Midterms Lakas Atenista

ground/s upon which it is based. Q: Is it necessary that a motion be accompanied supporting affidavits and other papers? A: No, unless required by the Rules or necessary to prove facts alleged therein. Q: Give an example of a motion where supporting affidavits are required by the Rules. A: A motion for new trial on the ground of fraud, accident, mistake of excusable negligence. Under Rule 37, Section 2, in order for a motion for new trial on that ground to be valid, there must Be Affidavit Of Merits. If there is no affidavit of merits, the motion will be denied. And if necessary to prove facts alleged therein, then, the motion must be accompanied by affidavit and other supporting papers. Example is when you are moving for the postponement of the trial because your client is sick, the best supporting paper would be a medical certificate for that matter. However, if it is not required by the Rules, or the facts are already stated on record, there is no need of supporting affidavits or documents. Example is when you move to declare the adverse party in default. There is no need to support your motion with affidavits because anyway the court can look at the records, particularly the sheriff’s return, to check when was the defendant was served with summons. Sec. 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)

Now, under Section 4, it says there that you must furnish the adverse party a copy of your motion at least three (3) days before date of hearing. So, you do not furnish him one day before the date of the hearing. The reason there is to prevent surprise upon the adverse party and to enable the latter to study the motion and file his opposition (Remante vs. Bonto, L-19900, Feb. 28, 1966). So a motion cannot be filed ex-parte. Meaning, without notice of hearing and without furnishing a copy to the opponent. However, a motion need not be set for hearing if it is not a controversial motion. Meaning, these are motions “which the court may act upon without prejudicing the rights of the adverse party” such as a motion for extension of time to file answer. So with this kind of motion, the court can immediately grant your motion. And the law says, you serve the motion in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing. In other words, you have to calculate that he will receive it at least 3 days. One good example of this requirement is one which is mentioned in Rule 13, Section 11, that personal service is preferred to service by registered mail because if it is personal service, it is assured that the adverse party received the motion 3 days before. But if it is service by mail, we do not know eh, unless you mail it very much earlier because let us say, hearing on the motion will be on Friday, and then you will mail the motion on Monday, or 5 days before, it is possible that the motion will reach the opponent on Sunday or two days later.

That is the reason why personal service is preferred because if there is no explanation why you resorted to by mail rather than personal service, the motion is deemed not filed. Q: What is the effect if a party files a motion serving upon the adverse party the motion in less than three days? A: The court may refuse to take action on a motion which does not comply with the rule requiring a three-day notice to the adverse party, “unless the court for good cause sets the hearing on shorter notice.” Usually these are urgent motions such as moving for postponement because your witness got sick one day or hours before the trial. Sec. 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)

Q: Now, what happens if a motion does not contain a notice of hearing? A: A motion that does not contain a notice of hearing is but a mere scrap of paper; it presents no question which merits the attention and consideration of the Court. It is not even a motion for it does not comply with the rules. A motion without notice of hearing is nothing but a piece of paper filed in court, which should be disregarded and ignored. (Prado vs. Veridiano II, (204 SCRA 651 [1991]) Q: To whom should the notice of hearing be addressed? A: It is addressed to all parties concerned. So, normally ganito iyan: Atty. Johnny Bravo Counsel for plaintiff Greetings! Please take notice that the undersigned is submitting the foregoing motion for the reconsideration of the Honorable Court on Friday, November 28, 1997 at 8:30 in the morning. (Signed) Atty. Hong Hunks Counsel for the defendant

Now, some lawyers, when they prepare a notice of hearing will state: “TO THE CLERK OF COURT, Please set the foregoing for the consideration of the court…” Now, the law says, the notice of hearing should be addressed to the parties and not to the clerk of court. So, the common practice of addressing the notice of hearing to the clerk of court is technically wrong. The SC has already commented on that several times. One of them was the case of PRADO vs. VERIDIANO II 204 SCRA 654 [1991] HELD: “Sections 5, Rule 15 of the Rules of Court which explicitly provide that the notice shall be served by the applicant to all parties concerned and shall state the time and place for the hearing of the motion. A notice of hearing addressed to the Clerk of Court and not to the parties is no notice at all.” So it is very technical. Sometimes, lawyers just ignore that. What is important is I know when you are going to set it. But

some lawyers are very technical. He will look for loopholes in the motion on the ground that you did not address the notice of hearing to him but to the clerk of court. Is he correct? Tama man iyan ba! Even the SC said that do not address it to the clerk of court. You address it to the party. The law is very clear. Now, take note that the new rule added the phrase that you “must specify the time and the date of the hearing which must not be later than ten (10) days after the filing of the motion.” That is not found in the prior rule. Before, some lawyers are mischievous. When they received the complaint, instead of filing an answer, they will file a motion to dismiss just to delay. And the motion to dismiss is denied. But at least the period to answer is stretch. And too make it worse, they will file it in November and they will set it for hearing in December. One month from now. Now, you cannot do that. Pag-file mo ng motion, maximum ten (10) days only. You cannot say, “I will set if for hearing 2 months from now.” It is now very clear that it must not be later than 10 days after the filing of the motion. And see to it that the party receives it 3 days before the hearing because of Section 4. The minimum is 3 days. So that is a new requirement found in 1997 Rules. Sec. 6. Proof of service necessary. No written motion set for hearing shall be acted upon by the court without proof of service thereof. (6a)

Proof of service of the motion is required – “No written motion et for hearing shall be acted upon by the court without proof of service hereof.” This is related to Rule 13. As a general rule, you cannot file anything in court without furnishing a copy to your opponent. A motion cannot be filed ex-parte. The only exception here are motions which can be filed ex-parte because they are not controversial. Normally, there are motions which can be filed without proof of service, which generally the court will grant anyway. Another example is Rule 23, Section 21 on indigent or pauper litigants – a party may be authorized to litigate his action, claim or defense as a indigent upon ex-party motion together with the complaint and a hearing. Therefore, there is no need to furnish copy of the motion to the other party. But those are the only exceptions. So, as a rule, every motion must be served to the opposite party. So, we will outline Sections 2 to 6 Q: What are the requisites of a valid motion? A: The REQUISITES OF A VALID MOTION are the following: 1.) 2.) 3.) 4.)

It must be in writing except those made in open court or in the course of hearing or trial; It shall state the relief sought to be obtained and the ground upon which it is based; It must be accompanied by supporting affidavits and other papers, if required by these Rules or necessary to prove facts alleged therein. However, if the facts are already stated on record, the court can check the records; There must be a notice of the hearing attached to the motion and the adverse party must receive the motion at least three (3) days before the date of hearing,

5.) 6.)

unless the court for good cause sets the hearing on shorter notice; There must be notice of hearing 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; and There must be proof of service of the motion on the adverse party.

Sec. 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)

Motion hearings are scheduled on Friday afternoons except those motion which require urgent action. So if today is Friday and it’s a holiday, sa Monday pa ang hearing. But again, some judges do not follow this. Ang iba pa nga, everyday eh. OMNIBUS MOTION RULE Sec. 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)

The word “omnibus” means “all embracing or all encompassing.” Q: Define omnibus motion. A: An OMNIBUS MOTION is one attacking a pleading, order, judgment, or a proceeding which shall include all objections then available and objections not so included shall not deemed waived. (Section 8; Ins. Co. of North America vs. Delgado Brokerage, L-22974, Oct. 28, 1966) EXAMPLE #1: Motion to Dismiss. In effect, it attacks a proceeding. Where a party is not allowed to file a motion to based on one ground, if denied, second motion to dismiss based on the second ground, denied, third motion to dismiss. Meaning, ini-installment mo. That is not allowed. If you have two or more grounds, you file only one motion to dismiss invoking those grounds because the rule is, any ground not so invoked is deemed waived. EXAMPLE #2: Rule 37 on New Trial. A second motion for new trial under Section 5 of Rule 37 prohibits the filing of a second motion for new trial based on grounds available to the movant when he filed his first motion. Well, if the grounds came later, that is different. So, the principle there is, if you have two or more grounds you should only file one motion where you invoke all your grounds. Now, obviously there is an EXCEPTION because the opening clause of section 8 is “Subject to the provision of Section 1 of Rule 9.” Rule 9, Section 1. Defenses and objections not pleaded. Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that

the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (2a)

Under Rule 9, There are four (4) exceptions. Meaning, they are not deemed waive even if you do not raise them in a motion to dismiss, which can be even motu propio proceeded by the court. Q: What are the grounds not deemed waived even if not raised in a motion to dismiss or answer. (Exceptions to the omnibus motion rule)? A: The following: 1.) Lack of jurisdiction over the subject matter; 2.) Litis pendentia; 3.) Res adjudicata; and 4.) Prescription. Sec. 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)

EXAMPLE: Under the OLD rules, if you want to file an amended compliant, there are two (2) Options under the old rules. The first option is to file a motion for leave to file amended complaint. And when it is granted, that is the time for to you file your amended complaint. The second option is you file your amended complaint together with the motion to admitted it. The same thing iyong sa intervention under the OLD rules. In a motion to intervene, “Motion to intervene. Granted, I will file my pleading in intervention.” The same thing for certain types of motion like motion for leave to file third-party complaint: “Motion for leave. Granted, I will file my third-party complaint.” That is under the previous rule. NOW, hindi na puwede yan. Under the PRESENT RULE, when you file a motion, the pleading to be admitted must already be included in your motion. Pag-file mo nng motion, kasama na iyong pleading. The pleading sought to be amended must already be included in the motion. One-time filing ba!! Sec. 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)

The rule on pleadings also applies to written motion as far as caption, designation, signature and other matters of court. So in appearance there is difference between the appearance of a pleading and the appearance of a motion. But definitely, a motion is not a pleading although it looks like a pleading.



Rule 16

MOTION TO DISMISS

Motion to dismiss is the counterpart of motion to quash (Rule 117) in criminal procedure. In criminal procedure, before the arraignment or before entering a plea the accused may instead file what is known as motion to quash. The proceedings are quashed on the ground that: (1) the court has no jurisdiction over the subject matter of quashed on the ground that: (1) the court has no jurisdiction over the subject matter of the case or over the person of the accused; (2) the person who field it has no authority to do so; (3) the complaint or information charges more than one offense; (4) because of double jeopardy; or (5) the criminal liability has already been extinguished. 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: x x x x x

Q: When do you file a motion to dismiss? A: Within the time for but before filing the answer. So, within 15 days instead of filing an answer the law allows the defendant to file instead a motion to dismiss. The principle is within 15 days from receipt of the summons and the complaint, the defendant should file an answer or in lieu of an answer he may instead file a motion to dismiss based on the grounds enumerated in section 1. Now, a motion to dismiss is available not only for the purpose of dismissing the complaint but also for dismissing a counterclaim, a cross-claim, a third party complaint because the laws says “before filing the answer to the complaint or pleading asserting a claim.” A claim can be ascertained not only in a compliant but also in other pleading such as counterclaims, etc. First Ground: [a] THAT THE COURT HAS NO JURISDICTION OVER THE PERSON OF THE DEFENDING PARTY Q: When will that happen? A: When there is absence of summons or improper service of summons. Now based on decided cases, it would seem that this is one of the weakest grounds for a motion to dismiss – “the court has not acquired jurisdiction over the person” – for there are many exceptions. There are many waivers. Because of the rule of waiver the court many acquire jurisdiction over your person in some other capacity. EXAMPLE: You are improperly served with summons but you file a motion for bill of particulars or you file a motion for extension of time to file for an answer and then after that you file a motion to dismiss. Wala na iyon. The principle is that the moment you file a motion for bill of particulars or you file a motion for extension of time, in effect you have already submitted to the jurisdiction of the court. If there was any defect in the service of summons, it was already cured. Waived na ‘yon. Wala na ‘yong ground mo. That’s why there are so many question here. EXAMPLE: Now, suppose the summon was served on a nine-year old boy who is presumed to be

over my person and venue is improper. Meaning, I will cite 2, 3 or 4 grounds. Is that possible? There are some cases where the SC said no more. When you file a motion to dismiss questioning the jurisdiction of the court over your person and at the same time you are citing other grounds, then you are already waiving the defect of lack of jurisdiction. Why? When you cite other grounds like prescription, you are now submitting to the jurisdiction of the court. In effect you have waived the ground of lack of jurisdiction. But there are also other cases where the same issue came up and the question is: Can a defendant file a motion to dismiss based on the lack of jurisdiction over the person together with other grounds? Are you deemed to have waived the issue of lack of jurisdiction? NO, you can not file a motion to dismiss because of the omnibus motion rule. When you file a motion to dismiss, you have to invoke all the grounds. So, you are not waiving that ground. So there was confusion. What is really the correct rule? Because there are decided cases on both sides. NOW, the controversy has been settled starting with the ruling of the SC in the 1994 case of: LA NAVAL DRUG CORPORATION vs. COURT OF APPEALS 236 SCRA 78 [en banc] HELD: When you file a motion to dismiss citing lack of Jurisdiction over your person together with other grounds, there is no waiver on the defect of lack of jurisdiction. So, you can file a motion to dismiss on that ground together with other grounds. There is no more waiver in effect that is the recent decision. 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. Obviously the ruling in NAVAL is incorporated in the Rules of Court. Let’s go back to Rule 14 Section 20: Sec. 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)

Second Ground: [b] THAT THE COURT HAS NO JURISDICTION OVER THE SUBJECT MATTER OF THE CLAIM. That is one of the most important grounds for a motion to dismiss. EXAMPLE: An action for unlawful detainer is field in the RTC and your ground is, the court has no jurisdiction over the subject matter. Or, an action for annulment of marriage is filed in the MTC. Now, I will file a motion to dismiss because the court has no jurisdiction over the subject matter. So, we are familiar already with this. Now, let’ go to important principles on this ground. FIRST PRINCIPLE: Jurisdiction over the subject matter is determined by the allegation in the compliant .

Q: How do we determine whether a court has a jurisdiction or not over a particular case? A: By reading the compliant, we will know whether the subject matter is within the jurisdiction of the court or not. So the principle to remember is, jurisdiction over the subject matter of the case is determined by the allegations in the complaint. They are determined in the allegations of the complaint itself, not by the allegation of the defendant in his motion to dismiss. EXAMPLE: A filed a complaint against B before the RTC of Davao City to recover an unpaid loan of P250,000. By going over the complaint, does the RTC have jurisdiction? YES ( P250,000). Now, here comes the defendant filing a motion to dismiss under Rule 16 alleging that “it is not P250,000 but only P50,000. Therefore, the court has no jurisdiction over the subject matter.” So the court is confronted with this situation. Q: What will the court do? Should the court deny the motion to dismiss? A: YES because jurisdiction over the subject matter is determined by the allegations in the complaint. They are not determined by the allegations of the defendant in his motion to dismiss. SECOND PRINCIPLE: When a defendant files a motion to dismiss on the ground that the court has no jurisdiction over the subject matter, the defendant hypothetically admits all the allegations in the complaint to be true. The defendant in the meantime, is not allowed to present evidence that the court has no jurisdiction. Everything must be decided on the face of the complaint only. So, this is the corollary principle – when a defendant files a motion to dismiss on this ground, he hypothetically admits all the allegations in the complaint. Hypothetical ba! – Assuming, for the sake of argument, that everything in your complaint is true, does the court have the jurisdiction? EXAMPLE: Vannie Kolotski will file a case against you for P300,000 in the RTC on the ground that you owe her P300,000. But the defendant will file a motion to dismiss, “The RTC has no jurisdiction because the loan is not P300,000 but only P50,000. The defendant will present evidence that it is not P300,000 but P150,000. Can you do that? NO, you cannot do that because you have to hypothetically admit eh! If you will file a motion to dismiss on that ground, it will be denied. But suppose it is really P50,000 only and in the course of the trial, even plaintiff’s own evidence shows that the loan is only P50,000. If that is so, if that becomes apparent in the middle of the trial, Vannie Kolotski will now move to dismiss on the ground that the lack of jurisdiction has now become apparent. Anyway, you have not waived that defect. You can raise that anytime. But at the start of the case, whatever the complaint says, that is assumed to be true for the moment, if the ground is lack of jurisdiction. So, what is the principle there? Jurisdiction over the subject matter is determined purely by the allegations in the complaint. THIRD PRINCIPLE: Jurisdiction over the subject matter, once acquired by the court upon the filing of the complaint, the court retains the jurisdiction over that case until that case is terminated. Any subsequent development or any subsequent amendment of the law will no longer deprive the court of its jurisdiction. A perfect EXAMPLE is what happened with the effectivity of the law expanding the jurisdiction of the MTC under RA 7691. The jurisdiction of the MTC under the old law is P20,000 lang eh. So, if your claim is above P20,000, RTC na. And there were several cases pending in court already being tried – P 30,000, P 40,000 in the RTC. Then in April 1994, the jurisdiction of the MTC was increased to P100,000. What happens now to all those cases which were only P21,000 or P20,000? Shall the RTC dismiss all of them or the RTC will finish it? Jurisdiction over the subject matter once acquired

continues until the case is finished or terminated. That is the principle to remember. The ONLY POSSIBLE EXCEPTION there is what the Supreme Court says, if the new statute is intended to be curative in character – to cure the defect under the old law – then the rule on adherence of jurisdiction does not apply. That was best exemplified by a situation years ago when there was a controversy as to whether a claim for moral and exemplary damages filed by an employee against the employer for oppressive act of terminating him can be granted by the Labor Arbiter. Definitely, reinstatement and backwages can be granted by the Labor Arbiter. The jurisprudence at that time when it was still unsettled was, the claim for moral should be settled in the RTC, not by the Labor Arbiter. However, where these cases were still pending in the RTC, mga damages, in the meantime the law naman was changed. The Labor Arbiter now was given jurisdiction to award damages. So. what happen to the cases for damages now pending in the RTC? Should they be transferred to the Labor Arbiter? It we follow the rule that jurisdiction once acquired continuous, the answer is, the RTC should continue trying the case for damages and the Labor Arbiter continue to try the backwages and reinstatement. But that is practically splitting the case into two parts. So obviously, the intention of the law granting the Labor Arbiter the jurisdiction is to cure the error. So, what happened? All those cases filed in the RTC were ordered transferred to the Labor Arbiter as an exception to the rule on adherence to jurisdiction. FOURTH PRINCIPLE: Lack of jurisdiction over the subject matter may be raised: 1) In the answer; 2) In the course of the trial; 3) After the trial; 4) After the judgment; or even 5) For the first time on appeal. All right, let’s go to the basics: Q: Can the issue of lack of jurisdiction over the subject matter be raised in the middle of the trial? A: YES, there is no waiver. Q: Suppose there is already a decision by the trial court, can you still raise the issue of lack of jurisdiction? Why? A: YES. The decision is deemed void because the court pala all along have no authority to try. So the trial is void. The judgment is void. As a matter of fact it can be raised at any stage of the proceeding even for the first time on appeal. That is the rule. Now, that rule has somehow weakened or diluted by the ruling in TIJAM vs. SIBONGHANOY 23 SCRA 29 [1968] FACTS: The case of TIJAM was something really cohere and unique. From the start, the City Court of Cebu has no jurisdiction. The defendant never filed a motion to dismiss. And what is so surprising is that the court never noticed it.. So the parties will go on trial. After

trial, the court rendered judgment in favor of the plaintiff. The defendant was not satisfied. He appealed to the former CFI (now RTC) and on appeal that issue on lack of jurisdiction was never raised. Talo na naman iyong defendant. So all this process took about 10 years. Talo. So much water has already passed under the bridge. Nagpalit ng abogado iyong defendant and he traced the proceeding. Actually all along, the inferior court has no jurisdiction and everything is void from the very beginning. But take note, it took the defendant through his lawyer 10 years or more to raise the issue. Now, of course, if we will follow the rule, it can be raised at any stage at any time even for the first time on appeal on this ground that everything is void. HELD: NO, you cannot raise it anymore. Under the equitable doctrine of estoppel by laches, you are already under estoppel to raise that ground because the if you will follow the general rule and we will declare null and void everything from the City Court to the CA, everything – a judicial work which lasted for 10 years – will all be thrown in the waste basket. That is practically compelling the plaintiff to undergo a second calvary. Ulit na naman siya just to prove his case. But the ruling in SIBONGHANOY is not intended to be the rule. It is not intended to overrule the rule that lack of jurisdiction over the subject matter can be raised at any stage of the proceeding. The ruling in the SIBONGHANOY is only to be applied in exceptional situations Even the SC noted that courts were applying the SIBONGHANOY ruling indiscriminately that it will take you one or two months to raise lack of jurisdiction – wala pa nag-unpisa ang trial then one or two months after the case was filed, ah estoppel na! Practically, that is saying that lack of jurisdiction cannot be raised anymore. But the SC said NO, that is wrong. In the case of SEAFDEC – AGRICULTURE DEPARTMENT vs. NRLC 206 SCRA 283 [1992] HELD: “A rule, that had been settled by unquestioned acceptance and upheld in decisions so numerous to cite is that the jurisdiction of a court over the subject matter of the action is a matter of law and may not be conferred by consent or agreement of the parties. The lack of jurisdiction of a court may be raised at any stage of the proceedings, even on appeal.” “This doctrine has been qualified by recent pronouncements which stemmed principally from the ruling in the cited case of SIBONGHANOY. It is to be regretted, however, that the holding in said case had been applied to situations which were obviously not contemplated therein. The exceptional circumstances involved in SIBONGHANOY which justified the departure from the accepted concept of non-waivability of objection to jurisdiction has been ignored and, instead a blanket doctrine had been repeatedly upheld that rendered the supposed ruling in SIBONGHANOY not as the exception, but rather the general rule, virtually overthrowing altogether the time-honored principle that the issue of jurisdiction is not lost by waiver or by estoppel.” (Calimlim vs. Ramirez, G.R. No. L-34362, 118 SCRA 399 [1982]). So, this has already been clarified. The latest case was the 1995 case of

DE LEON vs. COURT OF APPEALS 245 SCRA 166 HELD: “In the past, the principle of estoppel has been used by the courts to avoid a clear case of injustice. Its use as a defense to a jurisdictional error is more of an exception rather than the rule. The circumstances outlining estoppel must be unequivocal and intentional, for it is an exception to standard legal norms and is generally applied only in highly exceptional and justifiable cases.” In other words, do not abuse the SIBONGHANOY ruling. That is very exceptional case. Third Ground: [c] THAT VENUE IS IMPROPERLY LAID Here, there is no compliance with Rule 4 – the action is filed in the place other than the proper venue under Rule 4. Q: Suppose you file a motion to dismiss on the ground of improper venue, but your motion to dismiss is denied. What is your remedy? A: Your remedy is to resort to the special civil action of prohibition under Rule 65. And you should resort to it immediately because if you will file your answer and go to trial, in effect, you will be waiving the objection. The objection must be pursued diligently. That was the pronouncement in the case of Pangasinan Transportation Co. v. Yatco (21 SCRA 658). Fourth Ground: [d] THAT THE PLAINTIFF HAS NO LEGAL CAPACITY TO SUE; Q: Give an example when the plaintiff has no legal capacity to sue. A: A minor will file a case without being assisted by his parents or guardian. Or, a person will file a case in behalf of a minor claiming that he is a guardian when in fact he is not. He is not the parent of the child. He is not also appointed by the court. According to the SC, when you say that the plaintiff lacks legal capacity to sue, there are two (2) possible meanings. It means any of the following: 1.) when the plaintiff does not possess the necessary qualifications to appear at the trial such as when the plaintiff is not in the full exercise of his civil right like when he is a minor, or insane; and 2.) when the plaintiff does not have the character or representation which he claims like he claims to be a guardian when in reality he is not. (Lunsod vs. Ortega, 46 Phil. 664) EXAMPLE: I will sue you as the guardian of a minor – guardian ad litem. But actually, you will challenge my being a guardian. There is no court order according to you. So, I might be of age but I have no legal capacity to sue because I do not have the representation which I claim I have. Q: (Bar question) Distinguish lack of legal capacity to sue from lack of legal personality to sue. A: The former refers to disability of the plaintiff while the latter to the fact that the plaintiff is not a real party in interest, in which case, the ground for dismissal would be that the complaint states no cause of action (Gonzales vs. Alegarbes, 99 Phil 213; Casimiro vs. Roque, 98 Phil. 880)

ILLUSTRATION: In lack of legal capacity to sue, you are referring to a disability of the plaintiff, like he is a minor; or he is insane or incapacitated. In lack of legal personality to sue – going back to Rule 3, when you are appointed as agent or attorney-in-fact of somebody to manage his property an to file suit in his behalf – while you have the authority to file cases, it does not mean to say that you should sue in you own name because the real party in interest is the principal, not the agent. So if the agent files an action in his own name, rather than that of the principal, what you are going to say is, you are not the real party in interest. You are not challenging his age or disability but you are challenging his being placed as plaintiff when actually he is only the attorney-in-fact or agent. In effect, when you raise this ground, actually that would fall more under paragraph [g] – that the pleading asserting the claim states no cause of action because there is no cause of action in favor of the agent. The cause of action is in the principal. Fifth Ground: [e] THAT THERE IS ANOTHER ACTION PENDING BETWEEN THE SAME PARTIES FOR THE SAME CAUSE; Now, this is one of the most important grounds for a motion to dismiss. This is popularly known as the ground of lis pendens. Now, do not confuse this with the notice of lis pendens that we discussed in Rule 13. That is the notice that you annotate on the title of the property when you are filing a case for its recovery. Although the meaning is the same because lis pendens is Latin for pending litigation. So the essence is that there is a case filed against you and then while it is pending, another case is filed against you based on the same cause of action. So what will you do? I have to move to dismiss one case. I will allege that there is already another action pending between the same parties for the same cause. So in effect, what you are saying is the plaintiff is guilty of splitting his cause of action and this ground has also been mentioned in Rule 2, Section 4: Rule 2, Sec. 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. (4a)

So the filing of one case is available as a ground for the dismissal of the other. Now, such ground is stated under Rule 16 – that there is another action pending between the same parties for the same cause. The other legal term for it aside from the ground of lis pendens is the ground of litis pendencia. Pareho din iyan. It means the same thing. That’s why when you read some SC cases, the SC cites either one of the two terms. There is another foreign term although it is less used, the ground of action pendant. LITIS PENDENTIA viz a viz FORUM-SHOPPING (taken from the 4th year Remedial Law Review transcription, 1997-98) Now, you come analyze that when the other party files two cases against you, sabay-sabay – what is the correct ground for dismissal? Litis pendentia or forum-shopping? Is there a relationship between forum-shopping and litis pendentia? When I file two identical cases in two courts, am I not also forumshopping?

Yaan! Iyan ang magandang tanong! Iyan ang malalalim na tanong sa procedure. One of the most intelligent discussion on this topic was the case of FIRST PHILIPPINE INTERNATIONAL BANK vs. CA (252 SCRA 259), January 24, 1996, penned for the Third Division by Justice Artemio Panganiban. Do you know what he said? Itong forum-shopping, how it started? Actually, it is a concept in Private International Law where you shop for a forum – where you look for a country where you will file a case and then the court of that country will now reject it on the ground for forus non convenlens. That is where it originates eh. You are shopping for a forum. FIRST PHILIPPINE INTERNATIONAL BANK vs. COURT OF APPEALS 252 SCRA 259, January 24, 1996 Third Division, J. Artemio Panganiban. HELD: “Forum-shopping originated as a concept in private international law, where non-resident litigants are given the option to choose the forum or place wherein to bring their suit for various reasons or excuses, including to secure procedural advantages, to annoy and harass the defendant, to avoid overcrowded dockets, or to select a more friendly venue. To combat these less than honorable excuses, the principle of forum non conveniens was developed whereby a court, in conflicts of law cases, may refuse impositions on its jurisdiction where it is not the most ‘convenient’ or available forum and the parties are not precluded from seeking remedies elsewhere.” “In the Philippines, forum shopping has acquired a connotation encompassing not only a choice of venues, as it was originally understood in conflicts of laws, but also to a choice of remedies.” “As to the first (CHOICE OF VENUES), the Rules of Court, for example, allow a plaintiff to commence personal actions "where the defendant or any of the defendants resides or may be found, or where the plaintiff or any of the plaintiffs resides, at the election of the plaintiff" (Rule 4, Sec. 2 [b]).” That is forum-shopping. lba ang rule ng venue. Where will you file personal action? – where the plaintiff or any of the principal plaintiff resides, or, where the defendant or any of the defendants resides. So, mamili ka! If I am the lawyer kung saan pabor, doon ako mag-file, and that is forum-shopping. But that is legitimate forum-shopping because that is allowed by law. “As to remedies, aggrieved parties, for example, are given a choice of pursuing civil liabilities independently of the criminal, arising from the same set of facts. A passenger of a public utility vehicle involved in a vehicular accident may sue on culpa contractual, culpa aquiliana or culpa criminal — each remedy being available independently of the others — although he cannot recover more than once.” (First Philippine International Bank vs. CA, supra.) That is in effect forum-shopping. If I am the offended party, shall I prosecute the civil aspect in the criminal action or shall I file an independent civil action or reserve the right? Nasa iyo man iyan ba! In effect, you shop for a forum. That is also forum-shopping. But that is legitimate forum-shopping. “In either of these situations (choice of venue or choice of remedy), the litigant

actually shops for a forum of his action. This was the original concept of the term forum shopping” which is perfectly a valid act. “Eventually, however, instead of actually making a choice of the forum of their actions, litigants, through the encouragement of their lawyers, file their actions in all available courts, or invoke all relevant remedies simultaneously. This practice had not only resulted in conflicting, adjudications among different courts and consequent confusion inimical to an orderly administration of justice. It had created extreme inconvenience to some of the parties to the action.” “Thus, ‘forum shopping’ had acquired a different concept – which is unethical professional legal practice. And this necessitated or had given rise to the formulation of rules and canons discouraging or altogether prohibiting the practice.” “What therefore originally started both in conflicts of laws and in our domestic law as a legitimate device for solving problems has been abused and mis-used to assure scheming litigants of dubious reliefs.” “Consequently, where a litigant or one representing the same interest or person 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, the defense of litis pendencia in one case is a bar to the others; and, a final judgment in one would constitute res judicata and thus would cause the dismissal of the rest. In either case, forum shopping could be cited by the other party as a ground to ask for summary dismissal of the two or more complaints or petitions, and for the imposition of the other sanctions, which are direct contempt of court, criminal prosecution, and disciplinary action against the erring lawyer.” (First Philippine International Bank vs. CA, supra.) So, what is the difference between forum shopping and litis pendentia? Actually, there is no difference. Mas maganda pa nga i-dalawa mo – litis pendentia and forum shopping. Ano ang effect? Sabihin mo, litis pendentia – one will be dismissed, the other will remain alive. In forum shopping naman, parehong patay iyan. The court will dismiss both. I-disciplinary action pa ang abogado. There is no contempt of court in litis pendentia. That is now the relationship of forum shopping and litis pendentia. Another case, also penned by Justice Panganiban in the same year, 1996, where he also made a statement that forum shopping and litis pendentia are almost identical is the case of EMPLOYEES COMPENSATION COMMISSION vs. COURT OF APPEALS 257 SCRA 717, June 28, 1996. HELD: Forum-shopping exists where the elements of litis pendencia. The test therefore in determining the presence of forum-shopping is whether in the two (or more case) pending, there is identity of (a) parties, (b) rights or causes of action and (c) reliefs sought. Forum-shopping does not require a literal identity of parties. It is sufficient that there is identity of interests represented. When there is already adjudication on the merits in one case to be more accurate, RES ADJUDICATA should be alleged, and not forum shopping as a defense because the decision in the

previous case had already become final and executory. So, when there is already a judgment in the previous case to be exact that should be res judicata. But when there is no decision yet, that is litis pendentia and forum shopping. ELEMENTS OF LITIS PENDENTIA Now, this is one of the grounds of a motion to dismiss which is the subject matter already of so many cases and so many questions in the bar. One of the fundamental questions which is asked here is: What are the requisites for litis pendencia as a ground for a motion to dismiss. Actually, there is no wrong if will file as many cases as I want against you provided the causes of action are different. Sometimes, it is difficult to determine where there is litis pendencia or none. It is possible for 2 cases to arise between the same parties or the 2 cases are interrelated. But actually they arose from different causes of action. So you will get confused. Sometimes when you read cases decided by the SC on litis pendencia, you will have a hard time determining whether the 2 cases are only related or they are really identical. IIf they are only related, there is no basis for dismissal. Q: What are the requisites of litis pendentia as a ground for a motion to dismiss? A: There are four (4) requisites: 4.) Identity of parties between the two actions, or at least such as represent the same interest; In the 2 actions, the parties are the same – the same plaintiff, same defendant. Literally, they may not be the same but the persons who are filing the second persons are actually doing it on you behalf. So they also represent the same interest. 5.) Identity of rights asserted and relief prayed for; The rights asserted are the same. The relief prayed for in both actions are the same. 6.) The relief must be founded on the same facts; So same basis; same evidence. 7.) The identity in these particulars should be such that any judgment which may be rendered on the other action will, regardless of which parity is successful, amount to res adjudicata in the action under consideration. (Olayvar vs. Olayvar, 98 Phil. 52; Sapul vs. Siva, 57 O.G. 1040, Feb. 6, 1961; Pampanga Bus Co. vs. Ocefemia, L-21793, Oct. 20, 1966) In other words, the principle of res adjudicata will apply. CASE: The husband filed an action for legal separation on the ground of adultery of his wife. In the same action, the wife demanded, in a counterclaim, maintenance and support for her and here children. Subsequently, the wife filed an independent action for support against her husband. Will the second action prosper? A: NO, the issue of support having been raised in the first action as a counterclaim, it cannot be made an issue in a subsequent independent action. Hence, the independent action for support should be

dismissed on the ground of lis pendens, all the other requisites being present. (Olayvar vs. Olayvar, supra) Klaro iyan. Nag-counterclaim ka ng support dito (first action). File ka na naman ng action for support. So, there are now 2 actions for support. Di pwede yan. Litis Pendentia; Fourth Element: THE IDENTITY IN THESE PARTICULARS SHOULD BE SUCH THAT ANY JUDGMENT WHICH MAY BE RENDERED ON THE OTHER ACTION WILL, REGARDLESS OF WHICH PARITY IS SUCCESSFUL, AMOUNT TO RES ADJUDICATA IN THE ACTION UNDER CONSIDERATION. Now, out of these requisites the last one is the most important – the identity of parties, rights, relief and facts should be such that any judgment which the court will render in the other action will automatically be res adjudicata in the present action. Any judgment which the court will render in the first case regardless of who wins will amount to res adjudicata in the second action. That is a very important requisite. Let us see how that was applied by the SC. TAMBUNTING vs. ONG L-2284, August 11, 1950 FACTS: It involves a case between a mortgagor and a mortgagee. Mortgagor filed a case against the mortgagee. The nature of the action is annulment of mortgage contract – annulment of real estate mortgage. While their action was pending, the mortgagee filed another action against the mortgagor and the action is foreclosure of the same mortgage. So dalawa na. Now, the mortgagor, the plaintiff in the first case filed a motion to dismiss the second case on the ground of litis pendentia on his argument that suppose I win in this case of annulment of mortgage and the mortgage contract is annulled, what are you foreclosing? There is nothing to foreclose. So the second action for foreclosure will have as basis if the mortgage contract is annulled in the first case. So there being litis pendencia, the second case should be dismissed. HELD: It is true that the second case will have no more leg to stand on if the mortgagor will win the first case, that is if you win. Eh paano kung talo ka? Suppose the first case of annulment of mortgage contract is dismissed? So the mortgage contract is valid, with more reason the mortgagee has the right to foreclose. Therefore, the fourth requisite is missing because the fourth requisite is regardless of who wins in the first case, it will bar the second case. But here, the second case would be barred if the mortgagor wins but if the mortgagee wins, the second case will not be barred. So the fourth element is not present. There is no litis pendencia in this case. FRANCISCO vs. VDA. DE BLAS 93 Phil. 1 FACTS: Jayhan filed a case against Jessa for recovery of a piece of land – accion publiciana. According to Jayhan, she is the owner of the land occupied by Jessa, so Jessa should surrender the land to him. Of course, Jessa will deny that. While the action was pending, Jessa naman filed another case against Jayhan for quieting of title (that your title be in effect confirmed as valid so that you will not be molested anymore by the plaintiff). So in effect, Jessa is asking the court to declare

him as the real owner and is therefore entitled to possess the property. ISSUE: Is there litis pendencia? Can both cases prosper? HELD: Alright, let’s analyze. Suppose Jayhan wins the case for recovery, the court in effect is saying that Jayhan is the real owner, that practically render moot and academic because practically if Jayhan wins the first case, the action of Jessa for quieting of title will fail because the owner pala is Jayhan. In other words, if Jayhan wins the first case, it will bar the second. Now, suppose Jessa will in the first case, the court in effect is saying that Jayhan is not entitled to possess, she is not the owner, Jessa is the owner. In effect, the title of Jessa is automatically granted, rendering unnecessary the second case. So, that is a perfect example of litis pendentia – “whoever wins in the first case will bar the second. This is an illustration of the fourth requisite.” So in this case, there is litis pendentia. TEODORO vs. MIRASOL 99 Phil. 150 FACTS: There was a lease contract between the lessor and the lessee and they were already quarreling. According to the lessor, “Mr. Lessee, I would like to remind you that our contract is only good up to April. So 3 months from now, expired na. you better look for a place to transfer because I’m not going to renew the lease contract.” Sabi ng lessee, “No, no, no. That contract will be valid until next year pa!” The lessor asserted tha the contract is only good up to April. Nag-aaway na talaga sila. They already have a quarrel as to whether that contract is only good up to April or until next year. Now, what happens, inunahan ni lessee ang lessor. He filed immediately an action for declaratory relief under Rule 63 on the issue on whether the contract will expire by April or next year pa. The case dragged on and dumating na ang April and of course the contention of the lessor is that the contract has expired. So file na si lessor ng unlawful detainer on the ground that the lease contract has expired. So dalawa na ang kaso. May litis pendencia na. One of them must be dismissed. The lessor filed a motion to dismiss on the ground of litis pendencia. The lessee complained, “Why will you dismiss my case eh mas nauna ako sa yo?! If there is an action which should be dismissed, it must be yours. Nauna akong nag-file. Dapat sa iyo ang i-dismiss, last ka man nag-file.” ISSUE: When there is litis pendentia, which action should be dismissed? HELD: The dismissal of the first action would be proper. Why? What is the ground for dismissal? – that there is another action pending between the same parties for the same cause. The law does not say that there is another prior action pending. Wala mang word na “prior” ba, basta “another action.” So, in litis pendencia, either one can be dismissed. It does not necessarily follow that the first one will be dismissed or the second one. Either one will be dismissed.

Now, the most exhaustive discussion on this issue on which case should be dismissed when there is litis pendentia was the 1993 case of: VICTRONICS COMPUTERS INC. vs. RTC BRANCH 63 OF MAKATI 217 SCRA 517 HELD: As a general rule, it should be the second case that should be dismissed by applying the principle of priority in time and the Latin maxim of qui prior estempore ochor estiore (he who is before in time is the better law). Priority in time gives preference in law. And that is common sense. Just like in Labor Law – last in, first out – kung huli kang dumating, you are the last to be employed. Kung termination, unahin ka rin, last ka eh. So that’s the general rule. But the general rule is not true all the time just like what happened in the case of TEODORO VS. MIRASOL where the first case was ordered dismissed. Also in the case of RAMOS VS. PERALTA (98 Phil) Q: What was the principle used in the case of TEODORO and RAMOS in sustaining the dismissal of the first case instead of the second? A: The criterion which was applied by the SC was: What is the more appropriate action to remain. So hind iyung nauna but that which is more appropriate. In the case of TEODORO, since we are talking about ejectment here, the unlawful detainer case is the more appropriate action to remain rather than the first (declaratory relief). So it is not a question of sino ang nauna but which action should stay for the good of the parties. The same thing happened in the case of ROA MAGSAYSAY vs. MAGSAYSAY

98 SCRA 592 HELD: In this case there was also a conflict on which case should be dismissed and which case should remain. The trial court ordered the dismissal of the first case by applying another criterion – the criterion of interest of justice. In applying this standard, the court should ask which case is in a better position to serve the interest of justice or which case should remain to serve the interest of justice taking into account the nature of the controversy, the comparative accessibility of the court to the parties and other similar factors. So, the general rule is: dismiss the second case, let the first case remain based on the rule on priority in time. But sometimes, sabi ng SC, it is better that the first case is dismissed by using the standard of (1) more appropriate action or (2) interest of justice. And the SC said, it will boil down to this – was the first action filed in good faith or bad faith? Now, sabi ng SC in the case of TEODORO, it was obvious that the first action was filed by the lessee in bad faith because the lessee knows that by April, pa-file-an na siya ng kaso ng lessor to eject. Of course, meron man siyang depensa. His defense will be the contract will expire next year pa but siguro he believes in the principle of priority in time, the best defense is an offense. So, inunahan ko siya. So, may defense in the unlawful detainer case was converted into a cause of action. Instead of using his argument as a defense in his answer to the unlawful detainer, he converted it into a cause of action. So,

We will dismiss you. That was what happened in TEODORO. So, more or less, that is the explanation given by the SC in VICTRONICS case. Now, in a case the SC again touched on this criteria about litis pendentia. Practically, it is a reiteration of VICTRONICS COMPUTERS case. I am referring to the case of ALLIED BANKING CORP. vs. CA 259 SCRA 371, July 26, 1996 HELD: Justice Mendoza summarized the principle in this manner: Given, therefore, the pendency of two actions, the following are the relevant considerations in determining which action should be dismissed: (1) the date of filing, with preference generally given to the first action filed to be retained – that is the priority in time rule; (2) whether the action sought to be dismissed was filed merely to preempt the later action or to anticipate its filing and lay the basis for its dismissal – iyan ang tinatawag na the best defense is offense – that is the TEODORO vs. MIRASOL case – the action is filed merely as an anticipating action; and (3) whether the action is the appropriate vehicle for litigating the issues between the parties. So that is practically again the summary of VICTRONICS COMPUTERS case. PAMPANGA BUS CO. (PAMBUSCO) vs. OCEFEMIA

18 SCRA 407 NOTE: This problem was already asked in the Bar. FACTS: Cholo is a resident of Manila; Lew is a resident of Davao. There was contract between them. Cholo filed a case against Lew on lets say, January 5 in Manila where he resides, based on that contract. The venue is proper because the plaintiff is a resident of Manila. Now, let’s say on January 10, Lew not knowing about the Manila case filed an identical action against Cholo in Davao City. So hindi alam ni Lew na mayroon na palang kaso. So dalawa na. And then on January 15, Lew received summons in Manila case. By January 20, Cholo filed a motion to dismiss the Davao case on the ground of litis pendentia. According to Lew, there is no litis pendentia because when I filed may case against Cholo, there is no pending action to talk about because hindi ko alam. I received the summons very much later. ISSUE: Was there litis pendentia? Is Lew correct? HELD: There was litis pendentia. Lew is wrong. Why? When does an action, become pending? An actions becomes pending upon the filing of a case in court and the payment of docket fee. The actions does not become pending only from the time you receive the summons. It is pending form the moment it was filed. Therefore when it was filed on January 5, t is already pending although you did not know about it. That is the reasoning in this case.

ANDRESONS GROUP vs. COURT OF APPEALS G.R. No. 114928; January 21, 1997 FACTS: Willy Denate entered into an agency agreement with AG as its commission agent for the sale of wines and liquors in Davao City, Davao provinces and North Cotabato. On November 18, 1991, Denate filed a civil action for collection of sum of money against AG before the RTC Davao. Denate alleged that he was entitled to the amount of P882,107.95, representing commissions from AG but that AG had maliciously failed and refused to pay the same. On December 19, 1991, AG likewise filed a complaint for collection of sum of money with damages against Denate with the RTC Kalookan City. AG alleged that Denate still owed it the sum of P1,618,467.98 after deducting commissions and remittances. Denate filed a Motion to dismiss the case with the Kalookan RTC on the ground that there was another action pending between the same parties for the same cause of action, citing the case earlier filed with the RTC of Davao City. AG filed its opposition to the Motion to Dismiss on the ground that the RTC of Davao had not acquired jurisdiction over it. RTC of Kalookan City ruled that: “the Davao case involves the same parties, and involves substantial identity in the case of action and reliefs sought, as in the instant case however, jurisdiction over the parties has already been acquired by the RTC Kaloocan, as Denate received the summons as early as Jan 8, 1992, and AG. On the other hand, the summons in the Davao case has not yet been served as of Apr 21, 1992, the date of the hearing of the instant motion, so much so that the said Davao Court has not yet acquired jurisdiction over the parties.” The CA reversed. ISSUE: Should the action in the Kalookan RTC be dismissed on the ground of lis pendens? HELD: YES. “Lis pendens 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. To constitute the defense of lis pendens, it must appear that not only are the parties in the two actions the same but there is substantial identity in the cause of action and relief sought.” “Further, it is required that the identity be such that any judgment which may be rendered in the other would, regardless of which party is successful, amount to res judicata on the case on hand. All these requisites are present in the instant case: 1.)The parties in the Davao and Caloocan cases are the same; 2.) They are suing each other for sums of money which arose from their contract of agency; 3.) The relief prayed for is based on the same facts and there is identity of rights asserted; 4.) Any judgment rendered in one case would amount to res judicata in the other.” “In conceptualizing lis pendens, we have said that like res judicata as a doctrine, litis pendentia is a sanction of public policy against multiplicity of suits. The principle upon which a plea of another action pending is sustained is that the latter action is deemed unnecessary and vexatious.” “AG asserts that the Davao Court had not yet acquired jurisdiction over the parties as the summons had not been served as of April 21, 1992 and it claims that pendency of a case, as contemplated by the law on lis pendens, presupposes a valid service of summons.” “This argument is untenable. A civil action is commenced by filing a complaint with the

court. The phraseology adopted in the Rules of Court merely states that another action pending between the same parties for the same cause is a ground for motion to dismiss. As worded, the rule does not contemplate that there be a prior pending action, since it is enough that there is a pending action. Neither is it required that the party be served with summons before lis pendens should apply. The rule of lis pendens refers to another action. An action starts only upon the filing of a complaint in court.” “It must be emphasized that the rule on litis pendentia does not require that the later case should yield to the earlier. The criterion used in determining which case should be abated is which is the more appropriate action or which court would be in a better position to serve the interests of justice. Applying these criteria, and considering that both cases involve a sum of money collected in and around Davao, the Davao Court would be in a better position to hear and try the case, as the witnesses and evidence would be coming from said area.” “WHEREFORE, the decision of the CA is hereby AFFIRMED.” Sixth Ground: [f] THAT THE CAUSE OF ACTION IS BARRED BY A PRIOR JUDGMENT OR BY THE STATUTE OF LIMITATIONS; Actually there are two grounds here: 1.) Barred by prior judgment (RES ADJUDICATA) and 2.) Barred by statute of limitations. BARRED BY PRIOR JUDGMENT OR RES JUDICATA. This is also related to splitting of cause of action. The only difference is: there is already a judgment in the first action which has become final and executory. That is why, you have to go back to Rule 2, Section 4 – what is the effect of splitting a cause of action? The pendency of one case or judgment in one case is a ground f or the dismissal of the other. So, if there is a case on appeal, the proper ground for dismissal would be litis pendentia rather than res adjudicata because the case is still pending before the CA – the judgment is not yet final. BARRED BY STATUE OF LIMITATIONS. Prescription. Filed out of time. The grounds on motion to dismiss are waivable based on Rule 9, Section 1 – defenses and objections not pleaded whether in a motion to dismiss or in the answer are deemed waived. HOWEVER when it appears from the pleadings or the evidence on record: 5.) that the court has no jurisdiction over the subject matter (Rule 16, Section 1 [b]); 6.) that there is another action pending between the same parties for the same cause (Rule 16, Section 1 [e]); or 7.) that the action is barred by a prior judgment (Rule 16, Section 1 [f]); or 8.) that the action is barred statute of limitations (Rule 16, Section 1 [f]), the court shall dismiss the claim. Seventh Ground: [g] THAT THE PLEADING ASSERTING THE CLAIM STATES NO CAUSE OF ACTION; That is also an important one – the pleading asserting the claim does not state a cause of action. In most cases, it is the defendant who files a motion to dismiss citing this ground.

Remember that under Rule 2, Section 1, every civil action must be based on a cause of action. Therefore, the four (4) elements of cause of action must be alleged. If one element is missing, there is no cause of action and it is now a ground for dismissal. So, that is a condition. Kung walang cause of action, patay! I think the language of the previous rule is: The complaint states no cause of action. That is the ‘64 Rules. Ito namang 1997 Rules: The pleading asserting the claim states no cause of action. This is broader because the pleading which does not state a cause of action could be a complaint, counter-claim, cross-clam or third-party complaint. So, it is broader. Q: How will you know that the pleading (e.g. complaint) states or does not state a cause of action? A: The principle to remember is: Whether the pleading states a cause of action or not is determined only by allegations in the pleading. The rule is similar to on the ground of lack of jurisdiction under paragraph [b]. The defendant is not allowed to say that the plaintiff has no cause of action because what he is saying in his complaint is not true and this is what is true. No, that will not lie. You have to hypothetically admit again. What is the rule? When a defendant files a motion to dismiss under this ground, he hypothetically admits the truth of all the allegation raised in the complaint. And he is posing this question: “Assuming for the sake of argument that everything contained in your complaint or pleading is really correct, are you entitled to the relief prayed for?” If the answer is YES, then it states a cause of action. If the answer is NO, even if lahat niyan eh totoo, you still can’t win, then there is something wrong in the complaint. It still states no cause of action. Therefore, when the defendant disputes the truth of the allegations of the complaint, the correct move is to file an answer and not a motion to dismiss. He cannot dispute the allegation in the pleading because he hypothetically admits them. That is why the SC said in the case of MUNICIPALITY OF BIÑAN vs. GARCIA 180 SCRA 576 [1989] HELD: The lack of cause of action is not a ground for the dismissal of an action under Rule 16. The ground is the failure of the complaint to state a cause of action which is obviously not the same as the plaintiff not having a cause of action. The lack of cause of action becomes evident during the course of the trial but whether the complaint states a cause of action is only limited to what the complaint says. So, my complaint may state a cause of action when in reality it does not. At that moment, you cannot dismiss it. Now, of course the rule that a defendant who files a motion to dismiss hypothetically admits all the allegations in the complaint, as explained by the SC, refer only to material allegations of ultimate facts. If those are evidentiary facts or conclusions of fact or law, they are not admitted, for in the first place, they have no place in the pleading.

Di ba? You are not supposed to allege conclusion there or arguments. So these are not admitted even if I filed a motion because what are admitted are those material allegation of the ultimate facts. That is the ruling in the 1990 case of RAVA DEV'T CORP. vs. COURT OF APPEALS 211 SCRA 144 [1992] HELD: “The hypothetical admission is however limited to the relevant and material facts well pleaded in the complaint and inferences fairly deductible therefrom. The admission does not extend to conclusions or interpretations of law; nor does it cover allegations of fact the falsity of which is subject to judicial notice.” Meaning, you allege there something which is 100% false and the court knows it, but you filed a motion to dismiss, are you deemed to hypothetically admit something which everybody knows is false? NO. When you file a motion to dismiss, you are deemed to admit everything there is true except matters which are 100% false and which the court itself knows to be false, or the conclusions of the pleader because in the first place, conclusions have no place in the pleading.

ROSITA TAN vs. COURT OF APPEALS 295 SCRA 247 [Sept. 9, 1998] FACTS: The controversy centers on 2 parcels of land, Manila previously owned by one Alejandro Tan Keh and which were then covered by TCT 35656.Fernando Tan Kiat claimed that he bought the land from Tan Keh in 1954, but was unable to effect immediate transfer of title in his favor in view of his foreign nationality at the time of the sale. Nonetheless, as an assurance in good faith of the sales agreement, Tan Keh turned over to Kiat the owner's duplicate copy of TCT 35656 and, in addition, executed a lease contract in favor of Kiat for 40 years. However, in 1958, Tan Keh sold the subject properties to Remigio Tan, his brother and father of Rosita Tan, with the understanding that the land are to be held in trust by Remigio for the benefit of Kiat and that Remigio would execute the proper documents of transfer in favor of Kiat should Kiat at anytime demand recovery of land. TCT 35656 was thus cancelled and in lieu thereof TCT 53284 was issued in the name of Remigio. Another contract of lease was executed by Tan Keh and Remigio in favor of Kiat to further safeguard Kiat's interest on the land, but Kiat never paid any rental and no demand whatsoever for the payment thereof had been made on him. Remigio was killed in 1968. At his wake, Rosita was reminded of Kiat's ownership of the land and she promised to transfer the land to Kiat who by then had already acquired Filipino citizenship by naturalization. Rosita, however, never made good their promise to convey the land despite repeated demands by Kiat. In fact, Rosita had the land fraudulently transferred to her name under TCT 117898. Thus, the filing of the complaint for recovery of property. On Nov 10, 1993, Rosita filed a Motion To Dismiss the complaint, claiming that: the complaint stated no cause of action; the cause of action has long prescribed; the cause of action has long been barred by a prior judgment; and, the claim has been waived, abandoned

and/or extinguished by laches and estoppel. The RTC issued an order dismissing Kiat's complaint, acceding to all the grounds set forth by Rosita in her motion to dismiss. CA set aside the dismissal and ordered the remand of the case for further proceedings. HELD: There is merit in the petition. “There being no trust, express or implied, established in favor of Kiat, the only transaction that can be gleaned from the allegations in the complaint is a double sale, the controlling provision for which is Art. 1544 of the Civil Code. Kiat alleged that he bought the subject properties from Tan Keh in 1954 but nonetheless failed to present any document evidencing the same, while Remigio, as the other buyer, had in his name TCT 53284 duly registered on Oct 13, 1958.” “Remigio, beyond doubt, was the buyer entitled to the subject properties since the prevailing rule is that in the double sale of real property, the buyer who is in possession of a Torrens title and had the deed of sale registered must prevail. Rosita is in possession of TCT 117898 which evidences her ownership of land. Kiat relies simply on the allegation that he is entitled to the properties by virtue of a sale between him and Tan Keh who is now dead. Obviously, Kiat will rely on parol evidence which, under the circumstances obtaining, cannot be allowed without violating the "Dead Man's Statute" found in Sec. 23, Rule 130. Clearly then, from a reading of the complaint itself, the complaint indeed does not spell out any cause of action.” “We also agree with Rosita's submission that Kiat's cause of action has prescribed. TCT 53284 in the name of Remigio was registered on Oct 13, 1958, while TCT 117898 in the name of Rosita, was issued on Apr 21, 1975. Kiat filed his complaint on Oct 18, 1993. CA held that the 10-year prescriptive period for the reconveyance of property based on an implied trust cannot apply in this case since Kiat was in actual possession of the subject properties.” “However, Kiat's occupation of the land was never in the concept of an owner since he was a mere lessee who is estopped from denying the title of Remigio as owner-lessor. It thus becomes evident that the filing of Kiat's complaint in 1993 — 35 years after TCT 53284 in the name of Remigio was registered and 18 years after the issuance of TCT 117898 in the name of Rosita — was way beyond the 10-year time limit within which reconveyance of property based on an implied trust should be instituted. Kiat's cause of action, assuming that it exists, has clearly prescribed.” “Finally, Kiat is guilty of laches. Kiat's possession of the land cannot be made the basis to deflect the effects of laches because he is a mere lessee who, to repeat, cannot assert any adverse claim of ownership over the subject properties against the lessor-owner. What ought to be in focus is that, Kiat was not able to effect the transfer of title over the subject properties in his favor upon his purchase thereof from Tan Keh in 1954 because he was still a foreigner at that time. But Kiat later on claimed that he was already a Filipino national when he reminded Rosita of his ownership of the subject properties during Remigio s wake sometime in 1968.” “It may be reasonably deduced from these allegations that Kiat acquired Filipino citizenship by naturalization, thus entitling him to own properties in the 1960's, more or less. His mistake, if it is one, is that he tarried for 30 years before formally laying claim to the subject properties before the court. Considerable delay in asserting one's right before a court of justice is strongly persuasive of the lack of merit of his claim, since it is human nature for a person to enforce his right when the same is threatened or invaded. Thus, Kiat is estopped by laches from questioning the ownership of the land.” “WHEREFORE, the assailed decision of CA is SET ASIDE, and a new one is rendered

DISMISSING Fernando Tan Kiat's complaint.” Q: Now, is there an exception to the rule that when the court determines whether there is a cause of action or not, the court cannot look at the evidence – all must be based on the complaint and there should be no appreciation of any evidence? A: Based on the EXCEPTION in the case of SANTIAGO vs. PIONEER SAVINGS & LOAN BANK 157 SCRA 100 [1987] FACTS: The plaintiff filed a complaint against defendant with a prayer for a preliminary injunction. So, it is not only a complaint but plaintiff applied for a provisional remedy. And under the law in provisional remedy, that must be heard immediately because that is urgent, eh! And in a preliminary injunction, there must be a hearing because preliminary injunction cannot be granted ex parte. So even before the answer could be filed, nagkaroon na ng hearing and the plaintiff already presented evidence on his cause of action during the hearing for the issuance of the writ of preliminary injunction. Then after the hearing, here comes now the defendant moving to dismiss the entire case because there is no cause of action based on the evidence you presented. Plaintiff: No, the cause of action is determined only based on the allegations in the complaint and you do not look at the evidence. HELD: That is the general rule. If nag-present ka na ng ebidensiya in the preliminary injunction, the court can now determine whether there is a cause of action also based on the evidence. So that is the exception because there has been a reception of evidence ahead of a motion to dismiss. “It is true that the determination of the sufficiency of a cause of action must be limited to the facts alleged in the Complaint and no other should be considered. However, where a hearing was held and documentary evidence was presented, not on the Motion to Dismiss but on the question of granting or denying an application for a Writ of Preliminary Injunction, a motion to dismiss for insufficiency of cause of action will be granted if documentary evidence admitted by stipulation disclosing facts sufficient to defeat the claim which authorizes the court to go beyond disclosure in the complaint.” So that would be the exception: where evidence has already been presented in the main cause of action because of the application for preliminary injunction. Eight Ground: [h]THAT THE CLAIM OR DEMAND SET FORTH IN THE PLAINTIFF'S PLEADING HAS BEEN PAID, WAIVED, ABANDONED, OR OTHERWISE EXTINGUISHED; Under Obligations and Contracts, the modes of extinguishing obligation are Payment, Performance, Condonation, Compensation, Remission, etc. So if I have already paid a sum of money and you are filing a case to collect such amount, I can file a motion to dismiss on the ground that the claim or demand set forth in the complaint has already been paid or otherwise extinguished.

Ninth Ground: [i] THAT THE CLAIM ON WHICH THE ACTION IS FOUNDED IS UNENFORCEABLE UNDER THE PROVISIONS OF THE STATUTE OF FRAUDS Statute of Frauds are contracts under Article 1403 of the Civil Code which are unenforceable if not made in writing. However there is still a valid contract, only they are unenforceable because they were not reduced into writing. EXAMPLES of Statute of Frauds under Article 1403: 1.) a contract that by its terms is not to be performed within one year from the making of such contract; 2.) a special promise to answer for the debt, default, or miscarriage of another; 3.) an agreement made in consideration of marriage, other than a mutual promise to marry; 4.) an agreement for the sale of goods, chattels or things in action, at a price not less than five hundred pesos…; 5.) an agreement for the leasing for a longer period than one year, or for the sale of real property or an interest therein; 6.) a representation as to the credit of a third person.

Tenth Ground: [j] THAT A CONDITION PRECEDENT FOR FILING THE CLAIM HAS NOT BEEN COMPLIED WITH. Meaning, the law requires something to be done before going to court and if you file the case in court immediately without complying with that condition precedent, then the defendant can move for dismissal of the complaint. EXAMPLES: 1.) Failure to exhaust administrative remedies; 2.) Failure to undergo Barangay Conciliation; For parties residing in the same city, one must first settle or compromise the suit at the barangay level before raising the action in court. If nothing will happen then proceed the case to court. 3.) Article 151 of the Family Code contemplates suit between family members. It must be alleged in the complaint that earnest efforts towards a compromise is made between: husband and wife, parents and children, ascendants and descendants, brothers and sisters, whether full or half blood. So you are not allowed to file a case directly between family members in order to preserve the family as a basic social institution being the foundation of the nation. So it should appear form a verified complaint or petition that earnest efforts toward a compromise have been made, but the same have failed. If it is shown that no such efforts were in fact made, the case must be dismissed. Q: What about a suit to a nephew?

A: Article 151 will not apply. One can file directly to the court because even though he is your relative he is not a member of your family. Q: How about a suit against a brother and a stranger? A: There is no need for the requirement of earnest efforts. It is a mixed case, there is already a stranger included. Pag-nahaluan na, Article 151 will not apply anymore. Now, under the last sentence of Article 151, “This rule shall not apply to cases which may not be the subject of compromise under the Civil Code.” This refer to Article 2035 of the New Civil Code: Art. 2035. No compromise upon the following questions shall be valid: 1. 2. 3. 4. 5. 6.

The civil status of persons; The validity of a marriage or a legal separation; Any ground for legal separation; Future support; The jurisdiction of courts; Future legitime.

So hindi nyo pwedeng pag-usapan na lang ang mga bagay na iyan. If a person claiming to be the son of your father and you wish to avoid delay, you will seek to compromise, this cannot be done. As well as saying you are single even if you are married in order to facilitate things, this cannot be done. Under the 1964 Rules, this last ground (non-compliance with a condition precedent requirement) is not found therein. However, there is a ground that is no longer found in the present Rules of Court, that the suit between members of the family and that no earnest efforts towards a compromise has been made, this was stated as the last ground. It does not mean, however, that it can no longer be applied. This has been incorporated under paragraph [j] of the new rules. It is already a broader ground. Sec. 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)

During the hearing of a motion to dismiss, the movant is allowed to present evidence to prove his claim. Like for example: the venue is not properly laid or the action is already extinguished by payment or the action is already barred by a prior judgment. GENERAL RULE: On hearing on a motion to dismiss, the defendant is allowed to present evidence to prove the ground for his dismissal. EXCEPTION: He is not allowed when the grounds are: 1.) Lack of jurisdiction over the subject matter (paragraph [b]); or 2.) The pleading asserting the claim states no cause of action (paragraph [g]) When these are the grounds invoked, the defendant is not allowed to present evidence because you are hypothetically admitting all the allegations in the complaint as true and correct. You are not allowed to dispute or deny those allegations. It shall be based purely on the allegations of the complaint so you are not allowed to prove that those allegations are not true. And should the case go to trial, the evidence presented shall automatically form part of the evidence

of the party presenting the same. There is no need to present those evidence again during the trial because the evidence during the hearing is automatically part of the evidence during the trial. This is similar to the rule on Bail in Criminal Procedure. Sec. 3. Resolution of motion. After the hearing, the court action or claim, deny the motion, or order the amendment of the The court shall not defer the resolution of the motion for the ground relied upon is not indubitable. In every case, the resolution shall state clearly and reasons therefor. (3a)

may dismiss the pleading. the reason that distinctly

the

Q: How will the court rule on the motion to dismiss? A: The following: 7.) The court will dismiss the action. (motion is granted); 8.) The court will deny the motion (proceed to trial); or 9.) The court will order the amendment of the pleading When the court orders the amendment of the pleading, in effect the motion to dismiss is also denied. So, the rule is when the ground for the dismissal can be cured by amending the complaint, do not dismiss but require the party to amend the complaint. That is a polite way of denying your motion to dismiss. Like for example, the cause of action is imperfectly stated, kulang ng allegation ba. So the plaintiff would say: “Your Honor, we will add one sentence para makumpleto.” Sabi ng judge: “No! no! no! We will dismiss.” No, the judge cannot do that. Curable yon eh! And amendment of the pleading is favored. Q: Suppose the plaintiff filed a complaint and the defendant files a motion to dismiss, can the plaintiff still amend his complaint? Otherwise stated, can the plaintiff still amend his complaint when there is already a motion to dismiss? A: Ah YES! Because it is the right of the plaintiff to amend his complaint before a responsive pleading is served upon him. And a motion to dismiss is not a responsive pleading. It is not even a pleading (Guirao vs. Ver, April 29, 1966) The responsive pleading to the complaint is the Answer. Q: Now, suppose there is already an order of dismissal in which the court has already ordered the dismissal of the case, because it does not state the cause of action of the complaint. Plaintiff: “Alright! Motion to amend the complaint to state the cause of action and set aside the order of dismissal.” Can that still be done at that stage where there is already an order of dismissal? A: YES! Provided the order of dismissal has not yet become final and executory because the rule is absolute: for as long as there is still no responsive pleading, the right of the plaintiff to amend his complaint is a matter of right. The second paragraph of the section “The court shall not defer the resolution…” is an amendment of the previous rule. Under the previous rule, the court had four options: 1) grant the motion; 2) deny; 3)order amendment; and 4) defer the resolution for the reason that the ground relied upon is not indubitable. What does it mean? ‘Indubitable’ means without a doubt, thus the ground was not without a doubt, it is doubtful, it is not indubitable. EXAMPLE: Defendant filed a motion to dismiss the case and the court analyzed the ground. After analyzing, the court is not sure. The ground seems to be valid but the court also doubts.

Parang 50-50 ba. Now the previous rule allows the court not to act—it will not act, it will not deny. The court will just postpone the resolution of the motion to dismiss, until the trial, because the ground is doubtful. In the course of the trial, the court may realize whether the ground is correct or not. When the ground becomes clearer, the court may say, “All right, I will grant the motion”. That was allowed under the previous rule. NOW, that is not allowed anymore. The court really has to act on the motion: either grant it, deny it, or order the amendment. Even under the previous rule, there were already instances where the SC said that the courts should not postpone the resolution, especially when the ground of dismissal is lack of jurisdiction over the subject matter, or that the complaint states no cause of action. Why? The court only has to read the complaint and there is no need of presentation of evidence to rule on the motion. There were decided cases along that line, and obviously that reasoning predominated the committee. The last paragraph is self-explanatory, whether the Court denies or grants the Motion, it must support its Order. Sec. 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)

Q: Suppose defendant files a motion to dismiss and the court granted the motion. The case is dismissed. What happens to the case? A: No more case. The defendant has no more problem because the case has been ordered dismissed. Q: Suppose the court denies the motion to dismiss? A: Defendant is now obliged to file his answer. Under Rule 11, he has 15 days to file his answer. Q: But instead of filing his answer, he files a motion to dismiss. Like for example, after consuming 8 days, he files a motion to dismiss, the running of the period stops. After a while, he receives an order denying his motion. How many more days does he have? A: Seven (7) days only. He must file his answer within the remaining balance of the period. This is a radical departure from the previous Rule. Under the 1964 Rules, when you file a motion to dismiss on the eight day, and the motion is denied, you have 15 days all over again to file an answer. NOW, no more – you only have the remaining balance of the 15-day period. Q: Now, suppose you file your motion to dismiss on the 13th day, so, two days to go. If your motion is denied, do you only have two days to file your Answer? A: NO. You are entitled to not less than five (5) days. This is identical with Rule 12, Section 5 on Bills of Particular: Rule 12, Sec. 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 with 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)

Sec. 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)

Normally, when the motion to dismiss is granted, it does not prevent the plaintiff from re-filing the case. Like for example, the case is dismissed for lack of jurisdiction over the subject matter. I can refile that in the proper court. Or, suppose the case is dismissed for improper venue, so I will file it in the proper venue. But there is a new provision, that is, if the ground for a motion to dismiss are the following you cannot re-file it anymore. That is: paragraphs [f], [h] and [i]. Ano iyon? Prior judgment, res judicata, statute of limitations, prescription of the claim or statute of frauds. Tama man ba! common sense lang yan eh! Kaya nga na-dismiss eh kasi res judicata na, tapos magpa-file ka na naman ng panibago? Hindi na puwede yan. Or, it is already dismissed because the obligation has already been paid, then you will file? That cannot be done anymore. So, in other words, it is res judicata already. So to summarize: GENERAL RULE: A case that has been dismissed can be re-filed. EXCEPTIONS: When the case was dismissed on the following grounds: 1.) That the cause of action is barred by a prior judgment or by the statute of limitations; 2.) That the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned or otherwise extinguished; or 3.) That the claim on which the action is founded is unenforceable under the provisions of the Statute of Frauds. Q: For example, the court says: “Your action is barred by res judicata.” But actually, the court is wrong, what is your REMEDY? A: Your remedy is to appeal from the order of dismissal, but not to re-file the case because that would already be res adjudicata. That is common sense. Sec. 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)

Q: For example, I’m a defendant, I receive a complaint and I believe I have a ground for a Motion to Dismiss under Section 1 from [a] to [j]. I will not file a motion to dismiss, instead, I will file an answer, is that allowed? A: Yes, because it is OPTIONAL for a defendant to file a motion to dismiss. And I can file my answer and a grounds for dismissal can be raised as an affirmative defense.

So the grounds for a motion to dismiss are convertible. Instead of filing a motion to dismiss, I will allege the grounds as affirmative defenses, like—no cause of action, litis pendentia, res adjudicata, payment, statute of frauds, prescription… Now, if you will file an answer raising the ground for a motion to dismiss as an affirmative defense, then you are prolonging the agony because if the court has no jurisdiction, or there is improper venue or whatever it is, if you file a motion to dismiss in the first place and you are sustained, then tapos na sana! Bakit patagaling mo pa by filing an answer eh pwede naman pala i-raise yung mga yun in a motion to dismiss? Because of this, trial will proceed. And after the plaintiff has rested the case, that is the only time you will prove your defense. So, why do you prolong the agony? Under Section 6, after filing of such answer, the defendant can ask for a preliminary hearing on his affirmative defenses as if a motion to dismiss has been filed. Meaning, this should be heard ahead. And if the court grants the preliminary hearing, you can move your affirmative defenses ahead and if you correct, the court will dismiss the case. So, it has the same effect as if you file a motion to dismiss. That is why a preliminary hearing may be had as a motion to dismiss. Now, you ask me why should the defendant do this? Di, mabuti pa na mag-file na lang siya ng motion to dismiss – doon din pala and babaksakan eh. Why file an answer and then preliminary hearing? Because this is a matter of strategy on trial technique. If I will file a motion to dismiss which is not a responsive pleading, the plaintiff may amend the complaint, and I cannot prevent him from amending because the amendment is still a matter of right at that moment. So if I will file an answer instead, sabihin ng plaintiff, “Tama no? Ok, I will amend the complaint.” Defendant: “No! No! No! No! Hindi na puwede because may responsive pleading na! Amendment is not anymore a matter of right.” That would be the purpose of the defendant in not filing a motion to dismiss. That follows the general principle in trial technique. Do not expose your adversary’s mistake when he is in a position to correct them. When the point is reached when he cannot anymore correct the error, then, dyan mo na ilabas. Huwag kang magmadali, maghintay ka. That is the advice in trial technique. The second paragraph of Section 6 is new: 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)

Q: Suppose I will file an answer with affirmative defenses and with a counterclaim. If the court dismisses the complaint, what happens to my counterclaim? A: Under the NEW RULES, there are two possibilities: 1.) The defendant can still prosecute his counterclaim in a separate action; or 2.) The defendant can dismiss the complaint but the counterclaim remains alive. In the OLD RULES, when the main case is dismissed, the counterclaim is automatically dismissed, lalo na ‘yong compulsory. If the defendant moved to dismiss the case, in effect he was also moving to dismiss his counterclaim. That is what the SC said in the case of

INT’L CONTAINER TERMINAL SERVICES vs. COURT OF APPEALS 214 SCRA 456 [OBSOLETE!] HELD: “A compulsory counterclaim is so intertwined with the complaint that it would not remain pending for independent adjudication by the court after the dismissal of the complaint which had provoked the counterclaim in the first place. As a consequence, the dismissal of the complaint operated also to dismiss the counterclaim questioning the complaint. When defendant moved to dismiss the main action, he also moved, in effect, for the dismissal of the counterclaim.” That is the prior rule. That ruling is already OBSOLETE because of this new paragraph, “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.” NOW, you can move to dismiss the complaint. Ang counterclaim mo buhay pa rin. And you can continue to insist that on a trial.



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)

Q: Can a plaintiff file a complaint and later change his mind and withdraw? Meaning, can he dismiss his own complaint? A: YES. And it is a matter of right. Q: How? A: By filing a NOTICE OF DISMISSAL at ANY TIME BEFORE service of the answer or a motion for Summary Judgment. Meaning, for as long as the defendant has not yet filed his answer, the plaintiff has the right to dismiss his own complaint by simply sending the court what is known as a notice of dismissal. This is similar to Rule 10 on amendments. When is amendment a matter of right? For as long as there is no answer yet. Take note that upon filing of the notice of dismissal, the court shall issue an order confirming the dismissal. The reason is that, the withdrawal is not automatic. Withdrawal does not take effect until confirmed by the court. This is keeping with the respect due to the court. Under the rules on civil procedure, there are two types of dismissal: 1. Dismissal with prejudice – the case can no longer be re-filed; 2. Dismissal without prejudice –the case can be re-filed. Q: Is the dismissal under Section 1 with or without prejudice? A: GENERAL RULE: The dismissal is WITHOUT PREJUDICE. The case can be re-filed. EXCEPTIONS: 8.) When in the notice of dismissal itself, the plaintiff himself stated that he is dismissing his own complaint with prejudice; OR 9.) When 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.. This is the TWO-DISMISSAL RULE. ILLUSTRATION (Two-Dismissal Rule): I borrowed money from Mr. Castaños and I did not pay him. So he filed a case against me to collect the unpaid loan. Upon receipt of the summons, I approach Mr. Castaños, “Huwag mo nalang ituloy ang kaso mo, babayaran kita. I will not file an Answer, hindi nalang ako kukuha ng lawyer. I-dismiss mo na lang iyan, babayaran kita next month, wala lang akong kuwarta ngayon. I will refund you for the filing fee”. Ngayon, payag siya. He will send a notice to the court dismissing his complaint. The case is dismissed, without prejudice.

After one month, I did not pay again. So nagalit si Mr. Castaños, he re-filed the same complaint, pangalawa na. I now receive another summons. So, lapit ako sa kanya, “Bakit mo fi-nile kaagad?” “Eh, sabi mo, after one month magbabayad ka.” “Wala lang akong kuwarta, next month pa dadating ang kuwarta ko. I-dismiss mo na ULI yan. Basta, promise, next month, bayad na talaga ako. Isauli ko ang ginasta mo sa filing fee.” Tapos, naatik na naman siya. So he files a notice of dismissal again, doble. The same case was dismissed twice. He availed of the dismissal in Section 1 twice. After next month, hindi na naman ako nagbayad. So nagalit na naman siya. So he filed the same case for the third time. I receive the summons. You know what I will do? I will file a motion to dismiss the case because the second dismissal is automatically with prejudice. This is known as the 2-dismissal rule. You cannot file it for the third time. Briefly, the two-dismissal rule simply means that when the same complaint had twice been dismissed by the plaintiff under Section 1 by simply filing a notice of dismissal, the second dismissal shall be with prejudice. Yaann! Q: Suppose you file a complaint against Mr. Cruz and you immediately changed your mind and had it dismissed under Section 1. And then after having dismissed, you changed again your mind and you want to re-file the action. Now, How do you re-file it the action? Do you file another complaint again? A: That was answered in the case of ORTIGAS AND CO. LTD PARTNERSHIP vs. VELASCO 234 SCRA 455 [1994] HELD: It DEPENDS on whether the order of dismissal has already become final. 9.) If within 15 days from the time it is ordered dismissed, all that you have to do is to ask the court to set aside the order of dismissal and re-vive the case because the order of dismissal have not yet become final. 10.) However, if the order of the court dismissing the complaint based on your own notice has become final after 15 days, then the only way you can revive it is to file an entirely new action. Sec. 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)

Q: If the defendant has already filed an answer or a motion for summary judgment, may the complaint still be dismissed by the plaintiff? A: YES, but it is already upon the approval of the court and upon such terms and conditions as the court deems proper. Meaning, the dismissal under Section 2 by the plaintiff is no longer a matter of right because the defendant has already filed an answer or a motion for summary judgment.

Q: Suppose I file a case against you and you file an answer with counterclaim, and I filed a notice dismissing my own complaint. Can it be done? What happens to the counterclaim? A: The dismissal of the complaint DOES NOT necessarily mean the dismissal of the counterclaim. So a compulsory counterclaim remains despite the dismissal of the complaint. The dismissal shall be limited to the complaint. Of course, generally, if we follow the language of the law, when you dismiss the complaint, the counterclaim is also dismissed unless within 15 days, the defendant manifest his preference to have his counterclaim resolve in the same action. GENERAL PULE: If you dismiss the complaint, the compulsory counterclaim is also dismissed. EXCEPTION: The defendant can revive the compulsory counterclaim within 15 days. That is the radical change. The cases that we cited before are now bahaw. Q: Now, suppose the complaint is dismissed under Section 2 upon initiative of the plaintiff, can he re-file the case? A: The rule is the same as Section 1 – the dismissal of the complaint under Section 2 shall be without prejudice unless otherwise specified in the order of dismissal. So, the dismissal under Sections 1 and 2 is generally without prejudice. The last sentence, “A class suit shall not be dismissed or compromised without the approval of the court.” When you file a class suit, you are not only fighting for yourself – you are fighting for the others. So, you cannot just withdraw it on your own or else, you will cause prejudice to everybody. So, in order to prevent the person who filed it from prejudicing the right of the members of the class suit, it cannot be dismissed or compromised without the approval of the court. Sec. 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)

Q: What are the grounds for the dismissal of the case under Section 3? A: The following are the grounds for the dismissal of a case under Section 3: 3.) The plaintiff fails to appear on the date of the presentation of his evidence-in-chief on the complaint; 4.) The plaintiff fails to prosecute his action for an unreasonable length of time; 5.) The plaintiff fails to comply with the Rules of Court or any order of the court for no justifiable reason or cause. First Ground: THE PLAINTIFF FAILS TO APPEAR ON THE DATE OF THE PRESENTATION OF HIS EVIDENCE-IN-CHIEF ON THE COMPLAINT

Evidence-in-chief is the main evidence of the plaintiff to prove his cause of action. So if the plaintiff fails to appear on the date of the presentation of his evidence-in-chief on the complaint, the case can be dismissed. This has been taken from the ruling of the SC in the case of: JALOVER vs. YTORIAGA 80 SCRA 100 [1977] FACTS: Plaintiff appeared during the trial and presented his evidence and then he rested. And then during the hearing of the presentation of the defendant’s evidence, plaintiff failed to appear. And since he failed to appear during trial, the court dismissed the case. HELD: The dismissal is WRONG. Why dismiss the case when he has already presented his evidence? It is tantamount to deciding the case against the plaintiff without considering the evidence that he has presented. What is the remedy then? What the court should do is to proceed with the presentation of the defendant’s evidence without the plaintiff. Do not dismiss the case the plaintiff has already presented his evidence. That is why the language in the old rule is ‘failure to prosecute’ or another term is ‘non-suited’. But the rules of court now wants to avoid the word ‘non-suited’ because it carries a different meaning. If plaintiff fails to appear on the date of the presentation of his evidence-in-chief, but he arrived a little bit late, or he failed to appear because he failed to receive the notice setting it, that is different because the law says, “for no justifiable cause.” If I am late but a few minutes only, that is not a good basis to dismiss the case forever. There is no intentional failure not to appear. In which case, if there is an order of dismissal, it should be set aside because the condition is “for no justifiable cause.” If it was the defendant who failed to appear without justifiable cause, the plaintiff should move that the trial shall proceed ex-parte. But definitely, the defendant cannot be declared in default because he already filed an answer. Second Ground: FAILURE OF PLAINTIFF TO PROSECUTE HIS ACTION FOR UNREASONABLE LENGTH OF TIME. EXAMPLE: Maybe every time his case is called to trial, he appears but he is not ready and so he postpones. The next hearing, he postpones again. That’s one interpretation. Another interpretation of “failure to prosecute” the complaint is filed, answer if filed, the case has not been set for pre-trial, the plaintiff did not take the initiative to have the case set for pre-trial. For more than one year, the case has not been set for pre-trial and the plaintiff is not moving. Ikaw ang plaintiff, ikaw ang kumilos! Or, the case cannot be tried because the defendant cannot be summoned. The court keeps asking the plaintiff for the correct address of the defendant. And for more than one year, the plaintiff cannot supply the court of the correct address of the defendant. The judge cannot have the case docketed in court forever.

Third Ground: FAILURE TO COMPLY WITH THE RULES OF COURT OR ANY ORDER OF THE COURT. EXAMPLE: The court says, “Plaintiff, you are hereby directed to amend the complaint.” Plaintiff refuse to amend. The court will dismiss the case. Remember that case I cited where the complaint was filed in the name of for example, “PANINGKAMOT STORE vs. SO and SO.” The SC said that PANINGKAMOT STORE cannot be the plaintiff; it is not a person. It is only the name of the business establishment. Only natural person or juridical persons may be subject of the suit. Sabi naman ng SC, but do not dismiss. Give the plaintiff a chance to amend in order to reflect the owner of the store. So the court directs the plaintiff to amend. Ayaw mo i-amend ha? This time i-dismiss ko for failure to comply with the court’s order. Other Examples: Amend the pleading, submit a bill of particulars or certification of non-forum shopping. Now, Section 3 says, “…may be dismissed upon motion of the defendant or upon the court’s own motion (motu propio).” Q: As a general rule, can a court dismiss a complaint without any motion made by the defendant? A: GENERAL RULE: The court should not dismiss the case upon its own initiative, because the grounds for dismissal are waivable. If the defendant fails to move for dismissal, he is waiving the defect. Q: Give the EXCEPTIONS (When may the court dismiss the complaint motu propio?). A: The following 10.) Section 3, Rule 17 (Plaintiff’s fault); 11.) When on its face, the complaint shows that the court has no jurisdiction over the subject matter; 12.) When there is litis pendentia; or res adjudicata; or when the action has prescribed; 13.) Under the Summary Rules, the court is empowered to dismiss immediately without any motion. Take note of what the law says, if the complaint is dismissed under Section 3, it is without prejudice to the right of the defendant to prosecute his counterclaim in the same or separate action. Again, the dismissal of the main action or compliant does not mean the dismissal of the counterclaim. This is the same with Section 2. Q: If the complaint is dismissed under Section 3, can it still be re-filed? A: NO, the dismissal this time shall have the effect of adjudication upon the merits. Meaning, res adjudicata applies, as if the case has already been decided. Therefore the elements of res adjudicata should also be present. The dismissal is with prejudice unless otherwise declared by the court. GENERAL RULE: Dismissal due to the fault of the plaintiff is with prejudice. EXCEPTION: Unless the court provides otherwise.

EXAMPLE: When the case was called for trial, plaintiff did not appear. Defendant moved to dismiss under Section 3. The court dismissed the case. Can the case be re-filed? NO, the dismissal is with prejudice. (General Rule) Suppose the court will say, “For non-appearance of the plaintiff, the complaint is dismissed without prejudice.” Can the case be re-filed? YES. (Exception) On the other hand, one of the interesting cases on this (the effect of res adjudicata – because when we say res adjudicata, it had to be correlated with the elements of res adjudicata in Rule 39) is the case of REPUBLIC PLANTERS BANK (RBP) vs. MOLINA 166 SCRA 39 [1988] FACTS: The RPB filed a case against the defendant for a sum of money. Defendant cannot be summoned because his whereabouts is now unknown. Several attempts made by the plaintiff to look for him failed. After a while the court dismissed the complaint for RBP’s failure to prosecute. And the order of dismissal was silent. So, following Section 3, the dismissal is with prejudice. Then later on, the plaintiff (RPB) discovered the whereabouts of the defendant. The RPB re-filed the compliant. Defendant moved to dismiss because when the first complaint was dismissed and the order of dismissal was silent then the dismissal has the effect of an adjudication on the merits. HELD: Since We are talking of res adjudicata, let us correlate it with the elements of res adjudicata under Rule 39. One of the elements of res adjudicata is: When the case is terminated, the court has jurisdiction over the case both as to the person and the subject matter; In the case of RPB, the court never acquired jurisdiction over the person of the defendant because he was never served with summons. Therefore, such dismissal did not have the effect of res adjudicata. Meaning, Section 3 presupposes that the court acquired jurisdiction over the subject matter of the case, and the parties in the previous case in order that the dismissal be with prejudice. Sec. 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. (4a)

It means that the rules apply to dismissal of cross-claim, counterclaim, or third-party complaint – at any time before an answer is filed against a counterclaim, cross-claim or third-party complaint, plaintiff may dismiss his claim under Section 1, Rule 17.

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Rule 18 PRE-TRIAL Pre-trial in criminal cases is Rule 118. In civil cases, is Rule 18. It used to be Rule 20. Now, take note that no case can reach the trial stage without undergoing Pre-Trial after the issues have been joined. 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)

In civil actions, after the last pleading has been filed (Reply or Answer) the plaintiff is duty bound to move ex parte that the case be set for pre-trial. No civil action can reach the trial stage without passing the pre-trial period. Pre-trial in criminal cases is only optional—the accused and his lawyer have to agree. In civil cases, the pre-trial is MANDATORY – no case can reach the trial stage without undergoing Pre-Trial. And it is the duty of the plaintiff and not of the clerk of court to move to set the pre-trial. A motion for pre-trial can be filed ex parte, an exception to the rule that no motion can be filed ex parte. Sec. 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)

11.)

THE POSSIBILITY OF AN AMICABLE SETTLEMENT OR OF A SUBMISSION TO ALTERNATIVE MODES OF DISPUTE RESOLUTION

Remember that the policy of the law in civil cases is settlement to save time and expense. Here, you get something from me and I get something from you. Then we will submit out agreement to the court. In an amicable settlement, walang panalo and wala ring talo. So everybody goes home happy. There was an article where it says that one of the best gauge of a good lawyer is not that he has many cases, but that he knows how to settle a case because he saves his client from a lot of trouble. While a bad lawyer is one whose cases always end up in trial – he has many cases and he does not have the time anymore to study each cases. So, he ends up inefficient. As a matter of fact, even Abraham Lincoln who was a lawyer and became one of the best presidents of the United State, gave an advice to lawyers: “Discourage litigation. Persuade your neighbors to

compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man there will still be business enough.” Meaning, if you are a lawyer, you have a strong influence to convince your client to settle the problem with his opponent. You do not have to worry about losing fees for there are still cases to come. Even if you will come out the winner in the case, you are still the loser in terms of waste of time, money and effort. “…of a submission to alternative modes of dispute resolution.” – how to dispose of the case without passing to court, ba. This is similar to voluntary arbitration in the Labor Code – mas mabilis!. Kung sa court yan, matatagalan pa yan. Example is a controversy in the construction industry. Pagawa ka ng building. You quarrel with your contractor whether the building is properly constructed or not. That kind of dispute has to pass through arbitration like contractors. They will be the one to judge because they are experts in construction. So it is faster. Anong malay ng judges sa engineering? So, yan ang tinatawag na alternative modes of dispute resolution. Now, assuming that the parties cannot settle at the pre-trial stage, does it mean to say that the pretrial was a failure? NO, go to [b] to [i] on other ways to hasten the trial. (b) THE SIMPLIFICATION OF THE ISSUES Based on the answers filed, issue will be simplified or lessened/reduced to the most important and relevant ones. (c) THE NECESSITY OR DESIRABILITY OF AMENDING THE PLEADINGS; Take note that there is already a complaint and answer and yet during the pre-trial, the parties can still amend their complaint or answer. That means that amendments of pleadings are favored even at this stage. Amendment is necessary which is favored by the liberality principle, to adjudicate the case upon proper merits. INSURANCE CO. OF NORTH AMERICA vs. REPUBLIC 21 SCRA 887 BAR PROBLEM: Suppose A sued B. After pre-trial, it was determined that there was a necessity for amending the complaint. It was amended. Is there a need for a new pre-trial for the amended complaint? ANS: Where a pre-trial has already been had, the fact that an amended complaint is filed, does not mean the need for a new pre-trial. Pre-trial is not mandatory. Exception to this is when the parties agree to conduct another pre-trial. (d) STIPULATION OF FACTS Stipulation of facts means we can agree on some facts and there is no need of proving them in court because we already agreed. Such will hasten the trial because matters validly agreed upon can be dispensed with (e.g., size of the land, improvements thereon, stipulations, due execution of documents, etc.)

As far as the judge is concerned, he does not know anything about description of the land, he is not a surveyor, not a geodetic engineer. So it will be faster if a geodetic engineer surveyor will be appointed. What do you call this surveyor? He is a commissioner. (g) THE PROPRIETY OF RENDERING JUDGMENT ON THE PLEADINGS, OR SUMMARY JUDGMENT, OR OF DISMISSING THE ACTION SHOULD A VALID GROUND THEREFORE BE FOUND TO EXIST; Q: What do you mean by judgment on the pleadings? What do you mean by summary judgment? A: That was already mentioned under Rule 17, Section 1. But we will not take them up because they will be taken up when we reach Rule 34 and 35. Judgment on the pleadings or summary judgment are remedies or procedure devised under the Rules of court for the speedy determination of a civil case. It is one way of speedily terminating a civil case. Once it is rendered, tapos na ang kaso. The court, during a pre-trial, is authorized to render a judgment on the pleadings or a summary judgment if there is a ground. In the same manner, the court may order the dismissal of the action should a valid ground therefor be found to exist because it is possible that based on the complaint, there is no ground to dismiss but in the course of pre-trial, the plaintiff may admit something which turns out to be a ground for dismissal. EXAMPLE: According to the plaintiff, the defendant borrowed money from him three years ago and did not pay. But during the pre-trial, defendant said, “Actually, judge, hindi man yan three years ago. That was thirty years ago!” Plaintiff answered, “Actually, judge, totoo yan.” So judge said, “My golly, the action has prescribed so I will order the dismissal.” These things can come out in the pre-trial. (h) THE ADVISABILITY OR NECESSITY OF SUSPENDING THE PROCEEDINGS; This means that the case will be suspended, nothing will happen in the meantime. Hindi naman dismissed. The case will just be held in abeyance. EXAMPLE: Suppose the parties will say, “Judge, so far we cannot settle. But maybe if you will give us one or two months we will be able to come up with a solution. We will meet once every three days para mag-istorya.” I think that is a good ground. In other words, pwede pa silang mag-areglo, o sige! Because the law encourages amicable settlement. Q: Is there a provision in the Rules on the suspension of proceedings in relation to what we are talking about now? What are the possible grounds for suspending the proceedings in a civil case? A: Rule 20, Section 8 on suspension of actions. Sec. 8. Suspension of actions. - The suspension of actions shall be governed by the provisions of the Civil Code. (n)

Actually, Section 8 points to Article 2030 of the New Civil Code: Art. 2030. Every civil action or proceeding shall be suspended: 1. If willingness to discuss a possible compromise is expressed by one or both parties; or 2. If it appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a possible compromise but the other party refused the offer.

The duration and terms of the suspension of the civil action or proceeding and similar matters shall be governed by such provisions of the rules of court as the Supreme Court shall promulgate. Said rules of court shall likewise provide for the appointment and duties of amicable compounders.

So a civil action may be suspended if at any time one of the parties offered to discuss a possible compromise because the policy of the law is to have civil cases settled between the parties amicably. Let the parties talk among themselves to come up with the possibility of amicable settlement even if one of the parties refuse to accept such an offer. (i) SUCH OTHER MATTERS AS ANY AID IN THE PROMPT DISPOSITION OF THE ACTION. That is very broad – any other matter which will hasten the case. Anything under the sun can fall under this. PURPOSE OF A PRE-TRIAL A review of Section 2 will show that the primary purpose of a pre-trial is how to end the case immediately because of amicable settlement. If the parties can settle, then there is no need to proceed to trial. But if for valid or serious reason they cannot settle, because the court can only encourage and not force a settlement, then they shall proceed with the pre-trial to find out if we can have the case tried speedily and decided immediately by talking about other things like amending the pleadings, stipulation of facts, admission of documents to avoid unnecessary proofs, limitation in the number of witnesses. So if we cannot settle, we can talk of other things to speedily terminate the case. Instead of trying the case for two years, we can probably finish in six months. DEVELOPMENT BANK vs. COURT OF APPEALS 169 SCRA 409 NOTE: This case penned by Justice Narvasa, is practically all about pre-trial. It is actually the bible on pre-trial. And this is what exactly Justice Narvasa said: HELD: “Everyone knows that a pre-trial in civil actions is mandatory, and has been so since January 1, 1964 (effectivity of the Revised Rules of Court). Yet to this day its place in the scheme of things is not fully appreciated, and it receives but perfunctory treatment in many courts [Meaning, it is only complied with for the sake of compliance.] Some courts consider it a mere technicality, serving no useful purpose save perhaps, occasionally to furnish ground for non-suiting the plaintiff, or declaring a defendant in default, or, wistfully, to bring about a compromise. The pre-trial device is not thus put to full use. Hence it has failed in the main to accomplish the chief objective for it: the simplification, abbreviation and expedition of the trial, if not indeed its dispensation. This is a great pity, because the objective is attainable, and with not much difficulty, if the device were more intelligently and extensively handled.” The Supreme Court noted the inability of trial judges to properly apply and appreciate the value of Rule 18.

Sec. 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)

This is in compliance with Rule 13. Notice should be given to counsel or to the parties in order to comply with due process. Under Section 1, it is the duty of the plaintiff to promptly move ex-parte that the case be set for trial and you will be given a notice of pre-trial from the clerk of court. The notice of pre-trial shall be served on counsel or on the party who has no counsel. Under the PRIOR RULE, the procedure was, there must be notice to lawyer and notice to the party – dalawang notice – notice to the lawyer is not notice to the party, as an exception to the Rule 13. But NOW, to simplify the job of the court processor, the rule is, notice to the counsel is now notice to the party. ARCILLA vs. ARCILLA 138 SCRA 560 FACTS: There was a pre-trial conference on July 29, where all the parties are notified through their lawyers pursuant to Section 3. They appeared but somehow the pre-trial was terminated on July 29. The court decided to reset the pre-trial on Oct. 2. The parties agreed. Normally, the procedure is, when that happens, there will be another written notice. There should be another written notice sent to the lawyers and parties. In this case, no such written notice was issued. On Oct. 2, the defendant did not appear. With that, he was declared to have lost his rights to present his side. He was considered in default. He questioned the order on the ground that he did not receive any notice on the Oct. 2 pre-trial conference. Therefore, all subsequent proceedings, including the judgment rendered against the defendant were void. Is he correct? HELD: “At first blush, petitioner’s aforesaid contention appears very tenable, for indeed it is settled that a declaration of default, in the absence of a notice of pre-trial constitutes denial of due process. But a deeper examination of the pleadings and the record of the case would show that petitioner was present during the pre trial conference on July 29, 1975 when the lower court re-set the pre-trial to October 2, 1975. On the said date, however, although notified, both petitioner and his counsel did not appear, hence, the declaration of default.” So when the lower court reset the pre-trial on Oct. 2, the defendant although ratified VERBALLY earlier, he failed to appear that is why he was penalized under Section 5. When the court reset the pretrial, he agreed. He already knew. Notification need not be too technical. Despite the lack of a written notice, the defendant was penalized in the ARCILLA case. Sec. 4. Appearance of parties. It shall be the duty of the parties and their counsel to appear at the pre-trial. The non-appearance 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)

There must be notice of pre-trial which will be issued after you comply with Section 1. Then there

will be a schedule. The notice will be served upon the counsel or upon a party, assuming that he is not represented by a lawyer. The counsel served with such notice is charged with the duty of notifying the party represented by him. And under Section 4, it shall be the duty of the parties and their counsel to appear at the trial. Meaning, the lawyer alone who is there will not suffice. Kailangan dalawa kayo. Q: Suppose the lawyer will say, “Well, your honor, I am here. Anyway, appearance by counsel is appearance by party.” Puwede ba yan? A: Ah hindi yan puwede because in a pre-trial, the law requires the presence of the party and his counsel because the purpose of a pre-trial is to consider the possibility of an amicable settlement. Q: Can the lawyer enter into an amicable settlement with the adverse party? A: No, you cannot. The lawyer has no power or authority because amicable settlement is a matter of bargaining. EXAMPLE: Defendant says, “Yung interest na na-due, hatiin na lang natin. You condone half of it, and bayaran ko is fifty percent na lang. And give me 24 months to pay.” The lawyer says okay. Then pag sabi mo sa client, baka magalit yon, he might fire you! Pera gud niya yon. That is why the parties and their should both be present. And that is also the reason why a notice of pre-trial should be given to the party. Section 3 says “a counsel served with such notice is charged with the duty of notifying the party represented by him.” That is new provision. The OLD LAW is, based on decided cases, aside from notice to the lawyer, there must be another notice to the party. So if you notify the lawyer but you did not send a separate notice to the party and therefore the party did not appear, you cannot take it against him. Under Rule 13, notice to lawyer is notice to party, except in pre-trial, sabi ng SC. That is the old jurisprudence – OBSOLETE! But the PRESENT RULE is: Notice to lawyer is notice to party. Q: Is it possible for a party who will not appear a pre-trial but his appearance is not necessary? A: YES, Section 4, if a valid cause is shown like, he got sick. Or, if a representative shall appear in his behalf duly authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, etc. EXAMPLE: You tell your client, “We will have a pre-trial next week and your presence is necessary.” Client: “But I am leaving for America tomorrow. I cannot be there.” Lawyer: “Is there anybody whom you can authorize, take your place?” Client: “Yes, my brother or my manager.” Lawyer: “Okay, you write a written authority that you are authorizing your brother to appear in your behalf with full power to settle.” Yan and tinatawag na “Power of Attorney.” Intiendes? Meaning, you can delegate somebody who has a written authority. Sometimes it is the lawyer who is given the Power of Attorney authorizing him to enter into an amicable settlement. Walang Problema yan. Otherwise, you will see in the next section what is the effect if you fail to appear in a pre-trial – automatic, talo ka sa kaso. Q: Suppose one of the parties in the case is a CORPORATION. A corporation cannot appear because it has no physical existence. Who is authorized to appear in a pre-trial in order to enter into an

amicable settlement? Are the managers or vice-president, authorized to appear in a pre-trial in behalf of the bank which is a party to the case? A: NO! Even the president or the chairman of the board has no power. Q: Who can bind a Corporation? A: Only the Board of Directors has the authority to bind a corporation. Q: If there will be a pre-trial of a case involving one of the banks in Manila but the case is in Davao, am I saying that everytime there is a pre-trial all the members of the Board will fly to Davao to attend the pre-trial and pass a resolution inside the courtroom? A: No. The Board can pass a resolution naming the person who will represent the corporation. So, the manager for example, can appear in the pre-trial provided he is authorized through a board resolution. Again, the RULE is: Both the lawyer and the party should appear in the pre-trial because the first purpose of pre-trial is the possibility of an amicable settlement and the lawyer alone has no authority to enter into an amicable settlement. Non-appearance may be EXCUSED only if: 1. A representative shall appear in his behalf fully authorized in writing (e.g. SPA) 2. For a valid cause – example, if you are sick. Q: If it is a corporation, what is that authority? A: It is a board resolution because only the board of directors has the authority to bind the corporation. EFFECTS OF FAILURE TO APPEAR IN PRE-TRIAL Sec. 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)

Q: What happens if it is the plaintiff who failed to appear in the pre-trial? If the PLAINTIFF fails to appear, his case will be dismissed for not appearing. And as a rule, the dismissal is with prejudice. Pag dismiss, that is the end of the case. It has the same effect as Rule 17, Section 3: Failure to appear during the trial for the presentation of his evidence-in-chief. So, if the plaintiff fails to appear during the trial when it is his turn to present his evidence, under Rule 17, his case shall be dismissed and generally the dismissal is with prejudice, an adjudication upon the merits. (Res Adjudicata applies). The old rule was that the plaintiff will be declared non-suited. NOW, it shall be a cause for dismissal of the action. Q: Is there any difference between non-suited and dismissal of action? A: There is suppose to be a difference based on the case of

BA FINANCE CORP. vs. COURT OF APPEALS 224 SCRA 163 [OBSOLETE!] HELD: When the defendant moves to dismiss the case, then you are also killing your counterclaim. If you are, the defendant you should not move for the dismissal. You only move to declare the as non-suited because when the plaintiff is non-suited, he is bared from proving his cause of action but the case is not dismissed. Since the case is not dismissed, it is like the plaintiff who is in default. Ngayon wala na yan because now, you can have the case dismissed but your counterclaim is still alive. So, the ruling in BA FINANCE CORP. is now OBSOLETE. Q: What happens if it is the plaintiff who failed to appear in the pre-trial? A: If it is the DEFENDANT who failed to appear, the law says, it shall be a cause to allow the plaintiff to present his evidence ex-parte and the court to render judgment on the basis thereof. You will notice that if it is the defendant who failed to appear under the old law, he will be considered as in default. NOW, the word ‘default’ is avoided – “it shall be a cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof.” That is the same effect as the old rule. Q: Why is the new rules avoiding the word ‘default’? A: Because, strictly you cannot really have the defendant declared in default when he has filed an answer. Kaya nga the Rules of Court was very clear in the ‘64 Rules by saying “considered as in default” to distinguish it . But the confusion is still there eh. In other words, to avoid confusion, the plaintiff will be allowed to present evidence ex parte. Para na ring ‘in default’ without using the word ‘default.’ Q: Defendant failed to appear in the pre-trial. Plaintiff was allowed to present his evidence ex party. So parang in default ang defendant. Now, what is the REMEDY of the defendant? Because if you look at Rule 9 on default, the proper motion for the defendant in default is to file a motion to lift the order of default on the ground of F.A.M.E. and that he has a meritorious defense. Is that also the remendy for the defendant who failed to appear in the pre-trial? A: NO, that is the case of JUNGCO vs. COURT OF APPEALS 179 SCRA 213 [1989] HELD: Under Rule 9 on default, if you are declared in default, you only file a motion to lift the order of default and you have to allege that you have a meritorious defense. But in Rule 18, when you file a motion, it is a simply a motion for reconsideration where you will state the reason why you failed to appear and ask that the order be reconsidered and that the judgment be set aside. Under Rule 18, there is no use to say that you have a meritorious because you have already filed an answer. The defense is already there. Unlike in defaulted defendant, the court has no idea what is your answer kaya nga you must convince the court that you have a meritorious defense. So a simple MOTION FOR RECONSIDERATION is sufficient.

Q: Assuming that the plaintiff is already presenting evidence, and the defendant filed a motion for reconsideration. The court reconsidered and recalled the plaintiff’s ex-party presentation of evidence. Do we they have to go back to pre-trial. A: GENERAL RULE: NO. (DBP vs. CA, 169 SCRA 409) EXCEPTION: YOUNG vs. CA, 204 SCRA 584 General Rule: DEVELOPMENT BANK vs. COURT OF APPEALS 169 SCRA 409 [1989] HELD: When a pre-trial is terminated, you do not go back to it. The court shall let the plaintiff continue and just let the defendant cross-examine the plaintiff’s witnesses. As a general rule a second pre-trial cannot be granted, the remedy instead is to go to trial. Exception: YOUNG vs. COURT OF APPEALS 204 SCRA 584 [1991] HELD: “The pre-trial stage is completed after a party had been ordered non-suited and the complaint is dismissed or after the court allows the plaintiff to present his evidence exparty. The order lifting it does not revert the action to its pre-trial stage, or authorize, much less, a second pre-trial UNLESS the parties themselves had voluntarily agreed that the case be set anew for pre-trial. Neither the Rules nor the doctrine bars the parties from agreeing, after such lifting, to hold a pre-trial and to effectively accomplish its objectives.” PRE-TRIAL BRIEF Sec. 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 pretrial 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; (e) A manifestation of their having availed or their 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. Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. (n)

This is a new provision not found in the 1964 Rules. However, the requirement of a pre-trial brief is not new because this was a requirement in SC Circular No. 1-89 which was issued on January 19, 1989. The submission of pre-trial briefs by lawyers has been required by that Circular. This circular is now incorporated. Take note that at least three(3) days before the date of pre-trial the parties’ lawyers should file pretrial briefs to be furnished with each other. In that brief, you summarize everything covered by your pleadings. It contains cause of action, defenses, etc. The court, instead of reading the pleadings and

answer, only the document where you condensed everything will be read. It contains: Cause of action; defenses; issued to be tried; admitted facts; facts you believe should be stipulated; the documents or exhibits you would like the present; or who are the witnesses and what are they going to testify, etc. That’s a summary of everything that is going to happen from the beginning of the trial up to the end. Q: What happens if a party fails to file a pre-trial brief? A: Last paragraph, “Failure to file the pre-trial brief shall have the same effect as failure to appear a the pre-trial conference.” So, if it is the PLAINTIFF who failed to file a pre-trial brief, his complaint may be ordered dismissed. If it is the DEFENDANT who failed to file a pre-trial brief, that would be a cause for the court to allow the plaintiff to present his evidence ex-parte. Q: Up to this point, let us try to summarize. What are the instances where the PLAINTIFF may be penalized by the court with a dismissal of his complaint? A: In the following instances: 10.) Where plaintiff fails to appear during the presentation of his evidence-in-chief to prove his cause of action (Rule 17, Section 3); 11.) Failure to appear in the pre-trial conference (Rule 18, Section 5); 12.) Failure to file a pre-trial brief (Rule 18, Section 6) Q: On the other hand, when would the DEFENDANT be penalized by the penalty that plaintiff be allowed to present his evidence ex parte and judgment be rendered based purely on such evidence? A: In the following instances: 14.) Failure to file an answer under Rule 9 on Default; 15.) Failure to appear in a pre-trial conference (Rule 18, Section 5); 16.) Failure to file a pre-trial brief (Rule 18, Section 6) Sec. 7. Record of pre-trial. The proceedings in the pre-trial shall be recorded. Upon the termination thereof, the court shall issue an order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed to the pleadings, and the agreements or admissions made by the parties as to any of the matters considered. Should the action proceed to trial, the order shall explicitly define and limit the issues to be tried. The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice. (5a, R20)

A pre-trial conference although it is less formal than a trial, that’s why in most cases, pre-trial is not done in open court but inside the chamber of the judge where the atmosphere is more relaxed because you are going to talk about settlement, eh. However, do not believe that that is just a decoration. That is an official proceeding. Everything there is recorded. According to section 7, after a pre-trial conference is terminated, the court will issue what is known as pre-trial order. That is now expressly required by the rules. A pre-trial order should state or should summarize everything what was taken up in a pre-trial conference, the issues to be resolved, the facts to be admitted, etc. what is important there is the third sentence: “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.” It may be an ordinary sentence but the effect of that is terrible.

Suppose here is the complaint and it is answered. Based on the complaint and the answer, you can determine the issues based on the admissions and denials in the answer. For instance, there are five issues, they are to be stated in a pre-trial brief. During the pre-trial conference, the court may reject other issues which are not important with the agreement of the parties. Thus, there may be only one real issue like whether or not the loan has been paid. The court may then issue a pre-trial order containing such issue. The defendant may have also several defenses in his answer. After the pre-trial order is issued, such order should be followed. Forget the complaint and the answer. In effect, the complaint and the answer has already been superseded by the pre-trial order. This section in effect says that the pre-trial order supersedes the pleadings. That is why the case of DBP vs. CA, supra, where the Court through Justice Narvasa, emphasized the importance of a pre-trial. The Court noted that if there is a pre-trial order because the judge followed Rule 18 religiously, during the trial the judge will not have a hard time in determining what is the issue to be resolved. And babasahin lang niya ay ang pre-trial order. Everything is to be based there. Without the pre-trial order, you will still have to look at the pleadings of both parties. The pretrial order is a very important piece of document. There was a case years ago, Plaintiff vs. Defendant. Banggaan ba. In a vehicular collision, the plaintiff is claiming damages from the defendant. His allegations naturally would point out that all fault and negligence is caused by the defendant. As usual, when the defendant files his answer, he is denying that. As a matter of fact, he will claim that the one negligent is the plaintiff. Chances are, since his vehicle was also damaged, the defendant will file a counterclaim. So, pasahan yan! What happened in the pre-trial conference is that, the lawyers were asked to define the issues. The plaintiff’s lawyer asked the defendant’s lawyer to define the issues: “ (1.) Is the plaintiff liable for actual damages on defendant’s counterclaim? (2.) Is the plaintiff liable to the defendant on his counterclaim for exemplary damages? (3.) Is plaintiff liable to the defendant on his counterclaim for attorney’s fees and expenses for the litigation?” So, those were the issues. The plaintiff’s lawyer, siguro hindi nakikinig ba. Judge asked, “O, do you agree panyeros?” Yes, Okay. When the pre-trial order was issued, those issues were contained. Where’s the defendant’s liability to the plaintiff? Wala na! The issue is whether or not the plaintiff is liable to the defendant. During the trial, the plaintiff presented his evidence to prove the defendant’s liability. The defendant’s lawyer objected on the ground that there was no issue contained in the order on the liability of the defendant. The only issue is whether plaintiff is liable to the defendant. Naisahan ang plaintiff… akala kasi niya ang pre-trial order is not important. (Dean did not know how the case ended, but commented: “The plaintiff asked for the amendment of the pre-trial order because this is a manifest injustice. Plaintiff is the one suing and how he is to be held liable. Now, if I were the judge, I will really modify because it’s unfair no! You are the one suing and now you end up as a defendant. But I will stress to the plaintiff na huwag kang tatanga-tanga sa pre-trial! [gago!]) Now, an example of the last sentence of Section 7 – “UNLESS modified before trial to prevent manifest injustice – is the case of SESE vs. IAC (152 SCRA 585 [1987]) where even if the pre-trial order does not recite the issue, it can still be proven. Under Section 5 of Rule 10, even if an issue was not raised I n a pre-trial order and no one objected to the issue raised, it can be tried and later the pre-

trial order can be amended to conform with issue/s raised.

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KATARUNGANG PAMBARANGAY For now, we will leave the rules on civil procedure. We will go to another law which is also connected with the study on civil procedure. This is the Barangay Conciliation Law. It is appropriate to discuss what the law is all about because under Rule 18 on pre-trial, you will notice it has emphasized that the primary purpose of a pre-trial is the possibility of amicable settlement. That is usually encouraged. No case may reach the trial stage without passing through the Pre-trial Rule. We have to exhaust all avenues and settlement. There is a law known as the BARANGAY CONCILIATION LAW which mandate that before an action can be filed by an individual complainant against another individual defendant, both of them are residing in the same city or municipality, there should be a prior attempt to conciliate in the barangay level – under the rules, the barangay of the defendant. And if the action if filed without observing that procedure, the action is dismissible. Suppose a case will be filed in court, according to the SC, the plaintiff must allege in a complaint that before filing the case he exerted or complied with the Baranagay Law. It is a condition precedent. Normally, after you exhaust in the barangay level but is not successful, the Barangay Chairman will issue a certification t file an action. That should be stated in the complaint. According to the SC in the case of VDA. DE BORROMEO vs. PUGOY (126 SCRA 217), the failure of a complaint to allege compliance with the requirement of the barangay law is fatal. He must make an allegation that before filing his complaint, he complied with the barangay law. Otherwise, his complaint will be ordered dismissed. If the action is filed without observing that procedure, the action is dismissible. But as clarified by the SC in many cases, among them are EBOL vs. AMIN (125 SCRA 438)and GONZALES vs. CA (151 SCRA 289) the defect is NOT JURISDICTIONAL. You do not say the court has no jurisdiction. The ground for dismissal is more on PREMATURITY OF THE ACTION. You can cite the new ground now as “the condition precedent required by law has not been observed.” Actually, it will also affect the cause of action- Based on decided cases, there must be an allegation in the complaint that before filing a case, there has been an attempt to undergo a conciliation in the barangay level. Now, this law used to be the Katarungang Pambarangay Law, PD 1508. However, it was superseded on January 1, 1992 by RA 7160, otherwise known as the Local Government Code Of 1991 (LGC). The Barangay Conciliation requirement is now embodied in RA 7160. The barangay requirement is found in Sections 399-422 and also Section 515. It is around 25 sections of the law. To help you, the SC in 1993 issued Administrative Circular No. 14-93 where the SC tried to condense the important requirements of the law – who are covered and who are not. It is addressed to all RTC and MTC judges. Subject: Guidelines on the Katarungang Pambarangay conciliation Procedure to prevent circumvention on the Revised Katarungang Pambarangay Law. We will summarize the law and discuss some important features. Under the law, you cannot file a case against somebody without attempting to settle matters before the barangay level. SOME IMPORTANT FEATURES OF THE BARANGAY CONCILIATION LAW:

The law applies only when you are suing somebody who resides in the same city or municipality where you reside. Or in the event of different municipalities, they are adjacent. So when two towns are near each other, you are suing somebody there, the law will apply. Generally, when you (from Davao City) sue somebody from General Santos City, the law is inapplicable because it is a different city. The law will not apply if one of the parties in the dispute is a juridical person – i.e. corporation. It only applies to suits between natural persons. Under the law, it is where the barangay where the barangay where the defendant resides. Unless, the dispute arose in a workplace or in school, the venue is the barangay where the workplace or the school is located. Q: If I’m from Sasa and you are from Toril, but we are residing in the same city, which barangay is the proper venue? A: Under the law, it is the barangay where the defendant resides, unless the dispute arose in a workplace or in school. If the dispute refers to REAL property, it is where the property is situated. If the dispute refers to Real Property (e.g. land), and I’m from Matina, and you are from Sasa, but the case involves a land in Toril, then the correct venue is the place where the land is situated – i.e. the barangay in Toril. When you say, both the parties reside in the same city or municipality, what do you mean by RESIDENCE? The same interpretation as laid down by the SC in GARCES vs. COURT OF APPEALS 162 SCRA 504 FACTS: Garces lives in Cavite but works in Malate. He rented an apartment in Malate and stays there on weekends. HELD: For purposes of the Barangay Law, Garces is a resident of Malate. The word ‘RESIDES’ refers to actual or physical residence, not domicile. In the case of BEJER vs. COURT OF APPEALS 169 SCRA 566 FACTS: Andre lives in Laguna but has a house in Manila where his children live. ISSUE: Is Andre a residence of Manila? HELD: NO, because Andre is not a registered in the barangay as a voter. Physical presence alone is not sufficient. So, the SC added another qualification, that residence is determined by membership in the barangay. Therefore, even if you are in that area but you are not a member of the barangay, you are not a resident thereof. This is because “the primary purpose of the law is to provide the conciliation

mechanism, as an alternative to litigations in dispute settlement, to member of the corresponding barangays who are actually residing therein. Residence alone, without membership, in said barangays would not be an accurate and reliable criterion, considering that such residence may be actual but be merely temporary, transient or categorized into other permutations as in the case of a house guest or a sojourner on a visit of a day or two.” “On the other hand, mere membership in a barangay, without actual residence therein, should not suffice since absentee membership would not subserve the avowed purpose of the law for lack of the common bond and sense of belonging generally fostered in members of an identified aggroupment.” Q: Suppose the defendant will not show up everytime he is called. A: That is now a ground for the barangay captain to issue a certificate to file an action. The defendant cannot complain later that there is non-compliance of the barangay law. The defendant cannot use his own default to profit it. That was the ruling in SAN MIGUEL VILLAGE SCHOOL vs. PUNDOGAR (173 SCRA 704). Take note that the barangay cannot decide. It can only convince the party to settle. A barangay court has no power to make decisions. But if you agree to something and in case you failed to comply with your agreement, that can be enforced by the barangay. But actually, the decision came from you, and not from the barangay court. There other interesting cases under the Barangay Law. In the 1989 case of RAMOS vs . COURT OF APPEALS 174 SCRA 690 FACTS: This case originate in barangay Lanang, Davao City. The parties failed to agree before the barangay captain. He tried to convince them to settle, but they refused to settle. With that, the barangay captain issued a certificate to file an action. So the case was filed in the RTC. The defendant questioned the procedure. HELD: The procedure wrong. The case cannot be filed. Under the Barangay Law which is now incorporated in 410-d of the Local Government Code, the correct procedure for this is, if the barangay captain cannot effect settlement, he should throw the case to the Pangkat, the Lupon. If the barangay captain cannot settle, the next step is the Lupong Tagapamayapa. So, you cannot immediately issue a certification to file action BUT the ruling if RAMOS seems to have been CHANGED already in the light of the new Local Government Code. In the 1995 case of DIU vs. COURT OF APPEALS 251 SCRA 472 [1995] FACTS: What happened here is exactly similar to what happened to the case of RAMOS. When the barangay captain could not effect a settlement, he issued certificate to file action. That was questioned. It was not referred to the Lupon. Therefore, it was premature, citing Section 410-d of the LGC.

HELD: The SC cited a new section in the LGC which is Section 412 which seems to give the barangay captain the authority to issue a certificate without necessarily referring anymore to the Lupon. “While no pangkat was constituted, it is not denied that the parties met at the office of the barangay chairman for possible settlement. The efforts of the barangay chairman, however, proved futile as no agreement was reached. Although no pangkat was formed, we believe that there was substantial compliance with the law. It is noteworthy that under Section 412 of the Local Government Code, the confrontation before the lupon chairman OR the pangkat is sufficient compliance with the pre-condition for filing the case in court.” “This is true notwithstanding the mandate of Section 410(b) of the same law that the barangay chairman shall constitute a pangkat if he fails in his mediation efforts. Section 410(b) should be construed together with Section 412. On this score, it is significant that the barangay chairman or punong barangay is himself the chairman of the lupon under the Local Government Code.” Anyway, if be look to the pangkat under the LGC, the chairman of the lupon is also the barangay captain. So, either one or the other will do. So, the case of DIU has effectively set aside the ruling in RAMOS. CANDIDO vs. MACAPAGAL 221 SCRA 328 [1993] FACTS: Here, plaintiff Eltor files a case against defendants Jenny, Gemma, and Jayce. Eltor and Jenny reside in Davao City. So they (Eltor and Jenny) are covered by the law. But Gemma and Jayce reside in General City. So there is no problem with Gemma and Jayce because there is no need to effect conciliation. But how about Jenny? Should the case be dismissed against Jenny if there was no prior barangay conciliation between Jenny and Eltor? HELD: NO. The fact that Eltor and Jenny reside in the same municipality does not justify compulsory conciliation WHERE the other defendants reside in different municipalities or cities. So, it would seem na pag nahuluan na ng iba, you are not also covered anymore. That seems to be the implication. That seems to jive with another ruling of the SC on the issue of “members of the same family” because under the law, if the plaintiff and defendant are members of the same family, they cannot also file a case against each other without conciliation. But if there is a stranger included, the requirement will not apply. July 15, 1993 ADMINISTRATIVE CIRCULAR NO. 14-93 Subject : Guidelines on the Katarungang Pambarangay conciliation procedure to prevent circumvention of the Revised Katarungang Pambarangay Law (Sections 399-422, chapter VII, Title I, Book III, R.A. 7160, otherwise known as the Local Government Code of 1991). To : All Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts

The Revised Katarungang Pambarangay Law under R.A. 7160, otherwise known as the Local Government Code of 1991, effective on January 1, 1992, and which repealed P.D. 1508, introduced substantial changes not only in the authority granted to the Lupon Tagapamayapa but also in the procedure to be observed in the settlement of disputes within the authority of the Lupon. cd i In order that the laudable purpose of the law may not subverted and its effectiveness undermined by indiscriminate, improper and/or premature issuance of certifications to file actions in court by the Lupon or Pangkat Secretaries, attested by the Lupon/Pangkat Chairmen, respectively, the following guidelines are hereby issued for the information of trial court judges in cases brought before them coming from the Barangays: I. All disputes are subject to Barangay conciliation pursuant to the Revised Katarungang Pambarangay Law (formerly P.D. 1508, repealed and now replaced by Secs. 399-422, Chapter VII, Title I, Book III, and Sec. 515, Title I, Book IV, R.A. 7160, otherwise known as the Local Government Code of 1991), and prior recourse thereto is a pre-condition before filing a complaint in court or any government offices, EXCEPT in the following disputes: 6.) Where one party is the government, or any subdivision or instrumentality thereof; 7.) Where one party is a public officer or employee, and the dispute relates to the performance of his official functions; 8.) Where the dispute involves real properties located in different cities and municipalities, unless the parties thereto agree to submit their difference to amicable settlement by an appropriate Lupon; 9.) Any complaint by or against corporations, partnerships or juridical entities, since only individuals shall be parties to Barangay conciliation proceedings either as complainants or respondents (Sec. 1, Rule VI, Katarungang Pambarangay Rules);

NOTE: Only natural persons can undergo barangay conciliation. 10.) 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; 11.) Offenses for which the law prescribes a maximum penalty of imprisonment exceeding one (1) year or a fine over five thousand pesos (P5,000.00); 12.) Offenses where there is no private offended party; 13.) Disputes where urgent legal action is necessary to prevent injustice from being committed or further continued, specifically the following:

NOTE: “Urgently.” A good example in civil action is where the action is coupled with a provisional remedy such as preliminary injunction, attachment, replevin or support. Or, actions which may be barred by the statute of limitations. 17.) Criminal cases where accused is under police custody or detention (See Sec. 412 (b)(1), Revised Katarungang Pambarangay Law); 18.) Petitions for habeas corpus by a person illegally deprived of his rightful custody over another or a person illegally deprived of his liberty or one acting in his behalf; 19.) Actions coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property and support during the pendency of the action; and 20.) Actions which may be barred by the Statute of Limitations. 14.) Any class of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice; 15.) Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) (Secs. 46 & 47, R.A. 6657); 16.) Labor disputes or controversies arising from employer-employee relations

(Montoya vs. Escayo, et al., 171 SCRA 442; Art. 226, Labor Code, as amended, which grants original and exclusive jurisdiction over conciliation and mediation of disputes, grievances or problems to certain offices of the Department of Labor and Employment);

NOTE: In the case of Montoya vs. Escayo (171 SCRA 442), the conciliation there is in the Department of Labor. 17.) Actions to annul judgment upon a compromise, which may be filed directly in court (See Sanchez vs. Tupaz, 158 SCRA 459). II. Under the provisions of R.A. 7160 on Katarungang Pambarangay conciliation, as implemented by the Katarungang Pambarangay Rules and Regulations promulgated by the Secretary of Justice, the certification for filing a complaint in court or any government office shall be issued by Barangay authorities only upon compliance with the following requirements: aisa dc 7.) Issued by the Lupon Secretary and attested by the Lupon Chairman (Punong Barangay), certifying that a confrontation of the parties has taken place and that a conciliation or settlement has been reached, but the same has been subsequently repudiated (Sec. 412, Revised Katarungang Pambarangay Law; Sec. 2[h], Rule III, Katarungang Pambarangay Rules); 8.) Issued by the Pangkat Secretary and attested by the Pangkat Chairman, certifying that: 12.) a confrontation of the parties took place but no conciliation/settlement has been reached (Sec. 4[f], Rule III, Katarungang Pambarangay Rules; or 13.) that no personal confrontation took place before the Pangkat through no fault of the complainant (Sec. 4[f], Rule III, Katarungang Pambarangay Rules). 9.) Issued by the Punong Barangay, as requested by the proper party on the ground of failure of settlement where the dispute involves members of the same indigenous cultural community, which shall be settled in accordance with the customs and traditions of that particular cultural community, or where one or more of the parties to the aforesaid dispute belong to the minority and the parties mutually agreed to submit their dispute to the indigenous system of amicable settlement, and there has been no settlement as certified by the datu or tribal leader or elder to the Punong Barangay of the place of settlement (Secs. 1, 4, & 5, Rule IX, Katarungang Pambarangay Rules); and 10.) If mediation or conciliation efforts before the Punong Barangay proved unsuccessful, there having been no agreement to arbitrate (Sec. 410 [b], Revised Rule Katarungang Pambarangay Lay; Sec. 1, c, (1), Rule III, Katarungang Pambarangay Rules), or where the respondent fails to appear at the mediation proceeding before the Punong Barangay (3rd par. Sec. 8, a, Rule VI, Katarungang Pambarangay Rules), the Punong Barangay shall not cause the issuance of this stage of a certification to file action, because it is now mandatory for him to constitute the Pangkat before whom mediation, conciliation, or arbitration proceedings shall be held. III. All complaints and/or informations filed or raffled to your sala/branch of the Regional Trial Court, Metropolitan Trial Court or Municipal Trial Court shall be carefully read and scrutinized to determine if there has been compliance with prior Barangay conciliation procedure under the Revised Katarungang Pambarangay Law and its Implementing Rules and Regulations, as a pre-condition to judicial action, particularly whether the certification to file action attached to the records of the case comply with the requirements hereinabove enumerated in par. II; IV. A case filed in court without compliance with prior Barangay conciliation which is a pre-condition for formal adjudication (Sec. 412[a] of the Revised Katarungang Pambarangay Law) 13.)

may be dismissed upon motion of defendant/s, not for lack of jurisdiction of

the court but for failure to state a cause of action or prematurity (Royales vs. IAC, 127 SCRA 470; Gonzales vs. CA, 151 SCRA 289), or 14.) the court may suspend proceedings upon petition of any party under Sec. 1, Rule 21 of the Rules of Court; and refer the case motu propio to the appropriate Barangay authority, applying by analogy Sec. 408[g], 2nd par., of the Revised Katarungang Pambarangay Law which reads as follows: "The Court in which non-criminal cases not falling within the authority of the Lupon under this Code are filed may at any time before trial, motu proprio refer the case to the Lupon concerned for amicable settlement. Strict observance of these guidelines Circular shall be effective immediately.

is

enjoined.

This

Administrative

Manila, Philippines. July 15, 1993. (Sgd.) ANDRES R. NARVASA Chief Justice



Rule 19 INTERVENTION This used to be under Rule 12. Now, they are divorced. What is left behind in Rule 12 is Bill of particulars. And Intervention has been moved to Rule 19. What happened to the original Rule 19? The original Rule 19 on Judgment on the Pleadings was moved closer to Summary Judgment, to Rule 34. Q: Define intervention. A: An INTERVENTION is proceeding in a suit or action in which a third person, not a party to the case, is permitted by the court to make himself a party to the case. (33 C.J.S. 447) EXAMPLE: Leo – creditor; Rucel – debtor; Rayda – surety. Rucel and Rayda signed a promissory note in favor of Leo. Q: Leo sues Rucel and Rayda. What pleading should Rucel file to protect herself? A: Rucel should file a CROSS-CLAIM against her co-party Rayda. Q: Leo sues only Rucel. What is the remedy of Rucel to protect herself? A: Rucel should file a THIRD-PARTY COMPLAINT against Rayda. Q: What if Rucel does not file a third party complaint against Rayda? What can Rayda do to be able to join the case? A: Rayda can, with leave of court, INTERVENE under Rule 19. The initiative should come from her. So an intervention is related to a third-party complaint. It is a process by which a stranger or a third party is included in a case, but with the difference that in a third-party complaint, it is the party who brought you in. While in intervention, the initiative comes from the third person and he is known as the intervenor. And the process of entering is called intervention. And take note that a person cannot simply intervene for the sake of intervening. There must be a legal ground for intervention which can be found in Section 1: 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)

Q: What are the grounds for intervention? A: The following are the GROUNDS for intervention: 14.) The intervenor has a legal interest on the matter under litigation; 15.) The intervenor has a legal interest in the success of either of the parties; 16.) The intervenor has a legal interest against both; or 17.) The Intervenor 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.

First Ground: THE INTERVENOR HAS A LEGAL INTEREST ON THE MATTER UNDER LITIGATION; EXAMPLE #1: Tarzan died survived by his children. Chita is appointed as administrator of his estate. Chita filed a case to recover a piece of land which he believes belongs to the deceased. The children would like to intervene. Q: Do children have the legal personality or the right to intervene involving the estate of Tarzan? A: YES, because they have a legal interest in the matter in litigation. If the case will succeed they will be richer. The property will go to them. (Dais vs. CFI of Capiz, 51 Phil. 396) EXAMPLE #2: Suppose Victor filed a case against Ping to recover a piece of land. Victor’s children (Mary, Rose and Ador) would like to intervene contending that when their father (Victor) would die in the future, their inheritance is affected. Q: Can the children of Victor intervene? A: NO. They cannot intervene the legal interest they are claiming is contingent, expectant – there is no assurance that your father will die ahead of you. The interest referred to by the law is an interest that is direct immediate, actual existing interest as distinguished from expectant, inchoate or contingent interest. (Garcia vs. David, 67 Phil. 279) How do you distinguish the second example from the first case? In the first case, the father is dead and you inherit the property. Technically, the property belongs to you. So the right of the heirs over the property litigated by the administrator is not expectant or inchoate. Second Ground: THE INTERVENOR HAS A LEGAL INTEREST IN THE SUCCESS OF EITHER OF THE PARTIES; So you are interested in the plaintiff winning or the defendant winning. EXAMPLE : In an action filed by the creditor against the surety only to recover the debt of the principal debtor without impleading the principal debtor. The principal debtor may intervene if he would like to join forces with the surety. Third Ground: THE INTERVENOR HAS AN INTEREST AGAINST BOTH PARTIES; I am not interested in the victory of either the plaintiff or the defendant. I am interested with my victory against both. So it becomes a three-cornered fight. EXAMPLE: Steven Spielberg filed a case against Ridley Scott who has the right to possess the property and then here I come – I will intervene. I am the one, not both of you, who has the right over the property. Wala kayong lahat!!! Mga ungas!! So bakbakan na iyon. I have a better right against both of you. Fourth Ground: THE INTERVENOR 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.

EXAMPLE: Sonny secures a writ of preliminary attachment against Gemma but the property attached preliminarily happens to be my property. So I can move to intervene because I am adversely affected by the distribution. Can you not file a third-party claim if your property is wrongfully attached? YES you can, but that is not the only remedy. The law allows the third person to file an intervention in the main action. INTERVENTION, NOT A RIGHT Q: Is the intervention a right or a privilege? A: NO. It is discretionary. A motion for intervention must be filed by the intervenor. And under Section 1, the court may or may not grant the motion - 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 maybe fully protected in a separate proceeding. For example, the case between the original parties is about to end, the trial of the case is about to end and at that point, you will have to intervene. If you intervene, we will start all over again. So, it will be dilatory. But even if you will not be allowed to intervene, the court may say that you can file your case in the future. You can file a separate action later against the parties. BAR QUESTION: Now, there are some instances by way of exception when intervention maybe a matter of right. What are these exceptions? A: The following: 21.) When the intervenor turns out to be an indispensable party; and 22.) Class suit (Section 12, Rule 3) Rule 3, Sec. 12. Class suit. - When the subject matter of the controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest. (12a)

Did you notice that last sentence? “Any party in interest shall have the right to intervene.” So, in other words, in a class suit and you are already included, law says, you have the right to intervene in so far as your individual interest is concerned. So, that would be another instance where intervention seems to be a matter of right rather than a matter of discretion. WHEN AND HOW TO FILE Sec. 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-inintervention shall be attached to the motion and served on the original parties. Sec. 3. Pleadings-in-intervention. The intervenor shall file a complaintin-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)

Q: Now, suppose there is an amendment of a complaint-in-intervention. What is the period to answer? A: Let us go back to Rule 11, Section 3: Sec. 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 (l5) 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 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)

Q: What is the period to answer an amended complaint-in-intervention? A: It is either 10 or 15 days just like answering an ordinary amended complaint. DISMISSAL OF THE MAIN ACTION; EFFECT ON INTERVENTION There is a case between Pches and John. Tommy intervened while the case is going on. Suppose the case was dismissed either by the court or the plaintiff withdrew it. Can the intervention proceed independently? Can it proceed when there is no more main action? In the case of BIG COUNTRY RANCH CORP. vs. COURT OF APPEALS 227 SCRA 161 [1993] HELD: An intervention is merely collateral or accessory or ancillary to the principal action and not an independent proceeding. It is an interlocutory proceeding dependent on or subsidiary to the case between the original parties. Where the main action ceases to exist, there is no pending proceeding wherein the intervention maybe based. If the main action dies, the intervention dies also. BUT there is another answer given by the SC in the case of: METROPOLITAN BANK AND TRUST CO. vs. PRESIDING JUDGE, RTC OF MANILA 189 SCRA 820 [1990] HELD: When the intervention is granted and the main action is withdrawn or dismissed, it would be unfair to dismiss the intervention. So the intervention proceeds notwithstanding the withdrawal of the main action. “The simple fact that the trial court properly dismissed plaintiffs action does not require dismissal of the action of the intervenor. An intervenor has the right to claim the benefit of the original suit and to prosecute it to judgment. The right cannot be defeated by dismissal of the suit by the plaintiff. 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.”

So iba na naman ang sinabi. Even if the main action is dismissed, the intervenor can still claim the benefit of the intervention. So how do you reconcile these conflicting decisions now? Well, I think it DEPENDS on the ground for intervention. To illustrate: EXAMPLE #1: The creditor files a case against the surety. The debtor intervened. So, he is joining the surety. Then creditor withdrew the complaint. What will happen to the intervention? The intervention cannot go on because the intervention is actually to assist the surety. So, if the complaint against the surety is dismissed, wala ng utang. There is no more basis to assist the surety. ( BIG COUNTRY ruling) EXAMPLE #2: But suppose Pches filed a case against John claiming that she has a superior right to posses a piece of land. And then Tommy will intervene also claiming that he has the superior right to possess. So the three of them will fight. And then later, Pches will withdraw the case. What will happen to Tommy’s intervention? The dismissal of the main action does not mean that Tommy cannot prove his right against John. The intervention should continue. Bahala ka kung nag-withdraw ka, basta ako I will continue. I will claim that the land is mine. (METROBANK ruling) Iyaaaan! It depends on what kind of intervention you are talking about. Now, there an instance when intervention may be confused with another procedure under Rule 3, Section 19 on Transfer of Interest. For example: When a property under litigation is sold and there is a notice of lis pendens, the person who buys is called the TRANSFEREE PENDENTE LITE. In the case of SANTIAGO LAND CORP. vs. COURT OF APPEALS January 28, 1997 FACTS: Rose brought an action against a bank to enforce an alleged right to redeem certain real properties foreclosed by the bank. With notice of the pending civil action, Leo purchased from the bank one of the properties subject of the litigation. So Leo is now called the TRANSFEREE PENDENTE LITE. And later, Leo filed a motion to intervene. Rose opposed Leo’s motion for intervention. ISSUE: Is a transferee pendente lite of the property in litigation has a right to intervene? HELD: The SC here made a distinction between the rights of a transferee pendente lite (Rule 3, Section 19) and an intervenor (Rule 19). “The purpose of Rule 19 on intervention is to enable a stranger to an action to become a party to protect his interest and the court incidentally to settle all conflicting claims. On the other hand, the purpose of Rule 3, Section 19 is to provide for the substitution of the transferee pendente lite precisely because he is not a stranger but a successor-in-interest of the transferor, who is a party to the action. As such, a transferee’s title to the property is subject to the incidents and results of the pending litigation and is in no better position than the vendor in whose shoes he now stands.” “As such, he stands exactly in the shoes of his predecessor in interest, the original defendant, and is bound by the proceedings had in the case before the property was

transferred to him. He is a proper, but not an indispensable, party as he would, in any event, have been bound by the judgment against his predecessor.” “How then can it legally be possible for a transferee pendente lite to still intervene when, for all intents and purposes, the law already considers him joined or substituted in the pending action, commencing at the exact moment when the transfer of interest is perfected between the original party-transferor and the transferee pendente lite? And this even if the transferee is not formally joined as a party in the action. Because the transferee pendente lite simply takes the place of the transferor, he is barred from presenting a new or different claim.” “On the other hand, one who intervenes has a choice not to intervene and thus not to be concluded by any judgment that may be rendered between the original parties to the action.” Meaning, if you are a TRANSFEREE PENDENTE LITE, there is no need for you to intervene because you are already a (necessary) party. On the other hand, an INTERVENOR can decide whether or not he wants to join to be bound by the judgment of the main case. So that is the ruling in SANTIAGO LAND. There is another case on the issue again of intervention. The case of FIRST PHILIPPINE HOLDINGS CORP. vs. SANDIGANBAYAN 253 SCRA 30 [February 1, 1996] FACTS: There was a motion to intervene and the trial court denied it. ISSUE: Is a writ of MANDAMUS available to compel a trial court to grant a motion for intervention? HELD: “As provided under Rule 19, Section 1, intervention shall be allowed in the exercise of discretion by a court. Ordinarily, mandamus will not prosper to compel a discretionary act. But where there is gross abuse of discretion, manifest injustice or palpable excess of authority equivalent to denial of a settled right to which petitioner is entitled, and there is no other plain, speedy and adequate remedy, the writ shall issue.”



Rule 21 SUBPOENA 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)

Rule 21 applies to both civil and criminal cases. Q: What are the types of subpoena under the law? A: The following are the types of subpoena: 18.) Subpoena Ad Testificandum; and 19.) Subpoena Duces Tecum Now, the first one is commonly known as subpoena for short. So, when you say that refers to the first one. Q: Define Subpoena Ad Testificandum. A: SUBPOENA AD TESTIFICANDUM is a process directed to a person requiring him to attend and to testify at the hearing or trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. So you are required to appear there and testify in court. Q: Define Subpoena Duces Tecum. A: SUBPOENA DUCES TECUM is a process directed to a person where it requires him to bring with him any books, documents or other things under his control. So, in other words we are more interested in his documents, which are in his custody. Whereas in ad testificandum, we are more interested in his oral testimony. Now, take note that a subpoena is a process which requires a witness to testify not only during the hearing or the trial of his case but also any investigation conducted by “competent authority” like quasi-judicial bodies such as the Labor Arbiter or the Senate Blue Ribbon Committee. Now, under Section 1, you may wonder what do you mean by subpoena “for the taking of his deposition”? That because that will clearer when we reach Rule 23. So we will just reserve talking deposition when we reach Rule 23. Sec. 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)

Q: Who are authorized to issue subpoena? A: The following: 11.) The court before whom the witness is required to attend – the most common is the court where the court is pending; 12.) 23;

The place where the deposition is to be taken – we will discuss that when we reach Rule

13.) The officer or body authorized by law to do so in connection with investigations conducted by said officer or body – Now, even administrative bodies or quasi-judicial officers are authorized to issue subpoena like the Labor Arbiter in connection with investigation conducted by said officer or body; 14.) Any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines – So, practically any justice can issue a subpoena to attend a particular case although it is not before the SC. They are empowered to issue a subpoena. Q: Can you subpoena a PRISONER to appear in court? A: YES, but the law says that the judge should be very careful to find out whether it is issued for a valid purpose because there is a risk. If a prisoner is going to be brought out in jail because he has to testify in a case, that might be an occasion for him to escape. So, the court should be very careful about that. The court should have to find out whether it is necessary. And take note, “No person sentenced to death, reclusion perpetua, or life imprisonment and who is confined in a penal institution shall be brought outside the said penal institution for appearance or attendance in any court unless authorized by the Supreme Court.” This is something new. I think this last paragraph is from the case of former Congressman Nicanor de Guzman of Nueva Ecija who was convicted of gun running. He was sentenced in Muntinlupa then one day, because of subpoena to testify in his hometown, he was escorted in his hometown to attend the fiesta and then I think he just used that as an excuse to attend the fiesta. And that was attacked by the media – why was he allowed to leave the national penitentiary when he is sentenced to reclusion perpetua? So, this paragraph now appears. You cannot remove him from any National Penal institution without authority of the SC. Sec. 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)

Now, actually that is simple. You are required to testify on this date or time or you are required to bring with you the following documents, which was described in the subpoena duces tecum. Now, can a subpoena be quashed? To quash means to have it dissolved. What are the grounds to quash a subpoena? Section 4: Sec. 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)

GROUNDS TO QUASH SUBPOENA DUCES TECUM Q: What are the grounds for quashing a subpoena duces tecum? A: The following are the grounds: 15.) If the subpoena duces tecum is unreasonable and oppressive; 16.) The relevancy of the books, things or documents does not appear; 17.) the person in whose behalf the subpoena is issued fails to advance the reasonable cost for the production thereof. First Ground: IF THE SUBPOENA DUCES TECUM IS UNREASONABLE AND OPPRESSIVE Well, the best example is if it violates Section 3 – it does not contain a reasonable description of the book, documents or things demanded. EXAMPLE: I will subpoena a business man to a business company, “Mr. Manager you are required to bring to court all your ledgers, all your receipts, and all your documents from 1990 to the present.” My golly! That would involve how many truck loads. Meaning, it would involve bringing to court thousand of documents. So, it becomes unreasonable and oppressive. The subpoena duces tecum should be more specific. Second Ground: THE RELEVANCY OF THE BOOKS OR DOCUMENTS DOES NOT APPEAR Meaning, there appears to be no connection between the documents which are being sought, and the issues in the case. Example, in a collection case, you were required to bring your birth certificate, marriage contract, etc. My golly! Anong pakialam ng mga niyan sa collection case? Third Ground: THE PERSON IN WHOSE BEHALF THE SUBPOENA IS ISSUED FAILS TO ADVANCE THE REASONABLE PRODUCTION THEREOF This is a very common situation: A bank received his subpoena duces tecum, “Present to court the ledger of the return check of somebody.” And this check was issued and send to you four years ago. Do you know the inconvenience when a company is asked to bring to court documents especially ‘yung matagal na? Practically, the company has to assign the employee out of his usual job. He is pulled out from his usual job to look for these in the archives. Isa-isahin niya iyan. Maybe it will take him two or three days to locate and then he will be required to go to court where you will miss your work because you will be in court and yet the person who demand the subpoena duces tecum has never been bothered to pay service fee for

that. Meaning, dapat magbayad siya reasonable cost. Of course, the law does not say how much. Sa gobyerno nga papirma ka lang diyan ng isang pirma bayad ka na ng service fee. How much more in the private sector, where you are requiring a company to look for a document? He is the one to look and then somebody will go to court. He will not be reporting for job and yet you have not even offered anything to the company. We experienced this many times subpoena duces tecum, and then the manager of the bank will say, “do we have to comply with these?” Well, you do not want to comply. Puwede man. When you received the subpoena duces tecum, may bayad ba? Did the person offer any amount for the trouble in looking for these documents and in going to court? “Wala.” Okay, we will move to quash. In other words, sometimes companies and banks just waived this. Sige lang, bayaan mo na. Maliit na bagay lang iyan. But it is a ground for quashing a subpoena. GROUND TO QUASH SUBPOENA AD TESTIFICANDUM Q: How do you quash a subpoena ad testificandum? A: The court may quash a subpoena ad testificandum on the ground that the witness is not bound thereby. Q: When is a witness not bound by a subpoena? A: The best answer is Section 10 of this rule – if your residence is more than 100 kilometers from the place of trial. So, you cannot subpoena someone from Cebu to come to Davao because that is more than 100 kms. But suppose you are willing to pay for his transportation? Never mind, even if he is willing to pay the transportation. Pag ayaw niya, wala kang magagawa because it is more than 100 kms. In either case, whether subpoena duces tecum or ad testificandum, the last sentence says, “You must also tender the witness fees and kilometrage allowed by this rules.” Ano ba ‘yang witness fees? I think that’s Rule 141, ‘yun bang pamasahe. There is a computation there. How much you have to pay the witness for his transportation and witness fees. That is different from the reasonable cost and reproduction in the first paragraph. So, these are the grounds for questioning a subpoena. Sec. 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)

Now, let’s us skip Section 5 for the meantime because that is deposition. Sec. 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 to 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)

The first sentence says, “Service of the subpoena shall be made in the same manner as personal or substituted service of summons.” That is a new provision. So, the mode of service of summons, personal or substituted is also the manner of serving subpoena. So there is now a substituted service of summons. You can leave it to the wife. Under the old rule, it says there, the subpoena shall be served personally to the witness. There is no such thing as substituted service of subpoena because in most cases, when you subpoena somebody, you go to the house, the witness is not there but the wife is there. So sabihin mo, “Ibigay mo na lang sa husband mo ito.” That is substituted service of subpoena. You must serve it personally to the witness. There is no such thing as substituted service of subpoena Under the prior rule. But NOW, the rule has changed because Section 6 is very clear: “It shall be made in the same manner as personal or substituted service of summons.” Alright. And take note that You exhibit it to the witness. Then bayaran mo ‘yong kanyang pamasahe. You must serve the subpoena with a reasonable time to me to allow him to travel. It’s very unbecoming that the witness be serve a subpoena today and he is suppose to testify tomorrow. Suppose he has other commitments, bigyan mo siya ng time. And of course, as we discussed earlier, the reasonable cost of producing the books, documents or things demanded shall also be rendered. Sec. 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)

GENERAL RULE: You can be compelled to testify if you have not been serve with a subpoena. EXCEPTION: Section 7 – a person present in court before a judicial officer maybe required to testify as if he is under subpoena. EXAMPLE: During the trial, Mr. Pogi is there. Gusto niyang makinig eh. Audience lang siya. And then the lawyer will say, “Our first witness is Mr. Pogi.” Sabi niya “Uy, uy, wala koy labot diri. I was not under subpoena.” NO, You can be compelled because you are present in court. Any person present inside the courtroom can be compelled to testify as if he is under subpoena. So, if Mr. Pogi believes he will be called and ayaw niya, huwag siyang sumipot sa court. Huwag kang magtingin-tingin doon. It happened several times. There was an instance I wanted to call a witness several times to surprise him. If I will have him subpoena, baka makabantay. Alam din niya. And then I’ll talk to him. “O punta ka bukas ha? Sigurado ha.” In other words, I’ll have to trick him into going into courtroom and then once inside, my first witness is that guy. Wala kang magawa. Because any person present in court can be compelled to testify because if I will have him subpoena, he will be forewarn. So I do not want to forewarn him. FAILURE TO APPEAR; CONSEQUENCES Q: How do you compel a witness to attend? Meaning, a witness was subpoena and he did not show up. What are the consequences of defying a subpoena? A: The consequences are found in Sections 8 and 9.

Sec. 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) Sec. 9. Contempt. Failure by any person without adequate cause to obey a subpoena served upon him shall be 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)

Q: What are the consequences if the witness refuses to appear after he was subpoenaed> A: The following: 23.) You can ask the court to issue a warrant for his arrest. (Section 8) Parang criminal ba. That’s what you call a warrant to arrest a recalcitrant witness. You move to arrest the witness para puwersahin mo ba; 24.) Declare him in contempt of court for failure to obey the subpoena (Section 9) ENFORCEABILITY OF SUBPOENA Sec. 10. Exceptions. The provisions of sections 8 and 9 of 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)

Q: When is a witness not bound by a subpoena? A: When his place of residence is more than 100 kms. to the place of trial. Actually, the old rule is 50 kms. lang. Now, the new rule is double na – more than 100kms. So pag sobra ng 100 kms, you cannot compel the witness anymore to appear. Alright, clear so far? Although, this 100-km distance does not apply if it is a criminal case where the accused would like to seek the compulsory process issued to secure the attendance of witnesses in his behalf because that is a superior right. That is how the SC interpreted it in the case of PEOPLE vs. MONTEJO (21 SCRA 722 [1965]), reiterated in GENORGA vs. QUITAIN (78 SCRA 94) that the 50-km (now 100-km) limitation applies only to civil cases, but not to criminal cases, especially if the person to be subpoenaed is a defense witness because of the constitutional right of the accused which is a right which cannot be curtailed by the Rules of Court. SUMMONS vs. SUBPOENA Now, I’ve noticed among laymen that there is a confusion between a summons and a subpoena. I’ve tried noticing that for years. The client will say, “Nakatanggap ako ng subpoena.” Pagtingin mo summon man under Rule 14. Sometimes, he will say, “Gi-summon ako ng court.” Iyon pala, subpoena. In other words among laymen, they think summon and subpoena are the same but actually we know

that they are not. Summons is in Rule 14 and one good question is, distinguish summon from subpoena. I notice that there is no author has ever bothered to explain at least to outline an answer in his book. I’ve gone to many books in remedial law, I still have to see an author who says in his commentaries, summons and subpoena are two different things and these are the distinctions? Now, suppose that will be asked in the bar, do not be afraid simply because you have not read it in the book. If you know an idea, a legal concept – summons, alam naman ninyo ‘yan; subpoena – actually you can answer. You do not have to rely to any author in answering the question. As a matter of fact, I remember when I was taking the BAR, I never bother to read the distinction of any author. Why? Because how can I memorized all of these distinctions in all subject? Impossible ‘no? It’s impossible for me to memorize everything that the author said about distinctions and I don’t have to rely on any book. That’s the best. Now, yong mga author, they only try to make your job easier by outlining the distinctions between this and that. But suppose there will be a question where you are asked to differentiate this from that and you have not read that in any book, mag-panic ka? Huwag kang mag-panic. In other words, once you know the concept, you can easily give an answer. Alright, there should be no confusion between a subpoena and a summons. There are 2 different processes, although laymen would tend to equate one with the other. Q: Distinguish SUBPOENA from SUMMONS. A: The following are the distinctions: 18.) SUBPOENA is directed to a witness; whereas SUMMONS is directed to a defendant in a civil case; 19.)

In SUBPOENA, the witness is directed to appear in court or to bring documents; whereas In SUMMONS, the defendant is informed that a complaint is filed against him and he must file a responsive pleading within the period otherwise, judgment can be rendered;

20.)

In SUBPOENA, the witness will be declared in contempt or his attendance can be compelled by the issuance of a warrant for his arrest; whereas In SUMMONS, a judgment in default will be rendered against the defendant who fails to comply.

21.) SUBPOENA applicable to both criminal and civil case; whereas SUMMONS applies only to civil cases. 22.) In SUBPOENA, there is a 100-km limitation of its enforceability; whereas In SUMMONS, there is no distance limitation.

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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 of 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 be 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)

This is what is known as “EXCLUDE THE FIRST AND INCLUDE THE LAST DAY” rule. That is how it has always been done even before this new rule. However, it was not expressed, there is nothing in the previous rules mentioning that rule but that was really the rule followed. So, if you received the summons today, for example and you have 15 days to answer, you start counting 1(one) tomorrow, not today because the day of the act or event from which the designated period of time begins to run is to be excluded. Q: Now what happens if the last day to answer falls on a Saturday, Sunday or a legal holiday? A: Then, the time shall not run until the next working day. So there will be an automatic extension to Monday or the next working day. So at least, the new rules now embody the rule of computation of time. Sec. 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)

EXAMPLE: The defendant received the summons and the complaint on a certain day. He has 15 days to file his answer. An example of an act in between which effectively interrupts the running of the 15-day period is when the defendant files a motion to dismiss instead of filing an answer, or a motion for a bill of particulars. In which case, the running of the 15-day period stops. And since it is stopped, you cannot declare the defendant in default. Q: Now, when will it start to run again? A: It will start to run again when the defendant receives a court order denying his motion to dismiss. For example: A motion to dismiss is filed on the 7th day (instead of filing an answer). Then after several weeks, the court denied the motion to dismiss and he received the order of denial. Q: So how many days more to go? A: Meron pa siyang eight (8) days to go. But the minimum guaranteed is five(5) days under Rule 12 and 16.

Now, what is the meaning of the last sentence “The day of the act that cause the interruption shall be excluded in the computation of the period.” Let’s try to illustrate that: FACTS: January 31 – defendant is served with summons February 8 – defendant files a motion to dismiss February 15 – defendant receives order denying motion to dismiss Q: What is the deadline for defendant to file his answer? A: The 15-day period started to run on January 31. From January 31 to February 8, he consumed 8 days. From February 8 to 15, not counted because interrupted man by motion to dismiss. Then, on February 15, he received the order denying his motion to dismiss. So the remaining balance of the 15-day period starts to run again. And 15 minus 8 is equal to 7. Therefore, February 15 + 7 = February 22. That is how you arrive at your (WRONG) answer. Now, I’m sure if you ask majority of lawyers and judges with that kind of problem, they will give the same answer. But the answer is WRONG. Why? Q: How many days did he consume from January 31 to February 8? A: Hindi naman 8 days eh. 7 days lang because the filing of the motion to dismiss has interrupted. So when you file the motion to dismiss on February 8, interrupted na. So February 8 is not counted. So you consumed 7 days only. Yaaaannnn……. Therefore, if he consumed 7 days, he has 8 days pa from February 15 to file. So the deadline is February 23. Yaaaannnn! Because the law says: “The day of the act that caused the interruption shall be excluded in the computation of the period.” The act that caused the interruption is the filing of the motion to dismiss and it was filed on February 8. So, February 8 is already excluded in the computation of the period. Take note of that, that is a very important point because it may mean the answer is filed on time or out of time. Kahit sa appeal, applicable din ito. That’s why that provision may sound very innocent but it is a very important provision.

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Rule 23 DEPOSITIONS PENDING ACTION We are now in Modes of Discovery. This is one of the hardest portions of Civil Procedure. I have to admit even some lawyers and judges have a difficult time in comprehending Modes of Discovery. A civil case is not a case of technicalities. The rules do not want surprises in civil cases. You lay your cards on the table. You do not keep your opponent searching in the dark and that principle is manifested in so many rules. Example, when a defendant resorts to a specific denial, he is obliged not only to deny the allegations in the complaint but also the facts that is denied. It is not fair to state that my version is false, without stating your version. And if you do not make specific denial, there is a general denial, an implied admission. You cannot also deliberately confuse the defendant by making ambiguous ultimate facts in the complaint to confuse him. He has the right to clarify the allegation by motion for bill of particulars. There is also the rule that objections or defenses not pleaded in the motion to dismiss or in an answer are generally waived. So, if you do not invoke the defense because you want to surprise the plaintiff, you will be the one who will be surprised because the courts will not allow you. There is no such thing as surprise defense because under Rule 9, defenses not raised are deemed waived. These provisions of the rules indicate the principle: LAY YOUR CARDS ON THE TABLE. BUT there is still an element of surprise whether you like it or not because I’m obliged to state my cause of action or defense but I’m not obliged to state the facts supporting that defense because the rules even say, evidentiary matters should not be alleged in the pleading but is only proved in the trial. So, if I say I am in possession of a particular property for 30 years, you know very well what I intend to prove but you do not know how I will prove it – the kind of evidence I will present – you know the factum probandum but you do but you do not know the factum probans. You do not know what documents I will present in court because I am not obliged to plead document which is not actionable one. You do not know who are my witnesses, you do not know they will testify. A motion for bill of particulars is not a vehicle to fish for evidentiary facts. So, in that sense there is still an element of surprise – you do not know my evidence until the trial or pre-trial. Q: But if you want to avoid any surprise, is there a way of knowing then? A: YES. The correct remedy is to apply the modes of discovery. While the modes of discovery is not so popular among the Filipino lawyers, in America these modes of discovery are popular among lawyers because if they see that the evidence is strong, they settle the case even before trial. Modes of discovery are not only allowed but their use is encouraged. BAR QUESTION: How do you distinguished Bill of Particulars from Modes of Discovery? A: Bill of Particulars is Rule 12, when you compel the party to clarify vague statements of ultimate facts, but it is not an instrument to compel the other party to reveal evidentiary facts. The Modes of Discovery are intended to compel the other party to reveal his evidence and evidentiary facts.

There are actually five (5) Modes of Discovery: 1. DEPOSITIONS – (a) pending action (Rule 23) and (b) before action or pending appeal (Rule 24); 2. WRITTEN INTERROGATORIES TO PARTIES (Rule 25); 3. REQUEST FOR ADMISSION OF ADVERSE PARTIES (Rule 26); 4. PRODUCTION OR INSPECTION OF DOCUMENTS AND THINGS (Rule 27); and 5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS (Rule 28) These are devises in the Rules of Court which are intended to compel the other party to reveal his evidences before the trial. You cannot compel a party to reveal his evidence by a Bill of Particulars because Bill of Particulars is only intended to clarify vague statements of ultimate facts but evidentiary facts cannot be compelled so the remedy are Modes of Discovery. This is another neglected area of the Rules of Civil Procedure where lawyers do not seem to know how to use the Modes of Discovery, just like the pre-trial, ba. So, long before the trial, I can compel your witnesses to reveal their testimony under oath through Modes of Discovery. So that during the trial, I would not be surprised anymore because meron na akong copy of your testimony which is also under oath. And if you have some documents to present which you are hiding because they are not actionable, puwede man kitang pilitin ba, by applying Rule 27. So with this, there are no more surprises. First Mode: Rule 23: DEPOSITION PENDING ACTION This mode is the most popular among the five. Deposition has two (2) types – deposition pending action (Rule 23) and depositions before action or pending appeal (Rule 24). But actually Rule 24 is not new because that is Rule 134 (Perpetuation of Testimony). But before we discuss Rule 23, I will give you a general idea about what Rule 23 is all about. EXAMPLE: You are my opponent and I know you have 2 witnesses, A and B. Now, of course, if A and B will testify, how will they testify, that I do not know. But I want to know exactly what they will say during the trial, including you. Q: How do I apply Rule 23? A: I will take your deposition. Meaning, I will take your testimony in advance by compelling you to appear before someone whom we call a Deposition Officer – the judge, or any judge, or even a notary public - who can administer oath. And then before him, I will be asking now questions and you have to answer under oath. Your answers will then be recorded including that of your witnesses. Therefore, during the trial, when you or your witnesses will testify, there is no more surprise testimony that you can give me because I already heard you in advance. You cannot contradict your answer. This is what you call deposition taking. Now, if I can do that to you, you can also do that to me. The defendant can also use that against the plaintiff. Q: How do you define deposition? A: DEPOSITION is the written testimony of a witness given in the course of a judicial proceeding,

in the world. That’s why the law says, “the testimony of any person whether a party or not may be taken at the instance of any party.” And of course, Mr. A can also do what I was allowed to do. Q: When you take deposition of this person, what do you call him? A: The accurate term is that, he is called ‘DEPONENT.’ Some people call him witness. Q: What are the modes of deposition taking? A: Under the law, there are two (2) recognized modes: 1.) Deposition upon oral examination; and 2.) Deposition upon written interrogatories The deposition upon oral examination is more popular because it is just like how you question a witness in court: Questions and answers, then it is recorded. And then later on, the other counsel would ask his questions and answer. Deposition upon written interrogatories should not be confused with Rule 25 because the former is governed by Rule 23. Although they use the same words. Now, as we shall see, there must be a deposition officer and under the law, even a notary public is qualified to act as deposition officer because he can administer oaths. Deposition taking has a counterpart in criminal procedure. c.f. Rule 119, Sections 12,13 and 15. Q: Suppose I would like to take the deposition of Ms. A before a notary public whose office is located along San Pedro Street. How can I force Ms. A to go to the office of that notary public? Can I force her? A: If Ms. A is in court, the court can force you by subpoena. But I can also compel Ms. A to attend this questioning for the purpose of deposition. Section 1 says, “the attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21.” Rule 21, 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)

PROBLEM: Your case is in Davao but your witness is in Cebu. You asked your witness to come here in Davao to help you and you are even willing to shoulder her transportation, but she refuses. Q: Can you ask the court in Davao to issue a subpoena compelling such witness to come here and testify even if the distance is more than 100 kilometers? A: NO, because of Section 10 of Rule 21. The remedy is you go to Cebu and get a deposition officer and take her deposition. Q: How can I compel her to go to the office of the notary public in Cebu for the purpose of the deposition? A: You can get a subpoena from the Cebu court and that is allowed under Rule 21, Section 2 [b] and under Rule 21, Section 5: Rule 21, Sec. 2. By whom issued. The subpoena may be issued by: x x x x x b) the court of the place where the deposition is to be taken;

x x x x x

Sec. 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)

In other words, I will send the notice to my opponent, “I am going to take the deposition of my witness in Cebu.” And based on that notice, I will go to Cebu and ask the clerk of court of the RTC of Cebu to issue a subpoena based on the notice to take deposition on the Davao case. And under the Rules, the Cebu RTC has to issue a subpoena even if the case is not pending in that (Cebu) court because this is only deposition. Kaya nga under Rule 21, Section 2 [b], a subpoena may be issued by the court of the place where the deposition is to be taken. There was an instance before, a Manila lawyer who wanted to take the deposition of somebody in Davao. Then he applied for a subpoena to require the deponent to appear before a notary public here. At least, tama siya doon. Ang mistake niya, he applied for a subpoena in the Manila court where the case is pending and the judge there, maybe he did not read Rule 21, issued a subpoena addressed to the person in Davao to appear before the notary public in Davao and the witness did not appear. So the lawyer realized na mali siya. So he had to do it all over again in Davao, not in Manila. The subpoena has no more effect beyond 100 kilometers. It should be filed not where the case is pending but at the court of the place where the deposition is to be taken. In other words, the error was corrected, but can you imagine the waste of time and effort. Generally, depositions are taken at the start of the case before the trial. But in the case of DASMARIÑAS GARMENTS, INC. vs. REYES 225 SCRA 622 [1993] ISSUE: Whether or not deposition taking is only allowed before the action comes to trial. Can you still resort to deposition under Rule 23 when the trial is already ongoing or it is only at the pre-trial? HELD: “Depositions may be taken at any time after the institution of any action, whenever necessary or convenient. There is no rule that limits deposition-taking only to the period of pre-trial or before it; no prohibition against the taking of depositions after pre-trial. Indeed, the law authorizes the taking of depositions of witnesses before or after an appeal is taken from the judgment of a Regional Trial Court to perpetuate their testimony for use in the event of further proceedings in the said court and EVEN during the process of execution of a final and executory judgment.” Meaning, deposition taking is even allowed as part of the execution where the trial is already terminated. This is called with another name in Rule 39 on execution, satisfaction or effects of judgments. (c.f. Rule 39, Sections 36, 37 and 38) What can be the subject matter of deposition taking? Section 2:

Sec. 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)

Q: When you take the deposition of a deponent what can you ask? What matters may be inquired into? A: The law says, the deponent may be examined regarding any matter whether related to the claim or defense of any other party. Example: Suppose if there is a case between me and somebody and I suspect Pedro knows something about the facts but I am not sure, so I will take his deposition. I will start asking questions to Pedro wherein practically I’m groping in the dark. I just start asking questions left and right hoping that, I may stumble into something about the case. Q: Is that allowed? Pataka lang ba ang style of asking questions. A: YES, it is allowed. Precisely, the mode of discovery is a fishing expedition in the hope that you will discover something in the course of a questioning. If I already know a fact, there is nothing to discover. It is very broad that I may discover something in the course of questioning. You can ask the deponent any matter related to the claim or defense but there are limitations. LIMITATIONS IN DEPOSITION TAKING Q: What are the limitations or prohibitions in deposition taking? A: The following are the limitations in Deposition Taking: 3.) The matter inquired into is not privileged either under the rules on evidence or special law; 4.) The matter inquired into is relevant to the subject of the pending action; 5.) The court may issue orders to protect the parties and its deponents under Sections 16 or 18. FIRST LIMITATION: That the matter inquired into is not privileged. There are things which you cannot compel a person to reveal in court. EXAMPLE: You cannot compel the wife to reveal in court what her husband told her in confidence during their marriage. That is known as the marital privileged communication rule (Rule 130, Section 24 [a]). Other privileged communications: Lawyer-Client communication rule (Rule 130, Section 24 [b]); Physician-Patient communication rule (Rule 130, Section 24 [c]); Priest-Penitent communication rule (Rule 130, Section 24 [d]). Or, business trade secrets such as the formula of your product. So, if you cannot ask that in a trial, you cannot also ask that in a deposition taking. SECOND LIMITATION: The matter inquired into is relevant to the pending action. While deposition taking authorizes a fishing expedition, you are not allowed however, to go beyond

the topic. EXAMPLE: You will ask the witness about an incident which happened and she was supposed to be there. “Where were you on this date?” “I was there.” “Who was with you?” “I was with my boyfriend.” “When did he become your boyfriend?” or “How often do you date each other?” or “What’s his favorite color? Malaki ba ang tiyan niya?” My golly! Those questions are irrelevant. Anong pakialam niyan sa topic? Walang connection ba! THIRD LIMITATION: The court may issue orders to protect the parties and its deponents under Sections 14 or 18 of this Rule. While it is true that leave of court is not necessary anymore, you have to remember that it is related to a pending case and the court has control over the case. That is why, while leave of court is not necessary, any party who is aggrieved can go to court and complain. And the court is authorized to issue orders to protect the parties and its deponents under Sections 16 or 18 of this Rule. Q: In what proceedings can a deposition be used? A: It can be used later during the trial of the case, or in supporting or opposing the motion. A good example is the remedy of summary judgment under Rule 35. Under this Rule, a party can file a motion for summary judgment to demonstrate that the party has no cause of action. In that sense, I will support my motions with affidavit, depositions or documents. USE OF DEPOSITIONS Sec. 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: x x x x x

Q: In what proceedings may a deposition be used? A: The following: 1.) At the trial; 2.) Upon a hearing of a motion; or 3.) Upon a hearing of interlocutory proceeding (e.g. issuance of a writ of preliminary injunction or attachment) Q: Against whom may a deposition be used? A: Against the following: 1.) against any party who was present; or 2.) against a party who was represented at the taking of the deposition; or 3.) against a party who did not appear or represented but was duly notified of the scheduled deposition taking. So, the procedure for deposition taking is first, to notify the other party of the date, place and time of the deposition taking of a person. The other party is free to go there and participate. So if person appeared and participated, he is bound by the deposition. If he fails to appear but sent a representative, the same effect – the person is bound. Suppose a person received the notice and never bothered to go

or participate, he is still bound because the law says, for as long as you are notified, you are bound. So whether you will come or not, you are bound by the deposition taking. In this case, you might as well show up. This is one area of procedure in which clients do not understand. Sometimes you will received a notice from the opposing counsel that he is going to take the deposition of your client and witnesses. The client usually will oppose because they thought that the only time you are going to tell the story is in court and not in the office of Atty. Hong Hunk. The lawyer has a hard time explaining deposition taking to the client because the laymen usually does not know this. They do not know that the other party could compel you under the law. The process of deposition is so hard to explain to the laymen. He does not understand why the witnesses can be compelled to testify long before the trial, not inside the courtroom but in somebody’s place and everything is recorded and under oath. The tendency is, samok kaayo ang imong client. Tell him, “Do not ask questions anymore, just believe me.” (a) Any deposition may be used by any party for the purpose contradicting or impeaching the testimony of deponent as a witness;

of

EXAMPLE: I will take the deposition of Mr. Malaki as a possible witness. After listening to his testimony, his testimony is in my favor. I tell the court during trial that my next witness is Mr. Malaki but since he is busy and his deposition is taken beforehand, I will no longer present him but instead I will present as evidence his deposition to take the place of his oral testimony in court.

Q: Is that allowed? Can a deposition substitute for his oral testimony? A: NO, a deposition can only be used for the purpose of contradicting or impeaching the testimony of deponent as a witness. It does not exempt the witness from testifying in court. It is only a means of knowing what the witness will testify. When you take the deposition of a witness, you are already assured that this will be his story. If I asked you the same question in court, naturally he will have the same answer. So there are no more surprises. If I am asking a question identical to my deposition, I expect the answer to be identical during the trial. Q: Suppose the witness during the trial will reverse his testimony. His testimony in the deposition is favorable to me but during the trial, pabor naman sa kalaban. A: I can now use his deposition to destroy him. I will impeach him by showing that the witness is not reliable. To IMPEACH the testimony of a witness is to destroy his credibility. I will offer in evidence the deposition for impeachment purposes. This is known as PRIOR INCONSISTENT STATEMENT under the rules on evidence. They cannot change story during the trial because I can impeach them. Therefore, a deposition is not a substitute for the testimony of the witness in court. You still have to present him in court. He has to testify all over again but at least you already have a guideline. So, if he deviates from the deposition, you can impeach him using the deposition taken under oath earlier.

(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;

Q: What is the difference between paragraphs [a] and [b]? A: The following: 1.)

In paragraph [a], it is the deposition of a WITNESS and not a party, while In paragraph [b], it is the deposition of the PARTY himself.

2.)

In paragraph [a], the deposition of witness can be used only for contradicting or impeaching the testimony of deponent as a witness, while In paragraph [b], the deposition of a party can be used for any purpose. So it is broader than the first.

ILLUSTRATION: Suppose I will take the deposition of my opponent (adverse party) and I have already a record of his testimony. During the trial if he testifies contrary to the deposition, I could use it to impeach him. But suppose the deposition is in my favor, I could present the deposition as an admission in my favor. I could use it as evidence against my opponent. Therefore, I can use it as evidence or I can use it as a tool to impeach or contradict the other party. In other words, the deposition of a mere WITNESS is for strict purpose (for impeachment only) and the deposition of an ADVERSE PARTY is for any purposes because I can use it to impeach or I can use it as evidence. And if a witness say something in my favor, I cannot use it as evidence. I have to ask the witness to repeat his statement in court. But if it is a party, I can use it as evidence already under the rule on admission of evidence that the act or declaration of a PARTY maybe used as evidence against him (Rule 130, Section 26). So, that is the difference between deposition of a party and a witness. Q: Suppose the adverse party is a corporation A: Under paragraph [b], you can take the deposition of any of its officers, directors, or managing agent of the corporation. (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

Paragraph [c] is an exception to paragraph [a]. Paragraph [a] applies only to a deposition of a witness for contradicting or impeaching his testimony. It is only in paragraph [b] which applies the use

of deposition for any purpose but it refers to the deposition of the adverse party. Now, paragraph [c] allows the use of the deposition of a WITNESS for any purpose. DEATH Q: I will take the deposition of Juan who is my witness. During the trial, my next witness is Juan. Do I have to present Juan or only his testimony in the deposition as evidence? A: I have to present my witness Juan because under paragraph [a], the deposition is only good for impeachment purposes but not a replacement for his oral testimony. Q: Suppose, when I’m about to present Juan during the trial, a day before that he died. So, I have no more witness. Can I now present his testimony in the deposition as evidence? A: YES. Under the law, his deposition will take the place of his oral testimony because he is dead. However, if he is alive, apply paragraph [a] – you cannot substitute his deposition to his oral testimony. Now, it is true that when you take the deposition of your own witness, you are supplying the other party a means to impeach the testimony of your witness. But if you look at paragraph [c], it is also important to take the deposition of your witnesses. The purpose is just in case your witness will die before he can testify in court. At least, kung nakuha mo na ang deposition niya earlier, masuwerte ka. 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 EXAMPLE: My witness is from Cebu. Under the rule on subpoena, I cannot compel him to come to Davao and testify in a case because of the 100-kilometer rule. The remedy is to go to Cebu and take his deposition there. When the case in Davao is called, I will tell the court that my next witness is from Cebu and the distance from Davao is more than 100 kilometers. So I have no choice but to take his deposition there. In this case, I can offer as evidence his deposition to take the place of his oral testimony. And that is allowed as exception to paragraph [a]. And if your witness is leaving for abroad, you might as well take the deposition before it is too late, or you might end up without any witness. That is the advantage of paragraph [c]. WITNESS NOT FOUND So, if I am unable to procure the attendance of my witness by subpoena means that the witness can no longer be found. His whereabouts is already unknown but I was able to take his deposition earlier. (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.

ILLUSTRATION: Suppose I will take the deposition of Juan dela Cruz. The first part is in my favor but when he was cross-examined by the other party, he clarified his answers and turned out that his original answers were not really in my favor.

So there are two parts of the deposition: PART ONE, in the general questions, the answers seem to be in my favor; PART TWO, when the questions are specific, it turned out that it was not in my favor. So if I am the lawyer what I will offer is the part one as my evidence because it is in favor of my client. The other party will present the other part. In evidence, the party is not obliged to offer in evidence documents which are against his cause. It is now the job of the other lawyer to offer the other part thereof (c.f. Section 17, Rule 132). So if this is so, the picture created will only be half of the whole picture. Q: Is this unethical as it is suppressing the truth? A: No, I am not suppressing the truth. Lawyers are not allowed to lie. Nowhere in the Legal Ethics is it being espoused that lawyers are told to lie. In fact, a lawyer must be honest and true for the administration of justice. It is the lawyer of the other side who has the absolute right to complete the picture by offering the other half. I am not under obligation to help the other side. A lawyer is no obligation to present everything. He is only under the obligation to support the interest of my client. What is unethical is when you present something against the interest of your client. Yaaann! Q: Is it not twisting the truth? A: NO. Twisting the truth is changing the facts. I am not changing the facts of the story. I am only presenting one side of the story. But definitely the other party is not precluded from testifying to present the other half of the story. If the other party fails to present the other half of the story, that is their problem. Do not blame me. [hmp!] Sec. 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)

Q: Plaintiff filed a case against defendant. Depositions were taken. Later, one of the parties died and there was substitution. Is there a need of taking depositions again? Will the deposition already taken be also applicable to the same case although the parties are now different? A: YES. The substitution of parties does not affect the right to use depositions previously taken. Q: Jolina files a case against Maya and depositions were taken. Later, the case is dismissed without prejudice. Jolina re-filed the case. Is it necessary for depositions to be taken all over again? A: NO NEED. The depositions taken in the dismissed case will still apply to the new case. There is no need of repeating the whole process. Sec. 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)

Q: Can you object to the evidence which is being offered during the deposition taking? A: YES, however the deposition officer cannot rule but the objection is recorded. It is the judge who will rule on the objection later during the trial.

Sec. 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)

We know that deposition taking is a fishing expedition. If after taking a witness deposition, he knows nothing, then he is useless as a witness to me. [Inutil! Weakest link! Walang silbi! Wala kang pinag-iba sa appendix ng tao!] You are not my witness. If after taking your deposition, it turns out that everything you say is against me, am I bound by your testimony? NO. In fact, it is the other party who will use you as his witness. But definitely, you are not my witness. Sec. 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)

GENERAL RULE: By simply taking your deposition, it will not make you as my witness. But once I offer your deposition in court, you are now my witness, especially if your are dead or when you are residing more than 100 kilometers. EXCEPTIONS: Meaning, even when I offer it in court, still it does not make you as my witness. 1.) When I am offering your deposition to contradict or impeach you. So, when I am offering your deposition to show the court that you are a liar, I am not making you as my witness; 2.) When you offer the deposition of your opponent (adverse party), you are not making him your witness. That is obvious. Napaka-istupido mo naman! Take note that anything that your opponent says in the deposition in favor of you will bind you. But if it is not in your favor, it will not bind you precisely because he is not your witness – he is not expected to say something in your favor. Sec. 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)

It is just like a witness in court. If a witness says something in court, you can always prove that that is not true. If it is a deposition, the same thing – you can always rebut the truth of what he said in his deposition. BEFORE WHOM DEPOSITIONS ARE TAKEN If the deposition is to be taken WITHIN THE PHILIPPINES, who are authorized to act as deposition officer? Section 10: Sec. 10. Persons before whom depositions may be taken within the Philippines. Within the Philippines, depositions may be taken before any judge, notary public, or the person referred to in section 14 hereof. (10a, R24)

Q: If the deposition taking is in the Philippines, who are these persons before whom depositions are taken? A: The following: 1.) ANY JUDGE. So, it is not necessary the judge acting on the case. In fact, you can request a judge in Manila to be the deposition officer and he will not be the one to decide. He is only the deposition officer; 2.) NOTARY PUBLIC. A notary public is authorized by law to administer oath. Take note that not all lawyers are notary public. To be a notary public, you have to apply for commission in the court of the place where you are practicing. If you are a notary public for Davao City, you cannot be a notary public in any other place. And usually, a commission for notary public is only good for 2 years. After 2 years, you have to re-apply. 3.) PERSON REFERRED TO IN SECTION 14: Sec. 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. (24a, R24)

So, the parties may stipulate in writing that the deposition officer may not be a judge or a notary public. It can be other person who is authorized to administer oath such as prosecutors, clerk of court who is a lawyer, labor arbiters, etc. Anyway, they are also authorized to administer oaths. If the deposition is to be taken ABROAD, who are authorized to act as deposition officer? Section 11: Sec. 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)

The amendment here again is the persons referred to under Section 14. So, a secretary of the Philippine embassy or consulate abroad is authorized to act as deposition officer, as well as the consul general, vice-consul, although on a SC circular, if the judge will authorize the taking of deposition abroad, because this time leave of court is required, you course it to the Department of Foreign Affairs. The parties are not supposed to communicate directly to the Philippine Embassy. Q: How about in places where we do not have embassy? A: Those with country where we do not have diplomatic relations, you have to avail of [b]. So in this case, the person who is authorize to take the deposition may be the one who is authorized by commission, or if not by commission, by letters rogatory. What do you mean by commission or a letters rogatory? Section 12:

Sec. 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 and 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. (12a, R24)

By COMMISSION, somebody other than Philippine consul… like in Taiwan, we have Philippine Trade Department in Taiwan because of our trade relations. The court will issue a commission to the head of the trade mission there to act as deposition officer. Or any other person appointed by the judge by court order. So, suppose I would like to take the deposition of somebody who is staying in Afghanistan where we have no consulate but I know of a Filipino lawyer who resides there. I will request the court that this Filipino lawyer abroad be authorized to take the deposition of a person there. If the court agrees, it will issue what is known as a commission. But suppose none at all, the court will send letters rogatory addressed to the court of a foreign country. Q: Define letters rogatory. A: LETTERS ROGATORY is an instrument whereby the foreign court is informed of the pendency of the case and the name of the foreign witnesses, and is requested to cause their depositions to be taken in due course of law, for the furtherance of justice, with an offer on the party of the court making the request, to do the like for the other, in a similar case. (Ballentine’s Law Dict., 2nd Ed., p. 744) EXAMPLE: The case is in Davao. W lives in North Korea. P should file a motion in court for the court to issue a letters rogatory. The judge will make a formal communication to the court in Pyongyang to please take W’s deposition with the following request: to mail back the answer and offer to return the favor. If the request is ignored, there is nothing that we can do. But normally, they comply. So, letters rogatory is a request to the appropriate foreign judicial authority to take the deposition of a witness who is in their jurisdiction and please send us a copy and we assure you in the future, if you have the same problem, we will reciprocate. That is international law. Deposition can be understand by the officer in other country because it is internationally known. If the officer in the foreign country will not do it, we have no choice because it is only a request. (kung ayaw mo, huwag mo!) The SC defined again commission and letters rogatory and distinguished one from the other in the case of DASMARIÑAS GARMENTS, INC. vs. REYES 225 SCRA 622 [1993] ISSUE #1: Distinguish a commission from letters rogatory. HELD: “A COMMISSION may be defined as 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.” “LETTERS ROGATORY, on the other hand, may be defined as 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 cause pending before the former, a witness who is within the jurisdiction of the judge or court to whom such letters are addressed.” “A COMMISSION is addressed to officers designated either by name or descriptive title, while LETTERS ROGATORY are addressed to some appropriate judicial authority in the foreign state.” “Noteworthy in this connection is the indication in the Rules that letters rogatory may be applied for and issued only after a commission has been ‘returned unexecuted’ as is apparent from Form 21 of the Judicial Standard Forms appended to the (1964) Rules of Court.” So as a matter of practice, the court should first resort to commission. You must allege that the commission has been returned unexecuted before resorting to letters rogatory. ISSUE #2: Petitioner however prevent the carrying out of the commission on the ground that the deposition-taking will take place in a foreign jurisdiction not recognized by the Philippines in view of its one-China policy. Can a deposition be taken in Taiwan where the Philippines has no diplomatic relations because of the one-Chine policy? HELD: YES. What matters is that the deposition is taken before a Philippine official acting by authority of the Philippine Department of Foreign Affairs and in virtue of a commission duly issued by the Philippine Court. Sec. 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)

You are disqualified to act as deposition officer if you are related to any of the parties or the lawyer. You get somebody who is not related. Sec. 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 not 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)

There are 2 types of deposition taking: (1) deposition upon oral examination and (2) deposition upon written interrogatories. The latter is governed by Section 15 which is the most popular: Questionanswer and everything is recorded. Take note that before deposition is take, there should be notice to the adverse party. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined. The last sentence, “On motion of any party upon whom the noticed is served, the court may for cause shown enlarge or shorten the time.” Suppose you will send me a notice that you are going to take the deposition of a witness from February 1 to 20 morning and afternoon. Twenty days is too much. I can go to court and complain. That should be reduced. The court may come in and enlarge or

shorten the time. The court may also do this even if leave of court is not required. Sec. 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 be opened only by order of the court, or that secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes 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)

While it is true that leave of court is not necessary anymore, you have to remember that it is related to a pending case and the court has control over the case. That is why, while leave of court is not necessary, any party who is aggrieved can go to court and complain. Deposition is purely your concern provided nobody would come here and complain. That is one of the limitations of deposition taking. Q: What orders may court issue for the protection of parties and deponents; when may orders be issued; what court has power to issue the orders? A: 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 issue the following orders: 1.) 2.) 3.) 4.) 5.) 6.) 7.) 8.) 9.)

That the deposition shall not be taken; That it may be taken only at some designated place other than that stated in the notice; That it may be taken only on written interrogatories; That certain matters shall not be inquired into; That the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel; That after being sealed the deposition shall be opened only by order of the court; That secret processes, developments, or research need not be disclosed; That the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; The court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. (Section 16)

Sec. 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 16 and 18 are similar. They both talk about the power of the court to control the deposition taking. Section 16 is about protective orders BEFORE deposition taking. Section 18 talks about protective orders DURING the deposition taking where the court may stop or limit the deposition taking. Sec. 17. Record of examination; oath; objections. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by some one 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)

Q: How is deposition in oral examination taken? A: It must be under oath. The testimony will be taken by the stenographer. And objections must be recorded. Evidence objected to shall be taken subject to the objections. Q: Can the deposition officer make a ruling on the objection/s? A: NO. He cannot. But the objection will be noted and the deponent must answer. Later on, if that deposition is offered as evidence in court, the court will now rule on the objection. If the objection is overruled, the answer as recorded remains. If the objection is sustained, the answer as recorded is erased as if it was never answered. That is the meaning of “evidence objected to shall be taken subject to the objections.” So, the deposition officer cannot make a ruling on the objection. It is only the judge of the court where the case is pending who will make the ruling on it. Take note that answers to depositions not objected to cannot be objected to in court during the trial, UNLESS the objection is based on a new ground which only come up after the deposition. Sec. 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)

So after the deposition of the deponent is taken, the deposition officer shall submit the deposition to the deponent for examination. He may change his answers but he must state the reason for the change. And he signs it, unless the parties by stipulation waive the signing, or the witness is ill, or cannot be found or refuses to sign. In the latter cases, the deposition will be signed by the deposition officer. Sec. 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) Sec. 21. Notice of filing. The officer taking the deposition shall give prompt notice of its filing to all the parties. (21, R24) Sec. 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)

Any party can ask for a copy of the deposition upon payment of reasonable charges therefor. Sec. 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)

Suppose the opposing counsel is from Manila was notified of the schedule of the taking of a deposition of a witness in Davao. And he came over. But the deposition did not proceed because the party sending the notice did not show up. So he caused the other party a lot of inconvenience. The Manila lawyer can file a motion in court to ask for reimbursement of all his expenses in this case. Sec. 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)

Suppose the opposing counsel is from Manila was notified of the schedule of the taking of a deposition of a witness in Davao. And he came over. The party sending the notice is also present. But this time it is the witness who is absent because the party sending the notice forgot to have the witness subpoenaed. Again, the Manila lawyer can file a motion in court to ask for reimbursement of all his expenses. Sec. 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 or 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)

The difference between a deposition upon oral examination and written interrogatories is that in oral examination, the questions and the answers are oral. In deposition upon written interrogatories, the questions are prepared already in advance and that is direct interrogatories. And then they furnish you a copy and after receiving it, you may also, within 10 days, prepare your questions or cross-interrogatories and you also furnish them copies of it. And based on that, they can ask further questions. If they are now sufficient, the deposition officer shall compound the question one by one but every question requires an answer. Practically, there is no personal confrontation of the witness. If your witness is abroad, it is very expensive for you to go there and conduct an oral examination. So, the practical means is only deposition upon written interrogatories. Sec. 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 file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him. (26, R24) Sec. 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) Sec. 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. (28, R24)

So the protections provided under Sections 15, 16 and 18 are also applicable in oral examinations. Are the mistakes in deposition taking fatal? Sec. 29. Effects 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 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)

So, if you will notice, majority of all the errors are waived if objection thereto is not promptly made.

Rule 24

DEPOSITIONS BEFORE ACTION OR PENDING APPEAL TWO TYPES OF DEPOSITION TAKING: 20.) Deposition Pending Action (Rule 23) and 21.) Deposition Before Action or Pending Appeal (Rule 24) In Rule 23, you take a testimony or deposition of people in relation to a pending case. There is already a pending case in court, so everything is based on a pending action. The next rule (Rule 24) is deposition before a case is filed. That is why it is called Depositions Before Action. Actually, the concept of depositions before action is not really new. This is also found in the Rules prior to 1997 but was found in another rule. It was called Perpetuation of Testimony (Rule 134 of the old Rules of Court). What the new rules did was simply to transfer Rule 134 to Rule 24. But how can I apply deposition taking, wala mang kaso? That is why it was known as Perpetuation of Testimony under Rule 134. EXAMPLE: Suppose there is a case which I would like to file against B. But for the moment I cannot file it yet. I intend to file a case against him. So there is an expected case between us in the future only there are certain things that I still have to do. But if I file a case against B, I have some witnesses who are all ready like A and C. But the trouble is, I learned lately that A will die soon. He has cancer and C will have to leave for abroad, never to come back. Definitely, if I will file the case, there are no more witnesses available. Q: Is there a way of taking testimony or deposition in advance even before wala pang kaso? A: YES, by applying Rule 24. I will file a petition before the court known as Petition to Perpetuate the Testimony of A and C. Well, even if there is as yet no case, I will just file a petition under Rule 24. If I can prove really that the testimony would be relevant or important the court will issue an order allowing me to take deposition in advance. 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)

Q: Where will you file it? A: In the court of the place of the residence of any expected adverse party because there is still no case. So you have to file an independent petition under Rule 24 Sec. 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) Sec. 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) Sec. 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)

If the petition is granted, the court will now allow the deposition of these people to be taken and they are taken simply by following Rule 23. Sec. 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)

Rule 23 says, “the court in which the action is pending.” But there is still no pending action here. So it automatically refers to the court in which the petition for the perpetuation was filed. Sec. 6. Use of deposition. If a under this Rule, or if, although evidence, it may be used in any subsequently brought in accordance Rule 23. (6a, R134)

deposition to perpetuate testimony is taken not so taken, it would be admissible in action involving the same subject matter with the provisions of sections 4 and 5 of

Q: How do you use the perpetuation of testimony? A: The same uses of an ordinary deposition – for impeachment, for any other purpose like the witness is already dead – the same under Rule 23. So the rule under Rule 23 is also applicable to Rule 24. Sec. 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)

Q: What is deposition PENDING APPEAL? A: Obviously, there is a case already on appeal. So how do you apply Rule 24 under this kind of situation? EXAMPLE: There is a case between K and B. K lost. After he received a copy of the decision, he discovered a material witness whom he failed to present. So this is a newly discovered evidence (NDE). Had K known of his existence, he would have won the case. So, K will file a motion for new trial based on NDE. If his motion is granted, there will be new trial. But, if his motion is denied, K will appeal. While waiting for the decision of the court, the witness tells him that he will be leaving for Afghanistan and will come back no more. So, K will use Section 7. He will file a motion asking to take the deposition of a witness pending appeal in the event that his motion for new trial is granted, because the witness has to go and cannot wait for the new trial. So in the event that if I win the appeal, the case will go back. I can present the testimony because by that time he may already be dead. In effect, para na ring deposition before appeal. So it is also perpetuating the testimony of a possible witness, in the event the appeal is decided in your favor. That’s why it is called deposition pending appeal. [oo nga ano?]

Rule 25 INTERROGATORIES TO PARTIES Q: Going back to Rule 23, what are the modes of deposition taking? A: The following: 3.) Deposition upon oral examination; and 4.) Deposition upon written interrogatories. Rule 25 should not be confused with Rule 23, Section 25 – yung tinatawag na Deposition Upon Written Interrogatories. In written interrogatories under Rule 23, questions are already prepared beforehand and they are going to be submitted to a deposition officer who will propound the questions to the deponent and record the answers under oath. EXAMPLE is, if you want to take the deposition of somebody abroad through a deposition officer abroad. Of course, it would be very expensive to go there and conduct an oral examination. So, the best thing is to resort to deposition upon written interrogatories under Rule 23. That is not the same as interrogatories to parties under this rule. We are going to distinguish one from the other later. Interrogatories mean written questions. EXAMPLE: I file a case against Frudo. Frudo filed an answer and of course, he has his affirmative defenses which are statements of ultimate facts. alang details, no evidentiary facts. But I am interested to find out what are these evidentiary facts I will write a letter addressed to Frudo under Rule 25 and direct him to answer the following interrogatories: According to your answer, you already paid, please answer the following questions: Q1: When did you pay? Q2: Place? Q3: Who was present when you paid?

Or Q1: Mr. Frudo, you have been in continuous possession of this piece of land for 30 years, would you kindly narrate the improvements that you introduced in the property? Q2: What year did you introduce them? Q3: Who are your witnesses? etc…

Now, under Rule 25, you are obliged to answer me also in writing. Then you sign your answer and you swear to the truth of it. So I will ask you directing a question – How will you prove this? Who are your witnesses? I will compel you to reveal the evidentiary facts. And that process is called written interrogatories to parties. Di para na ring deposition? I can also ask the same questions through deposition taking under Rule 23. Why do I have to resort to Rule 25? The trouble is under Rule 23, kukuha pa ako ng deposition officer and I will have to course everything to him. In Rule 25, walang deposition officer. Diretsahan na ito. I will ask you a question and you will answer me. So, less expensive.

But take note, under Rule 25, you can only ask questions to your opponent. You cannot ask questions to a stranger. Unlike in Rule 23, you can take the deposition of any person whether a party or not. In Rule 25, the questioning is direct. Plaintiff questions the defendant, defendant questions the plaintiff. So, these are the differences between deposition upon written interrogatories and interrogatories to parties. Q: Distinguish INTERROGATORIES TO PARTIES (Rule 25) from DEPOSITION UPON WRITTEN INTERROGATORIES (Rule 23). A: The following are the distinctions: (4)

Under Rule 23 on Depositions upon written interrogatories, the deposition is taken before a deposition officer; whereas Under Rule 25 on Interrogatories to Parties, there is no deposition officer;

(5)

Under Rule 23 on Depositions upon written interrogatories, questions are prepared beforehand. They are submitted to the deposition officer who will ask the deponent the questions and he will record the answers.; whereas Under Rule 25 on Interrogatories to Parties, the questioning is direct. Plaintiff questions defendant, defendant questions the plaintiff. There is no third person who will intervene; and

(6)

Under Rule 23 on Depositions upon written interrogatories, the deposition of any person may be taken, whether he is a party or not, may be taken; whereas Rule 25 on Interrogatories to Parties applies to parties only. You can send interrogatories only to parties. You cannot ask question to a stranger.

SEC. 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 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. (1a)

Q: Is leave of court necessary to apply Rule 25? Do I have to apply for a court permission before I can send interrogatories to parties? A: IT DEPENDS. The Rule says “under the same conditions specified in Section 1 of Rule 23.” So the manner of resorting to interrogatories are done under the same conditions for taking of depositions. So if an answer has already been served, leave of court is not necessary. If no answer has been served, although the court has already acquired jurisdiction over the defendant, leave of court is necessary. That is the same under the rule on deposition. SEC. 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 courts, on motion and for good cause shown, extends or shortens the time. (2a)

This is related to the rule on Evidence particularly Rule 132, Section 10 [e]: Rule 132, Sec. 10. Leading and misleading questions. – A question which suggests to the witness the answer which the examining party desires is a leading question. It is not allowed except: x x x x x x x x x x x x (e) of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party. x x x x x x

Rule 132, Section 10 [e] is the provision in the Rules which authorizes a party to call the adverse party to the witness stand. A party may call the adverse party to the witness stand and interrogate him by leading questions – as an element of surprise. I can call my opponent to the witness stand and he cannot refuse. I can conduct direct examination on the adverse party and I am entitled under the Rules to ask leading questions as if he in under cross-examination because he is the adverse party. He is not actually my witness. The purpose here is to actually secure admissions from him while he is in the witness stand because anything that he says against me does not bind me even if I were the one who called him to the witness stand. But anything he might say that is against himself binds him. Under Section 6, if I intend during the trial to call him to the witness stand, I am obliged to send him ahead written interrogatories. I have to follow Rule 25. Now, if I do not send written interrogatories to him, then I have no right to call him to the witness stand. That is why Section 6 is a very radical provision. So, if I am the lawyer of a party, then binigla mo ako dahil there is really that element of surprise as it has happened several times before. The lawyer is caught by surprise when the opposing party says that it would present the adverse party to the witness stand. The lawyer is then caught off-guard as he has not talked to his client yet. Ngayon, may panlaban ka na. Pag-binigla ka, you can counter it by arguing that written interrogatories were not sent under Rule 25. Hence, you can object to the opposing counsel’s motion to call your client to the witness stand. This practically compels the lawyers to avail of the modes of discovery because if you will not compel him, chances are Filipino lawyers do not make much use of the modes of discovery. So now, if the opposing counsel suddenly sends interrogatories to you, the he must be planning to call you in the witness stand later.

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Rule 26 ADMISSION BY ADVERSE PARTY Rule 26 is also known as REQUEST FOR ADMISSION. Admission by adverse party or request for admission is similar to interrogatories. You send questions to your opponent and he’s bound to answer in writing within 15 days under oath but the framing of the questions are different. In a request for admission, you are requiring the opposing party to admit the truth or authenticity of certain documents. For example: “Do you admit the genuineness of the documents marked as Annex A?” We are talking here of DOCUMENTS which are NOT ACTIONABLE because if the document is actionable then it has to be pleaded properly. In other words, if I have 20 documents, to find out whether you will admit them or not, I will send you a copy and ask, “Do you admit the genuineness of this? Do you admit the truth?” [secreeet!] So, the main difference between Rule 26 and Rule 25 is in the framing of the question. If the question is framed in such a way that the premise is laid down and I ask you whether or not you admit, then the question is proper under Rule 26. BUT if the question if framed in such a way that it is not answerable by yes or no, then apply Rule 25. Example: Suppose my question is like this – “who was with you?” That is proper under Rule 25. Pero sabi ko, “A and B were with you, admitted?” That is Rule 26. Kaya nga the way the questions were framed determines what kind of mode of discover are you going to apply. 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)

Q: So, what will you request the other party to admit? A: The genuineness of any material and relevant document described in and exhibited with the request or of the truth in the request. Q: When do you apply this mode of discovery? A: “At anytime after issues have been joined.” Meaning, there is already an answer. Q: Is LEAVE OF COURT required under Rule 26? A: It is totally UNNECESSARY but a request for admission under Rule 26 can only be started according to Section 1, “At any time after issues have been joined.” So it presupposes that there is already an answer. Unlike in interrogatories, you can do it even before an answer is served provided there is leave of court. This is the second difference between Rule 25 and Rule 26. Sec. 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 objections are resolved, which resolution shall be made as early as practicable.(2a)

Q: So, if I send to you a request for admission, what is your duty? A: Within 15 days, you must answer my request under oath, whether admitting or denying my request. Take note, ‘under oath’ also, parang interrogatories. Q: Suppose you ignore my request within 15 days. You did not do anything. You did not bother to file any answer to my request for admission. What is the effect of failure to answer the request? A: You are deemed to have admitted. There is an implied admission of all the things that I asked you to admit. Section 2 says, each of the matters of which an admission is requested shall be deemed unless you file your answer to the request. Meaning, if you will not answer my request, under the law, all the matters which I request you to admit are deemed impliedly admitted. That is the penalty for not bothering to file your reply under Rule 26. BAR QUESTION : A sends a request for admission to B and B made an admission. However, during the trial, A did not offer in evidence the answers to the request. Can the court take judicial notice of the answers? A: Based on THE OLD RULES, it would seem NO because a request for admission is purely an extrajudicial matter between the parties. But if the same question is asked, NOW, the answer would be YES, because under the NEW RULES, you are already required to file and serve. Therefore the court may now take judicial notice because it already forms part of the record. BAR QUESTION: Suppose, I will file a case against you and I will attach to my complaint a Promissory Note – actionable document. In your answer, you deny the genuineness and due execution of the Promissory Note. Meaning, as a defense you allege that your signature is forged. There was a proper denial because it was under oath. After a week, I will now send to you a request for admission under rule 26, where I attach the same promissory note, and I will ask you, “Do you admit the genuineness and due execution of this promissory note?” Now, when you receive the request, you ignore it because you already denied the promissory note under oath in your answer. So you argue, “Why do I have to deny it again under Rule 26 when I already denied it under Rule 8? There is no need for me to deny it all over again.” I can also argue, “Even if you denied it under Rule 8, under Rule 26 you are obliged to deny it all over again. Otherwise, you are deemed to have admitted the genuineness and due execution of the document.” Who is right between the two of us? ANSWER: There was an old decided case where the SC seemed to imply that even if the matter is already denied in your pleading, if it is reiterated under Rule 26 (request for admission) it has to be denied all over again otherwise you’re impliedly admitting it. To my mind, that is already answered in the 1988 case of: PO vs. COURT OF APPEALS 164 SCRA 668

FACTS: There was an allegation made by the plaintiff in his complaint which allegation was specifically denied in the answer. Plaintiff asked the same question in a request for admission. Inulit niya ang tanong and this time the defendant did not answer the request for admission. Now, under Section 2, if the party as requested to make an admission does not make so within 15 days, the matter requested is deemed admitted - impliedly admitted - that is the penalty. If you do not want to respond to my request, everything that I requested will be impliedly admitted. Now, you already denied the allegation in my complaint specifically in your answer, I repeated it in a request for admission and this time, you failed to respond. Now, under Rule 26, the plaintiff can claim, “Well, since you did not respond, then it is already deemed admitted.” Suppose the other party would say, “No, I already denied that in my answer. There is no obligation for me to the deny the same all over again under Rule 26.” ISSUE: Is there a need for another denial in the request for admission? HELD: NO NEED. When a matter is already effectively denied in the pleading, then there is no need to ask it all over again. In other words, what has already been denied is denied and therefore you cannot say that for failure to deny it is already deemed admitted. “A request for admission is not intended to merely reproduce or reiterate the allegations of the requesting party’s pleading but should set forth relevant evidentiary matters of fact, or documents described in and exhibited with the request, whose purpose is to establish said party’s cause of action or defense. Unless it serves that purpose, it is pointless, useless, and a mere redundancy.” If we have to answer the same question under the ruling in PO, it would seem that the defendant is correct. Why do I have to deny, if I have already denied it? So, there is no implied admission. Sec. 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)

Section 3 is for the purpose of evidence. An admission made by a party pursuant to a request for admission in only good for that case. It cannot be used in any other case or proceeding. It limits therefore the effectivity of an admission. It is only valid for the pending case. Sec. 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)

Admissions made, expressly or impliedly (failure or refusal to respond) are nevertheless binding. Q: Is the party admitting allowed to withdraw, change or amend his previous admissions? A: YES, but with leave of court. Sec. 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. (n)

This is one of the more controversial sections in the new Rules. This is a mandatory mode of discovery. “A party who FAILS to FILE and SERVE a request for admission on the adverse party of material and relevant facts in issue which are or ought to be within the personal knowledge of the latter shall not be permitted to present evidence on such facts.” This is A VERY HARSH RULE – a new rule which again shows the intention of the law to compel the lawyers to avail of the modes of discovery. An example of the section: Let’s assume that there is a fact which I want to prove and I know that you know but I do not know whether you’ll admit it or not. Under the rules, I have to send you a request for admission to confirm it. Suppose I do not send you a request because anyway there are very few lawyers who do that. So, I did not send a request and then during the trial, I will just try to prove it. Then the adverse party says, “Teka muna, what are you trying to prove? You should have sent me a request for admission.” And then you say that you forgot to send one. So, the adverse party here objects because he argues that I cannot present evidence to prove something which he could have admitted in a request for admission. This is something which the party could have admitted had I resorted to a request for admission under Rule 26, and since I did not, then he can now prevent me from proving it. Hence, this is a very dangerous provision. Though, we still have to see a judge applying this rule because it is practically placing the other party in estoppel. Basically the argument will go like this: NASTY MACK: “Why did you not send me a request for admission? Had you sent me, I would have easily admitted that but since you did not, then I will bar you form proving it.” (practically every fact aimed to be proved can be objected to BEN-DEATHA: “How could I have known what facts you will admit and not admit?” NASTY MACK: “Precisely, that is why you should have sent me a copy, STUPID!” See how dangerous this provision is? I can bar you from proving anything simply because you failed to avail of the modes of discovery. This was not found in the Old Rules. Generally, matters which are objectionable should be pushed by the party concerned or affected. That is because it is for his benefit. I do not think it involves public policy that’s why even if you invoke it, the court may still refuse to apply it. Look at the opening of the first paragraph: “Unless otherwise allowed by the court for good cause and to prevent a failure of justice.” So that’s an exception. So, even if you are correct, the judge may say that it’s too much. Even if you invoke it, the judge may still say that there will be failure of justice if he will apply it. With more reason, no judge will use it if you will not invoke it. It is practically barring the party from proving his case. That is why even if you invoke this, judges are very careful not to apply this. So, you have to invoke this at least, to call the attention of the judge though the judge may still refuse because there might be a failure of justice.

The only purpose I see for these is to compel the parties and lawyers to avail of the Modes of Discovery. Let’s go to some interesting cases on request for admission. REBONERIA vs. COURT OF APPEALS 216 SCRA 627 [1992] FACTS: A request for admission was sent by a party (Plaintiff) to the lawyer of the defendant (because anyway, under Rule 13, the general rule is that everything should be coursed through the lawyer) So, the request was sent to the lawyer. Since there was no response, can there be an implied admission? HELD: NONE. In a request for admission, since we are questioning the party, we should address it to him, and not to the lawyer. A request for admission should be served upon the party, not his counsel. The general rule under Rule 13 cannot apply where the law expressly provides that notice must be served upon a definite person. In such cases, service must be made directly upon the person mentioned in the law and upon no other in order for the notice to be valid. But the case of REBONIA should not be confused with the case of PSCFC FINANCING CORP. vs. COURT OF APPEALS 216 SCRA 838 [1992] FACTS : A request for admission was sent to a party. The party told his lawyer to answer the request. So, it was the lawyer who answered the request for admission under oath. ISSUE: Was there an effective answer or reply to the request for admission as it was the lawyer who made the reply ? HELD : YES, because under the Rules, a client can always act through the lawyer and he is bound by the actuations of his lawyer. This is practically the rule on Agency. If we will say that the lawyer has no authority even if ordered by the client , then we are altering the Rules on Agency and also the rule that the lawyer can always act in behalf of his client. And assuming that a lawyer is not authorized to make the complaint, then why is the adverse party the one complaining? It is the client who has the authority to impugn the acts of his lawyer and not the adverse party. Timang!! Principles to remember in the case of REBONERIA and PSCFC:

25.)A request must be directed to the party whose admission is sought. Service of request to any other person is not a valid request at all. 26.)A request must always be directed to the party whose admission is sought, but the latter may delegate to his lawyer the right to answer the request. Such is valid so long as there is a valid authorization.

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Rule 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS SEC. 1. Motion for Production or inspection; order – Upon motion of any party showing good cause therefore, 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 intangible 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 to permit entry upon designated land or other property in his possession for control for the purpose of inspecting, measuring, surveying or photographing the property of 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)

EXAMPLE: Harry Potter sued Voldemortz. The case involves accounting. Voldemortz is in possession of several invoices and receipts which he would present in trial. Harry wants to get hold of and inspect all these documents. Since these are not actionable documents, Voldemortz is not required to show or include them in the pleadings. No need to plead. So, Harry want to see these books, photographs, accounts, objects which Harry know Voldemortz will present during the trial. If Harry will ask Voldemortz to show these things, I don't think Voldemortz will accommodate Harry. Q: In the above example, what is the remedy of Harry? A: Harry will apply Rule 27 by filing a motion in court stating that Voldemortz is in the possession of such documents and Harry would like to see, inspect or have them copied, provided they are relevant and not privileged. And the court will issue an order directing Voldemortz on a specified time on place to bring them for purposes of inspection, survey, copying, photocopying, etc. Voldemortz have no choice but to show Harry all these objects. EXAMPLE: Harry sued Voldemortz for recovery of ownership of land. Voldemortz in possession and such is in a position to enable to properly describe the land and all its improvements. Harry would like to see the property to inspect and survey the same. Q: What is Harry’s remedy? A: File a motion in court to permit him (Harry) to enter the land for purposes of inspecting, measuring, surveying or photographing the property. And the court will issue an order specifying the time, place and the manner of inspection. Now, Harry will have an access to the documents, things, land, etc. which are under Voldemortz’s control or possession. Q: Give the requisites of production or inspection of documents or things (Rule 27)? A: The following are the requisites: 4.) A motion (leave of court) must be filed by a party showing good cause therefor; 5.) Notice of the motion must be given to all other parties; 6.) The motion must sufficiently describe the document or thing sought to be produced or inspected;

7.) The document or thing sought to be produced or inspected must constitute or contain evidence material to the pending action; 8.) The document or thing sought to be produced or inspected must not be privileged; and 9.) The document or thing sought to be produced or inspected must be in the possession of the adverse party or, at least, under his control. (Section 1, Rule 27; Lime Corp. vs. Moran, 59 Phil. 175; Alvero vs. Dizon, 76 Phil. 637) NOTE: Rule 27 is not the same as Rule 21 on subpoena duces tecum. Therefore, the next question is: Q: Distinguish Production or Inspection of Documents or Things under Rule 27 from Subpoena duces tecum under Rule 21. A: The following are the distinctions: 22.) Rule 27 is essentially a mode of discovery (simply to discover), whereas Rule 21 on subpoena duces tecum is a means of compelling production of evidence which must be brought to court; 23.) Rule 27 is limited to parties in the action, whereas Rule 21 on subpoena duces tecum may be directed to any person, whether a party or not; 24.)

The order under Rule 27 is issued only upon motion with notice to the adverse party, whereas A subpoena duces tecum under Rule 21 may be issued upon an ex-parte application.

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Rule 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS This is the fifth and last mode of discovery. So in order to even things, I will have to request you to submit to a neutral doctor or psychiatrist for a physical or mental examination. So the court will issue an order. Konti man lang ang kasong ganito. For example, damage suit in damage cases, the plaintiff may be exaggerating his injuries. The only way to confirm it is to have another doctor examine him to find out whether his injury is really genuine or sinadya may be for the purpose of securing a bigger mount of damages. Remember the joke which we mentioned in Evidence about the plaintiff who met an accident na na-dislocate yung shoulder, so permanent ang injury. So when he testified in court, he was asked to raise his arm – higher, higher please! No more – the injury is permanent. Sabi ng court, “So that was after the accident. What about before the injury? How high can you raise you arm?” A, ganito o! So there is no more need for a physical examination because he has already demonstrated it (he was just exaggerating his injury). SEC. 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 a physical or mental examination by a physician (1) SEC. 2. Order for examination – The order for examination may be made only upon 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)

Rule 28 applies in all actions where the mental or physical condition of a party is in question or controversy. EXAMPLES: a.) annulment of marriage on the ground psychological incapacity. Under the Family Code, however, the state of psychological incapacity must not have been existing only now for the first time. It must have existed at the time of the marriage; b.) annulment of marriage on the ground of impotency. The court can issue an order to subject the party to undergo physical or medical examination by a doctor to test whether the allegation is true or not; c.) annulment of contract on the ground of insanity at the time of execution (lack of consent); d.) Physical disability due to quasi-delicts (e.g. vehicular accident). If I am the defendant and I believe that you are merely exaggerating the extent of your injury so that your claim for damages will be higher, and diskumpiyado ako sa doctor mo, I will ask the court to issue an order for you to undergo physical examination by another doctor, so that we will know whether your claim is really valid or not. Q: Give the requisites of physical and mental examination of persons under Rule 28: A: The following are the requisites: 1.) The physical or mental condition must be a subject of controversy of the action; 2.) A motion showing good cause must be filed; and 3.) Notice of the motion must be given to the party to be examined and to all other parties.

Sec. 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 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) Sec. 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)

Example: Maya is subjected to examination by a doctor upon motion by Dino under Rule 28. So Maya asks for a copy of the finding after examination. When Maya asks for the finding, Dino can also ask for Maya’s examination by the personal doctor of Maya, previously made or thereafter. The doctor cannot be compelled to relay what the patient told her. So if the doctor refuses to deliver such report, then under Section 3, he cannot testify. He cannot give evidence. Also, once a party asks for a report of the examination, he automatically waives the privilege of physician-patient relationship. So if Dino does not want to waive the privilege, he should not ask a copy of the report of the physician. Q: Going back to the different modes of discovery, when is leave of court required? Not required? A: In the following cases: 1.) Depositions 2.) 3.) 4.) 5.)

– pending action, no answer filed yet – pending action, answer filed already – before action or pending appeal Interrogatories – no answer filed yet – answer filed already Request for admission Production or Inspection of Documents or Things Physical and Mental Examination of Persons

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REQUIRED NOT REQUIRED REQUIRED REQUIRED NOT REQUIRED NOT REQUIRED REQUIRED REQUIRED

Rule 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY Rule 29 forms part of the study of the modes of discovery. The policy on modes of discovery is that it is allowed and encouraged to determine, at earlier time, essential issues and to promote settlement or expeditious trial. Lawyers should avail of the modes of discovery because they are very helpful in determining the issues and will even provoke a settlement if you believe na wala kang laban. And there were circulars issued by the SC on this matter. Example Circular No. 13-87 (July 13, 1987) where the SC said that lawyers and parties should encourage to avail the modes of discovery procedures provided for in the rules. This is a neglected area in judicial process. Its use will expedite the determination of cases. Mode of discovery are popular in the US. 99 percent of lawyers in the US avail of these procedures. Practically, all parties avail the same even before the trial. At pre-trial stage, all evidence are already prepared for the case. In the Philippines, it is the exact opposite. Filipino lawyers rarely resort to modes of discovery despite the admonition by the SC. Siguro, it is our culture. As much as possible we want to keep things to ourselves. [pinapalabas na lang sa pwet! he! he!] Remember DBP vs. CA on the issue of pre-trial where Justice Narvasa complained of the courts and the parties to avail 100% of the process of pre-trial? There is another case naman involving the modes of discovery where the same Justice lamented the inability of lawyers and even judges to effectively apply the modes of discovery. I’m referring to the case of REPUBLIC vs. SANDIGANBAYAN 204 SCRA 212 HELD: “It appears to the Court that among far too many lawyers (and not a few judges), there is, if not a regrettable unfamiliarity and even outright ignorance about the nature, purposes and operation of the modes of discovery, at least a strong yet unreasoned and unreasonable disinclination to resort to them— which is a great pity for the intelligent and adequate use of the deposition-discovery mechanism, coupled with pre-trial procedure, could, as the experience of other jurisdictions convincingly demonstrates, effectively shorten the period of litigation and speed up adjudication.” “Evidentiary matters may be inquired into and learned by the parties before the trial. The desideratum is that civil trials should not be carried on in the dark. The Rules of Court make this ideal possible through the deposition-discovery mechanism set forth. The experience in other jurisdictions has been that ample discovery before trial, under proper regulation, accomplished one of the most necessary ends of modern procedure: it not only eliminates unessential issues from trials thereby shortening them considerably, but also requires parties to play the game with the cards on the table so that the possibility of fair settlement before trial is measurably increased.”

“The various modes or instruments of discovery are meant to serve (1) as a device, along with the pre-trial hearing under Rule 18, to narrow and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts relative to those issues.” “Hence, the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponent’s case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has ill his possession. The deposition-discovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility, of surprise.” SEC. 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)

Q: If a party or deponent refuses to answer a question on oral examination or written interrogatories under Rule 25, what is your remedy? A: You go to court and get an order to compel him to answer. And he can be held liable for the reasonable expenses incurred in obtaining the order including attorney’s fees. SEC. 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) SEC. 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

INSULAR LIFE ASSURANCE CO., LTD. vs. COURT OF APPEALS 238 SCRA 88 [1994] FACTS: There was a refusal here of one party to answer an interrogatory. So the other party asked the court to issue an order. The court then ordered the other party to answer, but he still refused. So, the plaintiff filed a motion for judgment of default against the defendant (or dismissal of the case) citing Section 5 – where if one refuses to cooperate, the case will be dismissed or a judgment of default can be rendered against the party. But the judge ruled that the case shall continue. The party now went to the SC contending that the judge committed a grave abuse of his discretion in refusing to apply the sanctions allowed by law. HELD: While it is true that there are sanctions allowed by law in cases of refusal to comply with the modes of discovery, the same is DISCRETIONARY. Meaning, let the court decide whether justice will be served by going to trial or not. So there was no grave abuse of discretion on the part of the judge. “The matter of how, and when, the above sanctions should be applied is one that primarily rests on the sound discretion of the court where the case is pending, having always in mind the paramount and overriding interest of justice. For while the modes of discovery are intended to attain the resolution of litigations with great expediency, they are not contemplated, however, to be ultimate causes of injustice. It behooves trial courts to examine well the circumstances of each case and to make their considered determination thereafter. It is only in clear cases of grave abuse of that discretion when appellate courts will interfere in their judgment.” In other words, courts are still given the leeway of whether or not to apply the ultimate sanctions. NOTE: The ruling in this case was reiterated in the 1996 case of SANTIAGO LAND DEVELOPMENT CO. vs. CA, July 9, 1996 (258 SCRA 535) and the 1998 case of DELA TORRE vs. PEPSI-COLA PRODUCTS, October 30, 1998 (298 SCRA 363) FORTUNE CORPORATION vs. COURT OF APPEALS 229 SCRA 355 ISSUE: Are the 5 modes of discovery cumulative or exclusive? Can a party resort to any modes of discovery or are they intended to be an exclusion of the other? HELD: “The various methods of discovery as provided for in the Rules are clearly INTENDED TO BE CUMULATIVE, as opposed to alternative or mutually exclusive.” “Under the present Rules the fact that a party has resorted to a particular method of discovery will not bar subsequent use of other discovery devices, as long as the party is not attempting to circumvent a ruling of the court, or to harass or oppress the other party.” There was a time when I did this. I used a variety or combination of the different modes. I was

interested in knowing some evidence from the other party. So, interrogatories, then sagot. I asked them on how they were going to prove it and whether they going to present witnesses and documents. Yes daw. So, I used production and inspection na naman. So may order na naman. If they have witnesses to be presented, then deposition na naman. In other words, we can avail all of this. There was this veteran practitioner who was one of my idols. He’s already retired but his style was that he handled only about four cases a year para total effort and attention ang maibigay niya. But he charges big. In the millions for his fees, aaraw-arawin ka niyan ng modes of discovery. So the other counsel will have no time. That’s why pag-sinabi ng cliente na si Atty. so and so ang kalaban, dinodouble nila ang charge because they know na maraming trabaho kapag siya ang kalaban. After a while, the lone case will become 10 cases already para sa iyo sa dami ng trabaho if he is the counsel of your opponent. So the modes of discovery can be used to really squeeze everything out of your opponent. Q: To summarize, what are the instances when a defendant shall be considered in default even if such defendant has already filed an answer? A: The following are the instances: 23.) Failure to appear at the pre-trial conference (Rule 18); and 24.) Failure to cooperate in the mode of discovery (Section 5, Rule 29).

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