 1 2. Last Day of the Year – Dec. 31 Sec. 27 – Local Special Days - The president may proclaim any local special day for a particular date, group or place

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Filing of Motion for New Trial Interrupts Period to Appeal

A party litigant may either: a. File his notice of appeal within 15 days from receipt of the RTC’s decision or b. File it within 15 days from receipt of the final order denying his motion for new trial or motion for reconsideration The new 15-day period may be waived only if either motion is filed Otherwise, the decision becomes final and executory after the lapse of the original appeal period provided in Rule 41, Sec. 3

When Pretermission of Holiday Applies The pretermission applies only where the day or the last day for doing any act, required or permitted by law, falls on a holiday or when the last day of a given period for doing an act falls on a holiday It does not apply to a day fixed by an office or officer of government for an act to be done E.g. 1. If a party is required by law to file his answer to a complaint within 15 days from receipt of summons, and the last day is a holiday, last day is deemed moved to the next succeeding, business day 2. But if the court fixes the trial of a case on a certain day bit said date is subsequently declared a public holiday, the trial thereof is not automatically transferred to the next succeeding business day

The filing of a proper motion for new trial interrupts the running period of appeal which begins to run again from receipt of notice by the movant of the order denying his motion. As held in Lloren v. de Veyra The party adversely affected has only the balance of the period within which to perfect his appeal Balance is the number of days remaining of the reglementary period after deducting the time during which the motion was pending If the motion for new trial was filed on the last day of the reglementary period, the movant may appeal within the day following the service on him of the order denying his motion Applying the ruling in Lloren: Where the MFR was filed on Sep. 13, the 15th day after petitioner received a copy of the court’s decision  Denial of motion was received Sep. 30 Then the last day to perfect appeal was on Oct. 1  Right to file the petition for review would have expired on Oct 1, not Sep. 30 When the petitioner asked for an extension of 15 days to file his petition for review,  The 15-day period no longer includes Oct .1 because that day was already given to him by Rule 41  The 15-day period is on top of Oct. 1  It starts on Oct. 1 and ends on Oct. 16

END OF RULE 22

NOTE: The foregoing rule NO LONGER HOLDS TRUE To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal, the Court en banc deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the RTC, counted from the receipt of order denying a motion for a new trial or motion for reconsideration This Fresh Period Rule shall also apply to: 1. Rule 40 – appeals from MTC to RTC 2. Rule 42 – petitions for review from RTC to the CA 3. Rule 43 – appeals from quasi-judicial bodies to CA 4. Rule 45 – appeals by certiorari to the SC This new rule aims to regiment or make the appeal period uniform Counted from the receipt of the order denying motion for new trial, motion for reconsideration, or any final order or resolution In summary: The fresh period of 15 days becomes significant only when a party opts to file a motion for new trial or motion for reconsideration

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NOTES ON RULE 22

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anticipated action or further proceedings in a case on appeal (Rule 24)

RULE 23 DEPOSITIONS PENDING ACTION

Note: In Discovery, evidentiary matters may be inquired into The undertaking of laying the facts before the court is accomplished by the pleadings; but these pleadings only set forth the ultimate facts Although a bill of particulars may be served to make a more definite statement, the office of the bill of particulars is limited to make more particular the ultimate facts of the pleading As such, evidentiary matters may be inquired into and learned by the parties before the trial through the deposition-discovery mechanisms set forth in Rule 24-29

DISCOVERY – a device employed by a party to obtain information about relevant matters on the case from the adverse party in the preparation for trial Purpose – to enable the parties to obtain the fullest possible knowledge of the issues and evidence long before the trial to prevent such trial from being carried on in the dark MODES OF DISCOVERY UNDER THE RULES 1. 2. 3. 4. 5. 6.

The various modes or instruments of discovery are meant to serve: 1. As a device, along with the pre-trial hearing under Rule 20 to narrow and clarify the basic issues between the parties 2. And as a device for ascertaining the facts relative to those issues

Depositions pending actions – Rule 23 Depositions before action or pending appeal – Rule 24 Interrogatories to parties – Rule 25 Admission by adverse party – Rule 26 Production or inspection of documents or thing – Rule 27 Physical and mental examination of persons – Rule 28

Dual Functions of Deposition 1. A method of discovery 2. A method of presenting testimony in lieu of oral open court testimony

Note: The modes of discovery are intended to be cumulative and not alternative or mutually exclusive Note: Discovery is not mandatory but failure to avail carries sanctions in Rules 25 and 26. Rule 29 provides for the legal consequences for the refusal of a party to comply with such modes of discovery lawfully resorted to by the adverse party

SECTION 1 - Depositions pending action, when may be taken.—By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action, without such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral examination or written interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21. Depositions shall be taken only in accordance with these Rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. (1a, R24)

Limitations to discovery: Relevancy and Privilege 1. When it can be shown that the examination is being conducted in bad faith or in such a manner as to annoy, embarrass, or oppress the person subject to the inquiry (See Sec. 16 and 18, Rule 23) 2. When the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege (Hickman v. Taylor)

Breakdown of Provision A. Deposition may be taken: 1. By leave of court – after jurisdiction has been obtained over any defendant or over property which is the subject of the action 2. Without leave of court – after an answer has been served B. Testimony of any person, whether a party or not, may be taken, at the instance of any party 1. By deposition upon oral examination or 2. By deposition upon written interrogatories C. Attendance of witnesses may be compelled by the use of subpoenas as provided in Rule 21 D. Deposition shall be taken only in accordance with Rules E. Deposition of a person confined in person may be taken only by leave of court on such terms as the court prescribes

DEPOSITIONS IN GENERAL Deposition – a written testimony of a witness given in the course of a judicial proceeding in advance of the trial or hearing upon oral examination or in response to written interrogatories and where an opportunity is given for cross-examination Depositions are different from Affidavits Affidavits are ex parte statements without formal interrogation and opportunity for cross-examination Affidavits are not admissible in evidence  EXCEPT in cases governed by the Rule on Summary Procedure or in ordinary cases subject to crossexamination Purpose of Depositions Intended as a means to compel disclosure of facts resting in the knowledge of a party or other person, which are relevant in a suit or proceeding

When Taken: A. With leave of court 1. After jurisdiction has been obtained over any defendant or over the property which is the subject of the action a. But BEFORE an answer has been served 2. Deposition of a person confined in prison B. Without leave of court 1. After answer has been served 2. Deponent is not confined in prison

Classification of Depositions 1. Depositions on oral examination and depositions upon written interrogatories 2. Depositions can also be: a. Depositions de bene esse – those taken for purposes of a pending action (Rule 23) b. Depositions in perpetuam rei memoriam – those taken to perpetuate evidence for purposes of an

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Note: An answer ex abudanti cautela (out of abundant caution or to be on the safe side) does not make an answer less of an answer Thus, when an answer ex abudanti cautela is filed, deposition may be made without leave of court

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Preliminary Step: Send notice of taking deposition This is done through a request for subpoena See Sec. 5, Rule 21 on Subpoena for Depositions Note that the following modes may be availed of without leave of court, and generally without court intervention after an answer to the complaint has been served: 1. Depositions under Rule 23 2. Interrogatories to parties under Rule 25 3. Requests for admissions under Rule 26

 Except those that are privileged Note that Sec. 2 generally allows the examination of a deponent: 1. Regarding any matter, not privileged which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party 2. As well as: a. The existence, description, nature, custody, condition and location of any books, documents, or other tangible things; and b. The identity and location of persons having knowledge of relevant facts

Broader meaning of relevancy Relevant is synonymous to germane The law contemplates examination, not only for use as evidence but also to discover information which may be useful in the preparation for trial Not limited by the rules of admissibility of evidence Relevancy of evidence sought at the taking of deposition should be determined at the trial and not with a motion to terminate or limit the examination  UNLESS it plainly appears in such motion that evidence can have no possible bearing on the issue

General Rule: Plaintiff may not be permitted to take depositions before answer is served Plaintiff must await the joinder of issues because if the discovery is to deal with matters relevant to the case, it is difficult to know exactly what is relevant until issues are developed Prior to the time of delineation of issues, matter is in the control of the court Exception: Depositions before answer Depositions before an answer should be granted only under special circumstances where the conditions point to the necessity of presenting a strong case for allowance of the motion There must be some “necessity” or “good reason” for taking the testimony immediately or that it would be prejudicial to the party seeking the order to be compelled to await joinder of issues Examples: If the witness is:  Aged or infirm  About to leave the court’s jurisdiction  Only temporarily in the jurisdiction When movant’s reason does not amount to exceptional or unusual case to grant leave of court to allow the depositions, the court may refuse leave to the taking of such before the answer

SECTION 3 - Examination and cross-examination .—Examination and cross-examination of deponents may proceed as permitted at the trial under sections 3 to 18 of Rule 132. (3a, R24) SECTION 4 - Use of depositions.—At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions: (a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness; (b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose; (c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and (d) If only part of a deposition is offered in evidence by a party; the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. (4a, R24)

SECTION 2 - Scope of examination.—Unless otherwise ordered by the court as provided by section 16 or 18 of this Rule, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. (2, R24) Scope of Examination in Depositions 1. Matter which is relevant to the subject of the pending action made by the pleadings or likely to arise under the pleadings 2. Not privileged 3. Under such limitations as the court may order under Sec. 16 and 18  Not restricted by a protective order The field of inquiry that may be covered by depositions or interrogatories is as broad as when the interrogated party is called as a witness to testify orally at trial Inquiry extends to all facts which are relevant  Ultimate and evidentiary

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Use of Depositions – the use of depositions depends on whether deponent is a party or not: 1. The depositions may be used for contradicting or impeaching the testimony of deponent not as proof of specific facts a. If deponent does not testify and is not a party, deposition cannot be used for this purpose 2. Deposition of an ADVERSE party may be used for any purpose  It may be used as an admission  A deposition cannot, however, be used in the trial of a case against a defendant who was not a party to the action when the deposition was taken 3. Deposition of a witness or party may be used for any purpose under the following circumstances: a. Witness is dead – there must be proof of death or presumption of death and that deposition was legally taken b. Non-residence of deponent – where it appears that the absence of deponent was procured by the party offering the deposition of the same cannot be received in evidence c. Disability of a witness – age, sickness, infirmity, or imprisonment. The certificate of the attending physician that the witness is in a precarious condition is sufficient d. Inability to procure attendance of witness by subpoena e. Exceptional circumstances

Remember: Depositions are not generally meant to be a substitute for the actual testimony in open court of a party witness The deponent must, as a rule, be presented for oral examination in open court at trial Any deposition offered to prove the facts therein at trial of the case, in lieu of actual testimony, may be opposed and excluded for being hearsay  Except those in specific instances authorized by the Rules and under particular conditions and for certain limited purposes

Five instances where deposition of any Witness may be used for ANY Purpose: 1. The witness is dead 2. The witness resides more than 100km from the place of trial or hearing, or is out of the Philippines.  UNLESS it appears that his absence was procured by the party offering the deposition 3. The witness is unable to testify because of age, sickness, infirmity, or imprisonment 4. The party offering the deposition has been unable to procure the attendance of the witness by subpoena, or 5. Upon application and notice, that such exceptional circumstances exist as to make it desirable in the interest of justice

SECTION 6 - Objections to admissibility.—Subject to the provisions of section 29 of this Rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. (6, R24)

SECTION 5 - Effect of substitution of parties.—Substitution of parties does not affect the right to use depositions previously taken; and, when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor. (5, R24) Breakdown of Provision A. Substitution of parties does not affect the right to use depositions previously taken B. When the action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors-ininterest, 1. All depositions lawfully taken and duly filed in former action may be used in the latter

Breakdown of Provision A. Objection may be made at the trial or hearing 1. To receiving in evidence any deposition or part thereof 2. For any reason which would require the exclusion of evidence if witness were then present and testifying B. Subject to Sec. 29 SECTION 7 - Effect of taking depositions.—A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. (7, R24)

Note: Where the witness is available to testify and the situation is not one of those excepted under Sec. 4, his deposition is inadmissible in evidence and he should be made to testify DEPONENT Any person A party or anyone who at the time of the deposition was an officer, director, or managing agent, of a public or private corporation or partnership, or association which is a party

SECTION 8 - Effect of using depositions.—The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition as described in paragraph (b) of section 4 of this Rule. (8, R24)

USE By any party for contradicting or impeaching the testimony of deponent as witness By an adverse party for any purpose

GENERAL RULE: A party shall not be deemed to make a person his own witness for any purpose by taking his deposition because depositions are taken for discovery and not for use as evidence

By any party for any purpose if the court finds the 5 instances occurring Note: Depositions can be used as evidence by a party (“for any purpose”) under the specific conditions in Sec. 4 Witness, whether or not a party

EXCEPTION: If a party offers the deposition in evidence, then he is deemed to have made the deponent his witness (Sec. 8) EXCEPTIONS TO THE EXCEPTION: (Sec. 8) 1. The deposition is that of an opposing party OR 2. The deposition is used to impeach or contradict the opponent

Note: Certiorari will not lie against an order admitting or rejecting a deposition in evidence. The remedy is an appeal from the final judgment. (This merely an error of law, not abuse of discretion)

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SECTION 9 - Rebutting deposition.—At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party. (9, R24)

SECTION 12 - Commission or letters rogatory.—A commission or letters rogatory shall be issued only when necessary or convenient, on application and notice, and on such terms and with such direction as are just appropriate. Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be addressed to the appropriate judicial authority in the foreign country. (12n, R24)

A party may rebut any relevant evidence contained in a deposition Whether introduced by him or by another party At the trial or hearing

Breakdown of Provision A. A commission or letters rogatory shall be issued: 1. Only when necessary or convenient 2. On application and notice 3. On such terms and with such direction B. Officers may be designated in notices or commissions either by name or descriptive title C. Letters rogatory may be addressed to the appropriate judicial authority in the foreign country

SECTION 10 - Persons before whom depositions may be taken within the Philippines.—Within the Philippines, depositions must be taken before any judge, notary public, on the person referred to in section 14 hereof. (10a, R24) SECTION 11 - Persons before whom depositions may be taken in foreign countries.—In a foreign state or country, depositions may be taken (a) on notice before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines; (b) before such person or officer as may be appointed by commission or under letters rogatory; or (c) the person referred to in section 14 hereof. (11a, R24)

Commission – an instrument issued by a court of justice, or other competent tribunal, to authorize a person to take depositions or do any other act by authority of such court or tribunal

Persons before whom depositions may be taken: A. Within the Philippines: 1. Judge 2. Notary Public, or 3. Any person authorized to administer oaths, as stipulated by the parties in writing B. Outside the Philippines 1. On notice before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Philippines 2. Before such person or officer as may be appointed by commission or under letter rogatory or 3. Any person authorized to administer oaths as stipulated by parties in writing

Letters Rogatory – an instrument sent in the name and by the authority of a judge or court to another, requesting the latter to cause to be examined, upon interrogatories filed in a case pending before the former, a witness who is within the jurisdiction of the judge or court to whom such letters are addressed COMMISSION Issued to a non-judicial foreign officer who will directly take the testimony Applicable rules of procedure are those of the requesting court

Leave of court is not necessary where the deposition is to be taken before a secretary of embassy or legation, consul general, consul, vice-consul or consular agent and the defendant’s answer has already been served The court intervenes only if a party moves: 1. To enlarge or shorten the time stated in the notice, or 2. Upon notice and for good cause shown, to prevent the deposition-taking, or impose conditions thereon

Resorted to if permission of the foreign country is given Leave of court is not necessary Addressed to officers designated either by name or descriptive title

While the deposition taking is a departure from the accepted and usual judicial proceedings of examining witnesses in open court where the demeanor could be observed by judge, the procedure is not on that account rendered illegal nor is the deposition taken inadmissible It precisely falls within one of the exceptions where the law permits such situation  The use of deposition in lieu of actual appearance and testimony of the deponent in open court Depositions are allowed provided that the deposition is taken in accordance with the applicable provisions of the Rules and the existence of any of the exception for its admissibility is first satisfactorily established

LETTERS ROGATORY Issued to the appropriate judicial officer of the foreign country who will direct somebody in said foreign country to take down testimony Applicable rules of procedure are those of the foreign court requested to act Resorted to if the execution of the commission is refused in the foreign country Leave of court is necessary Addressed to some appropriate judicial authority in the foreign state

Where the deposition is to be taken in a foreign country where the Philippines has no secretary of embassy, or legation, consul general, consul, vice-consul, or consular agent: Then it may be taken only before such person or officer as may be taken only before such person or officer as may be appointed by commission or under letters rogatory Commission A person in a foreign country is appointed as Commissioner to examine witnesses residing therein Foreign countries will not, however, compel the attendance of witnesses before commissioners appointed by our courts If the witness cooperates and appears voluntarily, the examination may be held If witnesses refuse to appear  The commission must be aborted  Hence, resort to letters rogatory with information to the foreign court that a similar request in the future will be honored

The Rules vests in the trial court the discretion to order whether a deposition may be taken or not under specified circumstances that may even differ from those the proponents have in mind It is well-settled that this discretion is not unlimited  It must be exercised in a reasonable manner and in consequence with the spirit of the law, to the end that its purpose may be attained

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Letters Rogatory Formal communication from a domestic court in which an action is pending to a foreign court requesting that the testimony of a witness residing in such foreign jurisdiction be taken under the direction of the court addressed and transmitted to the court making the request There must be a showing that Commission is inadequate or ineffective Note that letters rogatory may be applied for and issued only after a commission has been returned unexecuted

The rules provide adequate safeguards to ensure the reliability of depositions: 1. Notice requirements (Sec. 15, 21, 25, and 27) 2. Orders for the protection of parties and deponents (Sec. 16 and 28) 3. Recording of the examination (Sec. 17 and 26) 4. Motion to terminate or limit the examination (Sec. 18) 5. Certification by deposition officer (Sec. 20) The right to object to their admissibility is retained by the parties As a rule, depositions should be allowed, absent any showing that the taking would prejudice any party

SECTION 13 - Disqualification by interest.—No deposition shall be taken before a person who is a relative within the sixth degree of consanguinity or affinity, or employee or counsel of any of the parties; or who is a relative within the same degree, or employee of such counsel; or who is financially interested in the action. (13a, R24)

SECTION 16 - Orders for the protection of parties and deponents.— After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and for good cause shown, the court in which the action is pending may make an order that the deposition shall not be taken, or that it may be taken only at some designated place other than that stated in the notice, or that it may be taken only on written interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel, or that after being sealed the deposition shall b opened only by order of the court, or that secret processes developments, or research need not be disclosed, or that the parties shall simultaneously filed specified documents or information enclosed in sealed envelope to be opened as directed by the court; or the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. (16a, R24)

No deposition shall be taken before a person who is: 1. A relative within the 6th degree of affinity or consanguinity 2. An employee or counsel of any of the parties 3. A relative within the same degree or employee of such counsel 4. Financially interested in the action SECTION 14 - Stipulations regarding taking of depositions.—If the parties so stipulate in writing, depositions may be taken before any person authorized to administer oaths, at any time or place, in accordance with these Rules, and when so taken may be used like other depositions. (14a, R24)

Breakdown of Provision A. After notice is served for taking a deposition by oral examination B. Upon motion seasonably made by any party or by the person to be examined and for good cause shown C. The court in which the action is pending may make an order: 1. That the deposition shall not be taken; or 2. That it may be taken only at some designated place other than that stated in the notice; or 3. That it may be taken only in written interrogatories; or 4. That certain matters shall not be inquired into; or 5. That the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel; or 6. That after being sealed, the deposition shall be opened only by order of the court, or that secret processes, developments, research need not be disclosed; or 7. That the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or 8. The court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment or oppression

Breakdown of Provision A. If the parties so stipulate in writing, depositions may be taken before any person authorized to administer oaths 1. At any time or place 2. In accordance with the Rules B. When so taken, may be used like other depositions Note: Whether the deposition is to be taken in the Philippines or in a foreign country, Sec. 14 applies SECTION 15 - Deposition upon oral examination; notice; time and place.—A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is at known, a general description sufficient to identify him or the particular class or group to which he belongs. On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time. (15, R24) Breakdown of Provision A. A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action B. The notice shall: 1. State the time and place for taking deposition 2. State the name and address of each person to be examined, if known a. If not known, a general description sufficient to identify him or the particular class or group to which he belongs C. On motion of any party upon whom notice is served, the court may for cause shown enlarge or shorten the time

Note: Sec. 16 refers to protective orders before taking of deposition. For protective orders during taking of deposition, see Sec. 18 The right to take oral examination is not absolute Court possesses certain measures of control over the right of parties in taking deposition in order to prevent abuse The provision vests in the court the power to order that the deposition shall not be taken  This grant connotes the authority to exercise discretion in connection therewith

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However, the discretion is not unlimited  It must be exercised in a reasonable manner  In consonance with the spirit of the law  To the end that its purpose may be attained

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Officer has no authority to rule on objections Refusal of witness to answer at peril of being adjudged in contempt

Objections interposed do not prevent deponent from answering questions. Exceptions: 1. When questions are annoying, embarrassing, or oppressive to deponent – the matter may be submitted to the trial judge for a ruling 2. When constitutional privilege against selfincrimination is invoked by deponent or by counsel in his behalf – trial court may stay the question

Requisites 1. Motion by party or person to be examined 2. Motion seasonably filed 3. There is good cause shown 4. Notice of motion served to other party Note: It is only upon notice and for good cause shown that the court may order that the deposition shall not be taken How Good Cause is shown: 1. Good cause means a substantial reason – one that affords a substantial excuse  Particular and specific demonstration of facts, as distinguished from conclusory statements 2. Availability of proposed deponent to testify in court does not constitute good cause to justify the court’s order that his deposition shall not be taken 3. Allegation that petitioner merely intended to annoy, harass, or oppress the proposed deponent cannot ably support the setting aside of a notice to take deposition in the absence of proof 4. Inconvenience to the party whose deposition is to be taken is not valid objection

Failure of Party to Attend or Serve Answers – if a party or an officer or managing agent of a party willfully fails to appear before the officer who is to take his deposition, after being served with proper notice, the court on motion and notice may: 1. Strike out all or any part of any pleading of that party 2. Dismiss the action or proceeding, or any part thereof 3. Enter a judgment by default against that party 4. In its discretion, order him to pay reasonable expenses incurred by the other, including attorney’s fees Consequences of Refusal to Answer 1. Under Rule 29, if a party or other deponent refuses to answer any question upon oral examination:  The examination may be completed on other matters  Or adjourned as the proponent of the question may prefer 2. The proponent may thereafter apply to the proper court, for an order to compel an answer  The same procedure may be availed of when a party or a witness refuses to answer any interrogatory submitted under Rule 23 or 25 3. If application is granted: a. Court shall require refusing party or deponent to answer the question or interrogatory b. If it finds that the refusal to answer was without substantial justification, it may require the refusing party or deponent or counsel advising refusal, or both, to pay the proponent of the amount of reasonable expenses incurred in obtaining the order, including attorney’s fees 4. If application is denied a. If court finds that it was filed without substantial justification, the court may require the proponent or counsel advising the filing, or both, to pay the refusing party or deponent the amount of reasonable expenses incurred in opposing the application, including attorney’s fees 5. If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court, refusal may be considered a contempt of that court

SECTION 17 - Record of examination; oath; objections.— The officer before whom the deposition is to be taken shall put the witness or oath and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically unless the parties agree otherwise. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim. (17, R24) Breakdown of Provision A. The officer before whom deposition is to be taken shall: 1. Put the witness on oath 2. Personally, or by someone acting under his direction and in his presence, record the testimony of the witness B. Testimony shall be taken stenographically 1. UNLESS the parties agree otherwise C. All objections made at the time of examination shall be noted by the officer upon deposition. Objections such as: 1. To the qualifications of the officer taking the deposition 2. To the manner of taking it 3. To the evidence presented 4. To the conduct of any party 5. And any other objection to the proceedings D. Evidence objected to shall be taken subject to the objections E. In lieu of participating in the oral examination, parties served with notice of taking deposition may transmit written interrogatories to the officers 1. The officers shall propound them to the witness and record the answers verbatim

Other consequences: If any party or an officer or managing agent of a party refuses to obey an order made under Sec.1 of this Rule, requiring him to answer designated questions, the court may make such orders in regard to the refusal as are just, and among others the following: 1. An order that the matters regarding which the questions were asked, shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order 2. An order refusing to allow the disobedient party to support or oppose designated claims or defenses or

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prohibiting him from introducing in evidence designated documents or things or items of testimony An order striking out pleadings or parts thereof, or staying further proceedings until order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; and In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party disobeying any of such orders The case may also be dismissed with prejudice – See Sec. 3, Rule 17 on effects of failure to comply with the order of the Court

Protection Order under v. Motion to Terminate or Limit PROTECTION ORDER Sec. 16 Provides protection to the party or witness BEFORE taking deposition Motion is filed with the court in which the action is pending

MOTION TO TERMINATE OR LIMIT EXAMINATION; Sec. 18 Provides such protection DURING the taking of deposition Motion or petition is filed in the court in which the action is pending OR the RTC of the place where the deposition is being taken

Note: when the constitutional privilege against self-incrimination is invoked by deponent or counsel, trial court may stop the examination to protect the deponent’s constitutional right

SECTION 18 - Motion to terminate or limit examination.—At any time during the taking of the deposition, on motion or petition of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner, as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the Regional Trial Court of the place where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition, as provided in section 16 of this Rule. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable. (18a, R24)

SECTION 19 - Submission to witness; changes; signing.—When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason given therefor, if any, and the deposition may then be used as fully as though signed, unless on a motion to suppress under section 29 (f) of this Rule, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. (19a, R24)

Breakdown of Provision A. The court may order the officer conducting the examination to cease from taking the deposition, or may limit the scope and manner of taking, as provided in Sec. 16 1. The court: a. In which the action is pending; OR b. The RTC of the place where the deposition is being taken 2. At any time during the taking of deposition 3. On motion or petition of: a. Any party or b. Of the deponent 4. And upon a showing that the examination is being conducted: a. In bad faith b. Or in such a manner as unreasonably to annoy, embarrass or oppress the deponent or party B. If the order made terminates the examination, it shall be resumed thereafter 1. ONLY upon the order of the court in which the action is pending C. Taking of deposition shall be suspended for the time necessary to make a notice for an order 1. UPON demand of the objecting party or deponent D. In granting or refusing such order, court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable

Breakdown of Provision A. When deposition is fully transcribed: 1. Deposition shall be: a. Submitted to the witness for examination; and b. Read to or by him 2. UNLESS such examination and reading are waived by the witness and by the parties B. Changes in form or substance which witness desires to make 1. Shall be entered upon the deposition by the officer 2. With a statement of the reasons given by the witness for making them C. The deposition shall then be signed by the witness 1. UNLESS: a. The parties by stipulation waive the signing; or b. The witness is ill or cannot be found or refuses to sign D. If deposition is NOT signed by the witness: 1. The officer shall: a. Sign it b. And state on record the fact of the waiver, or illness, or absence, or refusal of witness to sign c. Together with the reason given therefor, if any 2. The deposition may then be used as fully as though signed a. UNLESS on a motion to suppress under Sec. 29 (f), the court holds that the reasons given for refusal to sign require rejection of the deposition in whole or in part

Motion to terminate of limit examination may be filed: 1. Any time during the taking of the deposition 2. On motion or petition of any party or of the deponent; and 3. Upon showing that the examination is conducted in: a. Bad faith; b. In such manner as unreasonably to annoy, embarrass, or oppress the deponent or party

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SECTION 20 – Certification and filing by officer – The officer shall certify on the deposition that the witness was duly sworn to by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope indorsed with the title of the action and marked “Deposition of (here insert the name of witness” and shall promptly file it with the court in which the action is pending or send it by registered mail to the clerk thereof for filing, (20, R24)

SECTION 25 - Deposition upon written interrogatories; service of notice and of interrogatories.—A party desiring to take the deposition of any person upon written interrogatories shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and the name of descriptive title and address of the officer before whom the deposition is to be taken. Within ten (10) days thereafter, a party so served may serve cross-interrogatories upon the party proposing to take the deposition. Within five (5) days thereafter, the latter may serve re-direct interrogatories upon a party who has served cross-interrogatories. Within three (3) days after being served with re-direct interrogatories, a party may serve recrossinterrogatories upon the party proposing to take the deposition. (25, R24)

SECTION 21 - Notice of filing.—The officer taking the deposition shall give prompt notice of its filing to all the parties. (21, R24) SECTION 22 - Furnishing copies.--Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent. (22, R24)

Breakdown of Provision A. A party desiring to take the deposition of any person upon written interrogatories: 1. Shall serve them upon every other party with a notice 2. Notice shall state: a. The name and address of the person who is to answer them; and b. The name or descriptive title and address of officer before whom the deposition is to be taken B. Within 10 days thereafter – party served may serve crossinterrogatories upon party proposing to take deposition C. Within 5 days thereafter – latter may serve re-direct interrogatories upon a party who has served crossinterrogatories D. Within 3 days after being served with re-direct interrogatories – party may serve recross-interrogatories upon the party proposing to take deposition

Breakdown of Provisions (Sec. 20, 21, and 22) A. The officer shall certify on the deposition that: 1. The witness was duly sworn to by him 2. The deposition is a true record of the testimony given by witness B. The officer shall then securely seal the deposition in an envelope 1. Envelope indorsed with the tile of the action 2. Marked “Deposition of (here insert name of witness) C. The officer shall: 1. File it with the court in which the action is pending; or 2. Send it by registered mail to the clerk thereof for filing D. The officer shall give prompt notice of its filing to all parties E. The officer shall furnish a copy of the deposition to any party or deponent 1. Upon payment of reasonable charges therefor

Note: there is no express requirement that the notice state the time and place for taking the deposition

SECTION 23 - Failure to attend of party giving notice.—If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another attends in person or by counsel pursuant to the notice, the court may order the party giving the notice to pay such other party the amount of the reasonable expenses incurred by him and his counsel in so attending including reasonable attorney’s fees. (23a, R24)

SECTION 26 - Officers to take responses and prepare record.— A copy of the notice and copies of all interrogatories served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by sections 17, 19 and 20 of this Rule, to take the testimony of the witness in response to the interrogatories and to prepare, certify, and filed or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him. (26, R24)

SECTION 24 - Failure of party giving notice to serve subpoena.— If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness because of such failure does not attend, and if another party attends in person or by counsel because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the amount of the reasonable expenses incurred by him and his counsel in so attending including reasonable attorney’s fees. (24a, R24)

Breakdown of Provision A. Copy of the notice and copies of all interrogatories served shall be delivered by party taking the deposition to the officer designated in the notice B. The said officer: 1. Shall proceed promptly, in the manner provided by Sec. 17, 19, and 20 2. To take the testimony of the witness in response to the interrogatories 3. To prepare, certify, and file or mail the deposition a. Attaching thereto the copy of the notice and interrogatories served by him

Breakdown of Provisions (Sec. 23 and 24) A. Court may order the party giving the notice to pay such other party the amount of reasonable expenses incurred by him and his counsel in so attending including attorney’s fees: 1. If party giving notice of deposition fails to attend and proceed therewith a. And another attends in person or by counsel pursuant to the notice 2. If party giving notice of deposition of a witness fails to serve subpoena upon him a. And the witness because of such failure does not attend b. And if another party attends in person or by counsel because he expects the deposition of that witness to be taken

Note: There is a right to cross-examine orally even if examination is based on written interrogatories

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SECTION 27 - Notice of filing and furnishing copies.—When a deposition upon interrogatories is filed, the officer taking it shall promptly give notice thereof to all the parties, and may furnish copies to them or to the deponent upon payment of reasonable charges therefor. (27, R24)

questions or answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind which might be obviated, removed, or cured if promptly prosecuted, are waived unless reasonable objection thereto is made at the taking of the deposition. (e) As to form of written interrogatories.—Objections to the form of written interrogatories submitted under sections 25 and 26 of this Rule are waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within three (3) days after service of the last interrogatories authorized. (f) As to manner of preparation.—Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under sections 17, 19, 20 and 26 of this Rule are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. (29a, R24)

Breakdown of Provision A. When a deposition upon interrogatories is filed, the officer taking it: 1. Shall promptly give notice thereof to all parties 2. May furnish copies to them to deponent upon payment of reasonable charges therefor SECTION 28 - Orders for the protection of parties and deponents.— After the service of the interrogatories and prior to the taking of the testimony of the deponent, the court in which the action is pending, on motion promptly made by a party or a deponent, and for good cause shown, may make any order specified in sections 15, 16 and 18 of this Rule which is appropriate and just or an order that the deposition shall not be taken before the officer designated in the notice or that it shall not be taken except upon oral examination. (28a, R24)

Effect of Errors and Irregularities in Depositions Error and Irregularities

Breakdown of Provision A. The court in which the action is pending may make any order 1. After service of the interrogatories and prior to the taking of testimony of deponent 2. On motion promptly made by a party or deponent and for good cause shown B. The order: 1. Any order specified in Sec. 15, 16, and 18 which is appropriate and just; or 2. An order that the deposition shall not be taken before the officer designated in the notice; or 3. An order that it shall not be taken except upon oral examination Notes: -

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As to notice for taking depositions Objection to taking deposition because of disqualification of officer before whom it is to be taken Objection to the competency of a witness or competency or relevancy or materiality of testimony

A motion to the court for the protection order to terminate or limit provided in Sec. 18 may not be made by a party after taking of deposition upon written interrogatories began Permission to cross-examine orally is allowable

Occurring at oral examination and other particulars

SECTION 29 - Effect of errors and irregularities in depositions.— (a) As to notice.—All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice. (b) As to disqualification of officer.—Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. (c) As to competency or relevancy of evidence.—Objections to the competency of a witness or the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time. (d) As to oral examination and other particulars.—Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the

Objections to the form of written interrogatories under Sec. 25 and 26 In the manner in which testimony is transcribed or in the preparation under Sec. 17, 19, 20, and 26

Effect Waived Unless written objection is promptly served upon party giving notice Waived Unless made: 1. Before taking of deposition begins or 2. As soon thereafter as disqualification becomes known or could be discovered with reasonable diligence Not waived by failure to make them before or during the taking of deposition Unless the ground of the objection is one which might have been obviated or removed if presented at that time In the manner of taking, in the form of questions or answers, in the oath or affirmation, or in conduct of parties and errors of any kind which might be obviated or removed if promptly prosecuted are waived Unless reasonable objection thereto is made at the time of taking the deposition Waived Unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within 3 days after service of last interrogatories authorized Waived Unless motion to suppress depositions or some part thereof is made with reasonable promptness after such defect is ascertained, or with due diligence might have been ascertained

Errors and irregularities which are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained are those which refer to:

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1. 2. 3. 4. Notes: -

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Record of examination; oath; objections Submission to witnesses; changes; signing (Sec. 19) Certification and filing by officer (Sec. 20) Officers to take responses and prepare record (Sec. 26) Deposition not signed does not preclude its use during trial  Deponent’s signature to deposition is not in all events indispensable since presence of signature goes primarily to the form of deposition Requirement that deposition must be examined and signed by witness is only:  To ensure that deponent is afforded opportunity to correct any errors contained therein  To ensure its accuracy The admissibility of the deposition does not preclude the determination of its probative value at the appropriate time  Admissibility of evidence is not the same as weight of evidence  Admissibility – depends of its relevance and competence  Weight – pertains to evidence already admitted and its tendency to convince and persuade

The deposition-discovery rules are to be accorded a broad and liberal treatment and the liberty of a party to make discovery is a well-nigh unrestricted if the matters inquired into are otherwise relevant and not privileged, and the inquiry is made in good faith, and within the bounds of the law

END OF RULE 23

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Breakdown of Provision A. The petition shall be entitled in the name of petitioner B. The petition shall show: 1. That petitioner expects to be a party to an action in a Philippine court but is presently unable to bring it or cause it to be brought 2. The subject matter of the expected action and his interest therein 3. The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it 4. The names of a description of the persons he expects will be adverse parties and their addresses so far as known 5. The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each C. The petition shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony

RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL A deposition before action and a deposition pending appeal are referred to as perpetuation of testimony (perpetuam rei memoriam) because their objective is to perpetuate the testimony of a witness for future use. The depositions under Rule 24: Also taken conditionally, to be used at trial only in case deponent is not available Do prove the existence of any right and the testimony perpetuated is not in itself conclusive proof, either of the existence of any right or even of the facts to which they relate  It can be controverted during trial in the same manner as though no perpetuation of testimony was ever had

Note: The petition shall be: Verified Filed in the place of residence of any expected adverse party And contains the matters set forth in Sec. 2

However, in the absence of any objection to its taking, and even if the deponent did not testify at the hearing, the perpetuated testimony constitutes prima facie proof of facts referred to in the deposition. SECTION 1 - Depositions before action; petition.—A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines, may file a verified petition in the court of the place of the residence of any expected adverse party. (1a, R134)

SECTION 3 - Notice and service.—The petitioner shall serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty (20) days before the date of the hearing, the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. (3a, R134)

Breakdown of Provision A. A person who desires to perpetuate his own testimony or that of another person 1. Regarding any matter that may be cognizable by any Philippine court 2. May file a verified petition a. In the court of the place of the residence of any expected adverse party

Breakdown of Provision A. The petitioner shall serve a notice upon each person named in the petition as an expected adverse party 1. Together with a copy of the petition 2. Stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition B. At least 20 days before the date of hearing 1. The court shall cause notice thereof to be served on the parties and prospective deponents in the manner provide for service of summons

A petition may be filed by any person: 1. Who wants to perpetuate his own testimony; or 2. Who wants to perpetuate the testimony of another person Note: this may be availed of only in civil cases, not criminal E.g.: The petitioner has a cause of action which has not yet accrued. In such a case, inasmuch as he cannot bring the action until the cause of action accrues, he may perpetuate his testimony of that of another person

SECTION 4 - Order and examination.—If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with Rule 23 before the hearing. (4a, R134)

SECTION 2 - Contents of petition.—The petition shall be entitled in the name of the petitioner and shall show: (a) that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought; (b) the subject matter of the expected action and his interest therein; (c) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; (d) the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and (e) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony. (2, R134)

Breakdown of Provision A. If the court is satisfied that the preparation of the testimony may prevent a failure or delay of justice 1. It shall make an order designating or describing the persons whose depositions may be taken 2. Specifying: a. The subject matter of examination

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B.

And whether the depositions shall be taken upon oral examination or written interrogatories The depositions may then be taken in accordance with Rule 23 before hearing

2. B.

SECTION 5 - Reference to court.—For the purpose of applying Rule 23 to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed. (5a, R134) C.

Breakdown of Provision A. For purposes of applying Rule 23 to depositions for perpetuating testimony 1. Each reference therein to the court in which the action is pending a. Shall refer to the court in which the petition for such deposition was filed

To perpetuate their testimony for use in the event of further proceedings in said court In such case the party who desires to perpetuate their testimony may make a motion in the said court for leave to take depositions 1. Upon the same notice and service thereof as if the action was pending therein 2. The motion shall state: a. Names and addresses of persons to be examined and the substance of the testimony which he expects to elicit from each and b. The reason for perpetuating their testimony If the court finds that perpetuation of their testimony is proper to avoid a failure or delay of justice 1. It may make an order allowing the depositions to be taken 2. And thereupon, depositions may be taken and used in the same manner and under the same conditions as prescribed in Sec. 23

Note: Depositions are taken pending appeal with the view of their being used in the event of further proceedings in the court of origin or appellate court

SECTION 6 - Use of deposition.—If a deposition to perpetuate testimony is taken under this Rule, or if, although not so taken, it would be admissible in evidence, it may be used in any action involving the same subject matter subsequently brought in accordance with the provisions of sections 4 and 5 of Rule 23. (6a, R134)

E.g.: A party may perpetuate the testimony of a witness which was objected by the adverse party and ruled out by the court If appellate court should reverse the decision or order of lower court, it could: 1. Admit the deposition as additional evidence or 2. Remand the case back to the lower court for such admission in accordance with Sec. 4 and 5 of Rule 23

Breakdown of Provision A. If: 1. A deposition to perpetuate testimony is taken under this Rule; or 2. Although not so taken, it would be admissible in evidence B. It may be used in any action involving the same subject matter subsequently brought in accordance with the provisions of Sec. 4 and 5 of Rule 23

Note: Under Sec. 6, Rule 25, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal UNLESS thereafter allowed by court for good cause shown and to prevent a failure of justice Sec. 1 is the procedure for perpetuating testimony of witnesses PRIOR to the filing of the case and in anticipation thereof

Note: If deposition is taken under this Rule, it may be used in any action involving the same subject matter subsequently brought

Sec. 7 is the procedure in perpetuating testimony after judgment in the RTC and before it has become executory or during the pendency of an appeal therefrom

SECTION 7 - Depositions pending appeal.—If an appeal has been taken from a judgment of a court, including the Court of Appeals in proper cases, or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall state (a) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each; and (b) the reason for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these Rules for depositions taken in pending actions. (7a, R134)

END OF RULE 24

Breakdown of Provision A. If an appeal has been taken from a judgment of a court, including the CA in proper cases, or before the taking of an appeal if the time thereof has not expired 1. The court in which the judgment was rendered may allow the taking of depositions of witnesses

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RULE 25 INTERROGATORIES TO PARTIES

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Purpose of Written Interrogatories – To elicit facts from any adverse party (answers may also be used as admission of the adverse party) Written interrogatories and the answers thereto must both be filed and served  Hence, the answers may constitute as judicial admissions (Sec. 4, Rule 129)

Remember: A party may serve written interrogatories: 1. Without leave of court – after answer has been served, for the first set of interrogatories 2. With leave of court – before answer has been served  Since the issues are not yet joined and the disputed facts not yet clear

DISTINCTIONS INTERROGATORIES A party may properly seek disclosure of matters of proof which may later be made part of the records as evidence

Under the present rule, the written interrogatories must not only be served but also filed Purpose of serving interrogatories is to elicit facts from any adverse party The rule requires the written interrogatories and the answers thereto to be filed in court and served on adverse party  Hence, answers may constitute judicial admissions

BILL OF PARTICULARS A party may properly seek disclosure only of matters which define the issues and become a part of the pleadings

SECTION 2 - Answer to interrogatories.—The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service thereof, unless the court, on motion and for good cause shown, extends or shortens the time. (2a)

DEPOSITIONS UPON WRITTEN INTERROGATORIES TO PARTIES INTERROGATORIES Sec. 25, Rule 23 Rule 25 As to Deponent Party or ordinary witness Party only As to Procedure With intervention of the officer No intervention. authorized by the court to take Written interrogatories are depositions directed to the party himself As to Scope Direct, cross, redirect, re-cross Only one set of interrogatories Interrogatories 15 days to answer unless No fixed time extended or reduced by the court

Breakdown of Provision A. The interrogatories shall: 1. Be answered fully in writing 2. Be signed and sworn to by the person making them B. The party upon whom the interrogatories have been served: 1. Shall file and serve a copy of the answers on the party submitting interrogatories a. Within 15 days after service thereof b. UNLESS the court extends or shortens the time (1) On motion AND (2) For good cause shown Notes: -

Other distinctions of Interrogatories: Interrogatories must be specific A defendant who has been declared in default cannot be permitted to propound interrogatories Under Rule 24, deponent need not appear before an officer but only one set of interrogatories is allowed Written interrogatories may be allowed even at the rebuttal stage While an order denying written interrogatories is interlocutory and non-appealable, the remedy of certiorari is available where the order is patently erroneous

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SECTION 1 - Interrogatories to parties; service thereof.— Under the same conditions specified in section 1 of Rule 23, any party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf. (1a)

Effect of an answer to interrogatories – party calling not bound Both parties to a cause have the right to introduce the answer as evidence Answers cannot be made by an agent or attorney  Answers not made by the parties are nullities Evasive and not responsive answer may be stricken out  But a party has a right to reasonably qualify his answers  E.g. “does not know whether he executed note or not” is evasive and may be stricken out Answers to interrogatories are admissible in evidence at the trial as admission or for impeachment  But not by the answering party as this would be a self-serving statement

SECTION 3 - Objections to interrogatories.—Objections to any interrogatories may be presented to the court within ten (10) days after service thereof, with notice as in case of a motion; and answers shall be deferred until the objections are resolved, which shall be at as early a time as is practicable. (3a)

Breakdown of Provision A. Under the same conditions specified in Sec. 1, Rule 23, any party desiring to elicit material and relevant facts from any adverse party 1. Shall file and serve upon the latter written interrogatories to be answered by the party served; or 2. If party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf

Breakdown of Provision A. Objections to any interrogatories 1. May be presented to the court within 10 days after service thereof 2. With notice as in case of a motion B. Answers shall be deferred until objections are resolved

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1.

Which shall be at as early a time as practicable

A similar provision has been incorporated in Rule 26 for nonavailment of requests for admission by opposing party

Ground for Objections 1. They require the statements of conclusions of law or answers to hypothetical questions or opinion, or mere hearsay, or matters not within the personal knowledge of the interrogated party 2. Frivolous interrogatories need not be answered Notes: -

NOTE: These 2 provisions are directed to a party who fails or refuses to resort to the discovery procedures therein They should not be confused with the provisions of Rule 29  Rule 29 provides for sanctions or other consequences upon a party who refuses or fails to comply with discovery procedures duly availed of by his opponent

An order disallowing interrogatory is interlocutory and remedy is to raise question of admissibility on appeal from final judgment Not binding against co-parties for lack of notice  Unlike under Rule 24 where all parties are notified

Where a party unjustifiably refuses to elicit facts material and relevant to his case by addressing written interrogatories to adverse party to elicit those facts, the latter may not thereafter be compelled to testify thereon in court or give a deposition pending appeal The party in need of said facts have foregone the opportunity to inquire into the same from the other party through means available to him He should not thereafter be permitted to unduly burden the latter with courtroom appearances or other cumbersome processes

SECTION 4 - Number of interrogatories.—No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party. (4) Breakdown of Provision: A. No party may, without leave of court 1. Serve more than one set of interrogatories to b answered by the same party

END OF RULE 25

SECTION 5 - Scope and use of interrogatories.— Interrogatories may relate to any matters that can be inquired into under section 2 of Rule 23, and the answers may be used for the same purposes provided in section 4 of the same Rule. (5a) Breakdown of Provision A. Interrogatories may relate to any matters than can be inquired into under Sec. 2, Rule 23 B. Answers may be used for the same purposes provided in Sec. 4, Rule 23 Note: Since answers to interrogatories may be used for the same purpose as depositions, they may also be the basis of a summary judgment under Rule 35 SECTION 6 - Effect of failure to serve written interrogatories.— Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. (n). Breakdown of Provision A. A party not served with written interrogatories: 1. May not be compelled by adverse party: a. To give testimony in open court; or b. To give deposition pending appeal 2. Unless: a. Thereafter allowed by the court for good cause shown and b. To prevent a failure of justice Note: The sanction adopted by the Rules is not one of compulsion in the sense that the party is being compelled to avail of the discovery mechanics, but one of negation by depriving him of evidentiary sources which would otherwise have been accessible to him This new provision encourages the use of written interrogatories by imposing prejudicial consequences on the party who fails or refuses to avail himself of written interrogatories without good cause

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2.

RULE 26 ADMISSION BY ADVERSE PARTY

3.

Rule 26, as a mode of discovery, contemplates interrogatories seeking clarification in order to determine the truth of the allegation in a pleading.

The request for admission must be served directly upon the party Otherwise, the party to whom the request is directed cannot be deemed to have admitted the genuineness of any relevant document described in and exhibited

SECTION 1 - Request for admission.—At any time after issues have been joined, a party may file and serve upon any other party a written request for the admission by the latter of the genuineness of any material and relevant document described in and exhibited with the request or of the truth of any material and relevant matter of fact set forth in the request. Copies of the documents shall be delivered with the request unless copies have already been furnished. (1a)

Party need not make a second denial of what was already denied in the Answer A party should not be compelled to admit matters of fact already admitted by his pleading and concerning which there is no issue Nor should he be required to make a second denial of those already denied in his answer A request for admission  Is not intended to merely reproduce or reiterate the allegations of the requesting party’s pleading  But it should set forth relevant evidentiary matters of fact, or documents described in and exhibited with the request

Breakdown of Provision A. A party may file and serve upon any other party 1. A written request a. For the admission by the latter of the genuineness of any material and relevant document described in and exhibited with the request, or b. Of the truth of any material and relevant fact set forth in the request 2. At any time after the issues have been joined B. Copies of the documents shall be served with the request 1. UNLESS copies have already been furnished

As held in Briboneria v. CA – Admissions by an adverse party as a mode of discovery contemplates of interrogatories that would clarify and tend to shed light on the truth or falsity of the allegations in a pleading, and does not refer to a mere reiteration of what has already been alleged in the pleadings. Otherwise, it constitutes an utter redundancy and will be useless, pointless process which defendant should not be subject to

Note: As in the case of written interrogatories, the rule now requires that written request for admission and the answers thereto be filed in court and served on any other party

Sec. 1 provides that the request for admission should be served on the party to whom admission is requested Where a copy of the request was served only upon the counsel, it was held in Duque v. CA that there was insufficient compliance with Rule 26  Hence, the request was not validly served and that party cannot be deemed to have admitted the truth of the matters of which admissions were requested General rule that notices shall be served on the counsel cannot apply where the Rules expressly provide that it should be served on a definite person Note however, an answer to a request for admission PROPERLY SERVED, which was signed and sworn to by counsel of the party so requested, is sufficient compliance with Rule 26 (Lanada v. CA, et al.)  Especially in light of counsel’s authority in Sec. 21 and 23 under Rule 138

Sec. 1 specifically requires that the facts sought to be admitted by the adverse party must be both material and relevant to the issues The same requirements of both materiality and relevancy have likewise been specified in Rule 25 on requests for admission Note that the fact in question may be relevant if it has a logical tendency to prove a factual matter in the case but it may be immaterial if that factual matter is no longer in issue Request for Admission v. Actionable Document REQUEST FOR ADMISSION Proper when the genuineness of an evidentiary document is sought to be admitted. If not denied under oath, its genuineness is deemed impliedly admitted. Essentially a mode of discovery.

Admission of the truth of any material and relevant matter of fact set forth in the request; or Under this rule, a matter of fact not related to any documents may be presented to the other party for admission or denial

ACTIONABLE DOCUMENT Must be attached to the complaint or copied therein. Its genuineness and due execution is deemed impliedly admitted unless specifically denied under oath by adverse party

SECTION 2 - Implied admission.—Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, which shall not be less than fifteen (15) days after service thereof, or within such further time as the court may allow on motion, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. Objections to any request for admission shall be submitted to the court by the party requested within the period for and prior to the filing of his sworn statement as contemplated in the preceding paragraph and his compliance therewith shall be deferred until such obligations are resolved, which resolution shall be made as early as practicable. (2a)

Purpose of Written Request for Admission – To expedite trial and relieve the parties of the costs of proving facts which will not be disputed on trial and the truth of which can be ascertained by reasonable inquiry When Request May be Made – at any time after the issues have been joined (After the responsive pleading has been served) What Request May Include: 1. Admission of the genuineness and material and relevant document described in and exhibited with the request

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Breakdown of Provision A. Each of the matters which an admission is requested shall be deemed admitted 1. UNLESS the party to whom the request is directed files and serves upon the party requesting admission a sworn statement: a. Stating either: (1) Denying specifically the matters of which an admission is requested, or (2) Setting forth in detail the reasons why he cannot truthfully either admit or deny those matters b. Within a period designated in the request (1) Which shall not be less than 15 days after service thereof, or (2) Within such further time as the court may allow on motion B. Objections to any request for admission 1. Shall be submitted to the court by the party requested a. Within the period for and prior to the filing of his sworn statement as contemplated in the preceding paragraph 2. His compliance therewith shall be deferred until such obligations are resolved 3. Which resolution shall be made as early as practicable Notes: -

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Breakdown of Provision A. Any admission made by a party pursuant to such request 1. Is for the purpose of the pending action only 2. It shall not: a. Constitute an admission by him for any other purpose; nor b. Be used against him in any other proceeding Note: An admission under this Rule is for the purpose of the pending action only and cannot be used in other proceedings SECTION 4 - Withdrawal.—The court may allow the party making an admission under this Rule, whether express or implied, to withdraw or amend it upon such terms as may be just. (4) Breakdown of Provision A. The court may allow the party making an admission under this rule, express or implied, to: 1. Withdraw, or amend it a. Upon such terms as may be just SECTION 5 - Effect of failure to file and serve request for admission.—Unless otherwise allowed by the court for good cause shown and to prevent a failure of justice, a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts.

A party is allowed the full number of days after service of the request before answer can be requested  Refusal to admit on a constitutional privilege does not constitute a presumptive admission against the party asserting his privilege A request for admission addressed to a party should be directly served to and answered by the party whose admission is requested  Note however that the answer to a request for admission under Rule 26 may be made by the lawyer of the party and not necessarily the party himself Implied Admissions  Each matter must be denied specifically under oath setting forth in detail the reason why he cannot truthfully admit or deny  Silence of defendant on plaintiff’s request for admission amounts to an implied acceptance of facts set forth therein with the effect that plaintiff’s claim stood undisputed Motion for extension of time to answer the request for admission  Should be served on the adverse party  But need not be set for hearing There is no implied admission if the denial turn out to be false or invalid  Only penalty to which he may be subjected is payment of the costs for proving such fact

Breakdown of Provision A. A party who fails to file and serve a request for admission on the adverse party of material and relevant fact at issue which are, or ought to be, within the personal knowledge of the latter: 1. He shall not be permitted to present evidence on such facts a. UNLESS otherwise allowed by the court: (1) For good cause and (2) To prevent a failure of justice This provision is similar to the provision on unjustified failure of a party to avail of written interrogatories as a mode of discovery under Sec. 6, Rule 25 1. Under Sec. 6, Rule 25 – the sanction consists in allowing the adverse party to refuse to give testimony or make a deposition on appeal respecting the facts involved 2. Under Sec. 5, Rule 26 – the party who fails or refuses to request the admission of the facts in question is himself prevented from thereafter presenting evidence thereon Note that in both cases, the court shall determine on a case to case basis whether or not the non-availment of the 2 modes of discovery was justified or the negative sanctions will unjustly prejudice the erring party

Where the plaintiff failed to answer a request for admission filed under this Rule, based on its allegations in its original complaint, The legal effects of its implied admission of the facts stated in the request cannot be set aside by its subsequent filing of an amended complaint He should have filed a motion to be relieved of the consequences of said implied admission

Herrera notes that Sec. 5 admits of some difficulty It leaves to a party the determination of what are the relevant facts at issue which are, or ought to be within the peculiar knowledge of the adverse party Under the Rule on Specific Denials (Rule 8) The denial must only refer to matters which are plainly and necessarily within defendant’s knowledge  It must be done in good faith  Otherwise, it shall be deemed to be as an admission

SECTION 3 - Effect of admission.—Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding. (3)

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A mere allegation of ignorance of facts alleged in the complaint is insufficient to raise an issue  The defendant must positively state how it is that he is ignorant of the facts as alleged A profession of ignorance about a fact which is patently and necessarily within the pleader’s knowledge or means of knowing is ineffective  It is as if there is no denial at all  It is deemed an admission even without a request for admission

END OF RULE 26

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3.

RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS Rule 27 applies only to a PENDING ACTION and the documentary things subject of the motion must be only WITHIN the possession, control, or custody of a party

Acts Permitted under this Rule 1. Produce and permit inspection, copying or photographing of any designated papers, books of accounts, letters photographs, object or tangible things 2. Permit entry upon designated land, or other property inspecting, measuring, surveying or photographing

Distinctions PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS Essentially a mode of discovery Rules is limited to the parties of the action The order under this Rule is issued only upon motion with notice to the adverse party

The order: a. Shall specify the time, place, and manner of making the inspection and taking copies and photographs, and b. May prescribe such terms and conditions as are just

SUBPOENA DUCES TECUM

Notes: -

A means of compelling production of evidence It may be directed to a person whether a party or not

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It may be issued upon an ex parte application

The production of documents affords more opportunity for discovery than a SDT However, the rule is not intended to use as a dragnet or any fishing expedition

In a petition for the production of papers and documents, they must be sufficiently described and identified  Otherwise, the petition cannot prosper This mode of discovery does not authorize the opposing party or the clerk or other functionaries of the court to deprive the person who produced the articles of their possession, even temporarily

Production or Inspection of Documents or Things; Requisites: 1. Motion with notice to all parties showing good cause 2. Subject matter: a. Not privileged b. In the possession, custody, or control of party addressed 3. Description with sufficient certainty

SECTION 1 - Motion for production or inspection; order. –Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession custody or control; or (b) order any party or permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just. (1a)

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The subject matter constitutes or contains evidence material to any matters involved in the action Provision applies only in a suit pending in court Right generally available only as between opposing parties to an action Literal accuracy of description is not necessary  Designation of documents demanded for inspection is sufficiently definite if it informs the adverse party what it is required to produce The rule also applies even if documents are already exhibited in court

“Good Cause” – does not relate to the substance in the documents, but to the reason for producing relevant or material matters, therein The enforcement of the rule entails exercise of sound judicial discretion The burden is on the moving party to demonstrate the need for the documents sought beyond the relevancy or materiality of the substance thereto

Breakdown of Provision A. The court in which an action is pending: 1. Upon motion of any party showing good cause therefor 2. May: a. Order any party to produce and permit the inspection and copying or photographing, (1) By or on behalf of the moving party (2) Of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action (3) And which are in his possession, custody or control b. Order any party to permit entry upon designated land or other property in his possession or control (1) For the purpose of inspecting, measuring, surveying, or photographing, property or any designated relevant object or operation thereon

Test to be applied by the trial judge in determining the relevancy of documents and the sufficiency of their description is one of reasonableness and practicability Note also that possession, custody, or control is sufficient Need not necessarily be actual possession Safeguards Specify the time and place and manner upon such terms and conditions as are just On the ground of public policy, the rules do not authorize the production or inspection of privileged matter In passing on a motion for discovery of documents, the courts should be liberal in determining whether or not documents are relevant to the subject matter of action

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Note also that the rule is not to distrain without the knowledge of their lawful owner and possessor

Effect of Refusal Certiorari available Sanctions in Sec. 3, Rule 29 Sec. 3, Rule 17 may also apply

END OF RULE 27

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request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial. (3a)

RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS SECTION 1 - When examination may be ordered.—In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may in its discretion order him to submit to a physical or mental examination by a physician. (1)

Breakdown of Provision A. If requested by the party examined: 1. The party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions B. After such request and delivery: 1. The party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition C. If the party examined refuses to deliver such report 1. The court on motion and notice may make an order a. Requiring delivery on such terms as are just 2. And if a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial

Breakdown of Provision A. In an action in which the mental or physical condition of a party is in controversy, 1. The court in which the action is pending, may in its discretion a. Order him to submit to a physical or mental examination by a physician The action must be one in which the mental and physical condition of a party is in controversy It must be the ultimate issue and not merely collateral or preliminary Examples:  Action for annulment of marriage on the ground of impotency  In an action against an insurer for accident or disability benefits  A blood grouping test may be ordered and conducted under this rule on a child subject of a paternity suit a. While the rule speaks of an examination of a party, such child is considered a party for the purposes thereof as the action is brought for its benefit  Mental condition is in controversy in proceedings for guardianship over an imbecile or insane  Physical condition of the party is generally involved in physical injury cases

SECTION 4 - Waiver of privilege.—By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination. (4) Where the party examined requests and obtains a report on the results of the examination, the consequences are: 1. He has to furnish the other party a copy of the report of any previous or subsequent examination of the same physical and mental condition; AND 2. He waives any privilege he may have in that action or any other involving the same controversy regarding the testimony of any other person who has so examined him or may thereafter examine him

Note: Since the results of the examination are intended to be made public, the same are not covered by physician-patient privilege (Sec. 24b, Rule 130) SECTION 2 - Order for examination.—The order for examination may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties, and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made. (2)

END OF RULE 28

Requisites to Obtain an Order for Examination 1. A motion must be filed for the physical and mental examination 2. The motion must show good cause for the examination 3. Notice to the party to be examined and to all other parties; and 4. The motion shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is made SECTION 3 - Report of findings—If requested by the party examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such

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Breakdown of Provision A. The court of the place in which the deposition is being taken may consider the following a contempt of that court: 1. If a party or other witness refuses to be sworn 2. Or refuses to answer any question after being directed to do so

RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY SECTION 1 - Refusal to answer.—If a party or other deponent refuses to answer any question upon oral examination, the examination may be completed on other matters or adjourned as the proponent of the question may prefer. The proponent may thereafter apply to the proper court of the place where the deposition is being taken, for an order to compel an answer. The same procedure may be availed of when a party or a witness refuses to answer any interrogatory submitted under Rules 23 or 25. If the application is granted, the court shall require the refusing party or deponent to answer the question or interrogatory and if it also finds that the refusal to answer was without substantial justification, it may require the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attorney’s fees. If the application is denied and the court finds that it was filed without substantial justification, the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorney’s fees. (1a)

SECTION 3 - Other consequences.—If any party or an officer or managing agent of a party refuses to obey an order made under section 1 of this Rule requiring him to answer designated questions, or an order under Rule 27 to produce any document or other thing for inspection copying or photographing or to permit it to be done, or to permit entry upon land or other property, or an order made under Rule 28 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following: (a) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition; (c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof or rendering a judgment by default against the disobedient party; and (d) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of party for disobeying any of such orders except an order to submit to a physical or mental examination. (3a)

Consequences of Refusal to Answer 1. Under Rule 29, if a party or other deponent refuses to answer any question upon oral examination:  The examination may be completed on other matters  Or adjourned as the proponent of the question may prefer 2. The proponent may thereafter apply to the proper court, for an order to compel an answer  The same procedure may be availed of when a party or a witness refuses to answer any interrogatory submitted under Rule 23 or 25 3. If application is granted: a. Court shall require refusing party or deponent to answer the question or interrogatory b. If it finds that the refusal to answer was without substantial justification, it may require the refusing party or deponent or counsel advising refusal, or both, to pay the proponent of the amount of reasonable expenses incurred in obtaining the order, including attorney’s fees 4. If application is denied a. If court finds that it was filed without substantial justification, the court may require the proponent or counsel advising the filing, or both, to pay the refusing party or deponent the amount of reasonable expenses incurred in opposing the application, including attorney’s fees

Breakdown of Provision A. If any party or an officer or managing agent of a party refuses to obey an order, the court may make such orders in regard to the refusal as are just: 1. An order made under Sec. 1, Rule 29 requiring him to answer designated question 2. An order under Rule 27 to produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land or other property 3. An order made under Rule 28 requiring him to submit a physical or mental examination B. The court may issue an order, among others as enumerated in Sec. 3 SECTION 4 - Expenses on refusal to admit.—If a party after being served with a request under Rule 26 to admit the genuineness of any document or the truth of any matter of fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of such document or the truth of any such matter of fact, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including attorney’s fees. Unless the court finds that there were good reasons for the denial or that admissions sought were of no substantial importance, such order shall be issued. (4a)

SECTION 2 - Contempt of court.—If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken, the refusal may be considered a contempt of that court. (2a)

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Breakdown of Provision A. If a party: 1. After being served with a request under Rule 26 to admit the genuineness of any document or truth of any matter of fact 2. Serves a sworn denial thereof B. And if the party requesting admission thereafter proves the genuineness of such document or truth of any such matter of fact: 1. He may apply to the court for an order: a. Requiring the other party to pay him the reasonable expenses incurred in making such proof, including attorney’s fees (1) UNLESS the court finds that: (a) there were good reasons for the denial or (b) that admissions sought were of no substantial importance

SUMMARY REFUSAL TO COMPLY WITH MODES OF DISCOVERY 1.

Refusal to answer any question (Sec. 1 and 2)

SECTION 5 - Failure of party to attend or serve answers.—If a party or an officer or managing agent of a party willfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories, the court on motion and notice, may strike out all or any part of any pleading of the party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against the party, and in its discretion, order him to pay reasonable expenses incurred by the other, including attorney’s fees. (5)

Refusal to be Sworn (Sec. 2)

Refusal to answer designated questions or refusal to produce documents or to submit to physical or mental examination (Sec. 3)

Breakdown of Provision A. If a party or an officer or managing agent of a party: 1. Willfully fails to appear before the officer who is to take his deposition a. After being served with a proper notice 2. Or fails to serve answers to interrogatories submitted under Rule 25 a. After proper service of such interrogatories B. The court on motion and notice: 1. May strike out all or any party of any pleading of the party; or 2. Dismiss the action or proceeding or any part thereof; or 3. Enter a judgment by default against the party; 4. And in its discretion, order him to pay reasonable expenses incurred by the other a. Including attorney’s fees

Refusal to admit under Rule 26 (Sec. 4)

Failure of party to attend or serve answers to written interrogatories (Sec. 5)

SECTION 6 - Expenses against the Republic of the Philippines.— Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines under this Rule.(6) Notes: -

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SANCTIONS

If a party refuses to answer the whole written interrogatories, Sec. 5, Rule 29 applies Where a party refuses to answer a particular question, in the set of written interrogatories, and despite an order compelling him to answer, still refuses to obey, Sec. 3(c) will apply Expenses and attorney’s fees are nor to be imposed upon the Republic under this Rule

The court may, upon proper application, compel a refusing deponent to answer (Sec. 1) a. If granted, and refusal to answer is without substantial justification, court may require the refusing party to pay proponent the reasonable expenses incurred in obtaining the order b. If denied, and filed without substantial justification, court may require proponent to pay refusing party the reasonable expenses incurred in obtaining the order 2. A refusal to answer after being directed by court to do so may be constituted as contempt of court Cite the disobedient deponent in contempt of court The court may make the following orders: 1. Prohibit the disobedient party to introduce evidence of physical or mental condition 2. Refuse to allow the disobedient party to support or oppose claims or defenses 3. Strike out pleadings or parts thereof 4. Stay further proceedings 5. Dismiss the action or proceeding or any part thereof 6. Render a judgment by default against disobedient party 7. Direct the arrest of any party disobeying any of such orders except an order to submit to a physical or mental examination 8. Other orders as may be just The court, upon proper application, issue an order requiring the other party to pay him reasonable expenses incurred, including attorney’s fees The court on motion and notice may: 1. Strike out all or any part of any pleading of disobedient party 2. Dismiss the action or proceeding or any part thereof 3. Enter a judgment by default against disobedient party 4. Order payment of reasonable expenses incurred by the other including attorney’s fees

END OF RULE 29

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END OF PART 1

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